Chapter I

PRELIMINARY CONSIDERATIONS

Concept of Evidence”, Truth as Purpose

1. The term is by Sec. 1 of Rule 128 of the Rules of Court as follows:

"SECTION Evidence defined. — Evidence is the means sanctioned by these rules, of

in a judicial proceeding the truth respecting a matter of fact."

2. The very tenor of the definition clearly indicates that not every circumstance
which affords an inference as to the truth or falsity of a matter alleged is
considered evidence. To be considered evidence, the same must be
"sanctioned" or allowed by the Rules of Court. It is not evidence if it is excluded by
law or by the Rules even if it proves the existence or non-existence of a fact in
issue. a hearsay evidence, a coerced extrajudicial confession of the accused
and an evidence obtained in violation of constitutional rights even if ultimately
shown to correspond to the truth, do not fall within the definition of Sec. 1 of Rule
128.

3. The definition provided for under Sec. 1 of Rule 128, significantly considers
"evidence" not as an end in itself but merely as a "means" of ascertaining the truth
of a matter of fact. Equally significant is the observation that "evidence" as defined
in the Rules of Court is a means of ascertainment of the truth not in all types of
proceedings but specifically in a "judicial proceeding."

4. Evidence is required because of the presumption that the court is not aware
of the veracity of the facts in a case. It is there• fore incumbent upon the parties
to prove a fact in issue thru the presentation of admissible evidence.

5. While the purpose of evidence is to know the truth, the truth referred to in the
definition is not necessarily the ac• tual truth but one aptly referred to as
the judicial or the legal truth. The limitations of human judicial systems cannot
al• ways guarantee knowledge of the actual or real truth. Actual truth may not
always be achieved in judicial proceedings be• cause the findings of the court
would depend on the evidence presented before it.

Under Sec. 34 of Rule 132, courts, as a rule, are not even authorized to
consider evidence which has not been for• mally offered. Thus, a supposed
evidence that would undoubt• edly show the innocence of the accused will not be
considered in the decision of the court if not formally offered in evidence. If it is
evidence to the contrary that has been formally offered, it is the latter which the
court is bound to consider or appreci• ate. For instance, while it may be the
actual truth that it was Mr. X who shot Mr . Y, if the available evidence presented
and admitted in court points to Mr . Z as the culprit, then the judi• cial or legal
truth is that it was Mr . Z, not Mr . X, who shot Mr . Y.

Scope and Applicability of the Rules on Evidence

 1. The rules on evidence in the Rules of Court are guided by the principle of
uniformity. A a general policy, he rules on evidence shall e the same in all courts an
in all trials and hearings(Sec. w, Rule 128, Rules of Court)

2. The rules on evidence, being components of the Rules of Court, applu only
to judicial proceedings9Sec. 1, Rule 128, Rules of Court). In relation to this, Sec. 4,
of Rule 1 Provides for the non-applicability of the Rules of Court, including
necessarily the rules on evidence, to certain specified prcoeedings. The Provision
declares

SEC. 4. In what cases not applicable. — These Rules shall not apply to election
cases, land registra• tion, cadastral, naturalization and insolvency proceed• ings,
and other cases not herein provided for, except by analogy or in a character and
whenever practicable and convenient."

4. The Civil Service Commission for example, conducts its investigations for the
purpose of ascertaining the truth without necessarily adhering to technical rules of
procedure applicable in judicial proceedings. It was therefore, sustained by the
Supreme Court when it validly appreciated certain documents in resolving the
formal charge against respondent inspite of the fact that they wer e not duly
authenticated but the contents of which were not disputed by respondent and
whose only objection was that they were not duly authenticat• ed (Civil Service
Commission v. Colanggo, G.R. No. 174935, April 30, 2008).

5. Earlier, in In Ong Chia v. Republic (328 SCRA 749), the Court once again
emphasized that the rule on formal offer of evidence is not applicable to a case
involving a petition for naturaliza• tion. In Ong Chia, the Regional Trial Court
rendered judg• ment in favor of the petitioner's application for naturalization. On
appeal, the Court of Appeals reversed the Regional Trial Court and denied the
application for naturalization on the basis of documents not earlier
formally offered in the trial court, raised for the first time on appeal
and merely attached to the appellant's brief for the State. Petitioner
contends that under Sec. 34, Rule 132 of the Rules of Court, only
evidence that has been formally offered shall be considered by the
court. Brush• ing aside petitioner's contention, the Court held that
the rule on formal offer of evidence is not applicable to a case
involving a petition for naturalization unless applied by analogy
or in a suppletory character and whenever practicable and conve•
nient.
6. A more recent case, Sasan Sr. v. NLRC (G.R. No. 176240, October 17, 2008),
further illustrates the rule on the non-applicability of the Rules of Court including the
rules of evidence, to non-judicial proceedings.

In this case the respondent, in support of its material allegations, submitted

before the NLR C several documents which it did not present before the Labor
Arbiter. Largely on the basis of those documents presented for the time on
appeal, the NLR C promulgated its decision modifying the rul• ing of the Labor
Arbiter.
 Distressed by the decision of the NLRC , the petitioners sought recourse with
the Court of Appeals by filing a petition for certiorari under Rule 65 of the Rules of
Court. In its deci• sion the Court of Appeals affirmed the findings of the NLR C
holding that the NLR C did not commit a grave abuse of dis• cretion.

In the Supreme Court, the petitioners raised as one of the issues the
acceptance and consideration by the NLR C of the evidence presented for the first
time on appeal. The Supreme Court ruled that the issue is not a novel procedural
issue, and that Philippine jurisprudence is replete with cases allowing the NLR C to
admit evidence, not presented before the Labor Arbiter, and submitted to the NLR C
for the first time on ap• peal.

7. In the Sasan case, the petitioners likewise inter• posed a protest against
the documentary evidence submitted by the adverse party because they were
mere photocopies

The Court, in dismissing the objection, stressed once again that even
assuming that petitioners were given mere photocopies, the proceedings before the
NLR C are not covered by the technical rules of evidence and procedure as
observed in the regular courts. Technical rules of evidence do not ap• ply if the
decision to grant the petition proceeds from an ex• amination of its sufficiency as
well as a careful look into the arguments contained in position papers and other
documents (Sasan, Sr. v. NLRC, supra).

8. to administrative or quasi-judicial proceedings likewise found expression in

the earlier case of Bantolino v. Coca Cola Bottlers, Inc., (403 SCRA 699).

Here, the Court re• iterated previous rulings that the rules of evidence are
not strictly observed in proceedings before administrative bodies where decisions
may be reached on the basis of position pa• pers only. The Court disregarded the
findings of the Court of Appeals which among others, considered the affidavits of
the petitioners as mere hearsay and thus could not be admitted in evidence
against their employers. The Court unequivocally ruled that in a labor case, it is not
necessary for an affiant to appear and testify and be cross-examined by counsel for
the adverse party on his affidavit.

When Evidence is Required; When Not Required

1. The basic rule is that, a mere alleaation is not eevidence and is not equivalent to
proof. For example, a charge based on mere suspicion and speculation cannot be
given credence( Agdeppa v. Office of the Obudsman, G.R. No. 146376, April 23,
2014).

Evidence is the means of proving a fact. As the defi• nition

says, it is offered to ascertain the truth "respecting a matter of
. Where no factual issue exists in a case, there is no need to
present evi• dence because where the case presents a question of
law, such question is resolved by the mere application of the
relevant statutes or rules of this jurisdiction to which no evidence is
required.

2. In certain instances, evidence is no loner required to proe an

assertion, as in the following:

(a). Whe n the pleadings in a civil case do not tender an issue of

fact, a trial need not be conducted since there is no more reason
to present evidence. The case is then ripe for judi• cial
determination through a judgment on the pleadings pur• suant to
Rule 34 of the Rules of Court.

(b). Presentation of evidence may, likewise be dispensed with by

agree• ment of the parties. The parties to any action are allowed
by the Rules to agree in writing upon the facts involved in the
litigation and to submit the case for judgment upon the facts
upon, without the introduction of evidence 6, Rule 30, Rules of
Court).

©. Evidence is not required on matters of judicial notice (Sec. 1,

Rule 129, Rules of Court) and on matters judi• cially
admitted (Sec. 4, Rule 129, Rules of Court).

d. When the law presumes the truth of a fact.

Ex. An injured passenger sues a common carrier for breach of

contract of carriage, evidence of the negligence oof the defendant
is dispensed with based on 1756 of NCC.

e. not required when the rules presumes the truth of the fact. Rule
131 of ROC
The tenant is not permitted to deny the title of his landlord at
the time of the commencement of the relation of landlord and
tenant between them. This presumption is conclusive against the
tenant. (2b,Rule 131 ROC). Disputable presumption is offi cial
regularly performance of duty. (Sec. 3(m) Rule 131 ROC).

Application of the Rules on Electronic Evidence

The application of the rules of evidence in the Rules of Court

contrasts with the application of the Rules on Elec• tronic
Evidence. While the defi nition of under the Rules of Court
makes reference only to judicial proceedings, the provisions of
the Rules on Electronic Evidence apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases.
Sec. 2, Rule 1 of the Rules on Electronic Evidence provides:
"Sec. 2. Cases covered. — These Rules shall apply to all civil actions
and proceedings, as well as quasi-ju• dicial and administrative
cases."
2. It was held in Ang vs CA that e-evidence do not apply to criminal
actions. However, in People vs Enojas, the text messages was
admitted by the court against the accused.

Evidence in Civil Cases Distinguished from Evidence in Criminal Cases

Section 2 of Rule 128 declares that the rules of evi• dence shall be
the same in all trials and hearings, except as otherwise provided by law
or these rules. To declare that the rules of evidence shall be the same in
all courts and in all tri• als and hearings, is not to say however, that
there are abso• lutely no distinctions between a civil and a criminal
proceed• ing. Indeed, there are certain evidentiary differences between
these proceedings.

In civil cases, the party having the burden of proof must

prove his claim by a preponderance of evidence (Sec. 1, Rule
133, Rules of Court). In criminal cases, the guilt of the ac•
cused has to be proven beyond reasonable doubt (Sec. 2, Rule
133, Rules of Court).

In civil cases, an offer of compromise is not an admis• sion of

any liability, and is not admissible in evidence against the
offeror. In criminal cases except by negligence, an offer of the
accused may admitted as an implied admission of guilt.

In civil cases, the concept of presumption of inno• cence does

not apply and generally there is no presumption for or against a
party except in certain cases provided for by law. Example: A
common carrier is presumed to have been at fault or negligent in
case a passenger is injured in the course of his transportation
by the carrier (Art. 1756, Civil Code of the Philippines).In
criminal cases, the accused enjoys the constitutional
presumption of innocence (Sec. 14, Art. Constitution of the
Philippines).

In civil cases, evidence of the moral character of a party is

admissible when pertinent to the issue of character involved in
the case (Sec. Rule 130, Rules of Court). In criminal case, this
is not the case.

The privileged communication between a physician and his patient

applies only to criminal case not in civil acses. Sec 24, 130 ROC.

Distinction Between Proof and Evidence

Proof is not the evidence itself. There is proof only because
of evidence. It is merely the probative effect of evi• dence and is
the conviction or persuasion of the mind result• ing from a
consideration of the evidence (29 Am Jur 2d, Evi• dence, §2).
 Evidence is the medium of proof. Proof is the effect or result
of evidence.

Factum Probans and Factum Probandum

Evidence signifies a relationship between two facts, namely:

1) the fact or proposition to be established (factum
and
2) the facts or material evidencing the fact or
proposition to be (factum probans) (Wigmore, Principles
of Judicial Proof, 5).
Stated in another way, the factum probandum is the fact to
be proved; the fact which is in issue and to which the evidence is
directed. On the other hand, is the probative or evidentiary
fart tending the fact in issue (Black's Law Dictionary, 5th 533).

Thus, if P claims to have been injured by the negligence of D

who denies having been negligent, the negligence of D and the
causal connection between such negligence, and the injuries of P
taken as a whole, constitute the factum proban• dum of the suit.
Th e evidence offered by P, whether it be ob• ject, documentary or
testimonial, constitute the materials to prove the liability of D. Th e
totality of the evidence to prove the liability refers to the factum
probans.

Th e factum probandum in a certain case may be af• fected by

the judicial admissions of a party. For instance, if the defendant
in a suit based on a culpa aquiliana theory ad• mits his
negligence in his answer to the complaint, there is no more need to
prove negligence. Hence, negligence ceases to be a factum
probandum in the case.

If the factum probandum "signifies the fact or proposition to

be established," then matters of judicial notice, conclusive
presumptions and judicial admissions cannot qualify as parts of
the factum probandum of a particular case, because such matters
need not be established or proven.

In practical terms, the factum probandum in a civil case refers

to the elements of a cause of action from the point of view of
the plaintiff and the elements of the defense from the standpoint
of the defendant.

absence of any admission by the defendant, the factum probandum

of the plaintiff would be:
1) the existence of the debt of the defendant;
2) the maturity of the debt;
3) the demand made by the plaintiff upon the de• fendant to
pay; and
4) the failure to pay despite the demand.
 In a criminal case, the factum probandum includes all
matters that the prosecution must prove beyond reason• able
doubt in order to justify a conviction.
1) Thus, in a prosecution for robbery, the prosecu• tion has the
burden to prove the following matters be• yond reasonable
doubt:
2) that there be personal property belonging to another;
3) that there is unlawful taking of that prop•erty;
4) that the taking is with intent to gain; and
5) that there is violence against or intimida• tion of persons
or force upon things. (Art. 293, Re vised Penal Code; People v.
Sandoval, 254 SCRA 436).

To an accused for illegal possession of firearms and

explosives, the factum probandum would be the two (2 ) essential
elements which must be indubitably established,
) the existence of the subject firearm or ex• plosive which may
be proved by the presentation of the subject fi rearm or
explosive or by the testimony of witnesses who saw accused in
possession of the same, and;
) the negative fact that the accused had no license or permit to
own or possess the firearm or explosive which fact may be
established by the testi• mony or certification of a representative of
the PN P Firearms and Explosives Unit that the accused has no
license or permit to possess the subject firearm or explosive.
Even if the firearm or explosive is presented in court, the failure of
the prosecution to prove the absence of a permit to own or
possess the firearm or explosive is fatal to its cause. Th e essence
of the crime penalized is primarily the lack of license or permit to
carry or possess the firearm, ammunition or explosive as possession
by self is not prohibited by law.

In a prosecution for illegal sale of prohibited or dangerous

drugs, what determines if there was a sale of dangerous drugs is
proof of the concurrence of all the ele• ments of the offense.
Conviction is proper if the following elements concur:
1) the identity of the buyer and the seller, the object, and the
consideration; and
2) the delivery of the thing sold and the pay• ment therefor.

Liberal Construction of the Rules of Evidence

Like all other provisions under the Rules of Court, the

rules of evidence must be liberally construed (Sec. 6, Rule
Rules of Court). Rules of Procedure are mere tools intended to
facilitate rather than to frustrate the attainment of justice. A strict
and rigid application of the rules must always be es• chewed if
it would subvert their primary objective of enhanc• ing
substantial justice.
 Althoug strict compliance with the rules of procedure is
desired, liberal interpretation is warranted in cases where a strict
compliance of the rules will not serve the ends of justice.

There is no vested right in the rules of evidence de Roxas v.

Case, 8 Phil. 197) because the rules of evidence are subject to
change by the Supreme Court pursuant to its powers to
promulgate rules concerning pleading, practice and proce• dure
(Sec. 5[5], Constitution of the Philippines). The change in the
rules of evidence is however, subject to the constitutional limitation
on the enactment of ex post facto laws (Art. Sec. 22, Bill of
Rights, Constitution of the Philippines). An ex post facto law
includes that which alters the rules of evidence and receives less or
different testimony than that required at the time of the
commission of the offense in order to convict the accused (Mekin
v. Wolfe, 2 Phil. 74).

Waiver of the Rules of Evidence

The rules of evidence may be waived. When an oth• erwise
objectionable evidence is not objected to, the evidence becomes
admissible because of waiver.

For instance, while as a rule hearsay evidence is exclud• ed

and carries no probative value, the rule admits of an excep• tion.
Where a party failed to object to hearsay evidence, then the same
is admissible (SSS Chemicals Corporation v. Court of Appeals,
G.R. No. 128538, February 28, 2001).

2. Ma y the parties stipulate waiving the rules of evi• dence?

The Civil Code of the Philippines (Art. 6) provides that may be
waived, unless the waiver is contrary to law, public order, public
policy, morals, or good customs or prejudi• cial to a third person
with a right recognized by law." As long as no law or
principles of morality, good customs and pub• lic policy are
transgressed or no rights of third persons are violated, the
rules of evidence may be waived by the parties.

B. Admissibilit y o f Evidence

Requisites for the Admissibility of Evidence

Section 3 of Rule 128 provides:

"SECTION 3. Admissibility of evidence. — Evi• dence is admissible when is

relevant to the issue and not excluded by the law orrules."
 Thus, for evidence to be admissible, two elements must concur, namely:
1)the evidence is relevant; and
2. the evidence is not excluded by the rules.

These two elements correspond to Wigmore's two axioms of admissibility,

namely: (a ) Tha t none but facts having ra• tional probative value are admissible;
and (b ) Tha t all facts having rational probative value are admissible unless some
specific rule forbids them (I 289-295). Th e first axiom is, in substance, the
axiom of relevance while the second is the axiom of competence.
No evidence is admissible unless it is relevant. How• ever, relevancy alone
does not make the evidence admissible.
Neither is evidence admissible merely because it is com• petent. Although
evidence is competent, it is still inadmissible if it is not relevant. Th e formula for
admissibility is a simple one. To be admissible, the evidence must be both relevant
and competent.

Illustrations of the Requisites for Admissibility

1) In a prosecution for homicide, the witness swears that the accused killed
the victim because his ever truthful boyhood friend him Th e testimony, although
relevant is not admissible because the witness was not testifying based on his
personal knowledge of the event. Th e testimony and this type of evidence is, as a
rule, excluded by the 36, Rule 130, Rules of Court). In short, the testimony offered
is relevant but incompetent.

2. ) In a prosecution for robbery, the wife of the accused testified that the
husband admitted to her in confidence that it was he who their neighbor. If the
testimony is offered as evidence against the husband and is objected to by the
latter, the testimonial evidence will be inadmissible virtue of a particular
provision of the Rules of Court which excludes it as specie of evidence
notwithstanding its obvious relevance to the issue of guilt (Sec. 24[a], Rule 130,
Rules of Court). Here the testimony is also relevant but incompetent.

3.) In a civil case for collection of a sum of money, the tes• timony of an eyewitness
to the transaction between the credi• tor and the debtor is competent evidence
because the witness would be testifying on the basis of his personal knowledge.
However, if the subject of the testimony includes the alleged frequent bouts
of dizziness of the debtor, that portion of the testimony is made inadmissible by the
fact that the matters testified to are irrelevant to the issue of whether or not a debt
exists. In this case the testimony becomes irrelevant.
4. A defense witness testifies having actually seen the alleged victim fire a gun at
the accused without the provocation. The testimony of the eyewitness is
competent and the matters testified to are relevant to the plea of self-defense. The
testimony is thus, admissible. It is not only relevant but competent as well
5.) Upon a timely objection, oral evidence will be ex• cluded to prove a contract
of a sale of a parcel of land which does not conform to the statute of
frauds (Art. 1403[2], Civil Code of the Philippines). Even if the evidence is relevant
to the issue of existence or non-existence of the contract, it is inad• missible
because it is excluded by law hence, incompetent.
6.) Documents obtained in violation of constitutional guarantees although
containing relevant matters are inad• missible because they are illegally obtained
as when evidence is illegally seized (Sec. 3[2], Art. Constitution the Philip•
pines).

Relevant Evidence

Under Sec. 4 of Rule 128, evidence to be relevant must have such a

relation to the fact in issue as to induce belief in its existence or non-existence.
Th e concept of relevance is clearly one of logic. It deals with the rational
relationship be• tween the evidence and the fact to be proved. In other words, the
evidence adduced should be directed to the matters in dis• pute and any
evidence which has neither direct nor indirect relationship to such matters must
be set aside as irrelevant.

The matter of relevance under the Rules of Court requires the existence of a
fact in issue. Necessarily, this fact in issue must be a disputed fact. Since
relevant evidence nec• essarily relates to a disputed fact, it is obvious that
evidence offered to prove an undisputed fact is irrelevant, and, as such, is
inadmissible. Where there is no issue as to a matter of fact, there exists no
purpose for an item of evidence.

It is the relation to the fact in issue which makes evidence either relevant or
irrelevant. If the evidence induces belief as to the existence or the non-existence of
the fact in is• sue, the evidence is relevant. If it does not induce such belief, it is
irrelevant.

Although competency of the evidence is a necessary component of

admissible evidence, the question that most often arises in court is the relevance
of the evidence. Whe n an advocate offers a piece of evidence for the court's
consideration, he offers the evidence to prove a fact. This fact may either be the
immediate fact in issue or the ultimate fact in issue.

Tak e the standard car accident as example. Counsel for the plaintiff
presents the testimony of another car driver to testify to the following: that the
defendant was driving at a speed of one hundred twenty (120) kilometers per hour
in a sixty (60) kilometer limit zone at the time plaintiff was side- swiped and injured
by the defendant. The witness claims he knows whereof he speaks because he saw
everything that transpired. Whether or not such testimony meets the test of
relevance will depend upon what counsel wants to prove by the testimony. Initially
of course, counsel would want to prove that at the time of the accident, the
defendant was driving way beyond the speed limit. This is the immediate fact
sought to be established. Since there is a traceable connection between the
substance of the testimony and the fact to be proven, the testimony is relevant. On
the other hand, if the testimony is offered to prove that the defendant is a thief,
the testimony has no logical connection at all to the fact sought to be proven.
Certainly, there is no connection between driving at a very fast pace and the
defendant's being a thief. The testimony is hence, irrelevant.
Relevance further requires that the immediate fact prov• en must have a
connection to the ultimate issue. In the car accident case just illustrated, assume
that counsel has estab• lished through the witness that the defendant was
driving way beyond the speed limit at the time of the accident. Estab• lishing such a
fact is not however, sufficient. This fact must be shown to be related to the
ultimate issue in the case. Now, the usual ultimate issue in every automobile
accident case is whether or not the damage caused to the plaintiff arose out of
the defendant's negligent operation of his car. The ques• tion that should
necessarily be asked is: Is the immediate fact proven, i.e., defendant's driving
beyond the speed limit, re• lated to the issue of negligence? If it is, then the fact
proven is relevant evidence. If it is not related to the issue of negligence, it is
irrelevant.

Test for Determining the Relevancy of Evidence

Because of the definition of relevant evidence under Sec. 4 of Rule 128, it is

obvious that relevance is a matter of relationship between the evidence and a fact
in issue. Th e determination of relevance is thus, a matter of inference and not
of law.The test would therefore, be one of logic, common and experience.

2. The existence of the relationship between the fact in issue and the offered
evidence is one that is perceived only by the mind without reference to a statute or
a rule. It is there• fore, a matter of reasoning. It is a matter of reasoning because
relevance is a matter of logic. Th e matter of relevance is a matter that is addressed
to the court. Th e case of People v. Galleno, 291 SCR A 761, is enlightening:

"There is no precise and universal test of relevancy provided by law. However, the
determination of whether particular evidence is relevant rests largely at the discre
tion of the court, which must be exercised according to the teachings of logic and
everyday experience."

Collateral Matters
A matter is collateral when it is on a "parallel or di• verging line," merely
"additional" or "auxiliary" (Black's Law Dictionary, 5th 237). This term connotes
an absence of a direct connection between the evidence and the matter in
dispute.

2. For instance, the motive of a person and in some in• stances, his
reputation are matters that may be considered collateral to the subject of a
controversy. A very strong motive to kill the victim does not ipso facto make
motive relevant to the issue of guilt or innocence because the person with abso•
lutely no motive to kill could be the culprit. Evidence of the bad reputation of
the accused for being troublesome and ag• gressive does not make the
evidence admissible to prove his guilt. After all, the culprit could have been the
person with the most endearing reputation.

When Collateral Matters are Allowed

As a rule, evidence on a collateral matter is not al• lowed (Sec. 4, Rule 128,
Rules of Court). It is not allowed cause it does not have direct relevance to the
issue of the case. This rule however, is not an absolute rule. Ther e exists an
occasion when evidence on a collateral matter maybe allowed. Under the Rules of
Court, a collateral matter may be admitted if it tends in any reasonable
degree to establish the probability or improbability of the fact in issue (Sec. 4,
Rule 128, Rules of Court). In other words, while the evidence may not bear directly
on the issue, it will be admitted if it has the tendency to induce belief as to the
probability or improbability of the issues of the case as when it would have the
effect of corrobo• rating or supplementing facts previously established by direct
evidence.

To illustrate: Although evidence of character is generally inadmissible (Sec.

51, Rule 130, Rules of Court), the accused may prove his good moral character
which is pertinent to the moral trait involved in the offense charged (Sec.51a
Rule 130, Rules of Court).

In civil cases, evidence of the moral character of a party is admissible when

pertinent to the issue of character involved in the case (Sec. Rule 130, Rules
of Court). Also, evi• dence of the good character of a witness is admissible if his
character has been previously impeached (Sec. 14, Rule 132, Rules of Court).

Relevance of Evidence on the Credibility of a Witness

Evidence on the credibility or lack of it of a witness is always relevant.
In every proceeding, the credibility of the witness is always an issue. Th e
credibility of the witness has the inherent tendency to prove or disprove the
truthfulness of his assertion and consequently, the probative value of the
proffered evidence. Ever y type of evidence sought to be ad• mitted, whether it
be an object or a document, requires the testimony of a witness who shall
identify, testify and affirm or deny the authenticity of the evidence. Thus, when
the cred• ibility of the sponsoring witness is found wanting, Sec. of Rule 132,
authorizes his impeachment by contradictory evi• dence, by evidence that in
the past, he has made statements inconsistent with his present testimony or by
evidence that his general reputation for truth, honesty or integrity is bad.
In the assessment of the testimonies of witnesses, the Court is guided by
the rule that for evidence to be believed, it must not only proceed from the
mouth of a credible witness, but must be credible in itself such as the common
experience of mankind can approve as probable under the circumstances. There is
no test of the truth of human testimony except its conformity to our knowledge,
observation, and experience. Whatever is repugnant to these belongs to the
miraculous, and is outside of juridical cognizance
The importance of the credibility of a witness in a judicial proceeding is
highlighted by rules which allow the adverse party to test such credibility
through a process called cross examination. Hence, under Sec. 6 of Rule
132, a witness may be cross-examined by the adverse party not only on
matters taken up in the direct examination. The broad spectrum of the questions
allowable in a cross-examination of a witness includes questions on matters
connected with those taken up in the direct examination. It includes questions
designed to grant the cross-examiner sufficient fullness and freedom to test the
accuracy and truthfulness of the witness, his interest or bias, or the reverse. It
likewise covers inquiries into matters that would elicit all important facts bearing
upon the issue.
 Since Sec. 6 of Rule 132 affirms the legitimacy of inquiries into the credibility
and biases of a witness, any objection to a question that intends to demonstrate the
lack or absence of credibility of the witness on the ground that it is irrelevant or
merely collateral does not deserve to be sustained.
There are however, instances provided for in the rules when the questions of the
cross-examiner are circum• scribed by the matters taken up in the direct
examination and thus questions outside the subject matter of the direct exami•
nation are not allowed.
) An accused may testify as a witness on his own behalf subject to cross-
examination on matters cov• ered by the direct (Sec. l[d], Rule Rules of
Court).
A hostile witness may be impeached and cross- examined by the adverse party, but
such cross-examina• tion "must only be on the subject of his examination-in-
chief." (Sec. 12, Rule 132, Rules of Court)

Competent Evidence

Competent evidence is one that is not excluded by law in a particular case

(Moran, Comments on the Rules of Court, Volume 5, 1980, citing Porter v.
Valentine, 18 Misc. Rep. 213, 41 N.Y.S. 507; Hart v. Newland, 10
122; Ryanv. Town 63 26, 27, 309). admissibil• ity of the evidence depends
on its relevance and competence (Tating v. Marcella, G.R. No. 155208, March 27,
2007;italics supplied).

If the test of relevance is logic and common sense, the test of competence
is the law or the rules. If the law or a particular rule excludes the evidence, it is
incompetent. Com• petence is primarily therefore, a matter of law or a matter of
rule. Th e question as to competence is: Is the evidence allowed by the law or by
the rules? If it is allowed, the evidence is com• petent. If it is not allowed, it is
incompetent.

Imagine and assume for the sake of illustration that a rule of evidences has
just been adopted mandating that only documentary evidences to which have been
attached a yellow ribbon on the bottom right corner may be marked and admit• ted
in evidence. If the adverse counsel presents for identifica• tion and marking a
document to which had been attached a red ribbon, the document is to be
excluded because it is not competent. It is incompetent because the rule says
so regard• less of its demonstrable logical relation to the fact in issue.

Competence, in relation to evidence in general, refers to the eligibility of an

evidence to be received as such. How• ever, when applied to a witness, the term
competent refers to the qualifications of the witness. In other words, competence
refers to his eligibility to take the stand and to testify. It is in this context that the
term is normally associated with. Thus, a trial objection employing the ground
incompetent is usually used in relation to the ineligibility of a witness to testify
be• cause of the presence of a disability that renders him unfit to sit on the
If evidence offered is objectionable on the ground that it is incompetent, an
objection that it is incompetent is not an accepted form of objection because it
is a general objection. The objection should specify the ground for its
incompetence such as leading, hearsay or parol. Although evidence is in•
competent if excluded by law or by the rules, evidence is not objected to on the
ground that it is incompetent. It is so gen• eral a term and cannot be
appreciated in court. Courts nei• ther need nor appreciate generalities. General
objections are viewed with disfavor because specific objections are required by Sec.
36, Rule 132 of the Rules of Court. Thus, for purposes of trial objections, evidence
is never incompetent. It is people who are. It is sloppy usage to object to a
testimony or a docuas incompetent. Such term more appropriately describes a
witness who under evidentiary rules, does not possess the qualifications of a
witness or suffers from a disqualification to be one.

Competence of Electronic Evidence

Electronic evidence is competent evidence and is admis• sible if it

complies with the rules on admissibility prescribed by the Rules of
Court and is authenticated in the manner pre• scribed (Sec. 2, Rule
3, Rules on Electronic Evidence).

Admissibility and Weight of the Evidence

The admissibility of evidence should not be confused with its probative

value. Admissibility refers to the question of whether certain pieces of evidence
are to be considered at all, while probative value refers to the question of
whether the admitted evidence proves an issue. Thus, a particular item of
evidence may be admissible, but its evidentiary weight de• pends on judicial
evaluation within the guidelines provided by the rules of evidence (Heirs of
Lourdes Saez Sabanpan v. Cor-408 SCRA 692).

Stated in another way, the admissibility of evidence should not be equated

with the weight of the evidence. The ad• missibility of the evidence depends on its
relevance and com• petence while the weight of evidence pertains to its tendency
to convince and persuade. A particular item of evidence may be admissible but
its evidentiary weight depends on judicial evaluation with the guidelines provided
by the rules of evi• dence (Tating v. Marcella, G.R. No. 155208, March 27,
2007).

Multiple Admissibility

1. There are times when a proffered evidence is admissible for two or more
purposes. Thus, depending upon the circumstances, the declaration of a dying
person may be ad• missible for several purposes. It may be offered as a dying
declaration (Sec. 37, Rule 130, Rules of Court), as part of the res gestae (Sec.
42, Rule 130, Rules of Court) or as a declara• tion against interest (Sec. 38, Rule
130, Rules of Court). Th e statement by a bus driver immediately after the collision
that he dozed off in the wheel while driving may be admissible as an admission
under Sec. 26 of Rule 130 or as part of the res gestae pursuant to Sec. 42 of Rule
130.

Sometimes it inadmissible for one purpose but ad• missible for another or
vice versa. For instance, evidence of a person's bad general reputation for truth,
honesty, or integrity is objectionable if offered to prove that he committed the
crime charged but it may be admissible to impeach the credibility of a witness
under the authority of Sec. of Rule 132.
Evidence may also be admissible against one party but not against another.
An extrajudicial statement of a rob• bery suspect is not admissible against his co-
accused under the res inter alios acta rule but may be admissible against the
declarant himself as an admission pursuant to Sec. 26 of Rule 130.

ARALIN/BASAHIN
CONDITIONAL ADMISSIBILITY
CURATIVE ADMISSIBILITY

DIRECT AND CIRCUMSTANCIAL EVIDENCE

Direct evidence means evidence which if proves the existence of a fact

or pre• sumption (State v. Mclure, Mo. 504 S.W. 2d 664, 668 as cited
in Black's Law Dictionary, 5th Ed. In short, direct evidence proves a fact
without the need to make an in• ference from another fact.
Thus, the testimony of the prosecu• tion witness claiming that he
personally witnessed the attack by the accused on the victim without the
latter's provocation is DIRECT TESTIMONIAL EVIDENCE.

Circumstantial evidence is that evidence that indi• rectly proves a fact in

issue an inference through which the fact finder draws from the evidence
established (People v. Matito, 423 SCRA ).
In other words, in this type of evidence, the court uses a fact from which an
assumption is drawn. When the court does not have to make an inference from
one fact to arrive at a conclusion, the evidence is direct. For instance, the testimony
of the victim that he dreads the mere presence of the accused is direct evidence
that the statement was made. However, it is also circumstantial evidence to show
that this fear prevented the victim from attacking the accused without provocation.

Conviction by Circumstantial Evidence (fro 2009 book)

In a criminal case, circumstantial evidence may be sufficient for conviction
provided the following requisites concur:
1) There is circumstance;

2.) The facts from which the inferences are derived are and
3.) The combination of all the circumstances is such as to produce a beyond
reasonable doubt .

2. Al l the circumstances proved must be consistent with each other, and they
are to be taken together as proved. Being consistent with each other, and, taken
together, they must point unerringly to the direction of guilt and mere sus• picions,
probabilities, or suppositions do not warrant a con• viction (Underhill, Criminal
Evidence, 4th §18; People v. Pascual, G.R. No. 172326, January 19, 2009).
Cumulative Evidence and Corroborative Evidence

Cumulative evidence refers to evidence of the same kind and character as

that already given and that tends to prove the sameproposition Wyne v.
Newman, 75 811, 817 as cited in Moran, Comments on the Rules of Court,
Vol. 5, 1980, p. 3).
For example, when a witness testifies that he saw the event testified to
and two other witnesses testify having seen the same event which the first witness
claimed he saw, the subsequent testimonies constitute cumulative evidence.

Corroborative evidence is one that is supplementary to that

already given tending to strengthen or confirm it. . It is additional
evidence of a different character to the same point (Edwards v.
Edwards, Tenn. 501 S.W. 2d 283. 289 as cited in Black's
Law Dictionary, 5th p. 311).

As commonly used, the term connotes evidence which tends to

confirm, vali• date, or strengthen evidence already presented.
Thus, if W testifies that the gun marked as Exhibit was the
weapon used in the shooting of the victim, the findings of the crime
laboratory that the gun bears only the fingerprints of the ac• cused
corroborates the testimony of W.
Corroborative evidence is a diff erent type from that
previously offered but which tends to prove the same fact. For
instance, a witness claims that he saw Mr . X sign the document
subject of the action. Mr . X denies the authenticity of his
signature. Evidence by a handwriting expert that the signature is
indeed that of Mr . X is corroborative evidence. Here , we have a
testimonial evidence from an eyewitness, and a testimony from an
expert who did not personally witness the signing of the document.
Although traditionally, this type of evidence is of a diff er• ent type
from the one it corroborates, the meaning of corrobo• rative
evidence has been loosely used in local courts so as to cover also
evidence of the same kind as that already as long as it affi rms the
previous evidence. For instance, the testimony of X that he saw Y
hack the victim with a cor• roborates the previous testimony of
Z that indeed he saw Y strike the victim wit h a bladed weapon.
Here, the previous testimony is corroborated by evidence of the
same kind, i.e., testimonial evidence from eyewitnesses. In this
sense, the cor• roborating evidence is also cumulative since the
evidences are of the same kind and character.
testimony is not always required. For example, in a case,
the accused avers that his conviction for is without legal basis
because there was no other evi• dence, documentary or
testimonial, establishing his alleged crime except for the
uncorroborated testimony of the prosecu• tion witness.
In clear terms, the Supreme Court, speaking through Justice
Regalado held:
it also bears mention that the testimony of a single prosecution
witness, where credible and positive, is suffi cient to prove beyond
reasonable doubt the guilt of the accused. There is no law which
requires that the tes-of a single witness has to be except where
expressly mandated in determining the value and credibility of
evidence. Witnesses are to be weighed, not numbered" (People v.
Pabalan, G.R. No. 115350 and G.R. Nos. 117819-21, September 30,
1996).

4. In People u. Rama (350 SCRA 266), the defense faults the trial
court for relying on a single eyewitness account in convicting the
accused Rama. The Court dismissed the argu• ment declaring that
it has long been held that the testimony of a sole eyewitness is
suffi cient to support a conviction so long as it is clear,
straightforward and worthy of credence by the trial court.
Corroborative evidence is necessary only when there are
reasons to suspect that the witness falsifi ed the truth or that his
observations are inaccurate (Mangangey u. Sandiganbay- an,
G.R. Nos. 147773-74, February 18, 2008).

Under the Rule on Examination of a Child Witness, cor•

roboration shall not be required of a testimony of a child. His
testimony if credible by itself, shall be suffi cient to support a
finding of fact, conclusion or judgment subject to the standard of
proof required in criminal and non-criminal cases (Sec. 22, Rule on
Examination of a Child Witness; People v. Rama, su• pra).

Positive and Negative Evidence

These categories of evidence have been normally as• sociated with

testimonial evidence but there is no rule which precludes their
application to other forms of evidence. Thus, evidence is said to
be positive when a the stand that a certain state of facts
does exist or that certain event. It is negative when the
witness states that event did not occur or that the state of facts
alleged to exist doesexist. Thus, the testimony of W that he
saw P fire a gun at the victim is a positive evidence. The testimony
of W that he could not have fired the gun because he was not
armed during the incident, is a negative evidence.
Positive and negative evidence may likewise refer to the
presence or absence of something. Thus, the presence of fin•
gerprints of a person in a particular place is positive evidence of
his having been in said place although absence of his fin• gerprints
does not necessarily mean he was not in the same place.
A negative finding on a paraffi n test is not a conclusive that
one has not fired a gun because it is possible for a person to a
gun and yet bear no traces of nitrates or powder, as when the
culprit washes his hands or wears gloves.
A mere denial, without any strong evidence to support it, can
scarcely overcome the positive declaration by the other victim of
the identity and involvement of the accused in the crime attributed
to him (People v. Nieto, 547 SCRA 511). De when
unsubstantiated by clear and convincing evidence, is negative and
self-serving, which deserves no greater evi• dentiary value than the
testimony of credible witnesses who testify on affi rmative matters
(People v. Maglente, G.R. No. 179712, June 27, 2008; People v.
Montesa, G.R. No. 181899, November 27, 2008).

Competency of a witness distinguished from his credibility

1. The competency of a witness differs from his credibility. A
witness may be competent, and yet give incred testimony; he
may be incompetent, and yet his evidence, if received, is perfectly
credible (Black's Law Dictionary, 5th 257).

2. The eaning of credibility in law means believability.

Admissible Evidence Distinguished from Credible Evidence

Evidence is admissbile when it is relevant to the issue and is

not exclude b the law or rules.
Admissible evidence is not necessarily credible evi• dence.
Admissibility and credibility must be sharply contrast• ed. The y
are entirely two different matters and involve diff er• ent concepts.
Th e term admissible means that the evidence is of such a
character that the court, pursuant to the rules of evidence, is
bound to receive it or to allow it to be introduced at the trial.
Admissibility however, does not guarantee cred• ibility.
Admissibility is one thing and credibility is another.
Inadmissible Evidence in Connection with Arrests, Searches
and Seizures
Many cases decided by the courts raising the issue of ad•
missibility of evidence have been those connected to searches as
consequences of warrantless arrests by law enforcement
authorities.
A landmark 1988 case, People vs aminnduin (163 SCRA
402), demonstrates the inadmissibility of evidence due to the
legal infirmity of an arrest with the requisites of the
flagrante delicto exception. Here, two days before the arrest,
constabulary offi cers received a tip from an informer that the
accused was on board an identified vessel on a particular date
and time and was carrying marijuana. Acting on the information,
they waited for the accused and ap• proached him as he descended
the gangplank of the ship and arrested him. A subsequent
inspection of his bag disclosed the presence of three kilos of
marijuanaCourt de• clared as inadmissible in evidence the
marijuana found in the possession of the accused as a product of
an illegal search and not being an incident to a lawful arrest.
Emphatically, the Su• preme Court ruled that the accused was
not, at the moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just done so. He
was merely de• scending the gangplank of the ship and there was
no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana that he suddenly
became a suspect and so subject to apprehension. The court
added that from the information received by the offi cers, they
could have obtained a warrant since they had at least two
days to apply for the same but the offi cers made no efforts
to comply with the bill of rights. They chose to ignore the law.
The marijuana is incompetent evidence because its seizure was
illegal. Th e seizure was not incident to a valid arrest.

In People v. Molina (352 SCRA 174), the conviction by the

trial court was reversed and set aside when the Su• preme Court
declared as invalid an arrest made merely on the basis of reliable
information that the persons arrested were carrying marijuana.
The accused were arrested while inside a pedicab despite the
absence of any outward indications of a crime being committed.
Similarly, in Malacat v. Court of Appeals (283 SCRA the
Supreme Court declared that a warrantless arrest cannot be
justified where no crime is be• ing committed at the time of
the arrest because no crime may be inferred from the fact that
the eyes of the person arrested were "moving fast" and "looking
at every person" passing by.

Another classic case that illustrates an invalid ar• rest and a

subsequent illegal search and seizure is People v. Mengote (210
SCRA 174). Th e issue on the legality of the ar• rest, search and
seizure stemmed from a telephone call to the police from an alleged
informer that suspicious looking men were at a street corner in
Tondo shortly before noon. Th e po• lice operatives dispatched to
the place saw three men one of whom turned out to be Mengote,
who was "looking from side" clutching his abdomen. The operatives
approached the three men and introduced themselves as
policemen. Tw o of them accordingly tried to run away but the
attempt was foiled. Th e search yielded a revolver in the
possession of Mengote and a fan knife in the pocket of another.
Mengote contends that the revolver should not have been admitted
in evidence because its seizure was a product of an illegal search
and not made as an incident to a lawful arrest.
Th e Court ruled that the requirements of a warrantless arrest were
not complied with. There was no offense which could have been
suggested by the acts of Mengote of looking from side to side while
holding his abdomen. Observed the Court:

"These are certainly not sinister acts. * * He was not skulking in

the shadows but walking in the clear light of day. There was nothing
clandestine about his being on that street at that busy hour in the
blaze of the noonday sun. * * * By no stretch of the imagination
could it have been inferred from these acts that an offense had
just been committed, or was at least being attempted in their
presence."

One relatively recent case (People v. Laguio, Jr.,

G.R. No. 128587, March and which drew much from the ruling in
Aminnudin likewise aptly illustrates the appli• cation of the
doctrine. In this case, two men were arrested while they were
about to hand over a bag of shabu to a police offi cer. Questioned,
the arrested men told police operatives working for a modelling
agency owned by a certain Wang that they knew of a scheduled
delivery of shabu early the follow• ing morning and that their
employer, Wan g could be found at a certain apartment building in
Malate, Manila. The police operatives decided to look for Wan g to
shed light on the illegal drug activities of his alleged employees and
proceeded to the location of the apartment and placed the same
under surveil• lance.
When Wan g came out of the apartment towards a parked car, two
other police offi cers approached Wang, introduced themselves to
him as police offi cers, asked his name and, upon hearing that
he was Wang, immediately frisked him and asked him to open
the back compartment of the car. When frisked, there was
found inside the front right pocket of Wang a pistol with live
ammunition which was later verifi ed to be unlicensed. At the same
time, the other members of the opera• tives searched the car and
found inside it were transparent plastic bags with shabu, cash in
the amount of electronic and mechanical scales, and another
unlicensed pis• tol with magazine. Then and there, Wan g objected
to the war• rantless arrest and search.
The Supreme Court, in no uncertain terms declared that the facts
and circumstances surrounding the case did not manifest any
suspicious behavior on the part of Wan g that would reasonably
invite the attention of the police. He was merely walking from the
apartment and was about to enter a parked car when the police
operatives arrested him, frisked and searched his person and
commanded him to open the compartment of the car. He was not
committing any visible offense then. Therefore, there can be no
valid warrantless ar• rest in flagrante delicto under paragraph (a )
of Section 5, Rule
It is settled, said the Court, that reliable information alone, absent
any overt act indicative of a felonious enterprise in the presence
and within the vie w of the arresting offi cers, is not suffi cient
to constitute probable cause that would justify an in flagrante
delicto arrest People v. Binad Sy Chua,
444 Phil. 757 and People v. Molina, 352 SCRA 174).

In Jr., what is clearly established from the testimonies of the

arresting offi cers said the Court, is that Wang was arrested mainly
on the information that he was the employer of the two men who
wer e previously arrested and charged for illegal transport of
shabu. The y did not in fact identify Wan g to be their source of
the shabu when they were caught in flagrante delicto. Upon their
declaration that there will be a delivery of shabu on the early
morning of the following day and that Wan g may be found in an
apartment building in Malate, the arresting offi cers conducted what
they termed was a operation in front of said apart• ment, hoping
to find a person who will match the description of Wang, the
employer of the arrested men.

The conclusion of the trial court that the warrantless ar• rest
was illegal and that ipso jure, the warrantless search incidental to
the illegal arrest is likewise unlawful was sustained by the
Supreme Court.

In Valdez v. People (G.R. No. 170180, November 23, 2007), the

prosecution's evidence indicated that petitioner was arrested
without a warrant. Whe n he alighted from a bus at around 8:30
in the evening, he was accordingly looking around seemingly
searching for something and appeared sus• picious. Besides, he
allegedly ran when the tanods approached him. After his arrest
following a chase, dried marijuana leaves wer e found inside his
bag according to the barangay tanods. Hi s conviction by the
Regional Trial Court was affi rmed by the Court of Appeals. Th e
accused prayed for his acquittal on appeal to the Supreme Court
alleging among other defenses, that this warrantless arrest was
illegal and that the warrant• less search of his bag was likewise
contrary to law.

the facts including his vehement denial of ownership and

possession of the seized items, the petitioner's unlawful arrest
stands out just the same. No t one of the circumstances prevailing
under 5 of Rule authorizing warrantless ar• rests applies to the
arrest of the petitioner. Petitioner was not committing a crime at
the time he alighted from the bus, nor did he appear to be
committing a crime. The act of petitioner
of looking around after getting off the bus was but natural as he
was finding his way to his destination. That he purportedly
attempted to run away as he was approached is irrelevant and
cannot by itself be construed as adequate for a tanod to have
personal knowledge that petitioner had just engaged in, was
actually engaging in or was attempting to engage in criminal
activity. It is not unreasonable to expect the petitioner, after being
approached by unknown persons at night to attempt to flee at
their approach. Flight is not a reliable indicator of guilt. When
petitioner was arrested without a warrant, he was nei• ther caught
in flagrante delicto committing a crime nor was the arrest
effected in hot pursuit. The Court in effect ruled on the
inadmissibility of the seized evidence.

c. MISCELLANEOUS DOCTRINES

Falsus in Uno, in Omnibus

Literally falsus in uno, falsus in omnibus means "false in oneTHINg
false in everything (Dawson v. Bertolinin,
R.I 325, 765, 768). It is particularly applied to the
testi• mony of a witness who may be considered unworthy of belief
as to all the rest of his evidence if he is shown to have testified
falsely in one detail.
The maxim falsus in uno falsus in omnibus is not an
absolute rule of law and is in fact rarely applied in modern
(People v. Batin, G.R. No. November 22, 2007). It deals only
with the weight of the evidence and is not a positive rule of law. Th
e rule is not an infl exible one of universal application. trend in
jurisprudence favors more flexibility when the testimony of a
witness may be partly believed and partly disbelieved depending on
the corrobora• tive evidence presented at the trial (People v.
Negosa, Phil 861).
It is not positive rule of law and is not ap• plied in this
jurisdiction. Before this maxim can be applied, the witness must
be shown to have wilfully falsified the truth on one or more
material points. Th e principle presupposes the existence of a
positive testimony on a material point contrary to subsequent
declarations in the testimony (Northwest Air• lines, Inc. v. G.R.
No. 155550, January 31, 2008).
For instance, in People v. Letigio (268 SCRA 227), the accused
alleged that both prosecution witnesses in certain aspects of their
testimony had "deliberately and wantonly lied" in inculpating him,
and he contends that the maxim in uno, falsus in should be
applied for his exculpation.
Quoting an earlier pronouncement in People Mana- lansan
(189 SCRA 619), the Court stressed:

The maxim falsus in unus, falsus in omnibus does not lay down
a categorical test of credibility. While the witnesses may differ in
their recollections of an inci• dent, it does not necessarily follow
from their disagree• ments that all of them should be disbelieved
as liars and their testimonies completely discarded as worthless."

In People v. Pacapac (248 SCRA 77), the Court added that the
maxim
be applied to portions of the testi• mony corroborated by
other evidence, particularly where the false portions could be
innocent mistakes. Moreover, the rule is not mandatory but merely
sanctions a disre• gard of the testimony of a witness if the
circumstances so warrant. To completely disregard all the
testimony of a witness on this ground, his testimony must have
been false as to a material point, and the witness must have
a conscious and deliberate intention to falsify a material point."

Alibi; not always false

Alibi is not always false and without merit (People v.
G.R. No. 180499, July 9, 2008). Contrary to the common
notion, alibi is not always a weak defense. Sometimes, the fact
that the accused was somewhere else may just be the plain and
unvarnished truth. But to be exonerating, the de• fense of alibi
must be so airtight that it would admit of no ex• ception. It must be
demonstrated that the person charged with the crime was not only
somewhere else when the offense was committed, but was so far
awa y that it would have been physi• cally impossible to have been
at the place of the crime or its immediate vicinity at the time of its
commission. Th e reason is that no person can be in two places
at the same time (Peoplev. Baro, 383 SCRA 75; People v. G.R.
No. 176349, July 10, 2007).

Delay and Initial Reluctance in Reporting a Crime

Delayed reporting by witnesses of what they know about a
crime does not render their testimonies false or
for the delay may be explained by the natural reticence of most
people and their abhorrence to get involved in a criminal
case. But more than this, there is always the inherent fear of
reprisal, which is quite understandable, especially if the accused
is a man of power and influence in the community. The natural
reluctance of a witness to get involved in a criminal case, as well as
to giv e information to the authorities is a mat• ter of judicial
notice (People v. Navarro, 297 SCRA 331).

****

Flight or Non-flight of the Accused

Flight per se is no synonymous with guilt. When flight is
unexplained, it is circumstance from which an inference of guilt may
be drawn.’ Indeed, the wicked flee when no man pursueth, but the
innocent are bold as a lion. Flight betrays a desire to evade
responsibility and is, therefore, a strong indication of guilt.

BURDEN OF PROOF, QUANTUM OF EVIDENCE AND PRESUMPTIONS

A — Burdn of Proof an d Burde n of Evidenc e

Burden of Proof

The burden of proof, or "onus probandi," tradition• ally

refers to the obligation of a party to the litigation to per• suade the
court that he is entitled to relief.
The term is in Sec. 1, Rule 131 of the Rules of Court,
thus:
"Section 1. Burden of — Burden of proof is the duty of a party
to present evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required by law."

It is thus, inaccurate to state that the burden of proof solely

rests on the shoulders of the plaintiff. The burden of proof, under
the clear terms of Sec. 1 of Rule 131, is the duty party to present
evidence not only to establish a claim but also a defense. It will
be observed that the rule does not define burden of proof as the
duty of the plaintiff but as the duty of a "party." Hence, if a party
alleges the existence of a fact, that party has the burden of proof
whether that party is the plain• tiff or the defendant. If the plaintiff
for example, alleges that the defendant owes him a sum of
money, the plaintiff has the
burden to prove the debt. If the defendant asserts that he has paid
the debt, then he has the burden to prove payment.
Test for Determining where Burden of Proof Lies

Th e test for determining where the burden of proof lies is to

ask which party to an action or suit will fail if he of• fers no
evidence competent to show the facts averred as the basis for the
relief he seeks to obtain. If the defendant has affi rmative defenses,
he bears the burden of proof as to those defenses which he sets
up in answer to the cause of action. Hence, if the defendant sets
up the affi rmative defense of prescription, he must prove the date
when prescription be• gan to run (Aznar Brothers Realty Co. v.
Aying, 458 SCRA 496; Bank of the Philippine Islands v. Spouses
Royeca, G.R. No. 176664, July 21, 2008).
Th e burden of proof rests with the party who wants to
establish a legal right in his favor. For instance, one who asserts a
right to a preliminary injunction has the burden to prove the right.
Th e burden of proof is on the part of the party who makes the
allegations — ei probatio, qui dicit, non qui negat. If he claims
a right granted by law, he must prove his claim by competent
evidence, relying on the strength of his own evidence and not upon
the weakness of that of his opponent Banking Corporation v. Ta
Fa Industries, Inc., G.R. No. April 30, 2008).

Where Burden of Proof is Fixed

The burden of proof is fixed by the pleadings. The claim of the

plaintiff which he must prove, is spelled out in his com• plaint. The
defendant's defenses which he must likewise prove are to be found
in his answer to the complaint. The burdens of proof of both
parties do not shift during the course of the trial.
For instance, as previously adduced, the burden of proof to
establish that the defendant owes the plaintiff remains with the
plaintiff; the burden of proof to establish that the loan has been
paid remains with the defendant throughout the litiga• tion (Bank
of the Philippine Islands v. Spouses Royeca, G.R. No. 17664, July
21, 2008).

Burden of Evidence

1. The burden of evidence is the duty of a party to go forward with

the evidence to overthrow the prima facie evi• dence against him
(Bautista v. Sarmiento, 138 SCRA 587). The burden of going
forward with the evidence may shift from one side to the other as
the exigencies of the trial require (Chamberlayne, Sec. 203, 108,
169), and shifts with alternat• ing frequency (People v. 46
Cal. App. Pac. 656; Chamberlayne, Modern Evidence, Vol. 2,
cited in Underhill, Criminal Evidence, 4th §50).
As the trial progresses, one party may have presented evidence
that weigh heavily in his favor and suffi cient to con• vince the
court of the justness of his claim. If this occurs, the other party
has the burden to come forward with his own evi• dence to
counteract whatever positive impression which the evidence of the
other party may have been created in the mind of the court. This
duty, also called the burden of coming for• ward with the
evidence Jones on Evidence, p. 523), is what is referred
to as burden of evidence.
To illustrate: In insurance cases, where a risk is ex• cepted by
the terms of a policy, loss from such a risk consti• tutes a defense
which the insurer may urge, since it has not assumed that risk, and
from this it follows that an insurer seeking to defeat a claim has the
burden of proving that the loss comes within the purview of the
exception or limitation set up. If a proof is made of a loss
apparently within a contract of insurance, the burden is upon the
insurer to prove that the loss arose from a cause of loss which is
excepted or for which it is not liable, or from a cause which limits
its liability. Con• sequently, it is suffi cient for the insured to prove
the fact of damage or loss. Once the insured makes out a prima
facie case in his favor, the duty or the burden of evidence shifts to
the insurer to controvert the insured's prima facie case. It is only
when the insurer has suffi ciently proven that the dam• age or
loss was caused by an excepted risk does the burden of evidence
shift back to the insured who is then under a duty of producing
evidence to show why such excepted risk does not release
petitioner from any liability (DBP Pool of Insur• ance Companies v.
Radio Mindanao Network, Inc., G.R. No. 147039, January.

Equipoise Rule or Equiponderance Doctrine

The equipoise doctrine is based on the principle that no one

shall be deprived of life, liberty or property without due process
of law 1, Art. Constitution of the Philip• pines).
 The doctrine refers to a situation where the evidence of the
parties are evenly balanced or there is doubt on which side the
evidence preponderates. In this case the decision should be
against the party with the burden of proof. Hence, where the burden
of proof is on the plaintiff and the evidence does not suggest that
the scale of justice should weigh in his favor the court should
render a verdict for the defendant (Ri• vera v. Court of Appeals,
284 SCRA 673; Marubeni Corp. v. Lirag, G.R. No. 130998,
August 10, 2001).
In a criminal case, the equipoise rule provides that where the
evidence is evenly balanced, the constitutional presump• tion of
innocence tilts the scales in favor of the accused. Thus, where the
inculpatory facts and circumstances are capable of two or more
explanations one of which is consistent with the innocence of the
accused and the other consistent with his guilt, then the evidence
does not fulfill the test of moral cer• tainty and is not suffi cient to
support a conviction (People v. Saturno, 355 SCRA 578; Malana v.
People, G.R. No. 173612, March 26, 2008).

Th e equipoise rule however, is not applicable where the

evidence presented is not equally weighty, such as where the
evidence of the prosecution is overwhelming (Malana v. People,
G.R. No. 173612, March 26, 2008).

Presumptions

Concept of Presumptions

A presumption is an assumption of fact resulting from a rule

of law which requires such fact to be assumed from another fact
or group of facts found or otherwise estab• lished in the action
(Black's Law Dictionary, 5th 1067 cit• ing Uniform Rule 13; NJ
Evidence Rule 13). A presumption is an inference of the
existence or non-existence of a fact which courts are permitted to
draw from proof of other facts (In the Matter of the Intestate
Estates and Rustia, G.R. No. 175733, January 27, 2006).
A presumption is not evidence (California Evidence Code
cited in Black's Law Dictionary, 5th They merely aff ect
the burden of offering evidence (1 Wharton's Criminal Evidence,
Sec. 64).
In a sense, a presumption is an inference which is man• datory
unless rebutted (29 Am Jur 29, Evidence, §181).
Example: D is the debtor of C, creditor for million pay• able in
twelve equal monthly installments. If evidence is introduced that
the installment payment for December has been received by the
creditor, a presumption arises that pre• vious installments have
been paid. This is because under the law, the receipt of a later
installment of a debt, without reser• vation as to prior shall give
rise to the presump• tion that such installments have been paid
(Art. Civil Code of the
Inference Distinguished from a Presumption
An inference is a factual conclusion that can ratio• nally be
drawn from other facts Identics Corp. v. Southern Pacific Co.
It is in other words, one that is a result of the reasoning
process. It need not have a legal effect because it is not
mandated by law. A fact finder is free to accept or reject the
inference.

A presumption on the other hand, is mandated by law and

establishes a legal relation between or among the facts. As put by
an American a rule of law directing if a party proves certain facts at
a trial or hearing, the factfinder must also accept an additional fact
(presumed fact) as proven unless suffi cientevidence is introduced
tending to rebut the presumed fact. In a sense, therefoe, a
presumption is an inference which is mandatory unless rebutted.

Thus, if X proposes marriage to Y, it may be inferred that X is

in love with Y. This is a mere inference and has in fact no legal
effect. There are no legal relations established by the mere fact
that one is in love. On the other hand, if X enters into a contract of
sale of a car with Y, there arises a pre• sumption that the contract
was entered into with a suffi cient cause or consideration (Sec. 3[r],
Rule 131, Rules of Court) and although the cause is not stated in
the contract, it is presumed that it exists and is lawful, unless the
contrary is proven (Art. 1354, Civil Code the Philippines). The
presumption involved has a definite legal effect.

Kinds of Presumptions
Presumptions are classified into presumptions of law and
presumptions of fact. Presumptions of law are, in turn, either
conclusive or disputable (In the Matter of the Intestate Estates
and Rustia, G.R. No. 175733, January 27, 2006).
p.448

The presumption that an accused is innocent of the crime

charged until the contrary is provn is a presumption f law embodied
in the Constitution. Art. 1756 of the Civil Code also illustrates
another presumption of law. Under the said provisions, in case of
death or injuries to passengers, common carrier are presumed to
have been at fault or to have acted negligently.

An assumption of fact does not arise from any direction of the

law. It arises because reason itself allows a presumption from the
facts. If A attacks B without suffi cient provocation, the logical
presumption arises that A does not have tender feelings towards B.
A presumption of fact is, in effect, actually a mere inference
because it does not necessarily give rise to a legal effect.

This mus be the reason for the trend to discard the distinction
between a presumption of fact and a presumption of law.

Effect of Presumption

A party in whose favor the legal presumption exists may rely

on and invoke such legal presumption to establish a fact in issue.
One need not introduce evidence to prove the fact for a
presumption is prima Facie proof of the fat presumed.( Diesel
Construction Co., Inc., v UPSI Property Holdings, Inc., 549 SCRA 12)

Meaning of Conclusive Presumption(Bar 2012)

As classified in Rule 131 of the Rules of Court, a pre• sumption

may either be:
1) conclusive (presumptions juris et de jure); pr
2) disputable/disputable (presumption juris tantum).

A presumption is conclusive when the presumption becomes

irrebuttable upon the presentation of the evidence and any
evidence tending to rebut the presumption is not ad• missible.

Thus, the Supreme Court taught that Conclusive presumptions

have been defined as "inferences which the law makes so pe•
remptory that it will not allow them to be overturned by any contrary
proof however strong" (Datalift Movers, Inc. v. gravia Realty &
Development Corporation, G.R. No. 144268, August 30, 2006).

A presumption is disputable or rebuttable if it may be

contradicted or overcome by other evidence 2[b], Rule 131, Rules
of Court). In the language of Sec. 3 of Rule 131, disputable
presumptions "are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence."

When evidence that rebuts the presumption is introduced, the

force of the presumption disappears. Example: Whil e evi• dence of
receipt of payment of a later installment gives rise to the presumption
that previous installments have been paid, yet when evidence is
shown that prior installments remain unpaid, the presumption falls.

Conclusive Presumptions under the Rules of Court

The following are the conclusive presumptions un• der Sec. 2, Rule
131 of the Rules of Court:

"Sec. 2. Conclusive presumptions. — The follow• ing are instances

of conclusive presumptions:
Whenever a party has, by his own declaration, or omission,
intentionally or deliberately led another to believe a particular thing
is true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to
falsify it (Sec. 2[a], Rule 131, Rules of Court).
The tenant is not permitted to deny the title of his landlord at the
time of the commencement of the relation of landlord and tenant
between them.
x x x"

The conclusive presumptions under the Rules of Court are

based on the doctrine of estoppel. Under this doc• trine, the
person making the representation cannot claim benefit from
the wrong he himself committed (Phil. Assur• ance Corp. v.
Court of Appeals, 230 SCRA 164).

The first conclusive presumption is often referred to as

estoppel in pais or estoppel by conduct.

Estoppel

Under this doctrine of Estoppel, an admission or

representation is rendered conclusive upon the person making it,
and cannot be denied or disproved as against the person relying
thereon(Spouses Manzanilla vs Waterfields Industries Corporation,
G.R. No. 177484, July 18, 2014.

Example: Persons who assume to be a corporation with• out

legal authority to act as such shall be considered a corpo• ration by
estoppel and shall be liable as general partners 21, Corporation
Code of the Philippines).

Under Article 1431 of the Civil Code, through estop• pel, an

admission or representation is rendered conclusive upon the
person making it, and cannot be denied or disproved as against
the person relying on it. Where a party, by his deed or conduct,
has induced another to act in a particular manner, estoppel
effectively bars the former from adopting an incon• sistent position,
attitude or course of conduct that causes loss or injury to the
latter. The doctrine of estoppel is based upon the grounds of
public policy, fair dealing, good faith and jus• tice, and its purpose
is to forbid one to speak against his own act, representations, or
commitments, to the injury of one to whom they were directed and
who reasonably relied thereon (Harold v. G.R. No. 130864,
October 2, 2007).

"Because of the conclusive presumptions under Section 2(b) of

Rule 131, the Rules of Court suffi ciently shields the lessor from
being questioned by the lessee, regarding its title or better right of
possession as lessor because having admitted the existence of a
lessor-lessee relationship, the lessee is barred from assailing the
lessor's title of better right o f possession A s long a s the
lessor-lessee relationship between the parties exists, the lessee
cannot, by any proof, however strong, overturn the conclusive
presumption that the lessor has valid title to or better right of
possession to the subject leased premises than it has"
(Datalift Movers, Inc. v. Belgravia Realty & Development
Corporation, G.R. No. 144268, August 30, 2006).

Effect of Disputable Presumptions

The effect of a presumption upon the burden of proof is to

create the need of presenting evidence to overcome the prima facie
case created by the presumption. If no contrary proof is offere, the
presumption will prevail.

Disputable Presumptios under the Rules of Court

A significant example of a disputable presumption under the

Rules of Court is the presumption that "offi cial duty has been
regularly performed" 3[m], Rule 131).

Thus: "Settled is the rule that in cas• es involving violations

of the Dangerous Drugs Act, credence is given to prosecution
witnesses who are police offi cers for they are presumed to have
performed their duties in a regular manner, unless there is evidence
to the contrary suggesting ill motive on the part of the police
offi cers or deviation from the regular performance of their duties"
(People v. Bautista, G.R. No. 169875, December 18, 2007).

This presumption of the regularity of the court pro• ceedings

includes presumptions of regularity of service of sum• mons. It is
therefore incumbent upon herein petitioners to re• but these
presumptions with competent and proper evidence. The return is
prima facie proof of the facts indicated therein.(Masagana Concrete
Products v. NLRC, 313 SCRA 576).

The above presumption does not apply in a petition for a writ

of amparo. Under Sec. 17 of the Rule on the Wri t of Amparo, the
"respondent public offi cial or employee cannot invoke the
presumption that offi cial duty has been regularly performed to
evade responsibility or liability."
It is incumbent upon the prosecution to prove during the trial
that prior to questioning, the confessant was warned of his
constitutionally protected rights because the presump• tion of
regularity of offi cial acts does not apply during in-cus• tody
investigation. Trial courts should further keep in mind that even
if the confession of the accused is gospel truth, if it was made
without the assistance of counsel, it is inadmissible in evidence
regardless of the absence of coercion or even if it had been
voluntarily given (People v. 256 SCRA 52).

Th e presumption of innocence of the accused pre• vails over

the presumption that law enforcement agents were in the regular
performance of their duty. To determine wheth• er there was a valid
entrapment or not, it is incumbent upon the courts to make sure
that the details of the operation are clearly and adequately laid out
through relevant, material and competent evidence. It is the duty of
courts to preserve the pu• rity of their own temple from the
prostitution of criminal law through lawless enforcement (People
v. Ong, 432 SCRA 470).

Examples of Disputable Presumptions

Other significant disputable presumptions under Sec. 3 of Rule

131 are:

That a person is innocent of a crime or a wrong;

That an unlawful act was done with unlawful intent;
That a person intends the ordinary consequenc• es of his
voluntary act;
That a person takes ordinary care of his busi•
ness;
That evidence willfully suppressed would be adverse if
produced;
That money paid by one to another was due to the latter;
That a thing delivered by one to another be• longed to
the latter;
That an obligation delivered up to the debtor has been paid;
That prior rents or installments had been paid when a
receipt for the latter ones is produced;

That a person acting in a public offi ce was regu• larly

appointed or elected to it;

That offi cial duty has been regularly per• formed;

That a court, or judge, acting as such, whether in the Philippines
or elsewhere, was acting in the lawful exercise of jurisdiction;
That private transactions have been fair and regular;
That the ordinary course of business has been followed;
That there was a suffi cient consideration for a contract;
That a negotiable instrument was given or in• dorsed for a
suffi cient consideration.

Note: Please refer to other disputable presumptions in Sec. 3 of

Rule 131.

One of the most signifi cant presumptions which is at the same

time a constitutional right (Sec. Art. [Bill of Rights],
Constitution of the Philippines) is the presumption to be
presumed innocent of a crime or a wrong.

The presumption that evidence when willfully sup• pressed

would be adverse if produced, does not apply if (a ) the evidence is
at the disposal of both parties; (b) the suppression was not willful;
(c) it is merely corroborative or cumulative; and (d) the suppression
is an exercise of a privilege such as it is covered by the privileged
communication between physician and patient (Blue Cross Health
Care, Inc. v. Olivares, G.R. No. 169737, February 12, 2008).

The well-settled rule is that a document acknowl• edged

before a notary public enjoys the presumption of regu• larity. It is a
prima facie evidence of the facts therein stated. To overcome this
presumption, there must be presented evi• dence that is clear and
convincing. Absent such evidence, the presumption must be upheld.
In addition, the titles in the name of respondent, having been
registered under the Tor- rens system, are generally a conclusive
evidence of the owner• ship of the land referred to therein and a
strong presumption exists that the titles are regularly issued and
valid.

The settled rule is that in the absence of satisfactory

explanation, one found in possession of and who used a forged
document is the forger and therefore guilty of falsification. If a
person had in his possession a falsifi ed document and he made
use of it (uttered it) , taking advantage of it and profiting
thereby, the clear presumption is that he is the material author of
the falsification (Maliwat v. Court of Appeals 256 SCRA 718).

A judgment or final order against a person rendered by a

tribunal of a foreign country with jurisdiction to render said
judgment or final order, is presumptive evidence of a right as
between the parties and their successors in interest. If the
judgment or final order is upon a specific thing, said judgment or
final order is conclusive upon the title to the thing. The
presumptions are not however irrefutable. In either case, the
judgment or final order may be repelled by any of the follow• ing:
(a ) want of jurisdiction; (b) want of notice to the party; (c)
collusion; (d ) fraud; or (e ) clear mistake of law or fact (Sec. 48,
Rule 39, Rules of Court).

While the judgment or final order rendered by a Philippine

court among others, in respect to the probate of a will or the
administration of the estate of a deceased person is conclusive
upon the will or administration, the probate of a will or granting
letters of administration shall only be prima facie evidence of the
death of the testator (Sec. 47, Rule 39, Rules of Court).
 The persons mentioned in Ar t 2180 of the Civil Code like
employers, and owners or managers of establishment among
others, are liable for the acts of those persons for whom they are
responsible. Under the same provision, such respon• sibility shall
cease when the persons mentioned prove that they observed all
the diligence of a good father of a family to prevent damage. This
indicates that there is a presumption that employers and other
persons in Art . 2180 have likewise been negligent in case those
under them have caused damage to another.
Whenever an employee's negligence causes damage or injury
to another, there instantly arises a juris that the employer
failed to exercise diligentissimi pa-
tris familias in the selection (culpa eligiendo) or supervision (culpa
in vigilando) of its employees Macalinao v. Ong, G.R. No.
December 14, 2005).

It is disputably presumed that a driver was negli• gent, if he

had been found guilty of reckless driving or violat• ing traffi c
regulations at least twice within the next preceding two months
(Art. 2184, Code of the
There is prima facie presumption of negligence on the part of the
defendant if the death or injury results from his possession of
dangerous weapons or substances, such as fi rearms and poison,
except when the possession or use there• of is indispensable in his
occupation or business (Art. 2188, Civil Code of the
Philippines).

The doctrine of res ipsa loquitur (the thing speaks for itself)
also establishes a presumption of negligence against the defendant
and furnishes a substitute for a specific proof of negligence. Th
e doctrine can be invoked only when under the circumstances,
direct evidence is absent and not readily available. For the doctrine
to apply, the following must be sat• isfactorily shown:
1. Th e accident is of a kind which ordinarily does not occur in
the absence of someone's negligence;
2.It is caused by an instrumentality within the exclusive control of
the defendant or defendants; and
3. Th e possibility of contributing conduct which would make the
plaintiff responsible is eliminated (Ra• mos v. Court Appeals, 321
SCRA 584; Macalino v. Ong, G.R. No. 146635, December 14,
2005).

QUANTUM OF EVIDENCE(Weight and Suffi ciency of Evidence)

Proof Beyond Reasonable Doubt

In criminal cases, the burden of proof as to the guilt of the

accused lies with the prosecution because of the pre• sumption that
the accused is presumed innocent until the con• trary is proven
Bill of Rights, Philippine Constitu• tion).
 Rule 133 provides for the quantum of evidence required in
criminal cases as follows:

"Sec. 2. Proof beyond reasonable doubt. — In a criminal case, the

accused is entitled to an acquittal, un• less his guilt is shown
beyond reasonable doubt. Proof beyond reasonable doubt does not
mean such a degree of proof as, excluding possibility of error,
produces ab• solute certainty. Moral certainty only is required, or
that degree of proof which produces conviction in an unprej• udiced
mind."

The presumption of innocence of an accused in a criminal case

is a basic constitutional principle fleshed out by procedural rules
which place on the prosecution the burden of proving that the
accused is guilty of the offense charged by proof beyond reasonable
doubt. Corollary thereto, the evidence of the prosecution must
stand on its own strength and not rely on the weakness of the
evidence of the defense.(Peaople vs Bontuyan).

Proponderance of Evidence

Sec. 1 of Rule 133 provides:

"Section Preponderance of evidence; how termined. — In civil
cases, the party having the burden of proof must establish his case
by preponderance of evidence. In determining where
preponderance or supe• rior weight of evidence on the issues
involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their
in• telligence, their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their
interest or want of interest, and also their personal credibility so far
as the same may legitimately appear upon the trial. The court may
also consider the number of witnesses, though the prepon• derance
is not necessarily with the greater number."

In civil cases, the party having the burden of proof must

establish his case by a preponderance of evidence 1, Rule
133, Rules of Court; v. Mercado, 449 SCRA 220).
Preponderance of evidence means that the evidence adduced
by one side is, as a whole, superior to or has greater weight than
that of the other (Habagat Grill v. DMC-Urban Property
Developer, Inc., 454 SCRA 653/

). It means evidence which is more convincing to the

court as wor thy of belief than that which is offered in
opposition thereto(Republic v. Bautista, G.R. No. 169801,
September 11, 2007).
In determining whether or not there is preponder• ance of
evidence, the court may consider the following:

1 all the facts and circumstances of the case;

2 the witnesses' manner of testifying, their intel• ligence,
their means and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they testify, the
probability or probability of their testimony;
3.the witnesses' interest or want of interest, and also their
personal credibility so far as the same may ul• timately appear in
the trial;
4. the number of witnesses, although it does mean that
preponderance is necessarily with the greater num• ber (Sec. 1,
Rule 133, Rules of Court).

Substantial Evidence

The pertinent rule on substantial evidence is found in Sec. 5

of Rule 133. The relevant provision declares:

"Sec. 5. Substantial evidence. — In cases filed be• fore

administrative or quasi-judicial bodies, a fact may be deemed
established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept
as adequate to justify a conclusion."

In claims for workmen's compensation for example, the degree

of proof required is merely substantial evidence. This means that it
suffi ces that the claims be based on mere probability, not certainty
of causal relations (Leviste v. Social Security System, 539 SCRA
120). However, the employee has the burden to present
substantial evidence or such relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion, showing a
reasonable connection that the nature of his employment or
working conditions between the conditions of his work and his
illness, or that the risk of contracting the same was increased by his
working conditions (Masangkay v. Trans-Global Maritime Agency,
Inc., G.R. No. 172800, October 17, 2008).

Quantum of Evidence in a petition for a Writ of Amparo

In a petition for a writ of Amparoo, the parties shall establish

their claims by substanstial evidence(Sec. 17, The Rule on Writ of
Amparo, Eff ective October 24, 2007).

Effect of Failure to Prove Administrative Liability on the

Criminal Case
 In Paredes v. Court of Appeals (G.R. No. 169534, July 30,
2007), the accused argued that as his liability in the admin•
istrative case against him was not established by substantial
evidence, so will his criminal case necessarily fall, demand• ing as
it does, a heavier quantum of proof, i.e., proof beyond reasonable
doubt. To this argument the Supreme Court de• clared:

petition must fail.

It is indeed a fundamental principle ... that ad• ministrative
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 prosecu• tion, or vice versa. One thing is
administrative liability; quite another thing is the criminal liability
for the same act.

Criminal and administrative proceedings may in• volve similar

operative facts; but each requires a different quantum of
evidence.
Xxx

Thus considering the diff erence in the quantum of evidence,

as well as the procedure followed and the sanc• tions imposed in
criminal and administrative proceed• ings, the findings and
conclusions in one should not nec• essarily be binding on the other.
Notably, the evidence presented in the administrative case may
not necessar• ily be the same evidence to be presented in the
criminal cases. The prosecution is certainly not precluded from,
adducing additional evidence to discharge the burden of proof
required in the criminal cases.

Conversely we have also ruled that the dismissal of the

criminal case is not per se a bar to administrative To paraphrase,
dismissal of the criminal case
does not foreclose administrative action involving the same
(Paredes v. Court of Appeals, G.R. No. 169534, July 30, 2007).

Clear and Convincing Evidence

Evidence is clear and convincing if it produces in the mind of
the trier of fact a firm belief or conviction as to allega• tions sought
to be established; It is intermediate, being more than
preponderance, but not to the extent of such certainty as is
required beyond reasonable doubt as in criminal cases (Black's Law
Dictionary, 5th 227).

The Court in Government of Hongkong Special Ad• ministrative

Region v. Olalia, Jr. (G.R. No. 153675, April 19, 2007), explained
this quantum of evidence, thus:
 extradition proceeding being generis, the standard of proof
required in granting or denying bail can neither be the proof beyond
reasonable doubt in crimi• nal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administra•
tive cases cannot likewise apply given the object of ex• tradition
law which is to prevent the prospective extradi- tee from our
jurisdiction. In his separate opinion in Purganan, then Associate
Justice, now Chief Justice Reynato Justice S. Puno, proposed that a
new standard which he termed "clear and convincing evidence"
should be used in granting bail in extradition cases. According to
him, this standard should be lower than proof beyond reasonable
doubt but higher than preponderance of evidence. The potential
extraditee must prove by "clear and convincing evidence" that he is
not a flight risk and will abide with all the orders and processes of
the extradition court."

Evidentiary Weight of Electronic Evidence

In assessing the evidentiary weight of electronic evi• dence,

certain factors may be considered, like:
1) The reliability of the manner in which it was generated,
stored or communicated;
The reliability of the manner in which its origi• nator was
identified;
2The integrity of the information and communi• cation system;
3The familiarity of the witness or the person who made the entry
with the communication and information system;
4) Th e nature and quality of the information which went into the
communication and information system; and
Other factors which the court may consider
(Sec. 1, Rule 7, Rules on Electronic Evidence).

.All matters relating to the admissibility and eviden• tiary weight of

an electronic document may be established by an affi davit stating
facts of direct personal knowledge of the affi ant or based on
authentic records. The affi davit must af• fi rmatively show the
competence of the affi ant to testify on the matters contained
(Sec. 1, Rule 9, Rules on Electronic Evi• dence). The affi ant shall be
made to affi rm the contents of the affi davit in open court and may
be cross-examined as a matter of right by the adverse party (Sec.
2, Rule 9, Rules on Elec• tronic Evidence).

The Affi ant shall be made to affi rm the contents of the

affi davit in open court and may be crossed-examined as a matter of
right by the adverse party.( Sec. 2, Rule 9, Rules on Electronic
Evidence).
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

. Judicial Notice

The relevant provisions on judicial notice provide:

"SECTION 1 Judicial notice, when mandatory. — A court shall

take judicial notice, without the introduc• of evidence, of the
existence and territorial extent
of states, their political history, forms of government and symbols
of nationality, the law of nations, the ad• miralty and maritime
courts of the world and their seals, the political constitution and
history of the Philippines, the offi cial acts of the legislative,
executive and judicial departments of the Philippines, the laws of
nature, the measure of time, and geographical divisions.

Sec. 2. Judicial notice, when discretionary. — A court may take

judicial notice of matters which are of public knowledge, or are
capable of unquestionable demonstration or ought to be known to
judges because of their judicial functions.
Sec. 3. Judicial notice, when hearing necessary.
— During the trial, the court, on its own initiative, or on request of a
party, may announce intention to take judicial notice of any matter
and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court,
on its own initiative or on request of a party, may take judicial
notice of any matter and allow the parties to be heard thereon if
such matter is decisive of a material issue in the case."

There are matters in a litigation which must be ad• mitted

without need for evidence. For example, when the com• plainant in
a criminal case alleges that he was assaulted by the accused in
Quezon City, it would be ridiculous to require the prosecution to
prove that a place called Quezon City ex• ists. Also, if the accused
is charged with the violation of a stat• ute, there is no need to
introduce evidence that said statute exists because the court is
charged with knowledge of the law it being the product of an
offi cial act of the legislative depart• ment of the Philippines.
There is likewise no need to adduce evidence to prove that
there are twenty-four (24) hours in a day or that the sun rises in
the east and sets in the west. Th e fact that Cebu lies in the Visayan
region needs no further evidence. To require evidence for such
obvious facts would be to indulge in utter absurdity. Now , all these
matters which the court may take cognizance of without evidence
are called matters of "judicial
Judicial notice is based on the maxim, "what is known need
not be proved," hence, when the rule is invoked, the court may
dispense with the presentation of evidence on judicially cognizable
facts (Thayer, Preliminary Treatise on Evidence, p. 277 cited in
Jones, The Law on Evidence in Civil Cases, Volume I, 3rd
The taking of Judicial Notice is a matter of expediency and
convenience for it fulfi lls the purposes that the evidence is intended
to achieve, and in his sense, it is equivalent to proof. (Land Bank of
the Philippines v Yatco Agricultural Enterpirse, G.R. No. 172551,
January 15, 2014.

Function of Judicial Notice

The function of judicial notice is to abbreviate litiga• tion by

the admission of matters that need no evidence because judicial
notice is a substitute for formal proof of a matter by evidence
(People v. Rowland, 4 4th Rptr 2d 377; 29 Am Jur 2d,
Evidence, §24, 1994). Judicial notice takes the place of proof and
is of equal force. It displaces evidence and fulfills the purpose for
which the evidence is designed to fill. Hence, it makes evidence
unnecessary (Moran, Comments on the Rules of 1980, p. 38
citing v. Johnson, 21 Phil. 308).

When Judicial Notice is Mandatory

A matter of judicial notice may either be mandatory (Sec. 1,
Rule 129, Rules of Court) or discretionary (Sec. 2, Rule 129, Rules
of Court). Whe n the matter is subject to a manda• tory judicial
notice, no motion or hearing is necessary for the court to take
judicial notice of a fact because this is a matter which a court
ought to take judicial notice of.
The following are matters subject to mandatory ju• dicial notice.
a) the existence and territorial extent of states;
the political history, forms of government and symbols of
nationality of
the law of nations;
b) the admiralty and maritime courts of the world and their seals;
c) the political constitution and history of the Phil• ippines;
the offi cial acts of the legislative, executive and judicial
departments of the Philippines;
d) the laws of
e) the measure of time; and
f) the geographical divisions.

It would be error for a court not to take judicial no• tice of an

amendment to the Rules of Court. In a case, the Supreme Court
declared that even if petitioners did not raise or allege the
amendment of the Rules of Court in their mo• tion for
reconsideration before it, the Court of Appeals should have taken
mandatory judicial notice of the Supreme Court's resolution in A.M .
Matter No . 00-02-03 SC amending Sec. 4 of Rule 65 effective
September 1, 2004. Under Sec. 1 of Rule 129, a court shall take
judicial notice among others, of the offi cial acts not only of the
legislative and executive departments but also of the judicial
department (Siena Realty Corporation v.
428 SCRA 422).

It is axiomatic that a court has the mandate to apply rel•

evant statutes and jurisprudence in determining whether the
allegations in a complaint establish a cause of action. While it
focuses on the complaint, a court clearly cannot disregard decisions
material to the proper appreciation of the questions before it. In
resolving the motion to dismiss, the trial court should have taken
cognizance of the offi cial acts of the legis• lative, executive, and
judicial departments because they are proper subjects of
mandatory judicial notice as provided by Section 1 of Rule 129 of
the Rules of Court (DENR v. DENR Region 12 Employees, 409
SCRA 359).

When Judicial Notice is Discretionary

Under the principle of discretionary judicial notice, court may

take judicial notice of matters which are of pub• lic knowledge, or
are capable of unquestionable demonstra• tion, or ought to be
known to judges because of their judicial functions" (Sec. 2, Rule
129, Rules of Court).

The principal guide in determining what facts may be

assumed to be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a judicially noticed
fact must be one not subject to a reasonable dispute in that it is
either: (1) generally known within the territorial jurisdiction of the
trial court; or (2 ) capable of ac• curate and ready determination by
resorting to sources whose accuracy cannot reasonably be
questionable.
Things of "common knowledge," of which courts take ju• dicial
matters coming to the knowledge of men generally in the course
of the ordinary experiences of life, or they may be matters which
are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration. Thus, facts which are
universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicial• ly noticed, provided,
they are of such universal notoriety and so generally understood
that they may be regarded as forming part of the common
knowledge of every person. As the com -mon knowledge of man
ranges far and wide, a wide variety of particular facts have been
judicially noticed as being matters common knowledge. But a court
cannot take judicial notice of any fact which, in part, is dependent
on the existence or non-existence of a fact of which the court has
no constructive knowledge Expertravel and Tours, Inc. v. Court
of Appeals 459 SCRA 147).

The power to take judicial notice is to be exercised by courts

with caution especially in an expropriation case which involves a
vast tract of land. Care must be taken that the req• uisite notoriety
exists; and every reasonable doubt on the sub• ject should be
promptly resolved in the negative. To say that a court will take
judicial notice of a fact is merely another way of saying that the
usual form of evidence will be dispensed with if knowledge of the
fact can be otherwise acquired. This is because the court assumes
that the matter is so notorious that it will not be disputed (Land
Bank of the Philippines v. Wycoco, 419 SCRA 67).
In Wycoco, the trial court, in arriving at the valuation of the
land took judicial notice of the alleged prevailing market value of
agricultural lands in the place without apprising the parties of its
intention to take judicial notice thereof despite Section 3, Rule 129
of the Rules on Evidence.

The Supreme Court therefore held, that inasmuch as the

valuation of the property is the very issue in the case at bar,
the trial court should have allowed the parties to pres• ent
evidence thereon instead of practically assuming a valu• ation
without basis.

Judicial Notice and Knowledge of the Judge

Judicial notice may be taken of a fact which judges ought to
know because of their judicial functions (Sec. 2, Rule 129, Rules of
Court).

But judicial notice is not judicial knowledge. The mere

personal knowledge of the judge is not the judicial knowledge of the
court, and he is not authorized to make his individual knowledge of
a fact, not generally or professionally known, the basis of his action
(State Prosecutors v. Muro, 236 SCRA 505; Land Bank of the
Philippines v. Wycoco, supra).
Judicial notice is not limited by the actual knowl• edge of the
individual judge or court. A judge must take judi• cial notice of a
fact if it is one which is the proper subject of judicial cognizance
even if it is not within his personal knowl• edge. Consequently, a
judge may not take judicial notice of a fact which he personally
knows if it is not part of the evidence or not a fact generally
known within its territorial jurisdiction (29 Am Jur, Evidence, §35;
Moore v. Dresden Investment Co., 162 Wash, 289, 298 465,
77 A.L.R. 1258 cited in Jones, The Law of Evidence in Civil
Cases, Vol. 1, §132).

Stage When Judicial Notice May Be Taken

 The court can take notice of a fact during or after trial
pursuant to the procedure in Section 3 of Rule 129 of the Rules of
Court, as follows:
Judicial notice may be taken during the trial of the case. The
court, during the trial, may announce its intention to take judicial
notice of any matter. It may do so on its own initiative or on the
request of any party and allow the parties to be heard (Sec. 3, Rule
129, Rules of Court). This hearing is only for the purpose of
determining the propriety of taking judicial notice of a certain
matter and not for the purpose of proving the issues in the
case.
Judicial notice may also be taken by the proper court after the
trial, and before judgment. Judicial notice may also be taken on
appeal. Th e proper court, on its own initiative or on request of a
party, may take judicial notice of any matter and allow the parties
to be heard thereon if such matter is decisive of a material issue in
the case

Judicial Notice of Foreign Laws; Doctrine of Pre•

sumption
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws. Lik e any other facts, they must be
alleged prove d Australian marital laws for example, are not
among those matters that judges are sup• posed to know by reason
of their judicial functions (Garcia v. Garcia-Recio, 366 SCRA 437).
In general, and in the absence of statutory requirement to the
contrary, the courts of the forum will not take judicial notice of the
law prevailing in another country (29 Am Jur, Evidence, §116).
Foreign laws must be alleged and proved. In the absence of the
foreign law will be presumed to be the same as the laws of the
jurisdiction hearing the case un• der the doctrine of processual
presumption (Northwest Orient Airlines v. Court of Appeals, 241
SCRA 192).
For instance, the Court cannot determine whether the termination
of plaintiff is in accordance with Singaporean law because of the
failure to prove the applicable law of Singapore. Philippine courts do
not take judicial notice of foreign laws. In the absence of evidence
of the law of the foreign country, Phil• ippine laws should be
applied under the doctrine of processual presumption (Laureano
v. Court of Appeals, 324 SCRA 414).

It was however, held that where the foreign law is within the
actual knowledge of the court,such as when the law is generally
weel-kown, had bee ruled upon in previous cases before it, and
none of the parties claim otherwise, the court may take judicial
notice of the foreign law. (PCIB vs ESCOLIN)

Judicial Notice of the Law of Nations

 When the foreign law refers to the law of nations, said law is
subject to a mandatory judicial notice under Sec. 1 of Rule 129.
Under the Philippine Constitution, the Philippines adopts the
generally accepted principles of international law as part of the
law of the land 2, Art. II, Constitution of the Philippines). Being
parts of the law of the land, they are therefore, technically in the
nature of local laws and hence, are subject to a mandatory
judicial notice under Sec. 1 of Rule 129.

Judicial Notice of Municipal Ordinances

Municipal trial courts must take judicial notice of municipal
ordinances in force in the municipality in which they sit
(U.S. v. Blanco, 37 Phil. 126).

A Court of First Instance (now RTC) , should also take judicial

notice of municipal ordinances in force in the municipalities within
their jurisdiction but only when so re• quired by law. For example,
the charter of the City of Manila requires all courts sitting therein
to take judicial notice of all ordinances passed by the city
council (City of Manila v. Gar• cia, 19 SCRA 413). Such court must
take judicial notice also of municipal ordinances on appeal to it
from the inferior court in which the latter judicial took notice of
(U.S. v. Hernandez, 31 Phil. 342; U.S. v. Blanco, supra; Moran,
Comments on the Rules of Court, 1980, 42).
The Court of Appeals may take judicial notice of municipal
ordinances because nothing in the Rules prohibits it from taking
cognizance of an ordinance which is capable of unquestionable
demonstration v. People, 8 SCRA 813).

No Judicial Notice of Records of Other Cases; Exceptions

While courts may take judicial notice of its own acts and
records in the same case, as a rule, courts are not autho• rized
to take judicial notice of the contents of the records of other
cases, even when such cases have been tried or are pend• ing in
the same court, and notwithstanding the fact that both cases may
have been heard or are actually pending before the same judge
(Tabuena v. Court of Appeals, 196 SCRA 650;

The following are the exceptions to the above rule in the

immediately preceding paragraph: (a ) when in the ab• sence of
any objection, with the knowledge of the opposing party, the
contents of said other case are clearly referred to by title and
number in a pending action and adopted or read into the
record of the latter; or (b) when the original record of the other
case or any part of it is actually withdrawn from the archives
at the court's discretion upon the request, or with the
consent, of the and admitted as part of the record of the
pending case (Tabuena v. Court of Appeals, 196 SCRA 650;
Judicial notice of proprietary acts of government-owned and
controlled corporations

A management contract entered into by a government owned

and controlled corporation like that involving the Philippine Ports
and Authority is not amng the matters which the courts can take
judicial notice of. It cannot be considered an offi cial act of the
executive a proprietaty function.

Rule on Judicial Notice of Post Offi ce Practices

That a registered letter when posted is immediately stamped

with the date of its receipt, indicating therein the number of
the registry, both on the covering envelope itself and on the
receipt delivered to the person who delivered the letter to the offi ce
is not a proper subject of judicial notice. This post offi ce practice
is not covered by any of the instances under the Rules and is not of
unquestionable demonstration (Republic v. Court of 107 SCRA
504).

Judicial Notice of Banking Practices

Ma y judicial notice be taken of the practice of banks in conducting
background checks on borrowers and sureties?
Whil e a court is not mandated to take judicial notice of this
practice under Section 1 of Rule 129 of the Rules of Court, it
nevertheless may do so under Section 2 of the same Rule on
discretionary judicial notice. Sec. 2 of Rule 129 provides that a
court may take notice of which are of public knowledge, or
ought to be known to judges because of their judicial Thus, the
Court has taken judicial notice of the practices of banks and other
financial institutions. Pre• cisely, it has noted that it is their uniform
practice, before approving a loan, to investigate, examine and
assess would-be borrowers' credit standing or real estate offered
as security for the loan applied for (Solidbank Corporation v.
Mindanao Ferroalloy Corporation, 464 SCRA 409).
Judicial Notice of Financial of the Government
Judicial notice could be taken of the fact that the govern•
ment is and has for many years been financially strapped, to the
point that even the most essential services have suffered serious
curtailment (La Tribal Association v. Ramos, 445 SCRA 1).

Judicial Notice of Presidential Powers Under the Law

The trial court should take judicial notice of R.A. No. 6734 as
implemented by E.O. No . 429 as legal basis of the President's
power to reorganize the executive department. The offi cial acts
of the legislative, executive and judicial de partments are
proper subjects of mandatory judicial notice (DENR v. DENR
Region 12 Employees, infra).
Judicial Notice of Other Matters
1. Courts cannot take judicial notice of the assessed value of a
realty(Penta Pacific Realty Corporation v Ley Construction and
Development Corporation, 741 SCRA 426)

2. It is a matter of judicial notice that an overseas workers

bear a great deree of emotional strain while making an effort to
perform his work well.

3. A court cannot take judicial notice of an administrative

regulation or of a statue that is not yet effective The reason is
simple. A law which is still inexistent cannot be of common
knowledge capable of ready and unquestionable demonstration.
State Prosecutors vs Muro, 126 scra 505) .

4. MTC and MCTC judges may act as notaries pub• lic ex

offi cio in the notarization of documents connected only with
the exercise of their offi cial functions and duties (Borre v. Mayo,
Matter No. 100 SCRA 314; Penera v. Dalocanog, Adm. Matter
No. 104 SCRA 193). The y may not, as notaries public ex
offi cio, undertake the prepa• ration and acknowledgment of
private documents, contracts and other acts of conveyances which
bear no direct relation to the performance of their functions as
judges. Th e 1989 Code of Judicial Conduct not only enjoins judges
to regulate their extrajudicial activities in order to minimize the risk
of conflict with their judicial duties, but also prohibits them from
engag• ing in the private practice of law (Canon 5 and Rule
5.07).

"However, the Court, taking judicial notice of the fact that

there are still municipalities which have neither lawyers nor
notaries public, rules that MT C and MCT C judges assigned to
municipalities or circuits with no lawyers or notaries public
may, in the capacity as notaries public ex offi cio, perform any.
act within the competency of a regular notary public, provided that:
all notarial fees charged be for the account of the Gov• ernment
and turned over to the municipal treasurer (Lapena, Jr. v.
Marcos, 114 SCRA 572); and, (2 ) certification be made in the
notarized documents attesting to the lack of any lawyer or notary
public in such municipality or circuit" (Doughlas v. Lopez, A.M. No.
February 9, 2000).

5. It must be emphasized that the circumstances of mi• nority

and relationship mentioned in Article 335 of the Re• vised Penal
Code are special qualifying circumstances which must be alleged in
the information and duly proven by the prosecution. Here, although
the minority of the victim was properly alleged in the information,
there is insuffi cient evi• dence of private complainant's age. The
trial court erred when it took judicial notice of private complainant's
age to be four• teen. It should have required competent evidence,
such as her birth certificate, as proof of the victim's actual age at
the time of the offense (People v. 403 SCRA 105 .

6. In this age of modern technology, the courts may take

judicial notice that business transactions may be made by
individuals through teleconferencing. Teleconferencing is interactive
group communication (three or more people in two or more
locations) through an electronic medium. In general terms,
teleconferencing can bring people together under one roof even
though they are separated by hundreds of miles.
This type of group communication may be used in a number of
ways, and have three basic types: (1) video conferencing
— television-like communication augmented with sound; (2)
computer conferencing — printed communication through keyboard
terminals; and (3) audio-conferencing — verbal com• munication
via the telephone with optional capacity for tele- writing or
telecopying. Although notice may be taken of teleconferencing
as a means of making business transac• tions, there is no judicial
notice that one was conducted in a particular case (Expertravel
and Tours, Inc. v. Court of Ap• peals, 459 SCRA 147).

7. It can be noticed that the scene of the rape is not always

nor necessarily isolated or secluded, for lust is no respecter of
time or place. Th e offense of rape can and has been committed in
places where people congregate, e.g. inside a house where there
are occupants, a five (5) meter room with fi ve (5) people inside, or
even in the same room which the vic• tim is sharing with the
accused's sister (People v. Tundag, 342 SCRA 704).

8. The trial court properly took judicial notice that Cebu City
is an urban area. Judicial notice is the cognizance of certain facts
which judges may properly take and act on without proof because
they already know them. A municipal jurisdiction, whether
designated as chartered city or provincial capital, is considered as
urban in its entirety if it has a population density of at least 1,000
persons per square kilometer. The City of Cebu was created on
October 20, 1934 under Commonwealth Ac t No . 58. It is a highly
urbanized city classified as entirely urban. Thus, all its barangays,
including Talamban, are considered urban Chiongbian v.
Repub• lic, G.R. No. 163118, April 27, 2007).

9. It is of judicial notice that the judiciary is beset with the

gargantuan task in dockets, not to mention the shortage of
judges occupying positions in far fl ung areas such as in the herein
case. Apar t from presiding in the trial of cases, justices and
judges are required to resolve the same within a prescribed period
mandated by law (Government Ser• vice Insurance System v. Vallar,
G.R. No. 156023, October 18 2007).
 10. Judicial notice can be taken of the fact that testi• monies
during trial are much more exact and elaborate than those stated in
sworn statements, usually being incomplete and inaccurate for a
variety of reasons, at times because of partial and innocent
suggestions or for want of specific inqui• ries (Estioca v. People,
G.R. No. 173876, June 27, 2008). It is of judicial notice that
sworn statements are almost always incomplete, often inaccurate
and generally inferior to the tes• timony of witness in open court
(People v. Sorilla, Jr., G.R. No. 178540, June 27, 2008).

11. Th e Supreme Court has taken judicial notice of sci•

entific findings that drug abuse can damage the mental facul• ties
of the user — it is beyond question therefore that any em• ployee
under the influence of drugs cannot possibly continue doing
his duties without posing a serious threat to the lives and
property of his co-workers and even his employer (Bug- haw, Jr.
v. Treasure Island Industrial Corporation, G.R. No. 173151,
March 28, 2008).

12. It is a matter of judicial knowledge that persons have

killed or committed serious offenses for no reason at all (People v.
Zeta, G.R. No. 178541, March 27, 2008).

13. If counsel moves to another address without inform• ing

the court of that change, such omission or neglect is inex• cusable
and will not stay the finality of the decision. The court cannot be
expected to take judicial notice of the new address of a lawyer
who has moved or to ascertain on its own whether or not the
counsel of record has been changed and who the new counsel
could possibly be or where he probably resides or holds offi ce
(Karen and Khristy Fishing Industry v. Court of Appeals, G.R. Nos.
172760-61, October 15, 2007).

14. Notwithstanding a person's standing in the busi• ness

community, the court cannot take judicial notice of said person's
home address or offi ce after his departure from the government as
a cabinet member v. Court of Ap• peals, 448 SCRA 165).

B. Judicial Admissions

1. Under Sec. 4 of Rule 129, judicial admissions are described

and defined as follows:

"Sec. 4. Judicial admissions. — An admission, ver• bal or

written, made by a party in the course of the pro• ceedings
in the same case, does not require proof. The admission may
be contradicted only by that it was made through
palpable mistake or that no ad• mission was made."

2. A judicial admission requires no proof( Comm. Of Internal

revenue v Petron 668 SCRA 735. They are legally binding on the
party making the admission (Eastern Shipping Lines v BPI)

3. To be a judicial admission under Sec. 4, Rule 1299, certain

elements must be considered;

First, the same must be made by a party to the case. Ad •

missions of a non-party do not fall within the definition of Sec.
Rule 129.
Second, the admission to be judicial, must be made in the course of
the proceedings in the same case. Thus, an admis• sion made in
another judicial proceeding will not be deemed a judicial
admission in another case where the admission was not made.
Instead, it will be considered an extrajudicial ad• mission for
purposes of the other proceeding where such ad• mission is offered.

It has been held that To be considered as a judicial

admission, the same must be made in the same case in which it
is offered (Programme Incorporated v. Province of
Bataan
G.R. No. 144635, June 26, 2006; Camitan v. Fidelity Insur• ance
Corporation, G.R. No. 163684, April 16, 2008).
Third, Sec. 4 of Rule 129 does not require a particular form
for an admission. Such form is immaterial because the provision
recognizes either a verbal or a written admission.

The stipulation of facts at the pre-trial of a case con• stitutes

judicial admissions. The veracity of judicial admis• sions require no
further proof and may be controverted only upon a clear showing
that the admissions were made through palpable mistake or that no
admissions were made. Thus, the admissions of parties during the
pre-trial, as embodied in the pre-trial order, are binding and
conclusive upon them (Cuenco vs Talisay Tourist Sports
Complex, G.R. No. 174154)

A party may make judicial admiion in (a) the pleadings, (b)

during trial, either by verbal or written manifestations or
stipulations (c) in other stages of the judicial proceedings.

Admissions Made in Pleadings and Motions

Admissions made in the pleadings of a party are deemed
judicial admissions (Ching v. Court of Appeals, 331 SCRA 16). The
admission includes admissions made in the complaint v. G.R.
No. 146550, March 17, 2006).
 Th e admissions made in a motion are judicial admis• sions
which are binding on the party who made them. Such party is
precluded from denying the same unless there is proof of palpable
mistake.

An admission in the answer to the complaint takes on the

character of a judicial admission contemplated in Sec• tion 4, Rule
129 of the Rules of Court. A judicial admission conclusively binds
the party making it. He cannot thereafter contradict it. Th e
exception is found only in those rare instanc• es when the trial
court, in the exercise of its discretion and because of strong
reasons to support its stand, may relieve a party from the
consequences of his admission. It cannot be contradicted unless it
can be shown that the admission, the allegations, statements, or
admissions contained in a plead• ing are conclusive as against
the pleader. A party cannot sub• sequently take a position contrary
to, or inconsistent with, his pleadings (Heirs of Pedro v. Heirs
of Irene B. Bien, G.R. No. 155508, September 11, 2006).

An admission made in a pleading may be an actual admission

as when a party categorically admits a material allegation made by
the adverse party. An admission may like• wise be inferred from the
failure to specifically deny the ma• terial allegations in the other
party's pleadings. The rules of civil procedure for example, require
a defendant to specifical• ly deny the material averments of the
other party. averments in the complaint, other than those as to
the amount of unliquidated damages, shall be deemed admitted
when not specifically denied..." (Sec. 11, Rule 8, Rules of Court).
Averments in Pleadings which are Not Deemed Admissions

There are averments in the pleadings which are not deemed

admitted even if the adverse party fails to make a specific denial of
the same like immaterial allegations (Sec. Rule 8, Rules of Court),
conclusions, non-ultimate facts in the pleading (Sec. 1, Rule 8,
Rules of Court) as well as the amount of unliquidated damages
(Sec. 11, Rule 8, Rules of Court).

Implied Admissions of Allegations of Usury

Under Sec. of Rule 8, if the complaint makes an al• legation of
usury to recover usurious interest, the defendant must not only
specifically deny the same but must likewise do so under
oath. Failure to make the proper denial under oath would involve
an implied admission of the allegation of usury.

Implied Admissions of Actionable Documents

When an action or defense is founded upon a written

instrument, the genuineness and due execution of the same
instrument shall be deemed admitted unless the adverse par• ty,
under oath, specifically denies them and sets forth what he
claims to be the facts (Sec. 8, Rule 8, Rules of Court). Th e
failure to deny the genuineness and due execution of the said
documents amounts to a judicial admission pursuant to Sec•
tion 8, Rule 8 of the Rules of Court (Philippine National Bank v.
Refrigeration Industries, Inc., G.R. No. 156178, January 20, 2006).

The failure to deny the genuineness and due execu• tion

of an actionable document does not preclude a party from
arguing against the document by evidence of fraud, mistake,
compromise, payment, statute of limitations, estoppel, and want
of consideration (Acabal v. Acabal, 454 SCRA 555; Phil• ippine
National Bank v. Refrigeration Industries, Inc., G.R. No.
156178, January He is however, precluded from arguing that the
document is a forgery because the genuine• ness of the
document has been impliedly admitted by his fail• ure to deny
the same under oath.

Admissions in the Pre-trial of Civil Cases

One of the purposes of a pre-trial in a civil case is for the court

to consider the possibility of obtaining stipulations or admissions
of facts (Sec. 2[d], Rule 18, Rules of Court). A pre-trial is
mandatory (Sec. 2, Rule 18, Rules of Court) and because it is
mandatory, it is an important part of a civil pro• ceeding.
Admissions therefore in the pre-trial, as well as those made during
the depositions, interrogatories or requests for admission, are all
deemed judicial admissions because they are made in the
course of the proceedings of the case.
Although made in stipulation of facts b the parties in the pre-
trial are treated a judicial admissions. For instance, petitioner's
admission as to the execution of the promissory note at the pre-trial
suffi ced to settle the ques• tion of the genuineness of signatures.
Th e admission having been made in a stipulation of facts at pre-
trial by the parties, it must be treated as a judicial admission (SCC
Chemicals Corporation v. Court of Appeals, 353 SCRA 70).

Admissions in the Pre-trial of Criminal Cases

Although an admission made during the pre-trial is
deemed to have been made in the course of a judicial pro• ceeding
and is necessarily a judicial admission, an admission made by the
accused in the pre-trial of a criminal case is not necessarily
admissible against him. To be admissible, the con• ditions set
forth by Sec. 2 of Rule 118 must be complied with: Th e
pertinent rule provides:

"SECTION 2. All agreements or admissions made or entered

during the pre-trial con• ference shall be reduced in writing and
signed by the accused and counsel, otherwise they cannot be used
against the accused."
 Does the above rule-requiring an admission made or entered
into during the trial conference to be reduced in writ• ing and
signed by the accused and his counsel before the same maybe used
in evidence against the accused, equally apply to stipulation of
facts made during the trial?

In resolving the question in the negative, the Supreme Court ruled:

A stipulation of facts entered into by the prosecution and defense
counsel during trial in open court is auto• matically reduced in
writing and contained in the offi cial transcript of proceedings had in
court. The conformity of the accused in the form of his signature
affi xed thereto is unnecessary in view of the fact that an
attorney who is employed to manage a party's conduct of a
lawsuit
has prima facie authority to make relevant admissions by
pleadings, by oral or written stipulation which, unless allowed to
be withdrawn are conclusive. In fact judicial admissions are
frequently those of counsel or of the attorney of record, who is, for
the purpose of the trial, the agent of his client. When such
admissions are made, they bind the client (People v. Hernandez,
G.R.No. 108028,

Implied Admissions in the Modes of Discovery

Admissions obtained through depositions, written
interrogatories or requests for admission are also considered
judicial admissions (Programme Incorporated v. Province of Bataan,
G.R. No. 144635, June 26, 2006).

Under Sec. 1 of Rule 26 of the Rules of Court, a par• ty, at

any time after the issues have been joined, may file and serve
upon any other party a written request for the admission by
the latter of the genuineness of any material and relevant
document described in and exhibited with the request. The
request for admission may also be of the truth of any material
and relevant matter of fact set forth in the request.
Th e party to whom the request is directed must fi le and serve
upon the party requesting the admission, a sworn state• ment
either denying specifically the matters of which an ad• mission is
requested or setting forth in detail the reasons why he
cannot truthfully either admit or deny those matters. The
sworn statement must be filed and served within the period
designated in the request which shall not be not less than
fifteen (15) days after service thereof, or within such further
time as the court may allow on motion. If the sworn statement
required is not fi led and served, each of the matters of which an
admission is requested shall be deemed admitted (Sec. 2, Rule
26, Rules of Court).
Under Sec. 3 of Rule 26, any admission made pursu• ant
to the request for admission is for the purpose of the pend•
ing action only. Th e admission shall not be considered as one
for any other purpose nor may the same be used against him in
any other proceeding.

Admissions in Amended Pleadings

When a pleading is amended, the amended pleading supersedes
the pleading that it amends and the the superseded pleading
may be received in evidence against the pleader 8, Rule 10,
Rules of Court).

Nature of Admissions in Superseded Pleadings

It has been held that the admissions in a superseded pleading are
to be considered as extrajudicial admissions which must be proven
(Torres v. Court of Appeals, 131 SCRA 24). In Ching v. Court
Appeals (331 SCRA 16),

Admissions in Dismissed Pleadings

Admissions made in pleadings that have been dismissed are
merely extrajudicial admissions Specialists, Inc. v. Court of
Appeals, 257 SCRA 643).

Sworn statement of a proposed state witness

If the motion to discharege an accused as a state witness is
denied, his sworn statement, submitted to support the motion shall
be inadmissible in evidence(Sec. 17, Rule 119, Rules of Court)

Admissions by Counsel
Admissions by a counsel are generally conclusive upon a
client (De Garcia v. Court of Appeals, 37 SCRA 129). Even the
negligence of counsel binds the client (Sarraga v. Banco Filipino
Savings & Mortgage Bank, 393 SCRA 566).

This rule is not however, without exception. In cases where

reckless or gross negligence of counsel deprives the client of
due process of law, or when its application will result inright
deprivation of the client's liberty or property, or when the
interests of justice so require, relief is accorded the client who
suffered by reason of the lawyer's gross or palpable mis• take or
negligence (Salazar v. Court of Appeals, 376 SCRA 459;

Effect of Judicial Admissions

Judicial admissions are legally binding on the party making the

admissions (noynay vs citihomes builders and Development, Inc.,
735 SCRA 708). It is an established principle that judicial
admissions cannot be contradicted y the admitter who is the party
himself and binds the person who makes the same, absent showing
that this was made through palpable mistak, no amont of
rationalization can offset it.
 A party who judicially admits a fact cannot later challenge that
fact, as judicial admissions are a waiver of proof; production of
evidence is dispensed with. A judicial ad• mission removes the
admitted fact from the field of controver• sy. Consequently, an
admission made in the pleadings cannot be controverted by the
party making such admission and are conclusive to such party, and
all proofs to the contrary or in• consistent therewith should be
ignored, whether objection is interposed or not. Th e allegations,
statements or admissions contained in a pleading are conclusive
as against the pleader. A party cannot subsequently take a
position contrary to or inconsistent with what was pleaded .

The trial court may reject evidence that a party adduces to

contradict a jducial admission he made in his pleading since such
admission is conclusive to him.

No evidence is needed to prove a judicial admission and it

cannot be contradicted unless it is shown to have been made
through palpable mistake or that no such admission was made
(Arroyo, Jr. v. Taduran, 421 SCRA 423) but despite the presence
of judicial admissions in a party's pleading, the trial court is still
given leeway to consider other evidence presented (Santos v.
G.R. No. 169129, March 28, 2007 citing Atillo v. CA, 266 SCRA
596; Philippine Health- Care Providers, Inc. v. Estrada Cara
Health Services, G.R. No. 171052, January 28, 2008) because
said admissions may not necessarily prevail over documentary
evidence.

Specifically, under Sec. 4, Rule 129 of the Rules of Court, the

following are effects of judicial admissions:
1. They do not require proof; and
2. They cannot be contradicted because they are conclusive
upon the party making it.

HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED

1. Sec. 4, Rule 12- by showing that the admission was made

through palpable mistake and by showing that no such admission
was made.

A party may also argue that he made no "such ad• mission."

This argument may be invoked when the statement of a party is
taken out of context or that his statement was (Philippine
Health-Care Providers, Inc. (Maxicare v. Estra• da Health
Services, supra). Here, the party upon whom the admission is
imputed does not deny making a statement. What he denies is the
meaning attached to his statement, a meaning made to appear by
the adverse party as an admission.
 The Committee on the Revision of the Rules of Court ex•
plained the second exception in this wise:
if a party invokes an by an adverse party, but cites the admission
"out of context," then the one making the "admission" may show
that he made no admission, or that his admission was taken out
of
context.
the party can also show that he made no "such admission", i.e.,
not in the sense that the admission is made to appear.
That is the reason for the modifier "such" because if the rule simply
states that the admission may be contra• dicted by showing that
"no admission was made," the rule would not really be providing for
a contradiction of the admission but just a denial." (Atillo v. Court of
Appeals,
G.R. No. 119053, January 23, 1997; v. Jorge, G.R. No. 159617,
August 8, 2007).

Chapter IV

OBJECT AND DOCUMENTARY EVIDENCE

A. Object evidence

Meaning of Object Evidence

Object or evidence as defined by the Rules of Court refers to

evidence that is addressed to the senses of the court.

"SECTION Object as evidence. — Object as evi• dence are those

addressed to the senses of the court. When an object is relevant to
the fact in issue, it may be exhibited to, examined or viewed by the
court."

Object evidence does not refer to the perception of the witness

and a recollection of that perception. It is not a reconstruction of
past events as related by a witness on the stand. Real or object
evidence is a verbal description of something. It is not a replica
or a mere representation of something. Object or real evidence is
exactly what its name suggests. It is the real thing itself like the
knife used to slash the victim's throat, the ring actually stolen by
the accused, the bullet extracted from the victim's chest, the
mangled fender of a truck that was rear-ended by a bulldozer, or
the blood splat• tered on the wall of the room where the victim was
found. It consists of tangible things like a gun, a broken glass, a
piece of bloody clothing or the defective ladder that caused the
fall of the plaintiff.

Object or real evidence appeals directly to the senses of the

court. Instead of relying on the recollection of the witness, an object
evidence will enable the court to have its own first• hand
perception of the evidence. If the court wants to know whether the
used in the crime is long or short, big or small, sharp or blunted,
the object evidence would be the bolo itself.
Object evidence could have a very persuasive effect on the
part of the court. A display of one's injury is very pow• erful. No one
can dispute a missing arm or a severed leg. No other evidence is
necessary to establish the injury.

Even a human being, may be a form of real evidence. Where

the racial characteristics of a party is at issue, the court may, at
its discretion, vie w the person concerned. In a criminal case where
the complaining witness avers that he was stabbed in the arm by
the accused, the court may inspect his arm. The absence of any
scar in the spot where the injury was allegedly inflicted may
convince the court that the wit• ness was untruthful in his
testimony.
The court may likewise allow the exhibition of the weap• on
allegedly used in attacking the victim, the bloody garment of the
victim or the personal effect, like a glove, left by the supposed
assailant in the scene of the crime.
Object evidence could provide a dramatic end to a case. In
one sensational American double murder case com• mitted in 1994
involving the football great Simpson, the court allowed the
prosecution to have the accused Simpson try on a glove which the
prosecution claimed to have been left by the murderer in the crime
scene. After a few breathless mo• ments, gasps from the audience
broke the silence in the court• room when the glove did not fit the
hand of the accused. Dur• ing the oral arguments before the jury,
the defense repeatedly chanted an argument that proved powerful
and effective: it doesn't fit, you must Simpson was acquitted.
Object evidence is not visual alone. It covers the en• tire
range of human senses: hearing, taste, smell and touch. In a case
where the issue is infringement of a musical sition, the court may
listen to the composition involved. The court may not only look at
but also touch the blade of a knife to know whether or not it
could have produced the incision characteristic of sharp
Physical evidence is a mute but eloquent manifesta• tion of truth,
and it ranks high in our hierarchy of trustwor• thy evidence —
where the physical evidence runs counter to the testimonial
evidence, the physical evidence should prevail (Bank of the
Philippine Islands v. Reyes, G.R. No. 157177, February 11,
2008).

Requisites for Admissibility of Object Evidence

Th e admissibility of object or real evidence like any other
evidence requires that the object be both relevant and competent.
To be relevant the evidence must have a relation• ship to the fact
in issue. To be competent it must not be ex• cluded by the rules or
by law. Th e legal basis of this require• ment is Sec. 3 of Rule 128:
"Evidence is admissible when it is relevant to the issue and is
not excluded by the law or these

For the object not to be excluded by the Rules, the same

must pass the test of authentication. The threshold foun• dation for
real evidence is its being authenticated. Is it the real thing? In
other words, is it the actual object it is claimed to be? To
authenticate the object, it must be shown that the object is the
very thing that is either the subject matter of the lawsuit or the
very one involved to prove an issue in the case. If the
prosecution wants the admission of the gun used in the murder, it
must prove that it was the very same gun used by the
accused. Another gun although identical with the actual gun in
all respects, would not satisfy the requirements of au•
thentication.
To authenticate the object, there must be someone who
should identify the object to be the actual thing involved in
the litigation. This someone is the witness. An object evidence,
being inanimate, cannot speak for itself. It cannot pres• ent itself
to the court as an exhibit. Even a supposedly ancient document
(a private document that is more than thirty years old produced
from a custody in which it would naturally be found if genuine
and is unblemished by any alterations or cir• cumstances of
suspicion), requires a witness to testify on the characteristics of the
document even if the document no longer requires authentication
(Sec. 21, Rule 132, Rules of Court).
It must be emphasized that every evidence, whether it be a
document or an object, needs a witness. Even object evidence
requires statements from a witness to make its way into the realm
of admissible evidence. In short, testimonial evidence provides the
foundation for all types of evidence. This is a very basic rule. In
layman's term, the evidence must be by a witness. To
authenticate the object, the witness must have capacity to identify
the object as the very thing involved in the litigation. Better still,
he must have ac• tual and personal knowledge of the exhibit
he is presenting for admission. This is because "a witness
can only testify to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception..."
(Sec. 36, Rule 130, Rules of Court).
An object evidence is not taken in isolation. It is weighed in relation
to the testimony of a witness. Also, in giv• ing credence to a
testimony, the court takes into consideration the physical
evidence. If the testimony bears a striking simi• larity with the
physical evidence, the testimony becomes wor• thy of belief
(People v. Larranaga, 463 SCRA 652).
When the truth or falsity of a fact in issue ma y be explained by the
presentation of an object, the same may be exhibited before the
court. If the witness wants to show the condition of a particular
article or substance, his testimony will be enhanced by the
presentation of said article or substance. More often than not, the
presentation of object evidence supplements the credibility of the
testimony of a witness when the object has a clear relevance to
the issue of the case.
Cutting through all the legal foliage, we find the follow• ing as the
basic requisites for the admissibility of an object or real evidence.

Th e evidence must be relevant;

1.Th e evidence must be authenticated;
2.Th e authentication must be made by a compe• tent witness;
and
3. Th e object must be formally offered in evi• dence.

Th e authentication of the object by a competent witness is

to comply with the element of competence as an essential
ingredient of admissibility. After its authentication, the object need
to be off ered in evidence at the appropriate time.
Th e formal offer of evidence is particularly a vital act be• fore
the admission of evidence because the court "shall con• sider no
evidence which has not been formally offered" (Sec. 34, Rule
132, Rules of Court).
Th e requirements of relevance and the testimony by a competent
witness rarely pose a problem. Relevance is a mat• ter of reasoning
and the court will draw an inference of the relevancy of the
evidence from the issues of the case. Also, almost no party would
offer a witness who has no personal knowledge of the object to be
authenticated. The problem com• monly lies in showing that the
object sought to be admitted is in fact the real thing and not
a mere substitute or representa• tion of the real thing. This
problem of authentication is com• monly called the
foundation" for the evidence.
An object evidence when offered in accordance with the
requisites for its admissibility becomes evidence of the highest
order and speaks more eloquently than witnesses put together. The
presence of the victim's ravished body in a deep ravine with
handcuffs on her wrist is a physical evidence that bolsters the
testimony of the witness (People v. Larranaga, supra). In
contrast, in another case, the absence of external injuries in
the body of the alleged victim belies her claim that she was
dragged to the bushes by the accused (People v. Gan 160
SCRA 799).
Object Evidence and the Right Against Self-incrimination

The right against self-incrimination cannot be invoked against

object evidence.
In one early case, in his assignment of error, the accused
appellant asseverates that the admission as evidence of the
victim's wallet together with its contents, (1) his resi• dence
certifi cate; (2) his identification card; and (3 ) bunch of keys,
violates his right against self-incrimination.
The Court held that the right against self-incrimination
guaranteed under our fundamental law finds no application in
this case because no testimonial compulsion was involved. People
vs Malimit 264 scra 167.)

Demonstrative Evidence
Demonstrative evidence is not the actual thing but it is
referred to as "demonstrative" because it represents or
demonstrates the real thing. It is not strictly "real" evidence
because it is not the very thing involved in the case. A map,
a diagram, a photograph and a model, fall under this catego•
ry. This category of evidence is not separately defined in the
Rules of Court and appears to have been incorporated under the
general term "object"
The admissibility of this type of evidence largely de• pends on
laying the proper foundation for the evidence. Th e rule boils down
to one basic question: Does the evidence suf• ficiently and
accurately represent the object it seeks to dem• onstrate or
represent? If it does, the evidence would be admis• sible.
Photographs — Photographs of persons, things and places when
instructive to the understanding of the case, will be admitted in
evidence. For a still photograph to be admit• ted, the same must
be relevant and competent. It is competent when it is properly
authenticated by a witness who is familiar with the scene or
person portrayed and who testifi es that the photograph faithfully
represents what it depicts.
Some courts insist on requiring the photographer to tes• tify but
this view has been eroded by the tendency of modern courts to
admit as a witness one who has familiarity with the scene
portrayed (Sison v. People, 250 SCRA 58, 75).
Under the electronic evidence rules, photographic evi• dence of
events, acts or transactions shall be admissible in evidence
provided:
) It shall be presented, displayed and shown to the court;
and
) It shall be identifi ed, explained or authenticat• ed by either
) Th e person who made the recording, or by
) Some other person competent to testify on the accuracy
thereof (Sec. 1, Rule 11, Electronic Rules of Evidence).
Th e admissibility of photographs is within the discre• tion of the
trial court, and its ruling in this respect will not be interfered
with except upon a clear showing of an abuse of discretion. In
determining whether photographs should be admitted, a trial judge
must determine whether they are rel• evant, and whether a proper
foundation has been laid Am Jur Evidence, 2d §960; U.S v.
Analla, CA4 SC 975 F2d 119, cert den, U.S. 123 L Ed 2d
476 113 S Ct 1853; State v.
Ruebke, 240 Kan 493, 731 P2d 842, cert den 483 U.S. 1024, 97
L Ed S Ct 3272).

EXAMPLE :
Where do you work Mr. Witness?
I work in National Bank of the Philippines. Where is the bank
where you work located?
A: It is located in the corner of Guess and Rado Sts. in St.
Jude Village.
How long have you worked in that bank?
For the past ten years, Sir.
I am showing you a photograph. Could you identify this
photograph? Of course, Sir. This is a picture of the corner of Guess
and Rado Sts. in St. Jude Village.
How do you recognize it?
I've worked in this area for the past ten years and I have seen this
corner almost everyday.
Q: How accurate is this photograph?
A: It is an exact depiction of the place.

Motion pictures and recordings — Th e rules that apply to

photographs generally apply to motion pictures and recordings.
Because of the possibility of tampering and dis• tortion, courts
have traditionally required a stricter standard for laying the
foundation for motion pictures and tape record• ings. Courts then
would require detailed testimony as to the qualifications of the
operator, a detailed description of the equipment used, the
conditions under which the photograph and the recordings were
taken. Modern courts however, have taken judicial notice of how
motion cameras and tape record• ers work and their general
reliability and their prevalent use. Court practices regarding
motion pictures and tape recordings have been liberalized and the
testimony of a person present when the activities of taking the
picture and the recording has been held suffi cient. He must
testify that the motion picture accurately, faithfully represents
the place or person, it pur• ports to portray.

In the case of tape recordings, the witness should identify

the speakers, state how he recognizes their voices and that the
recording was not taken in violation of the Wire-Tap - ping La w
(R.A . No . 4200).
 The modern approach to motion pictures and recordings is
reflected in local rules. Under the Rules on Electronic Evi• dence,
the authentication process need not involve the person who
actually made the recording. It can be done by some other person
as long as he is one who can testify as to its accuracy. There
is also a requirement that the recording be shown, pre• sented
or displayed to the court (Sec. 1, Rule 11, Rules on Elec• tronic
Evidence).

Diagrams, models and maps — These types of de• monstrative

evidence are presented to indicate the relative locations or
positions of objects and persons. Aside from the requirement of
relevance, a diagram, model or map must be identified by a witness
who is familiar with what the evidence depicts, and that the same
is an accurate representation of the scene it portrays. Lik e any
other exhibit, the touchstone for admissibility of maps,
diagrams and models is the ability of the witness to
authenticate the exhibit. Some courts may require that the
model, diagram or map be made or drawn to scale. If not drawn
to scale, the court must be so informed. The question as to the
suffi ciency of the authentication is a matter of judicial discretion
(29A Am Jur 2d, 990).
X-ray pictures — X-ray pictures, also referred to as or
"radiographs" are admissible when shown to have been made under
circumstances as to assure their ac• curacy and where relevant to
a material issue in the case. Au• thenticated x-rays are normally
involved in personal injury cases to show the location and the
extent of the injury. X-rays are properly authenticated by the X-ray
technician or the phy• sician who testifies to the competence of the
person taking it, the procedure taken and that the X-ray
picture shown is that of the person, the anatomical part or the
object involved in the case Young Construction Co. v. Brown
[Ky] 372 SW2d 670, 99 ALR3d 288). Because the science of
taking X-ray pic• tures is now well-founded and generally
recognized, almost all courts no longer require testimony as to
the reliability of an X-ray machine Am Jur 2d, Evidence,
Scientific tests, demonstrations and experiments —
The issue of refusing or granting requests for demonstrations,
experiments and tests in open court is a matter subject to ju• dicial
discretion McCormick On Evidence, 3rd 676 citing Spaak v.
Chicago & Northwestern Railway Co., 231 F.2d 279 [7th Cir.
of material events by witnesses has been held
permissible to help illus• trate the testimony of a witness (State v.
Anderson, 171 Mont. 188, 557, P2d 795
Text messages- these are not to be proved by the testimony of
a person who was a party to the saem or has personal knowledge f
them. Enojas vs People. This rule applies to telephone
conversations and other ephemeral electronic communications. In
the absence or unavailability of the requird witnesses,other
competent evidence may be admitted.
View of an Object or Scene

Under Sec. 1 of Rule 130, when an object is relevant to the fact

in issue, it may be exhibited to, examined or viewed by the court.
It is referred to as autoptic evidence.

Courts have recognized that there are times when a

party cannot bring an object to the court for viewing in the
courtroom. In such a situation the court may take a view of an
object. Th e court may make an ocular inspection of a contest• ed
land to resolve questions of fact raised by the parties. The court
may inspect a crime scene to clarify itself with certain matters
raised by the It may vie w the conditions of vehicles involved
in a civil case for Going out of the courtroom to observe places
and objects is commonly termed a view.

The is expressly authorized by Sec. 1 of Rule 130 and even

without this express provision, it is well-recognized that the court
has an inherent power to order a view when there is a need to
do so (Sec. 5, Rule 135, Rules of Court).

The inspection may be made inside or outside the

courtroom. An inspection or view outside the courtroom should be
made in the presence of the parties or at least with previ• ous
notice to them. It is error for the judge for example, to go alone to
the land in question, or to the place where the crime was
committed and take a view without the previous knowl• edge of the
parties. Such inspection or view is part of the trial since evidence
is thereby being received (Moran, Comments on the Rules of
Court, )

Categories of Object Evidence

For purposes of authentication of an object or for laying the
foundation for the exhibit, object evidence may be classifi ed into
the following
Objects that have readily identifiable marks (unique
objects);
Objects that are made readily identifiable (ob• jects made
unique); and
Objects with no identifying marks and cannot be marked
(non-unique objects).

If the object has a unique characteristic, like the se• rial

number of a caliber 45 pistol, it becomes readily identi• fiable. So
long as the witness testifi es that the object has a unique
characteristic, he saw the object on the relevant date, remembers
its characteristics, asserts that the object shown to him in court
is the same or substantially in the same con• dition as when he fi rst
saw it and alleges that those charac• teristics are those of the
object he is identifying in court, the authentication requirement is
satisfied.

If the object does not have a unique characteristic,

like the typical kitchen knife that has no serial number, is
commonplace, and is identical with a lot of knives of the same
kind and quality, the witness may be able to identify the same
in court if he claims that he made the thing acquire a unique
characteristic like placing identifying marks on it. Al l he has to
do in court is to testify as to what he did to make the object
identifiable and that the object presented to him for identifica• tion
in court has the characteristics he made on the object.

Chain of Custody
1. Th e third category refers to those objects which are not
readily identifi able, were not made identifiable or cannot be
made identifiable like drops of blood or oil, drugs in powder form,
fiber, grains of sand and similar objects. Under this situ• ation,
the proponent of the evidence must establish a chain of
custody.
Th e purpose of establishing a chain of custody is to guaranty
the integrity of the physical evidence and to prevent the
introduction of evidence which is not authentic (Lester v. State, 82
Md App 391, 571 A2d 897 cited in 29A Am Jur 2d, Evidence, §946)

Illustrations:

The fact situation is a criminal case. The police in• vestigator is

testifying that he found a gun in the crime scene.

Q . Offi cer, you said you found a gun on the bed of the victim in
the morning of September 15, 2008 at around 9:00 A.M.?
A .I did, Sir.
Q. Would you please describe the weapon you saw?
A: It was a Colt Gold Cup Series, a five inch barrel, blue
finish, a black handle with wrap around grooves, and with the
initials, on the lower left hand side of its
Q; (After other questions) Would you be able to recog• nize the
gun if shown to you right now?
A: I would be able to recognize it, Sir.
Q: I would like to show you this gun. Will you please examine
it? (Witness examines the gun). What rela• tionship does this gun
have to the gun you said you found on the victim's bed?
A It is the very same gun, Sir.
Q How are you able to recognize this as the very same gun?
 A It has the same characteristics as the gun I found in the
crime scene. The initials "P.M." are still here. Besides, it has the
same serial number in the barrel as the one I recorded in my
notebook and as I wrote in my offi cial report.
(Counsel now proceeds to have the exhibit appropriately marked)
If the object found by the police investigator was a knife
that has no distinguishing features, the examination would go
something like the following:

Q: Offi cer, you said you saw a knife in the victim's room?
A: I did, Sir.
Q: Would you please describe the knife you saw?
A: It was of the kind you normally buy in a wet market. It had a
brown wooden handle and a four-inch non- stainless blade.
Q: What did you do with the knife you found?
A: With my own Swiss knife I scratched my initials on the handle
of the knife then placed it inside the evidence plastic bag I always
carry with me.

(The witness is then shown a knife and he is asked to identify it.)

The witness answers:
A: It is the same knife, Sir. I can see the initials I made.
You can see them yourself.
(Counsel seeks permission of the court for the marking of the knife
as exhibit.)

If the object is not readily identifiable, a chain of custody must

be shown. To avoid the chain of custody and prevent further
evidentiary objections, ideally all the persons who handled the
object should be called to the stand although courts no longer
require this rigid process. Let us assume that the fact situation
is a murder case committed allegedly by poisoning the victim.
During a judicially authorized search of the house of the accused,
police found five grams of what appears to be a toxic substance in
powder form inside a plastic bag kept in the closet of the accused.
The police investigator who found the substance is called first to
testify. The following would be the general thrust of the
examination in the absence of a law or rule providing the contrary:

Q Offi cer, after finding the substance you said you saw in the
closet of the accused, what did you do?
A :I placed the substance inside a plastic evidence bag then
sealed it with a sealer which our offi ce provides for the purpose.
The evidence bag has in its opening a special non-detachable
paper where you can write on after sealing the bag. I wrote my
name on it, the date, the name of the accused, his address and the
time I found it.
Q What did you do with it after that?
 A: Following our internal procedures, I logged the evi• dence in
our evidence log book and handed it to the chemist in our crime
laboratory. He gave me a re• ceipt for it.
Q In what condition was the evidence bag when you handed it to
the chemist?
A It was sealed, Sir.

Th e next witness would be the chemist who would tes• tify to

having personally received the evidence bag described by the
investigator. Th e chemist would further testify having removed the
powdery substance or a portion of it from the bag for
examination by making an opening in the bag with• out
disturbing the previously sealed portion of the bag, that after
putting back the remainder in the bag and sealing the portion of the
bag which he had opened, he wrote thereon the appropriate
markings and put the evidence in a locker safe. Th e chemist
would testify too that from the time he kept the evidence, it was
never handled by anyone else and that as it is shown in court,
there appear no signs of tampering.
It Has been held, however, that the forensic chemist, of a
public offi cer, need not testify to identify and described how the
report was made. This is because the chemistry report is a public
document. As such, it is admissible in evidence without further
proof of its due execution and genuiness.

Chain of Custody in drug cases(Sec 21 of the Comprehensive Drugs

Act of 2002)Bar 2011)

1. In the Philippines, the confiscation and seizure of

drugs require a specific chain of custody. The required procedure
is embodied in Sec 21, pargraph 1, Art II of R.A. 9165, as amended
by R.A. 10640.
2. The court recognizes that a unique characteristic of narcotic
substances is that they are not readily idenfiable; hence, in
authenticating the same, a more stringent standard than that
applied to readily indefinable objects is necessary. This exacting
standard entails a chain of custody of the item with suffi cient
completeness to render it improbable for the original item to be
exchanged with another, contaminated or tampered with (See
Mallillin v People, 553 Scra 619). In drug cases, the identiy of the
dangerous drugs should be established beyond doubt by showing
that the items offered in court were the same substance involved in
the bu bust operation. The chain of Custody performs the function
of ensuring that unnecessary doubts concerning the identity of the
evidence.
3. 1(b) 2002 (in relation to Sec. 81[b] of R.A . No . 9165)
which implements R.A . No . 9165, defi nes of custody" as follows:
"b. of Custody" means the duly recorded authorized
movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of seized item
shall in• clude the identity and signature of the person who held
temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and
use in court as evidence, and the final disposition" (People v. G.R.
No. 181492, De• cember 16, 2008).
The procedure to be followed in the custody and handling of seized
dangerous drugs is outlined in Section 21, paragraph 1, Article II of
R.A . No . 9165. It provides:

The apprehending team having initial custody and control of the

drugs shall, after seizure and confiscation, physically inventory
and photograph the same in the presence of the accused or the
person from whom such items were confiscated seized, or
his/her representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public offi cial
who shall be required to sign the copies of the inventory and be
given a copy thereof.

NOTE: The apprehending team having initial custody and

control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same. in
the presence of the accused or the person
from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public offi cial who
shall be required to sign the copies of the inventory and be given a
copy thereof.

Within 24 hrs upon confiscation or seizure of the drugs, the

same shall be submitted to the PDEA Forensic Laboratory for
qualitative examination results which shall be done under oath. Sec
21(2) R.A. 9165

The forensic laboratory examiner is required to issue within

twenty four hrs after the receipt of the drugs, a certification of the
forensic laboratory examination results which shall be done under
oath.(sec 21(3) R.A 9165.

After the filing of the criminal case, the court shall, within 72
hours proceed with the inspection of the confi scated drug, and
through the PDEA shall wihin 24hrs proceed with the destruction of
the same in the presence of the accused the destruction of the
same in the presence of the accused or the person from whom such
drugs were confi scated, his representative or counsel, a
representative from the media and the DOJ, civil society groups and
any elected public offi cial.

The Dangerous Drugs Board shall then issue a sworn

certifi cation as to the fact of destruction or burning of the
substances. The certifi cation shall be submitted to the court. Also
be submitted the representative samples of the substances in the
custody of PDEA. Such samples shall be a minimum quantity as
determined by the Board. (sec 21 (6). R.A 9165

The alleged off ender or his/her representative or counsel shall

be allowed to personally observe all of the above proceedings. His
presence shall not constitute an admission of guilt. However, after
having been duly notified in accordance with law and said alleged
offender or accused refuses or fails to appoint a representative
within 72 hrs before the actual burning or destruction of the
evidence in question, the secretary of justice shall appoint a
member of PAO to represent the former.
LINKS IN THE CHAIN OF COSTUDY

1. Since it is called a chain, there must be links to the chain.

The links are the people who actually handled or had custody of
the object. Each of the links in the chain must show how he receved
the object, how he handle it to prevent substitution, and how it was
transferred to another. Each of the handlers of the evidence in a
link in the chain and must testify to make the foundation complete.
This the ideal way to show the chain of custody.

2. Jurisprudence identifi ed the links that the prosecution must

establish in the chain of custody in a buy bust situation to be as
follows:

First, the seizure and marking of the confiscated dugs

recovered from the accused;
 Second, the turnover of the illegal drug seized by
apprehending offi cer to the investigating offi cer.

Third, the turnover by the investigation offi cer of the illegal

drug to the forensic chemist for laboratory examinationl and
Fourth, the turnover and submission of the marked illegal drug
by the forensic chemist to the court.

3. Because the defi nition of custdy as defined by Sec. 1(b) of

the Dangerous Drugs Board Regulation No, 1. Series of 2002, the
movement of the drugs from one person to another must be duly
recorded. Such record of the movements and custody of seized item
shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and
use in court as evidence.

IMPORTANCE OF THE MARKING OF THE EVIDENCE

It must be noted that “marking” is not found R.A 9165, as

amended It is different from the inventory taking and photography
under sec. 21 of the said law. However, long before Congress
passed R.A. 9165, the Supreme Court had consistently held that
failure of the authorities to immediately mark the seized drugs
would cast reasonable doubt on the authenticity of the corpus
delicate(People vs Dahil, G.R 212196. 1.12.15)

“The marking of evidence serves to separate the marked

evidence from all other similar or related evidence from the time
they are seized from the accused until they are disposed of at the
end of the criminal proceedings, thus, preventing switching,
planting or contamination of evidence.

The marking should be made immediately and in the presence

of the apprehended violator upon arrest. The immediate marking
upon confiscation or recovery of the dangerous drugs or related
items is indispensable in the preservation of their integrity and
evidentiary value.

EFFECT OF NON COMPLIANCE WITH SEC. 21 OF R.A 9165 as

amended

1. in the case there is a failure to comply with the

requirements of the law in the handling of confiscated drugs, the
law, as amended by R.A 10640, clearly requires the authorities to
show the following;

A the non-compliance must be because of justifiable grounds;

and
b. the apprehending offi cer/team must have properly preserved the
integrity and evidentiary value of the seized items.

As long as the above are met, the non- compliance of Sec. 21

shall not render the seizure and custody of the seized are void and
invalid.
Failure to strictly comply with the law does not necessarily
render the arrest of the accused illegal or render inadmissiblethe
items seized or confiscated from him. However, the prosecution
must still prove that there is justifiable ground for non compliance
and integrity and evidentiary value of the seized items were
properly preserved.

DNA EVIDENCE

In a case in which the admissibility of DN A testing as a

means for determining paternity has become the focal issue in
controversy for the fi rst time, the Supreme Court de• scribed DN A
in the following words:

"DNA or deoxyribonucleic acid, is a molecule that encodes the

genetic information in all living organisms. A person's DNA is the
same in each cell and it does not change throughout a person's
lifetime; the DN A in a per• son's blood is the same as the DNA
found in his saliva, sweat, bone, the root and shaft of hair,
mucus, urine, skin tissue and vaginal or rectal cells. Most
impor• tantly, because of polymorphisms in human genetic struc•
ture, no two individuals have the same DNA, with the notable
exception of identical twins" (Agustin v. Court of Appeals, 460
SCRA 315).

Agustin has its roots in an action for support filed by a mother

and her son against the latter's alleged biological father who
defended by denying having sired the child. Th e plaintiffs then
moved for the issuance of an order directing all the parties to
submit themselves to DN A testing pursuant to Rule 28 (Physical
and Mental Examination of Persons) of the Rules of Court. The
defendant opposed the motion by invoking his constitutional right
against self-incrimination. He likewise moved for the dismissal of
the complaint for lack of a cause of action. The trial court
denied the motion to dismiss and ordered the parties to
submit themselves to DN A paternity testing. The Court of
Appeals later affi rmed the trial court.
The Supreme Court by upholding the order of the trial court and
the Court of Appeals requiring the petitioner to sub• mit himself for
DN A testing, had the occasion to reiterate its earlier yet novel
stand that DN A testing is a valid means of determining paternity. In
Agustin, the Supreme Court briefl y sketched its past decisions on
DN A testing which the Court initially considered as not as accurate
and authoritative as the scientific forms of ide5ntification evidence
such as fingerprints (People v. Teehankee, 249 SCRA 54). Th e
Supreme Court admitted in Agustin that in early cases "Our faith in
DN A test• ing not quite so steadfast in the previous decade.
in Pe v. Court of Appeals (G.R. No. March 18, 1997),
also a case for support filed by the mother in behalf of her child
against the supposed natural father, the Court cautioned against
the use of DN A evidence because as a relatively new science it
has not yet been accorded offi cial recognition by Philippine courts
and held that paternity would still have to be resolved by such con•
ventional evidence as the relevant incriminating acts, verbal and
written, by the putative father. Consistent with the rul• ings of the
era, the Court, as well as the lower courts decided against the
defendant-father on the basis of the incriminating letters written by
him and not because of any DN A testing or similar
In 2001 however, the Supreme Court showed signs of opening up
to DN A evidence in Tijing v. Court of Appeals (G.R. No. 125901,
March 8, 2001), when it recognized the ex• istence of the facility
DN A Analysis Laboratory) and expertise in using DN A test for
identification and parent• age testing. Although acknowledging that
the test is still open to challenge being a novel scientific technique,
the Supreme Court in Tijing categorically declared that "eventually,
courts should not hesitate to rule on the admissibility of DN A evi•
dence courts should apply the results of science when com•
petently obtained in aid of situations presented, since to reject said
result is to deny progress. Though it is not necessary in this case
to resort to DN A testing, in the future, it would be useful to all
concerned in the prompt resolution of parentage and identity
issues."
One year after Tijing, in what could be considered as a
landmark decision, the Supreme Court in People Vallejo (382
SCRA 192 a rape-slay case of a 9-year old girl, admitted in
evidence the DN A samples of the victim which were found in
the bloodstained garments of the accused. Vagi• nal swabs taken
from the victim were also admitted and were found to show the
DN A profile of the accused who was subse quently convicted.
Vallejo is considered by the Court to be the "first real
breakthrough of DN A as admissible and authorita• tive evidence
in Philippine jurisprudence." From a mere rec• ognition of the
existence of DN A testing, Vallejo moved to• wards an open use of
DN A evidence in deciding cases. Vallejo adopted the following
guidelines to be used by courts in as• sessing the probative value
of DN A evidence:
How the samples were collected;
Ho w they were handled;
The possibility of contamination of the sam
ples;

The procedure followed in analyzing the sam•

Whether the proper standards and procedure
were followed in conducting the tests; and
The qualification of the analyst who conducted the test.

In People V JANSON (400 SCRA 584), the importance of DN A

evidence was likewise recognized although the accused who was
charged with rape was acquitted because of doubts as to who the
real malefactor was. Her e the court lamented the lack of DN A
evidence as a means to still the Court's doubts.

In v. COMELEC (424 SCRA 277), the Court ac• knowledged

the weight of DN A evidence when the Court was faced with the
issue of filiation of Fernando Poe, Jr. An y doubt as to filiation or
paternity, according to the Court, would have been cleared up by a
positive match through DNA testing.
Following the trail blazed by Vallejo, the Supreme Court in
2004 in People v. Yatar, 428 SCRA 504 (May 19, 2004), relied on
evidence including DN A evidence in affi rming the conviction of the
accused for rape with homicide when the test showed that a match
existed between the DN A profi le of the semen found in the victim
and the DN A profile of the blood sample given by the accused.
Yatar also made a lengthy dis• cussion of DNA , the process of DN
A testing and the reasons for its admissibility. Yatar significantly
upheld the constitu• tionality of compulsory DN A and rejected the
contention that compulsory testing would infringe on the
constitutional right against self-incrimination. Th e case
significantly and clearly recognized DN A testing and the
admissibility of its results as evidence.
A clear acknowledgment of the importance of DN A evidence is
exemplified in the later case of In re Estate of Ro- Ong v. Diaz
(G.R. No. 171713, December 17, 2007). The case originated in a
complaint for compulsory recognition and support filed by a minor
represented by her mother. The de• fendant, Rogelio Ong died
during the pendency of his appeal. Amids t the protestation of the
estate-petitioner for DN A test• ing because of the death of the
defendant, the Court, invoking the newly promulgated rules on DN
A evidence, held that the test may provide the definitive key to
the resolution of the issue and even if the defendant had already
passed away, bio• logical samples could be obtained for the
testing. [E]ven death of Rogelio cannot bar the conduct of DN A
testing." The Supreme Court affi rmed the judgment of the Court of
Appeals remanding the case to the trial court for DN A testing.

Rule on DNA Evidence

Th e Rule on DN A Evidence (referred to in this work as RDE )
was issued by the Supreme Court through A.M . No .
06-11-05-SC and in accordance with Sec. 14 thereof, took
effect on October 15, 2007, following publication in a newspaper of
general circulation.
In what situation does the Rule on DNA Evidence apply?
 The Rule on DN A Evidence is the primary rule to be ap• plied
whenever DN A evidence is offered, used or proposed to be offered
or used as evidence in:
criminal actions,
civil actions, and special proceedings RDE).

When a matter is not specifically governed by the Rule on DN

A Evidence, the Rules of Court and other pertinent provi• sions of
law on evidence shall apply (Sec. 2, RDE).
What is (a) DNA? (b) DNA profile? (c) DNA evi• dence?
) DN A refers to deoxyribonucleic acid which is the chain of
molecules found in every nucleated cell of the body (Sec. 3[b],
RDE).
DN A "profi le" is the genetic information derived from DN A testing
of biological samples obtained from a person where such
biological sample is clearly identifi• able as originating from that
person (Sec. 3[b], RDE).
The totality of the DN A profi les, results and other genetic
information directly generated from the DN A testing of biological
samples is called "DN A evi• dence" (Sec. 3[b], RDE).
What is the significance of DNA?
The significance lies in the uniqueness of the totality of the DN A of
a person. It is a scientific fact that the totality of an individual's
DN A is unique for the individual, except iden• tical twins (Sec.
3[b],RDE).
How may an order for a DNA testing be obtained?
A person who has a legal interest in the litigation may file an
application before the appropriate court, at any time.
The order for a DN A testing shall not however, be issued as a
matter of course and from the mere fact that the person requesting
for the testing has a legal interest in the litigation. For the order to
be issued, there must be a further showing that:
A biological sample exists that has relevance to the case)
Th e biological sample (i ) was not previously subjected to the
DN A testing requested; or (ii ) if it was previously subjected to
DN A testing, the results may re• quire confi rmation for good
reasons;
The DN A testing uses a scientifically valid tech• nique;
The DN A testing has the scientific potential to produce new
information that is relevant to the proper resolution of the
case; and
The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy and integrity of
the DN A testing (Sec. 4, RDE).
Finding that the above requirements have been complied with, the
court shall now issue an order, if appropriate to (a ) take biological
samples from any person or crime scene evi• dence; and (b )
impose reasonable conditions on the testing to protect the
integrity of the biological sample and the liability of the test
results 5, RDE).
Note : Th e court may motu proprio order a DN A testing
(Sec. 4, RDE).
Is a court order always required before undertaking a
DNA?

It is not always required. Th e last paragraph of Sec. 4 of the

RD E allows a testing without a prior court order if done before a
suit or proceeding is commenced at the behest of any party
including law enforcement agencies. This also means that a
litigation need not exist prior to DN A testing. Thus, a court order
shall be required only if there is a pending litiga• tion but not
before the litigation.
Is the order of the court granting a DNA testing appealable?
It is not appealable and is immediately executory. Sec. 5 of the
RDE clearly provides that "An order of the court granting the DN A
testing shall be immediately executory and shall not be
appealable..."

What then is the remedy against the court order if it is

not appealable?

The remedy is a petition for certiorari but under Sec. 5 "any

petition for certiorari therefrom shall not, in any way, stay
the implementation thereof, unless a higher court issues an
injunctive order" (Sec. 5, RDE).
Is there an automatic admission of the DNA evidence obtained
in the testing?
There is none. By the terms of Sec. 5 of the RDE , the grant of a
DN A testing application shall not be construed as an automatic
admission into evidence of any component of the DN A evidence
that may be obtained as a result of the test• ing. This
necessarily means that the court will still have to evaluate the
probative value of the proposed evidence before its admission.
The determination of the probative value of the DN A evi•
dence rests upon sound judicial assessment taking into con•
sideration the following matters:
The chain of custody, including how the biologi• cal samples
were collected, how they were handled, and the possibility of
contamination of the samples;
The DN A testing methodology, including the procedure
followed in analyzing the samples, the advan• tages and
disadvantages of the procedure, and compli• ance with the
scientifically valid standards in conducting the tests;
The forensic DN A laboratory, including its ac• creditation and
the qualification of the analyst who con• ducted the test; if the
laboratory is not accredited, the court shall consider the relevant
experience of the labora• tory in forensic casework and its
credibility shall be prop• erly established; and the reliability of
the testing result.
 If a person has already been convicted under a fi nal
and executory judgment, may he still avail of DNA testing?
He may still have DN A testing. Th e test after his conviction is
termed a "post-conviction" DN A testing. Signifi cantly, Sec. 6 of the
RD E allows a post-conviction DN A testing. It may be available to
(a ) the prosecution, or (b) to the person convicted by a final and
executory judgment provided that the following requirements are
met:
) a biological sample exists;
) such sample is relevant to the case; and
the testing would probably result in the rever• sal of the
judgment of conviction (Sec. 6, RDE).
7s a court order required for a post DNA testing?
Sec. 6 of the RD E is clear. It may be available
need of prior court order."
What remedy is available to the convict if the results of the
post DNA testing are favorable to him?
If the results of the DN A testing are favorable to the con• vict, he
may file a petition for a writ of habeas corpus in the court of
origin. Th e court shall then conduct a hearing and in case the
court finds, after due hearing, that the petition is meritorious, it
shall reverse or modify the judgment of convic• tion and order the
release of the convict, unless his detention is justified for a
lawful cause (Sec. 10, RDE).
The petition shall be fi led in the court of origin as a rule. However,
the rule also allows the petition to be filed either in the Court of
Appeals or in the Supreme Court, or with any member of said
courts. A hearing may be conducted by the latter courts or by any
member thereof or instead of conduct• ing a hearing, may instead
remand the petition to the court of origin and issue the
appropriate orders (Sec. 10, RDE).
Note that under Sec. 10, the petition for a writ of habeas corpus
may also be filed by the prosecution.
Are the DNA profiles of a person open to public scrutiny?
They are not. DN A profiles and all the results or other
information obtained from DN A testing are confidential (Sec. 11,
RDE). Whoever discloses, utilizes or publishes in any form any
information concerning a DN A profile without the proper court
order shall be liable for indirect contempt of the court wherein such
DN A evidence was offered, presented or sought to be offered and
presented (Sec. 11, RDE).
Except upon order of the court, the DN A profiles and oth• er results
shall only be released to any of the following:
The person from whom the sample was
Lawyers representing parties in the case or ac• tion where the
DN A evidence is offered and presented or sought to be offered
and presented;
Lawyers of private complainants in a criminal action;
Duly authorized law enforcement agencies; and
Other persons as determined by the court (Sec. 11, RDE).
 The person from whom the biological sample was taken may
also request that his DN A profile and all results or other
information obtained from the DN A testing be disclosed to the
person designated in his request. This request however, must be
in writing and verified and filed with the court that allowed the DN
A testing (Sec. 11, RDE).
The trial court is mandated to preserve the DN A evidence in
its totality, including all biological samples, DN A profi les and
results or other genetic information obtained from DN A testing in
accordance with Sec. 12 of the RDE.

Paraffi n Tests
Paraffi n tests, in general, have been considered as inconclusive by
the Court because scientific experts concur in the vie w that
paraffi n tests have proved extremely unreliable in use. Th e
tests can only establish the presence or absence of nitrates or
nitrites on the hand but the tests alone cannot determine
whether the source of the nitrates or nitrites was the
discharge of a firearm. Th e presence of nitrates should be
taken only as an indication of a possibility or even a prob•
ability but not of infallibility that a person has fired a gun,
since nitrates are also admittedly found in substances other
than gunpowder. A person who tests positive may have hand• ed
one or more substances with the same positive reaction for
nitrates such as explosives, fi reworks, fertilizers, pharma•
ceuticals, tobacco and leguminous plants. The argument that
the negative result of gunpowder nitrates from the paraffi n
test conducted shows an absence of physical evidence that one
fired a gun, is untenable as it is possible for one to fire a
gun and yet be negative for the presence of nitrates as when
the hands are washed before the test (People v. 430 SCRA
311; People v. Baconguis, 417 SCRA 66).
A person who uses tobacco may also have nitrate or ni• trite
deposits on his hands since these substances are pres• ent in
the products of combustion of tobacco (Revita v. People, G.R. No.
177564, October 31, 2008).
Th e negative findings of a paraffi n test do not con• clusively show
that a person did not discharge a gun if he fired a gun with a
glove on, or if he thoroughly washed his hands thereafter. Besides,
a paraffi n test is not conclusive owing to several factors like
wind direction, firing at a hard object, us• ing a long barrel or a low
caliber gun and profuse perspiration (People v. Baltazar, 352
SCRA 678; People v. Galvez, G.R. No. 157221, March 30, 2007).

Polygraph Tests (Lie Detector Tests)

A polygraph test operates on the principle that stress causes
physiological changes in the body which can be measured to
indicate whether the subject of the examination is telling the
truth. During an examination in which a poly• graph is used,
sensors are attached to the subject so that the polygraph can
mechanically record the subject's physiological responses to a
series of questions.
Courts accordingly uniformly reject the results of polygraph tests
when offered in evidence for the purpose of establishing the guilt or
innocence of one accused of a crime because it has not yet
attained scientific acceptance as a reli• able and accurate
means of ascertaining truth or deception (United States v.
Tedder [CA4 SC] 801 F2d 1437; 29A Am Jur 2d §1007;
People v. Reanzares, G.R. No. 130656, June 29, 2000; People v.
Adoviso, G.R. Nos. 116196-97, June 23, 1999; People v.
Carpo, G.R. No. 132676, April 4, 2001).

Documentary Evidence (Rul e 130)

Meaning of a Document as Evidence (Documentary Evidence)
Another category of evidence is documentary evidence. Documents
as evidence do not exclusively refer to writings. They may refer
to any other material like objects as long as the material
contains letters, words, numbers, figures, symbols or other
modes of written expression and offered as proof of their contents.
There are therefore, two categories of documents as evidence,
namely:
Writings, or any other material containing modes of written
expressions.
Th e relevant provision provides:

"SEC. 2. Documentary evidence. — Documents as evidence consists

of writings or any material contaning letters, words, numbers,
figures, symbols or other modes of written expressions offered as
proof of their contents."
Under the fi rst category are those instantly recognizable
documents like written contracts and wills. Under the second
category are those which are not traditionally considered as
writings but are actually objects but which contain modes of
written expressions.
However , being writings or materials containing modes of
written expressions do not ipso facto make such writings or
materials documentary evidence. For such writings or materials to
be deemed documentary evidence, the same must
If offered for some other purpose, the writings or materials would
not be deemed docu• mentary evidence but merely object
evidence.
When a contract is presented in court to show that it exists
or simply to establish its condition, it is not offered to prove its
contents. The contract therefore, is not considered a documentary
evidence but an object or real evidence.
Documents under the Rules on Electronic Evidence
Section 1(h) of the Rules on Electronic Evidence defines an as
follows:
"(h) "Electronic document" refers to information, or the
representation of information, data, figures, sym• bols or other
modes of written expressions, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affi rmed, which
is received, recorded, transmitted, stored, processed, retrieved
or produced electronically. It includes digitally signed documents
and any print-out or output, readable by sight or other means,
which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term
"electronic document" may be used interchangeably with
"electronic data message."

An electronic document, also known interchangeably as

electronic data message (Sec. l[h], Rules on Electronic Evidence),
based on the definition of the Rules, does not only refer to the
information itself. It also refers to the representation of that
information. Whether it be the information itself or its
representation, for the document to be deemed it is important
that it be received, recorded, transmitted, stored, processed,
retrieved or produced electronically.
It is submitted that the rule does not absolutely require that the
electronic document be initially generated or pro• duced
electronically. A contract for instance which was pre• pared
through the traditional written way may be converted to an
electronic document if transmitted or received or later
recorded electronically.
The rule also emphasizes that an electronic document is one that
may be used for any of the following purposes:
To establish a right;
To extinguish an obligation;or
To prove or affi rm a fact (Sec. l[h], Rules on Electronic Evidence).
Electronic documents are the functional equivalents of paper-
based documents (Sec. 1 of Rule 3 of the Rules on Electronic
Evidence). The provision declares:
Whenever a rule of evidence refers to the terms of a writing,
document, record, instrument, memorandum, or any other form of
writing, such term shall be deemed to include an electronic
document as defined in these Rules."
Since, an electronic document is the functional equivalent
of a paper-based document, whenever a rule of evidence makes
reference to the terms of a writing, a document, a re• cord, an
instrument, a memorandum or any other form of writ• ing, such
terms are deemed to include electronic documents (Sec. 1, Rule
3, Rules on Electronic Evidence). It is therefore but logical to
consider the rules of evidence in the Rules of Court, including
statutes containing rules of evidence, to be of suppletory
application to the Rules on Electronic Evidence in all matters not
specifically covered by the latter (Sec. 3, Rule Rules on
Electronic Evidence).
 Under Sec. Rule 5 of the Rules on Electronic Evi• dence, the
person off ering the document has the burden to prove its
authenticity.

"SECTION Burden of proving person seeking to introduce the

electronic document in any legal proceeding has the burden of
proving its au• thenticity in the manner provided in this Rule."

The manner of authentication of an electronic docu• ment is

outlined under Sec. 2, Rule 5 of the Rules on Elec• tronic Evidence
as follows:

"Sec. 2. Manner of authentication. — Before any private electronic

document offered as authentic is received in evidence, its
authenticity must be proved by any of the following means:
by evidence that it had been digitally signed by the person
purported to have been signed by the per• son purported to have
signed the same by evidence that the appropriate security
procedures or devices as may be authorized by the Su• preme
Court or by law for the authentication of electron• ic documents
were applied to the document; or
by other evidence showing its integrity and reliability to the
satisfaction of the judge."

Notice that the aforementioned rigorous requirements for

the authentication of an electronic document do not apply to all
electronic documents. Sec. 2 of Rule 5 will obviously ap• ply only
when the document is a private electronic document and when
the same is offered as an authentic document.
If the electronic document is offered simply for what it is
or for what it is claimed to be without regard to whether or not it
is authentic, Sec. 2 of Rule 5 finds no relevance. In such a
case, the electronic document has only to be identifi ed pursu•
ant to the application of Sec. 20 of Rule 132 of the Rules of Court.
Accordingly, under the said provision, "Any other private document
need only be identified as that which it is claimed to be."
When for instance, a document is electronically notarized, the
manner of authentication under Sec. 2 of Rule 5 will not likewise
apply. Whe n so notarized, it is transformed into a public
document and is to be proved not in accordance with the Rules
on Electronic Evidence but in accordance with the Rules of Court.
Th e tenor of Sec. Rule 5 of the Rules on Electronic Evidence is
enlightening:

"Sec. 3. Proof of electronically notarized document

— A document electronically notarized in accordance with the Rules
promulgated by the Supreme Court shall be considered as a public
document and proved as a notarial document under the Rules of
Court."
 Sec. 30 of Rule 132 of the Rules of Court, provides for the
manner of proving notarial documents. In distinct terms, the
provision categorically states Every instrument duly
acknowledged or proved and certified as provided by law, may
be presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the
instrument or document involved. (Italics supplied)
Evidentiary Concepts Involved in the Presentation of Docu•
mentary Evidence
To be admissible, documentary evidence, like any other evidence
must be relevant and competent. It is also subject to general
exclusionary rules such as the rule against hearsay, best
evidence rule and parol evidence rule. Thus, depending upon the
specific purpose for which the contents of the docu• ment is
offered, there are certain inevitable issues which may arise in
connection with the admissibility of the document aside from the
issue of relevance. First, has the document been authenticated?
Is it relevant? Is it the best evidence? Is it a mere parol evidence
and so must be excluded? Is it hearsay and therefore, must be
rejected? It would therefore be criti• cal to remember that
whenever a documentary evidence is involved, the best
evidence rule, the parol evidence rule and the hearsay rule, or
anyone of these rules may come into play
Requisites for Admissibility of Documentary Evidence
Th e following are the requisites for the admissibility of
documentary evidence:
The document must be relevant;
The evidence must be authenticated;
The document must be authenticated by a competent witness;
and
The document must be formally offered in evidence.
Best Evidence Rule
Sec. 3. Original document must be produced; ex• ceptions.
— When the subject of inquiry is the contents of a document,
no evidence shall be admissible other than the original
document itself, except in the following cases:
(a) When the original has been lost, or destroyed, or cannot
be produced in court, without bad faith on the part of the
offeror:
When the original is in the custody or under the control of
the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;
When the original consists of numerous ac• counts or other
documents which cannot be examined in court without great
loss of time and the fact sought to be established from them
is only the general result of the whole; and
When the original is a public record in the custody of a
public offi cer or is recorded in a public offi ce."
Th e term "best evidence" as used in the "best evi• dence
rule" has been a source of misconception. It has often been
misunderstood and given a meaning it does not deserve. Despite
the word "best," the rule does not proclaim itself as the highest
and most reliable evidence in the hierarchy of evi• dence. The term
"best" has nothing to do with the degree of its probative value in
relation to other types of evidentiary rules. It is not intended to
mean the "most superior" evidence. More accurately, it is the
"original document" rule, or the "primary evidence rule"

The Best evidence rule does apply to all types of evidence. It

does not comprehend testimonial and object evidence. It only
applies when the evidence is documentary. Also, it does not apply
just because a document is aoffered in evidence. The rule only
covers situations in which the subject of inquiry is the contents of
the document. Subject to certain exceptions, under the best
evidence rule, when the subject of inquiry relates to the contents of
a document, no evidence shall be admissible other than the original
document, no evidence shall be admissible other than original
document itself. In other words, one who wants to prove the
contents of a document need to present the original document.
Where the purpose of the offeror is one other than to prove the
contents of a document, compliance with the best evidence rule is
not necessary. The key, therefore, to the understanding of the best
evidence rule is simply to remember that the rule cannot be
invoked unless the contents of writing is the subject of judicial
inquiry, in which case, the best evidence is the original writing
itself.
An early case ruled:
The rule applies only where the content of the document is the
subject of the inquiry. Where the issue is the execution or
existence of the document or the circumstances surrounding its
execution the best evidence rule does not apply and testimonial
evidence is admissible.
The RT C in one case was sustained for admitting in
evidence mere copies of certain two deeds. Th e petitioner
according to the trial court never even denied their due execu• tion
and admitted having signed the deeds. As held, the evidence
rule" applies only when the content of such docu• ment is the
subject of the inquiry. Wher e the issue is only as to whether such
document was actually executed, or exists, or on the
circumstances relevant to or surrounding its execu• tion, the best
evidence rule does not apply and testimonial evidence is
admissible. An y other substitutionary evidence is likewise
admissible without need to account for the original (Chua Gaw v.
Chua, G.R. No. 160855, April 16, 2008).

In a prosecution for ill gotten wealth o, the republic offered in

evidence photocopies of certain documents to prove the contents
thereof which would implicate the respondents. The court
categorically ruled that such offer of mere photocopies violate the
best evidence rule, which mandates that the evidence must be
original document itself. The Republic, observed the court, did not
even make an attempt to provide a plausible reason why the
originlas were not presented and why the photocopies should be
admitted as secondary..
In an action against a taxpayer, the best evi• dence
obtainable under the then Sec. 16 of the 1977 as amended,
does not include mere photocopies of records and documents. The
copies presented have no probative weight and are mere scraps
of paper. Th e copies cannot prove any de• ficiency in the taxes of
the taxpayer (Commissioner of Internal Revenue v. Hantex
Trading Co., Inc., 454 SCRA 301).this is because inquiry as to
the documents of the documents is inevitable to prove defi ciency

PURPOSE OF THE RULE

. A purpose of the rule requiring the production by the offeror of the
best evidence is the prevention of fraud, because if a party is in
possession of such evidence and withholds it and presents
inferior or secondary evidence in its place, the presumption is that
the latter evidence is withheld from the court and the adverse
party for a fraudulent or devious pur• pose which its production
would expose and defeat. As long as the original evidence can be
had, the court should not receive in evidence that which is
substitutionary in nature, such as photocopies, in the absence
of any clear showing that the orig• inal writing has been lost or
destroyed or cannot be produced in court. Such photocopies must
be disregarded, being inad• missible evidence and barren of
probative weight (Magdayao
People, 436 SCRA 677).
Waiver of the Rule
Th e best evidence rule may be waived if not raised in the
trial (Zenith Radio Corp. v. Matsushita Electric Industrial Co., [ED
Pa] 505 F Supp 1190). In one case, although the mar• riage
certifi cate, the marriage license, and other pieces of doc• umentary
evidence were only photocopies, the fact that these have been
examined and admitted by the trial court, with no objections having
been made as to their authenticity and due execution, means that
these documents are deemed suffi cient proof of the facts
contained therein (Sy v. Court of Appeals 330 SCRA 550).
When Document is Merely Collaterally in Issue
Whe n a document is involved in the inquiry but the document
is only collaterally in issue, the best evidence rule does not
apply. A document is collaterally in issue when the purpose of
introducing the document is not to establish its terms but to
show facts that have no reference to its contents like its
existence, condition, execution or delivery.
If a witness testifies that the victim was writing a letter when he
was shot by the accused, the judge would likely rule against
the party who insists on the presentation of the letter
because the letter is not the subject of an important is• sue
in the case and hence, is merely collateral;
 If a witness testifies that he actually saw the debtor tender
payment of his obligation to the creditor, he need not be
required to produce the original promissory note evidenc• ing the
debt because it is the act of payment which is the focal point of the
testimony, not the document. The document need not be likewise
presented when the witness merely testifies to the delivery of a
deed of sale by X to Y because the contents of the document itself
is not the purpose of the testimony.

How to apply the best evidence rule

The first step in applying the best evidence rule is to
determine the matter nto. If the inquiry involves a document, and
its contents are the subject of that the same inquiry, the best
evidence rule applies an muts, thereore, be complied with. The
procedural compliance of the rule requires the presentation of the
original document, and not a copy of that document. So long as the
original is available, no other evidence can be substituted for the
original because the original is the best evidence and not the mere
copies or substitutes thereof.

To reiterate, the best evidence rule applies only when the

contents of the document is the subject of inquiry. Where the issue
is only as to whether such documents was actualy executed, or
exists, the best evidence rule does not apply. In fact testiomonial
evidence may be admissible.
Now what is to be done if the original cannot be presented in
evidence?
Finding an adequate legal excuse for failure to present original
Presenting the secondary evidence allowed by Court.

Illustrative applications

In a case where counsel wants to show that a marriage ceremony

took place between H and W, the following questions were asked:
Q: Mr. Witness, where were you on Sept. 26, 2015 around 730 in the
evening?
A: I was in Manila Cathedral attending the wedding of H and W
where I stood as a principal sponsor.
Q: Can you tell to this court what happened when you were there?
A: There was a marriage ceremony offi ciated by the parish priest for
the marriage of H and W.
Opposing counsel objects at this stage:
Objection, Your Honoer the best evidence is the marriage contract.
No. for the best evidence to apply the two must concur:
a. subject matter must involve a document and
b. the subject of inquiry is the contents of the document.
Excuses for Not Presenting the Original Document
The excuses for the non-production of the original docu• ment refer
to the instances when the original does not have to be produced
even when the contents of the document are the subjects of inquiry.
These instances are those mentioned in Sec. 3, Rule 130 of the
Rules of Court, namely:
Whe n the original has been lost or destroyed, or cannot
be produced in court, without bad faith on the part of the
offeror;
When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
When the original consists of numerous accounts or other
documents cannot be examined in court without from them is
only the general result of the whole; and
When the original is a public record in the cus• tody of a
public offi cer or is recorded in a public offi ce.
Requisites for the introduction of secondary evidence in
case of loss, destruction, unavailability of the original.

1. Secondary evidence like a copy of the original is ad•

missible as an exception if the original writing has been lost,
destroyed or cannot be produced in court without bad
faith on the part of the party offering the secondary evidence.
This exception does not only cover loss or destruction but also
other reasons for the failure to produce the original in court even
if the original is not lost or destroyed, as when the original is
beyond the territorial jurisdiction of the court (Reynolds On
Evidence, 2nd §61; PNB v. 98 Phil. 1002).
Under Sec. 5 of Rule 130, secondary evidence may be
admitted only by laying the basis for its production. Specifi•
cally, laying such basis requires compliance with the follow• ing:
) The offeror must prove the execution and exis• tence of the
original document;
The offeror must show the cause of its unavail• ability; and
The offeror must show that the unavailability was not due to his
bad faith.
The above having been done, the contents of the docu• ment may
now be proven by secondary evidence.
Accordingly, the correct order of proof is as follows: existence,
execution, loss and although at the sound discretion of the
court, this order may be changed if necessary (Citibank, N.A.
Mastercard v. Teodoro, 411 SCRA 577).

Original is in the Custody or Control of the Adverse Party

A showing that the original document is in the custo• dy or
under the control of the adverse party does not ipso facto authorize
the introduction of secondary evidence to prove its contents. The
party who seeks to present secondary evidence must lay a basis for
its introduction. Layin g the basis requires proof of the following:
) that the original exists;
that said document is under the custody or con• trol of the
adverse party;
that the proponent of secondary evidence has given the adverse
party reasonable notice to produce the original document; and
) that the adverse party failed to produce the original
document despite the reasonable notice.
In one case, the Supreme Court emphasized that the mere
fact that the original of the writing is in the custody or control of
the party against whom it is offered does not war• rant the
admission of secondary evidence. The offeror must prove that he
has done all in his power to secure the best evi• dence by giving
notice to the said party to produce the docu• ment. The notice may
be in the form of a motion for the pro• duction of the original, or
made in open court in the presence of the adverse party, or
via a subpoena duces tecum, provided that the party in
custody of the original has suffi cient time to produce the
same. Whe n such party has the original of the writing and does
not voluntarily offer to produce it or refuses to produce it,
secondary evidence may be admitted (Magdayao
People, 436 SCRA 677).
After the foundational requirements for the introduc• tion of
secondary evidence have been complied with, second• ary
evidence may now be presented as in the case of loss 6, Rule
130, Rules of Court). This means that the contents of the
document may now be proven by a copy of the document, a recital
of its contents in some authentic document, or by testi• mony
of witnesses in the order stated (Sec. 5, Rule 130, Rules of
Court).

When the Original Consists of Numerous Accounts

Under this exception, secondary evidence is admis• sible:
) if the original consists of numerous accounts or other
they cannot be examined in court without great loss of time;
andthe fact sought to be established from them is only the general
result of the whole (Sec. 3[c], Rule 130, Rules of Court).
The main reason for this exception lies in the de• termination by
the court that production of the original writ• ings and their
examination in court would result in great loss
accounts is only the general result of the whole like a summary
of the accounts. Under this exception, a witness may be allowed
to offer a summary of a number of documents, or the summary
itself may be admitted if the underlying docu• ments are so
voluminous and intricate as to make an examina• tion of all of
them impracticable. They may also be presented in the form of
charts or calculations Am Jur, Evidence,

For example, an accountant's written summary of some 150,000

sales invoices for goods sold by the plaintiff may be al• lowed
under this exception over the objection of the defendant that the
sales invoices constitute the original documents and should be
presented.
The voluminous records must however, be made acces• sible to
the adverse party so that the correctness of the sum• mary of the
voluminous records may be tested on cross-exami• nation
Maritima v. Allied Free Workers Union, 77 SCRA 24).
Original Document is a Public Record
There are instances when the original of a document is a public
record or is recorded in a public offi ce (Sec. 3[d], Rule 130, Rules
of Court). Public records are generally not to be re• moved from the
places where they are recorded and kept (Sec. 26, Rule 132, Rules
of Court). For this reason, the proof of the contents of a document
which forms part of a public record may be done by secondary
evidence. This evidence is a certi• fied true copy of the original.
This certified copy is to be issued by the public offi cer in custody
of the public records (Sec. 7, Rule 130, Rules of Court).
Effect of Not Offering a Document in Evidence After Calling
for its Production and Inspection
If the party who calls for the production of a document does not
offer the same in evidence, no unfavorable inference may be
drawn from such failure. This is because under Sec. 8 of Rule
130, a party who calls for the production of a document is not
required to offer it. Th e pertinent provision states:

"Sec. 8. Party who calls for document not bound to offer it. — A
party who calls for the production of a document and inspects the
same is not obliged to offer it as evidence."

Meaning of Original
Section 4, of Rule 130 elucidates on the concept of the term
thus:

"Sec. 4. Original of document. —

The original of a document is one the con• tents of which are the
subject of inquiry.
When the document is in two or more copies executed at or about
the same time, with identical con• tents, all such copies are equally
regarded as originals.
When an entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction, all
the entries are likewise equally regarded as originals."

Th e layman's concept refers to the original as the first one

written and from which mere copies are made, tran• scribed or
imitated. Accordingly, from this perspective, there can only be one
original. This is not however, so. Under the Rules of Court, there are
instances when subsequent docu• ments are also regarded as
originals. One example is that provided for in Sec. 4(c) of Rule 130.
Here, when an entry is repeated in the regular course of business,
one being copied from another at or near the time of transaction,
all the entries are equally regarded as original.
 To be considered originals under this provision, certain
requisites must be complied with:
there must be entries made and repeated in the regular
Originals Under the Rules on Electronic Evidence
Under Section 1, Rule 4 of the Rules on Electronic Evidence,
the original of the electronic document is its print• out or
output readable by sight or other means, provided it is shown
to reflect the data accurately (Sec. 1, Rule 4, Rules on
Electronic MC Industrial Sales Corporation v. Ssangyong
Corporation, G.R. No. 170633, October 17, 2007).

"SECTION 1 Original of an electronic document

— An electronic document shall be regarded as the equivalent of
an original document under the Best Evidence Rule if it is a
printout or output readable by sight or other means, shown to
reflect the data accurately."

Th e copies of the printout or output readable by sight referred

to in the immediately preceding paragraph are also deemed
originals where the copies were executed at or about the same time
wit h identical contents or is a counterpart pro• duced by the same
impression as the original or from the same matrix, or by other
means and which accurately reproduces the original (Sec. 2,
Rule 4, Rules on Electronic Evidence).

"SEC. 2. Copies as equivalent of the originals. — When a document

is in two or more copies executed at or about the same time with
identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by
mechanical or electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which reproduces the original,
such copies or duplicates shall be regarded as the equivalent of the
original."

For the court not to consider the copies mentioned in the

immediately preceding paragraph as having the same effect as
originals, a genuine question as to the authenticity of the original
must be raised, or that the circumstances would make it unjust or
inequitable to admit the copy in lieu of the original (Sec. 2, Rule 4,
Rules on Electronic Evidence). The ap• plicable rule provides:
Section 2. Copies as equivalent of the originals.
Notwithstanding the foregoing, copies or duplicates shall not be
admissible to the same extent as the original if:
a genuine question is raised as to the authenticity of the original; or
in the circumstances it would be unjust or in• equitable to admit a
copy in lieu of the original."

Original Printout of Facsimile Transmissions

Is a printout of a facsimile transmission an electron• ic data
message or electronic document?
This question was answered by the Supreme Court in MCC
Industrial Sales Corporation v. Ssanyong Corporation (G.R. No.
October 17, 2007).
The Court in this case concluded that the terms "electronic data
and "electronic document," as defined under the
Electronic Commerce Act of 2000, do not include a facsimile
transmission and cannot be considered as electronic evidence.
It is not the functional equivalent of an original under the Best
Evidence Rule and is not admissible as electronic evidence.
Accordingly, the congressional deliberations on the Elec• tronic
Commerce Act show that when Congress formulated the term
"electronic record" in the Canada law which ex• cludes telexes or
faxes, except computer-generated faxes from the term,
"electronic data message."
\ Th e Court explained that since a facsimile transmission is not
an "electronic data message" or an "electronic document," and
cannot be considered as electronic evidence by the Court, with
greater reason is a photocopy of such fax transmission not
electronic evidence.
In Garvida v. Sales, Jr. (338 Phil. 484), the Court had explained
the unacceptability of filing pleadings through fax machines. In so
doing the Court ruled:

facsimile or fax transmission is a process involv• ing the

transmission and reproduction of printed and graphic matter by
scanning an original copy, one elemen• tal area at a time, and
representing the shade or tone of each area by a specifi ed amount
of electric current. The current is transmitted as a signal over
regular telephone lines or via microwave relay and is used by the
receiver to reproduce an image of the elemental area in the proper
position and the correct shade. The receiver is equipped with a
stylus or other device that produces a printed re• cord on paper
referred to as a facsimile.
A facsimile is not a genuine and authentic plead• ing. It is. At is,
at bestm an exact copy preserving all the marks of an original.
Without the original there is no way of determining on its face
whether the facsimile pleading is genuine and authentic and was
originally signed by the and his counsel. Itma, in fact, be a
sham pleading
(Underscoring supplied).

Parol Evidence Rule (Rul e 130)

Contracts and the Parol Evidence Rule
Among the various evidentiary rules, it is the parol evidence rule
that has direct application to the law on con tracts. Th e rule
however, applies only to contracts which the parties have
decided to set forth in writing i.e., as Sec. 9 of Rule 130
provides: "when the terms of an agreement have been reduced
to (Sec. 9, Rule 130). Whe n the agree• ment is merely oral,
the parol evidence rule should not be ap• plied.
 A contract is a "meeting of the between two persons. This
is how a contract is described by Art . 1305 of the Civil Code. Th e
Civil Code does not define a contract as a document, a deed or an
instrument. Th e document, the deed and the instrument are
merely the tangible evidences of a contract. It is the meeting of the
minds between the parties that constitutes the contract.
Before executing a written agreement, the parties normally
engage in preliminary oral negotiations. They may even exchange
letters or notes constituting off ers and coun• ter-offers which of
course, are not intended to be contracts in themselves but are
merely parts of the negotiation process. Whe n the minds of the
parties finally agree on the object and cause or consideration of the
contract, a contract is born. In legal parlance, a contract is
perfected. The perfected contract may be oral or written, or partly
oral and partly written. The form of the contract as a rule, does
not matter. As long as there is a of the minds," there is a
perfected contract. Even a purely oral agreement does not negate
the existence of a contract because under this jurisdiction, even an
oral agree• ment gives rise to a contract. There is a contract
because there is a meeting of the minds (Art. 1315, Civil Code of
the Philip• pines).
The decision of the parties to reduce the agreement in
written form is critical to the application of the parol evi• dence
rule. When they execute a written contract, the parol evidence rule
ipso facto comes into play. Under Sec. 9 of Rule 130, the terms of
an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between
the parties and their succes• sors in interest, no evidence of such
terms other than the con• tents of the written agreement"
(Italics supplied).

Application of the Parol Evidence Rule

The "parol evidence rule" is embodied in Sec. 9, Rule 130 of
the Rules of Court which provides:

"Sec. 9. Evidence of written agreements. — When the terms of an

agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the
parties and their succes• sors in interest, no evidence of such terms
other than the contents of the written agreement.
However, a party may present evidence to modify, explain or
add to the terms of the written agreement if he puts in issue in his
pleadings:
An intrinsic ambiguity, mistake or imperfec• tion in the written
agreement;
The failure of the written agreement to express the true intent and
agreement of the parties thereto;
The validity of the written agreement; or
 The existence of other terms agreed to by the parties or their
successors in interest after the execu• tion of the written
agreement.
The term "agreement" includes wills.

The term "parol" evidence means something or verbal but

with reference to contracts, "parol evidence" means extraneous
evidence or evidence aliunde (Black's Law Diction• ary, 5th
As used in the Rules of Court, the term refers not only to oral
but also to written evidence which are outside of or extra• neous
to the written contract between the parties.
Th e parol evidence rule becomes operative when the issues in
the litigation are the terms of a written agreement.
In clear cut language, the basic question that would bring
the parol evidence rule into play is: What have the parties agreed
upon? The appropriate answer would be: Look into the written
agreement and not elsewhere because only the contents of the
written agreement are admissible in evidence.
There is no need to look into any other source because such
sources are barred by the rule. They are barred because as Sec.
9 of Rule 130 provides, the writing "...is considered as containing
all the terms agreed
Th e provisions of Sec. 9 of Rule 130 consider the written
agreement as the embodiment of all the terms of said agreement,
i.e., a total integration of said agreement. Because the writing is
considered as containing all the terms agreed upon by the parties,
the traditional distinction between par• tial and total integration
observed in traditional American ju• risprudence appears irrelevant
to the application of the parol evidence rule in a Philippine setting.
In American jurispru• dence Am Jur 2d §1116-1120), when a
writing is on its face incomplete, said writing is only a partial
integration of the agreement of the parties hence, parol evidence
is not barred to prove matters not covered by the writing. Parol
evidence is however, barred when the writing is a total integration
of the agreement.
Under the Rules of Court, the written agreement is al• ready
considered to contain all the things agreed upon. If this be so,
the written agreement already represents the fi nal expression of
the agreement of the parties on the subject. Be ing a fi nal
agreement, any extraneous evidence or "parol" evi• dence is
inadmissible for any of the following purposes: (a ) to modify, (b)
to explain, or (c) to add to the terms of the written
agreement.
The parol evidence rule therefore, forbids any addition
to, or contradiction of, the terms of a written agreement by
testimony or other evidence purporting to show that different
terms were agreed upon by the parties, varying the purport of
the written contract In general, the parol evidence rule is
designed to give certainty to written transactions, to preserve the
reliabil• ity and to protect the sanctity of written agreements.
The rationale behind the foregoing rule was explained in
Ortanez v. Court of Appeals (266 SCRA 561) where the Court
explained, thus:

"Spoken words could be notoriously undesirable unlike a written

contract which speaks of a uniform lan• guage. Thus, under the
general rule in Section 9 of Rule 130 of the Rules of Court, when the
terms of an agreement were reduced to writing, as in this case, it is
deemed to contain all the terms agreed upon and no evidence of
such terms can be admitted other than the contents thereof."
Be it noted again that the parol evidence rule does not apply
to oral agreements. For the parol evidence rule to apply, there
must be a writing. But not all writings will trig• ger the
application of the parol evidence rule. That writing must embody
an agreement. Th e tenor of Sec. 9 clearly uses the following
words: When the terms an agreement have been reduced
to writing
There is only one writing which although not legally an agreement
is considered to be one for purposes of the applica• tion of the
parol evidence rule. This writing is a will. The last paragraph of Sec.
9 of Rule 130, confirms this observation, thus: term "agreement"
includes wills."
Should the that embodies the agreement of the parties be in a
particular form? Not e that Sec. 9 of Rule 130 only makes
reference to a "writing," not a public writing or a private writing.
One case particularly well illustrates the answer to the question. In
this case, the petitioner contends that since the promissory note is
not a public instrument with the formali• ties prescribed by law
but a mere commercial paper, parol evi• dence may "overcome" the
contents of the promissory note.
Th e Supreme Court did not vie w the argument with merit and held
that the rule does not specify that the written agree• ment be a
public document. Th e Court stated in the case:

"What is required is that the agreement be in writ• ing as the rule is

in fact founded on "long experience that written evidence is so
much more certain and accurate than that which rests in fleeting
memory only, that it would be unsafe, when parties have expressed
the terms of their contract in writing, to admit weaker evidence to
control and vary the stronger and to show that the parties intended
a different contract from that expressed in the writing signed by
them." Thus, for the parol evidence rule to apply, a written
contract need not be in any particu• lar form, or be signed by
both parties. As a general rule, bills, notes and other instruments
of a similar nature are not subject to be varied or contradicted by
parol or extrin• sic evidence" Inciong Jr. v. Court of Appeals, G.R.
No. 96405, June 26, 1996, 247 SCRA 578).
\
Application of the Rule Only to Parties and Their Succes•
sors In Interest.
Only the parties are bound by the parol evidence rule.
The rule that the terms of an agreement are to be proven
only by the contents of the writing itself refers to suits between
“parties and their successors in interest. (Sec. 9, rule 130, ROC)
The rule does not bind suits in• volving strangers to the contract.
It applies only to the parties to a written agreement and those who
are privy to a party or successors in interest Am Jur,
Evidence, §1096). Thus, a total stranger to the writing is not
bound by its terms and is allowed to introduce extrinsic or parol
evidence against the effi cacy of the writing.
Application of the Rule to Wills
The parol evidence rule applies to contractual obligations. However,
by the explicit provision of Sec. 9 of Rule 130, the term
"agreement" includes wills. There can therefore, be no
the will other than the contents of the will itself.
While the parol evidence rule applies to wills, an ex• press trust
concerning an immovable or any interest therein may not be
proved by parol evidence (Art. 1443, Civil Code of the
Philippines).

Illustration
Mr. Seller and Mr. Buyer entered into a written contract for the sale
of a house and lot. The deed of sale mentions a pur• chase price of
P25 million, a down payment of seventy percent and the balance
payable within one (1) year from the tender of the downpayment
although the actual period agreed upon orally was two (2) years.
The oral agreement between them also considered the air
conditioners inside each room of the house as part of the purchase
price, but this fact was inad• vertently not mentioned in the written
agreement. Under the parol evidence rule, Mr. Buyer would not be
allowed to show that the purchase price included the air
conditioners and that the payment period for the balance was two
(2) years. He would not be allowed to do so because of the rule that
the only evi• dence of the terms of the agreement between the
parties shall be the contents of the written agreement itself. Any
extrinsic evidence therefore, that would modify, explain or add to
the writing would be deemed evidence and hence, barred. Parol
evidence is inadmissible to establish stipulations other than those
contained in the writing. Thus, all other evidences of the contents
of the writing are to be ignored.

When and How to Introduce Parol Evidence

The rule prohibiting parol evidence is not absolute. A party may
present evidence to modify, explain or add to the terms of the
written agreement Philippines v. Coquia, Gr. No. 174466, July
14, 2008) by showing any of the following:
An intrinsic ambiguity, mistake or imperfection in the
written agreement
 The failure of the written agreement to express the true intent
and agreement of the parties thereto; (Sa- v. Suarez, G.R. No.
151227, July 14, 2008).
The validity of the written agreement; or
The existence of other terms agreed to by the parties or
their successors in interest after the execu• tion of the written
agreement (Sec. 9, Rule 130, Rules of Court).
Introducing parol evidence means offering extrinsic or
extraneous evidence that would modify, explain or add to the
terms of the written agreement but parol evidence may only be
allowed, if any of the matters mentioned above (from to is
put in issue in the pleadings. Without comply• ing with this
requirement — putting in issue in the pleadings
parol evidence cannot be introduced.
Example : Seller sues Buyer for the unpaid balance of the price of
a car bought by and duly delivered to the latter. Although the
deed of sale stipulated a contract price of P700,000.00, the actual
oral agreement was only for Buyer to pay a price of P400,000.00,
an amount already paid. Th e amount as written in the deed of sale
was actually a result of mere inadvertence. If Buyer wants to prove
during the trial that the true price as agreed by the parties is
Buyer must allege in his answer to the complaint that there was a
mistake in the writing and it does not reflect the true agreement of
the parties. Such allegations would put such matters in issue in the
pleading, opening the door to the intro• duction of parol evidence.

To reiterate, the parol evidence rule does not per se bar the
introduction of parol evidence as long as the pleader puts in
issue in the pleading any of the matters set forth in the
rule such as the mistake or imperfection of the writing, its
failure to express the true agreement of the parties or the ex•
istence of subsequent agreements. Th e key words are "putting in
in the pleading. Unless duly pleaded, a party will be barred
from offering extrinsic evidence over the objection of the adverse
party.
In an action to recover from an insurance policy, the plaintiff
wanted to put forth a witness who would testify as to the actual
terms of the contract of insurance as allegedly agreed upon despite
contrary provisions in said policy. The testimony was not allowed.
The Supreme Court sustained both the trial court and the Court of
Appeals on the basis of Sec. Rule 130.
The Court ruled that Section 9, Rule 130 of the Revised Rules of
Court expressly requires that for parol evidence to be
admissible to vary the terms of the written agreement, the mistake
or imperfection thereof or its failure to express the true
agreement of the parties should be put in issue by the pleadings. As
correctly noted by the appellate court, the plain• tiff failed to raise
the issue of an intrinsic ambiguity, mistake or imperfection in the
terms of the insurance policy, or of the failure of said contract to
express the true intent and agree• ment of the parties thereto in
its complaint. There was there• fore no error on the part of the
appellate court when it affi rmed the RTC's order disallowing the
witness to testify as to the al• leged terms of the contract. Whe n
the terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can
be, between the par• ties and their successors-in-interest, no
evidence of such other
terms other than the contents of the written agreement pinas
Bank v. Court of Appeals, G.R. No. 141060, September 29,
2000).

Prior, Contemporaneous and Subsequent Agreements

The traditional rules limit the inadmissibility of par• ol evidence or
extrinsic evidence to prior or contemporaneous stipulations. Hence,
if a written agreement was executed by the parties on December
22, 2008, agreements before (prior) that date or even on the same
date (contemporaneous) which modify, alter, or contradict the
stipulations written into the December 22 agreement are not
admissible since these con Citing American sources, the eminent
authority, Moran writes: parties to a written agreement may show
by par• ol evidence that subsequent to the execution of such
written agreement, they have entered into an oral contract
tending to waive , dissolve, or annul the former agreement, or in
any manner to add to, or subtract from or vary or qualify the terms
thereo f (Moran, Comments on the Rules of Court 1980, 112).
Th e rule forbidding the admission of evidence ali• unde or
extrinsic evidence did not prohibit proof of an agree• ment entered
into after the written instrument was executed, notwithstanding
that such agreement may have the effect of adding to, changing or
modifying the written agreement of the parties (Canuto v. Mariano,
37 Phil. 840). This is in fact the rule in American jurisprudence
(Jones On Evidence, 6th Vol. 3, §16.10). Parol evidence on
subsequent agreements may be admitted (29a Am Jur, Evidence,
§1133). This means that the existence of another agreement
after the execution of the original written agreement may be
introduced without first complying with the requirement of
putting the subsequent agreement in issue. In the case of
Canuto v. Mariano (37 Phil. 840), for instance, although the deed
of sale of a land fixed the redemption period to one year from
the sale, the seller was allowed to prove that before the expiration
of the one year period, there was an oral agreement to extend the
redemption period for one more month.
In contrast to the 1964 Rules of Evidence, the amend• ments
to the rules effective July 1989, added "subsequent as among
those matters that need to be put in issue. This signifies that
before evidence may be introduced that the parties entered into
another agreement after the ex• ecution of the written agreement,
such subsequent agreement has first to be put in issue in the
pleadings. The phraseology of the rule leads one to conclude that
unlike traditional juris• prudence, such a subsequent agreement
could be invoked only if its existence is put in issue in the
pleading.
Intrinsic Ambiguity in the Writing
An instance when evidence aliunde or parol evidence may be
allowed to modify, explain or even add to the written agreement, is
when an intrinsic ambiguity exists in the writ ten agreement. It
must be emphasized however, that the mere existence of an
intrinsic ambiguity will not authorize the ad• mission of parol
evidence. It is very important that the intrin• sic ambiguity be put
in issue in the party's pleading. It is the raising of the issue of
intrinsic ambiguity which will authorize the introduction of parol
evidence.
2. Intrinsic or latent ambiguity is one which is not ap• parent on
the face of the document but which lies in the per• son or thing
that is the subject of the document or deed. In other words, the
ambiguity is intrinsic or latent when the lan• guage of the writing
is clear and intelligible and suggests but a single meaning but
some matter extraneous to the writing creates the ambiguity
(Black's Law 5th 73 cit• ing Logue v. Von 379 208, 40
N.E.2d 73, 82).
In this type of ambiguity, the document is clear on its face but
matters extraneous to the agreement create the am• biguity.
To illustrate: Th e testator's will bequeaths to Jose dad, his
grandson, a parcel of grazing land with an area of ten thousand
square meters, located in a town called Magdiwang. It was
discovered after his death that the testator owns two parcels of
land in the same place which are of exactly the same area and
description. There is here an intrinsic ambiguity in the writing.
Similarly, if the testator owns only one parcel of land and
bequeaths that land to his grandson, described in the will as
Jose but it was discovered later that he has two grandsons with
the same name, there also exists an intrinsic or latent ambiguity.
Parol evidence may be intro• duced to show the exact grazing
land referred to in the will or the grandson intended in the will
provided that the will's intrinsic ambiguity is put in issue.
The rule allowing parol evidence particularly refers only to an
intrinsic ambiguity in the writing. The obvious im• plication is that
where the ambiguity is patent or extrinsic, parol evidence will not
be admitted even if the same is put in issue in the pleading
A patent or extrinsic ambiguity is that which appears on the very
face of the instrument, and arises from the defective, obscure, or
insensible language used (Black's Law Dictionary, 5th 73).
Parol evidence is not admissible to explain the ambiguity otherwise
the court would be creating instead of construing a contract.
For example, if a donor writes in the deed of donation that he is
donating to Jose, one of his cars. Without describing the specific
car, there is a patent ambiguity. The ambiguity which is apparent on
the very face of the document cannot be clarified or explained by
parol evidence.
4. To reiterate, as long as the latent or intrinsic am• biguity is
raised as an issue in the pleadings, the court will allow evidence
aliunde to explain the ambiguity to give effect to the intention of
a party or of the parties. However, even if a pleader raises as an
issue the extrinsic or patent ambiguity in a contract or will, the
court will not allow parol evidence to explain the ambiguity or
supply the deficiency. Th e rule only allows parol evidence in the
case of an intrinsic or latent am• biguity.

Mistake or Imperfection in the Writing and Failure to Express the

True Agreement of the Parties
The admission of evidence aliunde may be when there is a
mistake or imperfection in the written agree• ment. Again, this
mistake or imperfection must be put in issue in the pleading by the
party who wants to prove the defect in the writing.
The failure of the writing to express the true agree• ment of the
parties is another ground for admitting parol evi• dence as long as
the issue is raised in the pleadings. In fact, mistake or imperfection
of the writing may be a reason for the failure of the instrument or
writing to embody the intention of the parties. This does not
mean however, that the mistake
or imperfection prevented the meeting of the minds between the
parties. This only means that despite the meeting of the minds,
the true agreement of the parties is not reflected in the instrument.
Aside from mistake, there are some other reasons enu• merated in
substantive law for the failure of the instrument to express the true
intention of the parties like fraud, inequitable conduct or accident
(Art. 1359, Civil Code of the Philippines), ignorance, lack of skill,
negligence or bad faith on the part of the person drafting the
instrument (Art. 1364,
Although parol evidence is admissible to explain the meaning of a
contract, it cannot serve the purpose of incor• porating into the
contract additional contemporaneous con• ditions which are not
mentioned at all in the writing unless there has been fraud or
mistake (Seaoil Petroleum Corpora• tion v. Autocorp Group, G.R.
No. 164326, October 17, 2008).
If the document appears to be a sale, parol evidence may be
resorted to if the same does not express the true in• tent of
the parties because it is actually a loan. The owner of the
property may prove that the contract is really a loan with
mortgage by raising as an issue the fact that the document
is not really a sale (Madrigal v. Court of Appeals, 456 SCRA
247).
Whe n there is a meeting of the minds between the parties but their
true intention is not expressed in the instru• ment by any of the
aforementioned causes, one of the parties may ask for the
reformation of the instrument (Art. 1359, Civ• il Code of the
Philippines).
In an action for reformation of the instrument under Art . 1359 of
the Civil Code, the plaintiff may introduce parol evidence to show
the real intention of the parties. An action for reformation
presupposes that a meeting of the minds ex• ists between the
parties, i.e., there is a contract between them although the
instrument that evidences the contract does not reflect the true
agreement of the parties by reason of for in• stance, fraud or
mistake.
If there is no meeting of the minds between the parties because of
mistake, fraud, inequitable conduct or accident, the proper
remedy is not reformation of the instrument but an ac• tion for
annulment (Art. 1359, Civil Code of the because the contract is
rendered voidable by the vitiation of the consent of a party
(Art. 1390, )

Examples:
) The parties have agreed on the size of the land subject of the
sale. By an act of fraud of the seller who prepared the deed of
sale, a smaller area is indicated in the deed. There is nothing
defective in the contract which is the meeting of the minds. Th e
defect is in the deed of sale, which is the instrument. If an
action for reformation is brought, the action must be for the
purpose of reform• ing the instrument, not for reforming the
contract.
An instrument may be reformed if the instru• ment does not
express the true intention of the parties because of lack of skill of
the person drafting the instru• ment (Art. 1364, Civil Code the
Philippines).
If the parties agree upon the mortgage or pledge of property, but
the instrument states that the property is sold absolutely or with a
right of repurchase, reforma• tion of the instrument is proper (Art.
Civil Code of the Philippines).
Reformation of the instrument cannot be brought to reform
any of the following:
Simple donations inter vivos wherein no condi• tion is imposed;
Wills; or
When the agreement is void (Art. 1366,
Waiver of the Parol Evidence Rule
Th e parol evidence rule can be waived by failure to invoke the
benefits of the rule. This waiver may be made by failure to
object to the introduction of evidence aliunde. Inadmissible
evidence may be rendered admissible by failure to object
(Santiago v. Court of Appeals, 278 SCRA 98;
Policarpio v. Court Appeals, 194 SCRA 729). Failure to object to
the parol evidence presented by the adverse party operates as a
waiver of the protection of the parol evidence rule (Willex Plastic
Industries Corporation v. Court of Appeals, 256 SCRA 478).

Probative Value
Even if parol evidence is admitted, such admission would not mean
that the court would give probative value to the parol
Admissibility is not the equivalent of pro• bative value or credibility.
DISTINCTIONS BETWEEN THE BEST EVIDENCE RULE AND THE PAROL
EVIDENCE RULE.
The best evidence rule establishes a preference for the
original document over a secondary evidence thereof. The parol
evidence rule is not concerned with the primacy of evidene but
presupposes that the original is available.
The best evidence rule precludes the admission of the
secondary evidence if the original document is available. The paril
evidence rule precludes the admission of the other evidence to
prove the terms of a docment other tha the contents of the
documents itself for the purpose of varying the terms of the writing.
The best evidence rule can be invoked by any litigant to an
action wheter or not said litigant is a party to the document
involved. The parol evidence rule can be invoked only by the parties
to the document and their successor in interest.
The best evidence rule applies to all forms of writing. The
parol evidemce rules applies to written agreements and wills.

Authentication an d Proo f of Document s (Rul e 132)

Concept of Authentication
The concept of occupies a vital place in the presentation of
evidence. No t only documents but also objects introduced in
evidence need to be authenticated. It is the preliminary step in
showing the admissibility of an evi• dence.
For example, a weapon, let us say, a .38 revolver, is found in the
crime scene. To be admissible in evidence, it must be
authenticated. This means that it must be shown to the satis•
faction of the court that the weapon in court is the very
same weapon found in the crime scene. To convince the court,
the proponent of the evidence must call someone to identify
the weapon and affi rm: is the weapon I found in the crime
scene." This someone could be the police investigator or some•
one else who handled the evidence. Whe n he affi rms it is the
same weapon, then the evidence is authenticated.
Litigation always involves the authentication of ei• ther object
or documentary evidence. Unless a document is con• sidered it
will not be admitted in evidence without a prior authentication. Th e
requirement for authenti• cation of evidence discloses the
existence in our legal system of a legal presumption that is not
however, directly written in statutes or procedural rules but is
necessarily implied there• in. This presumption is: That objects
and documents presented in evidence, are as a rule, counterfeit.
In short, an evidence is not presumed authentic. It is therefore,
incumbent upon the proponent of the evidence to prove its
authenticity.
 Authentication of a private document does not re• quire a
seal. There shall be no difference between sealed and unsealed
private documents insofar as their admissibility as evidence is
concerned (Sec. 32, Rule 132, Rules of Court).
The Philippine Supreme Court has defined a document as a
"deed, instrument or other duly authorized paper by which
something is proved, evidenced or set forth" (Bermejo v. Bar•
rios, 31 SCRA 764; People v. 44 Phil. 484; U.S. v. Orera, 11
Phil. 596). However, for documents to be considered as
documentary evidence, it must be "offered as proof of their
contents" (Sec. 2, Rule 130, Rules of Court). If the
document is not offered for that purpose, the document is a
mere object evidence as when the purpose is merely to prove its
existence. Hence, not every document is to be received as a
documentary evidence.

Public and Private Documents

Documents may either be public or private. This classification is for
the purpose of their presentation in evi• dence.
Section 19 of Rule 132 enumerates the public docu• ments, thus:
Classes of documents. — For the pur• pose of their presentation in
evidence, documents are either public or private.
Public documents are:
The written offi cial acts, or records of the of• ficial acts of the
sovereign authority, offi cial bodies and tribunals, and public
offi cers, whether of the Philippines, or of a foreign country;
Documents acknowledged before a notary public except last wills
and testaments; and
Public records kept in the Philippines, of pri• vate documents
required by law to be entered therein.
All other writings are private."

The written offi cial acts and records of the offi cial acts of the
sovereign authority, do not refer only to those of the Philippines.
The y also refer to those of a foreign country. Documents
acknowledged before a notary public are public documents except
last wills and testaments which are private documents even if
notarized (Sec. 19[b], Rule 132, Rules of Court). Assumed to be
included in this class of public docu• ment are those acknowledged
before an offi cer, other than a notary public authorized to
administer oaths. In the case of a public record of a private
document required by law to be entered in a public record, the
public document does not refer to the private document itself but
the public record of that private document.
4. The rule does not give a specific definition of a pri• vate
document except by providing that All other writings are (Sec.
19, Rule 132, Rules of Court).
Proof of a Private Document
1. Sec. 20 of Rule 132 provides:
"Sec. 20. Proof of private document. — Before
any private document offered as authentic is received
in evidence, its due execution and authenticity must be
proved either:

(a) By anyone who saw the document executed

or written; or
(b) By evidence of the genuineness of the signature
or handwriting of the maker.
Any other private document need only be identifi ed
as that which it is claimed to be.
2. Where the private document is offered in evidence
as authentic, there is a need to prove its due execution and
authenticity. Section 20 recognizes two ways of proving the
due execution and genuineness of a private instrument. One
way is to rely on the personal knowledge of a witness. Here,
the witness attests to its genuineness because the document
was executed or signed in his presence, i.e., he personally
witnessed
the execution or writing of the document. The second mode does
not require that the document be executed in the presence of the
witness. Here the witness testifies or shows evidence that the
signature or handwriting of the maker is
genuine (Sec. 20, Rule 132, Rules of Court; Ong v. People, 342
SCRA 372)
. The manner of authenticating a document required
by Sec. 20 of Rule 132, applies only when a private document
is offered as authentic as when it is offered to prove that the
document was truly executed by the person purported to have
made the same. Where the document is offered in evidence not
as authentic, its genuineness and due execution need not be
proven as when the only purpose is for the offeror to show that
a certain piece of document exists. When a witness says: "I
found this document in the drawer of my table," the document
only needs identification and not authentication. But when
the witness wants to show that the deed was indeed executed
by his brother, the process of authentication required by Sec.
20 must be complied with.

Authentication of both the original and a photocopy of the

original
While a basic rule of evidence that the original copy prevails
over a mere photocopy, there is no harm if in a case, both the
original and a photocopy thereof are authenticated, identified and
offered in evidence by the party proponent(Santos v. Alcazar, G.R.
No. 183034, march 12, 2014).

When authentication of private documents is not required

The requirement of authentication of a private document is
excused in some instances, specifically:
 (a) when the document is an ancient one within the context of
Sec.21, Rule 132 of the Rules of Court;
(b) when the genuineness and authenticity of an actionable
document have not been specifically denied under oath by the
adverse Party under sec. 8 of the ROC.
c. when the genuiness and authenticity of the document have
been admitted under sec. 4 of the RULE 129;
d. when the document is not being offered as authentic as
implied from sec. 20, 132 of the ROC, which requires authentication
only when the document is offered as”authentic”.
Ancient Documents
There is an exception to the rule requiring proof of the
genuineness and due execution of a private document. The
exception is in the case of a private "ancient document." A
private document is considered ancient when it is more than
thirty (30) years old, is produced from a custody in which it
would naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion (Sec. 21, Rule
132, Rules of Court).
When a document is ancient pursuant to the descriptions
in Section 21 of Rule 132, evidence of its authenticity need not
be given, i.e., there is no need to prove its genuineness and
due execution. This means that there is no necessity for observance
of the authentication process under Section 20 suchas the
testimony of a person who saw the document executedor by one
who will show evidence of the genuineness of thehandwriting of the
maker of the document. It must however,be established fi rst that
the document is ancient and that ithas the characteristics of a
document so provided under Section21. When all these are done,
no other evidence of its authenticityneed be given.

Sec. 21 of Rule 132 is clear on this point: To quote:

"Sec. 21. When evidence of authenticity of document
not necessary. — Where a private document is more than thirty
years old, is produced from a custody in which it would naturally be
found if genuine, and is
unblemished by any alterations or circumstances of suspicion, no
other evidence of its authenticity need be
given."

How to Prove Genuineness of a Handwriting

1. Sec. 22 of Rule 132 enumerates how the genuineness
of a handwriting may be proved:
"Sec. 22. How genuineness of handwriting proved.
— The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such
person because he has seen the person write, or has
seen writing purporting to be his upon which the witness
has acted or been charged, and thus has acquired
knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison,
made by the witness or the court, with writings
admitted or treated as genuine by the party against
whom the evidence is offered, or proved to be genuine
to the satisfaction of the judge."

2. Sec. 22 of Rule 132 does not require expert testimony

to prove the handwriting of a person.
It may be proven by any witness who believes it to be the
handwriting of a person because: (1) he has seen the person
write; or (2) he has seen writing purporting to be his upon
which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person; (3) by
a comparison made by the witness or the court, with writings
admitted or treated as genuine by the party against whom the
document is offered, or proved to be genuine to the satisfaction
of the judge (Heirs ofAmado Celestial v. Heirs ofEditha
G. Celestial, 408 SCRA 291).

It ma y be proven by any witness of believes it to be the

handwriting of a person because 1. He has seen the person write;
2. He has seen writing purporting to be his upon which the witness
has acted or been charged, and this acquired knowledge of the
handwriting of such person; or 3. By a comparison made by the
witness or the court, with writings admitted or treated as genuine
by the party against whom the document is offered, or proved to be
genuine to the satisfaction of the judge. Heirs of Amado Celestial v
heirs of Editha celestial.

Importance of Knowing Whether a Document is Public or

Private
' 1. Before the admission of a private document in evidence
that is offered as authentic, its due execution and authenticitymust
be proved (Sec. 20, Rule 132, Rules of Court).This requirement does
not apply to a public document whichis admissible without further
proof of its due execution and genuineness.

A pubic document is admissible in court without further proof

of its execution and authenticity(kummer v people. In contrast, a
private document of a public document, or the solemnities
prescribed by law requires authentication in the manner allowed by
law, requires authentication in the manner allowed by law or the
rules of Court before its acceptance as evidence in court.

Thus, the chemistry report of a public offi cer, showing a

positive result of a paraffi n test, is a public document As a public
document, the rule on authentication does not apply. It is
admissible in evidence without further proof of its due execution
and genuineness. The person who made the report, need not be
presented in court to identify, describe and testify how the report
was conducted. Moreover, documents consisting of entries in public
records made in the performance of a duty by a public offi cer are
prima facie evidence of the facts stated therein.

Also the picture of seat plan, prepared by offi cers of the CSC in
implementing a government a government examination, is a public
document. The presentation of the room examiners is not necessary
to establish the authenticity and due execution of the said set plan.

2. Before the admission of a private document in evidence

that is offered as authentic, its due execution and authenticity must
be proved. This requirement does not apply to a public document
which is admissible without further proof of its due execution and
genuineness.

For example, under Sec. 30 of Rule 132, every document

duly notarized may be presented in evidence without
further proof, the certificate of acknowledgment being prima
facie evidence of the execution of the instrument or document
involved.

The notarial seal converts a document from private to a public

document.
Sec. 30 of Rule 130 affi rms the above principles, thus:

"Sec. 30. Proof of notarial documents. — Every instrument

duly acknowledged or proved and certified as
provided by law, may be presented in evidence without
further proof, the certificate of acknowledgement being
prima facie evidence of the execution of the instrument
or document involved."

PUBLIC DOCUMENT AS EVIDENCE

Under Sec. 23 of Rule 130 also confi rms the significance of
a public document.
When a public offi cer in the performance of his duty makes an
entry in the public record, the document of such entry is deemed
prima facie evidence of the facts stated in the entry. In the case of
other public documents, the facts stated
therein constitute evidence of the facts that gave rise to
theexecution of such documents and of the date of the execution of
the same. Sec. 23 as quoted, declares:
"Sec. 23. Public documents as evidence. — Documents
consisting of entries in public records made in
the performance of a duty by a public offi cer are prima
facie evidence of the facts therein stated. All other public
documents are evidence, even against third persons
of the facts which gave rise to their execution and of the
date of the latter."
Proof of offi cial Record; attestation of a copy

While a public document does not require the authentication

imposed upon a private document, there is a necessityfor showing
to the court that indeed a record of the offi cialacts of offi cial
bodies, tribunals or of public offi cers exists.How is this effected?
Sec. 24 of Rule 132 supplies the answer.
The record of a public document may evidenced by:

(a) An offi cial publication thereof; or

(b) By a copy of the document attested by the offi cer
having legal custody of the record or by the attestation ofhis
deputy; if the record is not kept in the Philippines,the attestation
must be accompanied by a certificate thatsuch offi cer has the
custody; if the offi ce in which the record
is kept is in a foreign country, the certificate maybemade by a
secretary of the embassy or legation, consulgeneral,consul, vice-
consul, or consular agent or by any offi cer in the foreign service of
the Philippines stationed in the foreign country in which the record
is kept, and authenticated by the seal of his offi ce.

The attestation referred to in the preceding numbermust "state, in

substance, that the copy is a correct copy ofthe original, or a
specific part thereof, as the case may be.The attestation must be
under the offi cial seal of the attesting
offi cer, if there be any, or if he be the clerk of a court having aseal,
under the seal of such court." (Sec. 25, Rule 132, Rules ofCourt)

The certificate and attestation are required because

of the general rule on the "irremovability of public records"
embodied in Sec. 26 of Rule 132, thus:"Sec. 26. Irremovability of
public record. — Anypublic record, an offi cial copy of which is
admissible inevidence, must not be removed from the offi ce in
whichit is kept, except upon order of a court where the inspectionof
the record is essential to the just determinationof a pending case."

Proof of foreign laws; doctrine of processual presumption(presumed

identity)

To prove a foreign law, the party invoking it must present a copy

thereof and complybwith Secs.24 and 25 of Rule 132 as mentioned
in the preceding topic.Where a foreign law is not pleaded or, even if
pleaded, is not proven, the presumption is that the foreign law is
the same as Philippine law(Orion Savings Bank, G.R. No. 205487,
November 12, 2014), in accordance with the doctrine of processual
presumption .

Special Power of Attorney Executed Abroad(Bar 2011)

In one case, a special power of attorney was executed and
acknowledged before a notary public of the state of
Washington,USA, authorizing the son of the principal to fi le in the
Philippinesa suit against certain persons. The power of attorneydid
not contain a certificate of authentication by a secretary of the
Philippine embassy or legation, consul general, consul,vice-consul
or consular agent or by any offi cer in the foreignservice of the
Philippines stationed in the foreign country.

The Court held that a notary public in a foreign country is not of

those who can issue the certifi cate mentioned in Section 24 of Rule
132 of the Rules of Court. The Court ruled that non-compliance with
Section 24 of Rule 130, will render the
special power of attorney inadmissible in evidence. Not being duly
established in evidence, the special power of attorney cannot be
used by the son to file a suit in representation of his father. The
case filed then is considered as one not filed by a real party in
interest. Not being a real party in interest and without the authority
to pursue the case, the son could nothave validly commenced the
case. The argument that the lack of consular authentication is a
mere technicality that can be brushed aside in order to uphold
substantial justice was also considered as untenable. The failure to
have the special power of attorney authenticated according to the
Court, is not a mere technicality but a question of jurisdiction.
Citing the previous case of Lopez v. Court of Appeals (156 SCRA
838), it was held that jurisdiction over the real party in interest was
never acquired by the courts. As a result, all proceedings in the
lower courts are declared null and void and thus, set aside (Heirs of
Medina v. Natividad, G.R. No. 177505, November 27, 2008).

Public Record of a Private Document

A public record of a private document may be proved
by any of the following:

(a) By the original record; or

(b) By a copy thereof, attested by the legal custodian of the
record, with an appropriate certificate that such offi cer has the
custody (Sec. 27, Rule 132,Rules of Court).

Proof the Lack of Record

A litigation does not always involve evidence of the existence
of a record. Sometimes the issue centers on the absence of an
offi cial record. How then may the absence of a record be proven?

Proof of lack of record of a document consists of written

statement signed by an offi cer having custody of an offi cial record
or by his deputy. The written statement must contain the following
matters:

(a) there has been a diligent search of the record;

(b) that despite the diligent search, no record of entry of a specified
tenor is found to exist in the records of his offi ce.

The written statement must be accompanied by a certificate that

such offi cer has the custody of offi cial records (Sec.28, Rule 132,
Rules of Court).

Last Wills and Testaments

Last wills and testaments must undergo an authentication

process even if they are notarized in accordance with Art.806 of the
Civil Code of the Philippines. The Rules of Court(Rule 132, Sec.
19[b]), while declaring that the term "public document" includes
one acknowledged before a notary public, nevertheless expressly
excludes last wills and testaments. Besides, substantive law
provides that no will shall pass eitherreal or personal property
unless proved and allowed in the proper court (Art. 838, Civil Code
of the Philippines). The same substantive rule is echoed in Sec. 1 of
Rule 75 which provides:

"Sec. 1. Allowance of will necessary. Conclusive as to

execution. — No will shall pass either real or personal estate unless
it is proved and allowed in the proper court. Subject to the right of
appeal, such allowance
of the will shall be conclusive as to its due execution."(Underscoring
supplied).
Explaining alteration in a document
The party producing the document s genuine but which bears
alteration found in the document after its execution has the duty to
account for any alteration found in a document supported to be
genuine. For such purpose, he may show any of the following:

(a) that the alteration was made by another with our his
concurrence; or
(b) that the alteration was made with the consent of the
parties affected by it;
(c) that the alteration was otherwise properly or innocently
made; or
(d) that the alteration did not in anyway change the meaning
or language of the instrument.

Failure to do any of the above will make the document inadmissible

in evidence (Sec. 31, Rule 132, Rules of Court).

Proof of documents in an unoffi cial language

Because the rule provides that a document written in unoffi cial

language shall not be admitted as evidence, it must be
accompanied by a translation into English or Filipino. To avoid
interruption of court proceedings, attorneys are required to have
such translation prepared before trial(Sec. 22, Rule 132, Rules of
Court).

Impeachment of Judicial Record

1. A judicial record refers to the record of judicial
proceedings(Black's Law Dictionary, 5th Ed., 762) It does not only
include offi cial entries or files or the offi cial acts of a judicial offi cer
(Wharton's Criminal Evidence, 11th Ed., §805), but also the
judgment of the court (Black's Law Dictionary, 762).

2. Sec. 29 of Rule 132 authorizes the impeachment of any

judicial record if there be evidence of the existence of any of the
following grounds: ( a ) lack of jurisdiction in the court or judicial
offi cer; (b) collusion between the parties, or (c) fraud in the party
offering the record, in respect to the proceedings.

Registration of Contracts

1. Where a contract is required by law to be registered, the

same must be, as a rule, in a public instrument. For example,for
purposes of registration and convenience, acts and contracts which
have for their object the creation, transmission, modification or
extinguishment of real rights over immovable
property must appear in a public instrument (Art.1358, Civil Code of
the Philippines).

2. Certain contracts must be embodied in a public instrument

in order to be valid. Examples: (a) A donation of an immovable (Art.
749, Civil Code of the Philippines); (b) A donation of a movable with
a value exceeding fi ve thousand pesos (Art. 748, ibid.); (c) A
partnership where immovable property or real rights are
contributed (Art. 1771, ibid.).

Foreign judgments; divorces

Before a foreign judgment is given presumptive evidentiary

value, the document must first be presented and admitted in
evidence. A divorce obtained abroad is proven by the divorce
decree itself. Indeed, the best evidence of a judgment is the
judgment itself. The decree purports to be a written act or record of
an act of an offi cial body or tribunal of a foreign country.

Under Secs. 24 and 25 of Rule 132, on the other hand, a

writing document may be proven as a public or offi cial record of a
foreign country either (1) an offi cial publication or (2) a copy
thereof attested by the offi cer having legal custody of the
document. If the record is not kept in the Philippines, such must be
(a) accompanied by a certificate issued by the proper diplomatic or
consular offi cer in the Philippine foreign service stationed in foreign
country n which the record is kept, and (b) authenticated by the
seal of his offi ce(Vda. De Catalan v. Catalab-Lee, 655 SCRA 487,
495, February 8, 2012)/

Church registries

As early as in the case of U.S.v.Evangelista,29 Phil.215, it has

been settled that church registries of births, marriages, and deaths
made subsequent to the promulgation of General Orders No. 68,
promulgated on December 18, 1889, and the passage act of Act.
No. 190, enacted on August 7, 1901, are no longer public writings,
nor are they kept by duly authorize public offi cials. They are private
writings and their authenticity must, therefore, be proved, as are all
other private writings in accordance with the rules of Evidence
(Llemos v. Llemos, 513 SCRA 128; See also Cercado-Siga v.
Cercado, Jr., G.R. No. 185374, March 11, 2015).(Bar 2011)