BURDEN OF PROOF AND PRESUMPTIONS IN LAW

LAW ON EVIDENCE based on the lectures of ATTY.
JESS ESPEJO
September 28, 2016 prosecutions, burden of proof is said to be pinned institutionally due
to the constitutional mandate that the accused is presumed
BURDEN OF PROOF AND PRESUMPTIONS innocent until the contrary is proven.
Rule 131, Section 1. Burden of proof. — Burden of proof is the duty Atty. JZE: It becomes the duty of the one who prosecutes or the
of a party to present evidence on the facts in issue necessary to prosecutor to prove that the accused is guilty of the crime charged
establish his claim or defense by the amount of evidence required by beyond reasonable doubt. If he falls short of the required proof
law. beyond reasonable doubt, the accused is entitled to an acquittal.
Burden of proof is why we present evidence Now, how do you again discharge the burden of proof? By
To discharge the burden of proof is the end sought to be achieved presenting evidence. That is why everything we have discussed so
by the presentation of evidence. far, including the movie (A Few Good Men), is geared towards telling
you how to discharge the burden of proof.
Simply put, burden of proof, or “onus pobandi”, refers to the
obligation or duty of a party to the litigation to persuade the court Presumption of innocence
that he is entitled to relief. Take note that the right of the accused to be presumed innocent
until proven guilty is guaranteed under Section 14(2), Article III (Bill
Atty. JZE: This is actually a cautionary measure. Because parties are of Rights) of the Constitution. This fundamental right of the accused
prone to litigate and anything can be the subject of litigation, burden is also embodied under Section 2, Rule 133 of the Rules of Court,
of proof tells you that there is a need to be cautious when you which specifically states that “in a criminal case, the accused is
litigate. What you allege, you must be able to prove. Otherwise, it entitled to an acquittal, unless his guilt is proved beyond reasonable
will be considered vexatious. doubt.”
Burden of proof, a duty Thesis

It is considered a duty because you have to do it. The presentation Whenever a presumption applies in favor of a party, “the effect” is
of evidence is a duty owed by a party not only to the court but also that the burden of proof rests on the other.
to himself.
Examples of presumption
COURT – Filing a case without presenting evidence makes it
spurious, vexatious and malicious. 1. Art 527. Good faith is always presumed, and upon him who
PARTY HIMSELF – If he presents no evidence, he of course alleges bad faith on the part of a possessor rests the burden of
loses. proof.
Amount of evidence required by law 2. Art. 1272. Whenever the private document in which the debt
Amount of evidence is synonymous to “quantum of proof”. Under appears is found in the possession of the debtor, it shall be
Rule 133, there are several different quanta of proof, depending on presumed that the creditor delivered it voluntarily, unless the
the type of case or issue that is brought before a tribunal. contrary is proved.
Atty. JZE: When a presumption applies in your favor, you can bet
In criminal cases, the quantum of proof required would be proof
that the other party will do everything in his power to rebut that
beyond reasonable doubt.
presumption. The other party now has the burden to prove that
presumption is just that, a presumption.
For civil cases, it is preponderance of evidence as defined under Rule
133.
Conclusion
There is an intimate connection that exists between presumptions
For an administrative tribunal, the quantum of proof required would
and burden of proof. When there is an applicable presumption, the
be substantial evidence or that amount of evidence which a
burden actually shifts to the party who denies to dispute the
reasonable mind might accept as adequate to support the
presumption. Verily, an unrebutted presumption is equivalent to
conviction.
proof already.
Who bears the burden?
Still in criminal cases
General Rule: EI INCUMBIT PROBATIO QUI DICIT, NON QUI NEGAT
The obligation to convince the trier of facts to show the guilt of the
(The burden of proof lies upon him who affirms and not upon him
accused beyond reasonable doubt is upon the prosecution, as a rule,
who merely denies).
throughout the trial. However, when the accused invokes self-
defense, the burden of proof rests upon the defense to prove that
METROBANK vs. CPR PROMOTIONS (2015) killing was justified (People v. Tan, 315 SCRA 75)
In this regard, it is elementary that the burden to prove a claim rests In Civil Cases
on the party asserting such. Ei incumbit probatio qui dicit, non qui The usual principle is that whoever makes an affirmative allegation
negat. He who asserts, not he who denies, must prove. has the burden of proof. A party who alleges a fact has the burden
of proving it. (Gamboa, Rodriguez, Rivera and Co. vs. CA, GR No.
Burden of proof in criminal cases 117456)
In criminal cases, the burden of proof is on the prosecution because
under Rule 133, the accused is entitled to acquittal unless his guilt is PNB vs. PASIMIO
demonstrated by proof beyond reasonable doubt. In case of criminal
3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO
GR No. 205599, September 02, 2015 For example, in a criminal case, the prosecution carries the burden
of proof to establish the guilt of the accused beyond reasonable
In civil case, it is settled that the burden of proof lies with the party doubt. The accused, conversely, has the benefit o assumption such
who asserts a right and the quantum of evidence required by law in that if, after the prosecution presents its evidence and the same is
civil cases is preponderance of evidence. XXX Just as settled is the not sufficient to convict, the benefit of assumption, i.e. that the
rule that the plaintiff in civil cases must rely on the strength of his or accused is presumed innocent, operates to cause the acquittal of
her own evidence and not upon the weakness of that of the the accused. He does not even have to present evidence.
defendant.
However, if the evidence of the prosecution is strong, it is deemed
to have established a prima facie case. When a prima facie case is
JESUS IS LORD CHRISTIAN FOUNDATION, INC. vs. CITY OF PASIG
established, the burden of proof of presenting evidence is
GR No. 152230, August 9, 2005
effectively passed off to the defending party. The accused therefore
In an eminent domain case, the local government that seeks to must present evidence to establish his innocence.
expropriate private property has the burden of proving to show the
Example: Res Ipsa Loquitor, “the thing speaks for itself”.
existence of compliance with the elements for the valid exercise of
the right of eminent domain.
Atty. JZE: My favorite doctrine in all of law, explained by my favorite
case in all of law, Republic v. Luzon Stevedoring. Facts of the case:
MAYON HOTEL & RESTAURANT vs. ADANA tugboat – pier – bangga! Kinsay sala? Pier? It cannot be the pier, it’s
458 SCRA 609, 2005 not moving, and therefore the facts indicate that there might be
negligence on the part of the actor. Because of the peculiar facts of
Thus, if the plaintiff alleges that the defendant owes him a sum of the case, it is reasonable to presume negligence. And by the
money, the plaintiff has the burden to prove the debt. Conversely, if operation of the doctrine of res ipsa loquitor, the plaintiff, for
the defendant admits the debt but defends by alleging that it has example, does not have to prove that there is negligence on the part
already been paid, waived or otherwise extinguished, he has the of the defendant. There is already a dispensation of proof on that
burden to prove the extinguishment of the alleged obligation. regard because it is presumed already that the defendant was
negligent.
Test to determine where the burden of proof lies
The test for determining where the burden of proof lies is to ask It does not mean that the plaintiff does not have to present anything
which party to an action or suit will fail if he offers no evidence in the meantime, he must still testify as to what happen, what the
competent to show the facts averred as the basis for the relief he doctrine tends to dispense with is for the plaintiff to present evidence
seeks to obtain. If the defendant has affirmative defenses, he bears or testify tending to proof negligence on the part of the defendant.
the burden of proof as to those defenses which he sets up in answer
to the plaintiff’s cause of action. Hence, if the defendant sets up the Negligence must be proved in a suit on a quasi-delict, so that the
affirmative defense of prescription, he must prove the date when plaintiff may recover. The plaintiff therefore has the burden of
the prescription began to run. (Aznar Brothers Realty vs. Aying, GR proof to establish that the defendant is liable, pursuant to the
No. 144773, May 16, 2005). general rule that he who alleges must prove. The defendant has the
benefit of assumption. In a case where the doctrine applies, the
Where the burden of proof is fixed presence of the facts and circumstances surrounding the injury
The burden of proof is fixed by the pleadings. The claim of the clearly indicate negligence on the part of the defendant (Example:
plaintiff which he must prove, is spelled out in his complaint. The collision between a tugboat and a stationary object in the case of
defendant’s defenses which he must likewise prove are to be found Republic vs. Luzon Stevedoring, Sept. 29, 1967)
in his answer to the complaint. The burdens of proof of both parties
do not shift during the course of the trial. For example, the burden The maxim applies whenever it is so improbable that such accident
of proof to establish that the defendant owes the plaintiff remains would have happened without the fault of the defendant, that a
with the plaintiff. The burden of proof to establish that the loan has reasonable man could find without further evidence that it was so
been paid remains with the defendant throughout the litigation. caused. The maxim throws on to the defendant the burden of
disproving negligence. This time the defendant carries the burden
Antithesis of Burden of Proof: Benefit of Assumption of proof while the plaintiff has the benefit of assumption.
The party who does not bear the burden of proof holds the benefit
of assumption, which means that he needs no evidence to support Component Onera In Onus Probandi
his claim or defense.
1. BURDEN OF GOING FORWARD – that of producing evidence;
Atty. JZE: One party at any given time during the trial will have the
burden of proof and so he, has to present evidence to prove his claim Illustration of going forward with the evidence: For example,
or defense. On the other hand, the other party does not have to do after the existence of the debt has been proven by the creditor,
anything; he will just have to sit down, listen to the evidence the burden of proving payment devolves upon the debtor.
presented, object when necessary, and wait until the other party Where the debtor introduces evidence of payment, the burden
rests his case. Why? Because he has that benefit of assumption. of going forward with the evidence - as distinct from the general
burden of proof – shifts to the creditor who is then under the
Upon discharging his burden of proof, the party then effectively duty of producing evidence to show non-payment. (Jimenez, et
captures the benefit of assumption. As an effect, the other party al., vs. NLRC, et al., GR. No. 116960, April 2, 1996)
must then present evidence of his own to try to regain the benefit.
In short, the burden of going forward is the burden of producing
evidence.
Atty. JZE: The Supreme Court treats burden of proof and burden of
2. BURDEN OF PERSUASION – burden of persuading the trier of evidence, differently.
facts that the burdened party is entitled to prevail.
Distinguish
Effect of absence of evidence BURDEN OF PROOF BURDEN OF EVIDENCE
Definition
A. In criminal cases The duty of a party to present The duty of a party to provide
 The accused is acquitted because of the presumption of evidence on the facts in issue evidence at any stage of the
innocence. necessary to establish his claim trial until he has established a
 The prosecution therefore was unable to discharge its or defense by the amount of prima facie case, or the like
burden to destroy the benefit of assumption afforded to evidence required by law. (Sec. duty of the adverse party to
the accused. 1, Rule 131) meet and overthrow that
 But he (accused) bears the burden if he admits the prima facie case thus
offense/crime charged but raises justifying, exempting established.
circumstances, or absolutory causes. Shifting the burden
Does not shift as it remains Shifts to the other party when
B. In civil cases, there are several possibilities. throughout the entire case the party has produced
 If the Defendant does not file an Answer – Plaintiff wins as exactly where the pleadings sufficient evidence to be
he takes judgment by default. originally paced it. entitled to a ruling in his favor.
 If the Defendant files an answer and set up purely negative How to determine
defenses and no evidence is presented by both sides –
Generally determined by the Generally determined by the
Defendant wins because the Plaintiff failed to discharge his
pleadings filed by the party; developments at the trial, or
burden.
and whoever asserts the by the provisions of the
 If the Defendant files an answer and sets up affirmative
affirmative of the issue has the substantive law or procedural
defenses and no evidence is presented by both sides. –
burden of proof. rules which may relieve the
Plaintiff wins. Why?
party from presenting evidence
on the facts alleged.
Example
The defendant filed an answer and alleged that: “I admit that I Effects of presumption
borrowed money from the plaintiff, but the plaintiff has no reason It does not shift the burden of It creates a prima facie case
to run after me because I have paid that account long ago.” proof. However, the one who and thereby sustains the said
has the burden of proof is burden of evidence on the
 If no evidence is presented by both sides then the plaintiff wins relieved, for the time being, point which it covers, shifting it
because the defendant admitted the existence of the loan. And from introducing evidence in to the other party. It relieves
it is the defendant’s burden to prove his affirmative defense. support of his averment those favored thereby of the
because the presumption burden of proving the fact
Review of Civil Procedure concepts stands in the place of evidence. presumed.
Rule 6, Section 5. Defenses. — Defenses may either be negative or
affirmative. Shifting the burden
Where insanity is alleged, the burden of proof rest upon him who
(a) A negative defense is the specific denial of the material fact or alleges insanity to establish that fact but where insanity is once
facts alleged in the pleading of the claimant essential to his cause or proved to exist, the burden of evidence is shifted to him who asserts
causes of action. that the act was done while the person was sane. (Engle v. Doe, GR
No. L-23317, Aug. 7, 1925)
(b) An affirmative defense is an allegation of a new matter which,
while hypothetically admitting the material allegations in the Example
pleading of the claimant, would nevertheless prevent or bar recovery Plaintiff files a complaint for recovery of a defaulted loan. Defendant
by him. The affirmative defenses include fraud, statute of limitations, files an answer with a negative defense, denying the existence of the
release, payment, illegality, statute of frauds, estoppel, former loan. At the start, the plaintiff has the burden of proof and also
recovery, discharge in bankruptcy, and any other matter by way of burden of evidence to show that he has a cause of action. If he has
confession and avoidance. introduced enough proof that he has a cause of action, the burden
of evidence will now be shifted to the defendant. If the defendant
Q: Is the burden of proof the same as “burden of evidence”? presents enough evidence to prove his negative defense then the
A: No, they are not the same. Burden of evidence is the duty resting burden of evidence is shifted again to the plaintiff to present
upon a party, by means of evidence, to create or meet a prima facie rebuttal evidence.
case.
Going back to criminal case
The burden of evidence is the duty of a party to go forward with Once again, the accused is entitled to the presumption of innocence.
the evidence to overthrow the prima facie evidence against him. The prosecution does not discharge its burden, the accused should
The burden of going forward with the evidence may shift from one be acquitted.
side to the other as the exigencies of the trial requires and shifts
with alternating frequency. Order of Trial
 Prosecution presents evidence-in-chief
 Accused presents evidence-in-chief
 Prosecution presents rebuttal evidence weakness of the prosecution but on the strength of his own
 Accused presents rebuttal evidence evidence, “for even if the evidence of the prosecution were weak, it
could not be disbelieved after the accused himself had admitted the
Take note that, if the prosecution, after presenting its evidence-in- killing.” (Cabuslay vs. People and Sandiganbayan, G.R. No. 129875,
chief, fails to discharge its burden, the Accused does not have to Sept. 30, 2005)
present any evidence. He is entitled to an acquittal as a matter of
law. In short, a plea of self-defense is an admission that the accused
committed the killing but tries to avoid criminal liability by alleging
Q: What is the remedy of the accused in such case? that the killing is justified. It is an affirmative defense (confession
A: He may file a demurrer to the evidence. and avoidance). Because he admits to the killing, the prosecution
does not have to present evidence. The burden is effectively shifted
Rule 119, Section 23. Demurrer to evidence. — After the prosecution to the accused, leading to a REVERSE TRIAL ORDER.
rests its case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the Reverse trial order
prosecution the opportunity to be heard or (2) upon demurrer to  Accused presents evidence-in-chief on his claim of self defense
evidence filed by the accused with or without leave of court. XXX  Prosecution then presents evidence-in-chief to refute the claim
 Accused presents rebuttal evidence
Atty. JZE: When you file a demurrer to evidence without leave of  Prosecution presents rebuttal evidence
court, there is a codal provision addressing such instance. Basically, if
the demurrer is granted, the case is dismissed but if there is an Atty. JZE: The case now changes on the part of the prosecution
appeal and the dismissal is reversed, you will lose your right to because now, it doesn’t have to prove the elements of the crime.
present evidence. So why will you file a demurrer to evidence without What the prosecution will now have to prove will be matters that will
leave of court when it is so easy to ask for leave? refute the claim of self-defense of the Accused. The prosecution will
now attack the elements of self-defense.
Whenever I am defense counsel, I always file a demurrer with leave
of court, regardless of whether the prosecution established a prima The same thing happens in civil cases. If the Defendant, for example,
facie case against the Accused. Why? in a collection case, files a motion to dismiss based on, or pleads the
affirmative defense of payment, what happens?
If the court believes the grounds I pleaded for the grant of demurrer,
the case is dismissed. My client walks away. I win. Note: The defendant can file an answer or a motion to dismiss.
If the court thinks that I am simply bullshitting, who cares? Even if MOTION TO DISMISS
the court denies the demurrer, I still get an advantage because the
court has to extensively rule my demurrer. It has to explain how the What will happen?
prosecution was able to establish a prima facie case. In other words, There will be a hearing on the motion to dismiss where the
in the middle of the trial, the court, in denying my demurrer, will Defendant will present evidence to prove the ground relied upon for
have to summarize for me the evidence of the prosecution so far. In dismissal. This happens prior to trial proper.
effect, the court will tell me what evidence it believes so far.
Atty. JZE: Remember that prior to the presentation of any evidence
With this information, I can prepare the presentation of evidence for for the plaintiff, there will be a hearing on the grounds for a motion
the defense accordingly. For example, if the court relied on the to dismiss. So the motion to dismiss goes ahead, where the
positive identification of the witness, I will then prepare my defendant will present evidence to prove the ground relied upon for
witnesses or introduce proof to refute such positive identification. I dismissal, which happens prior to trial proper. So it will be the
can still win. defendant who will be the first to present evidence during the
preliminary hearing on the motion to dismiss, because he is the one
With this, in the middle of the trial, I know where my client’s stand is. alleging. This is a shifting of the burden.
If I see that the case is difficult, I can try to settle or withdraw the
plea if it is still allowed. Rule 16, Section 2. Hearing of motion. — At the hearing of the
motion, the parties shall submit their arguments on the questions of
What happens if the accused pleads a justifying circumstance? law and their evidence on the questions of fact involved except those
not available at that time. Should the case go to trial, the evidence
SELF DEFENSE presented during the hearing shall automatically be part of the
One who invokes self-defense admits responsibility for the killing. evidence of the party presenting the same.
Accordingly, the burden of proof or to be more technical, the burden
of going forward with the evidence, shifts to the accused who must Answer with Affirmative Defense
then prove the justifying circumstance. He must show by clear and Rule 16, Section 6. Pleading grounds as affirmative defenses. — If
convincing evidence that he indeed acted in self-defense or in no motion to dismiss has been filed, any of the grounds for dismissal
defense of a relative or a stranger. Self-defense, like alibi, is a provided for in this Rule may be pleaded as an affirmative defense in
defense which can easily be concocted. the answer and, in the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss had been filed.
Once the accused has admitted that he inflicted the fatal injuries on
the deceased, it is incumbent upon him in order to avoid criminal The dismissal of the complaint under this section shall be without
liability, to prove the justifying circumstance claimed by him with prejudice to the prosecution in the same or separate action of a
clear, satisfactory and convincing evidence. He cannot rely on the counterclaim pleaded in the answer.
Exception to the exception

Atty. JZE: Thus, in effect, there is a reverse trial order. In civil cases, even if the negative allegation is an essential part of
the cause of action or defense, it does not have to be proved if it is
Review of Civil Procedure concepts only for the purpose of denying the existence of a document which
Maja sues Iza for non-payment of a loan. She attached therein a should properly be in the custody of the adverse party. (Regalado,
contract of loan dated January 14, 2011. Upon being served with Vol. II, p. 818, 2008 ed.)
summons, Iza files a motion to dismiss on the ground that the debt
on January 14, 2011 was already paid and attached a receipt to that Doctrine of Equipoise (Equiponderance of Evidence)
effect. However, Maja realized that the claim in her complaint for The doctrine refers to a situation where the evidence of the parties
the January 14, 2011 debt was a clerical error. She should have are evenly balanced or there is doubt on which side the evidence
alleged instead that it was the January 14, 2012 debt that is unpaid. preponderates. In this case the decision should be against the party
with the burden of proof. Hence, where the burden of proof is on
Q: What should Maja do? Can she file a motion for leave of court to the plaintiff and the evidence does not suggest that the scale of
amend the complaint? Does she have to re-file the case and reflect justice weigh on his favor, the court should render the verdict for
the true date of the loan? the defendant. (Mahawan vs. People, GR no. 176609, Dec. 18, 2008)
A: Actually, Maja can still amend her answer as matter of right. Basis
Why? The rule to remember is that amendment is a matter of right No one shall be deprived of life, liberty or property without due
before service of a responsive pleading. A motion to dismiss is NOT a process of law. (Sec. 1, Art. III, Constitution)
responsive pleading. In fact, it is not even a pleading.
Atty. JZE: A case that I always discuss in Land Titles and Deeds is the
Atty. JZE: So if you are the defendant, between filing an answer with case of Cruz vs. DENR Sec., where the constitutionality of the IPRA
affirmative defenses and filing a motion to dismiss, what will you opt Act was questioned before the SC. The votes of the Supreme Court
for? File an answer with affirmative defenses because you will take were equally divided (7-7), so they were not able to refute the
away the ability of the plaintiff to amend his pleading as a matter of presumption of constitutionality of the act. The same in court cases,
right. if the evidence is equal, whoever has the burden or alleges infirmity,
is the one who should lose.
MARCOS-ARANETA vs. CA
G.R No. 154096, August 22, 2008 RIVERA vs. CA, et al.,
GR No. 115625, Jan. 23, 1998
Responsive pleadings are those which seek affirmative relief and/or
set up defenses, like an answer. A motion to dismiss is not a Where the evidence on an issue of fact is in equipoise or there is
responsive pleading for the purposes of Section 2 of Rule 10. doubt on which side the evidence preponderates, the party having
the burden of proof fails upon that issue.
Back to criminal cases
Take note that under the Speedy Trial Act, if the accused is not Therefore, as "neither party was able to make out a case, neither
brought to trial within the time required, the Information shall be side could establish its cause of action and prevail with the evidence
dismissed upon motion of the accused. In such a case, the burden of it had. They are thus no better off than before they proceeded to
proof of supporting the motion is with the accused (Sec. 13, R.A. litigate, and, as a consequence thereof, the courts can only leave
8493) them as they are.
Principle of Negative Averments In short, when the evidence is in equipoise, the court should rule in
favor of the defending party because the claimant was not able to
General Rule discharge the burden or defeat the benefit of assumption. The
Negative allegations need not be proved, whether in civil or criminal parties would stand as if the case was never filed.
cases.
Equipoise Doctrines
Atty. JZE: Dean Iñigo calls it the principle of negativing an averment. In criminal cases, where the evidence of both the defense and the
prosecution are on equipoise, the accused is entitled to acquittal.
Exception
Where such negative allegations are essential parts of the cause of In labor cases, if doubt exists between the evidence presented by
action or defense in a civil case, or are essential ingredients of the the employer and the employee, the scale of justice must be tilted in
offense in a criminal case or the defenses thereto, negative favor of the latter. (Mayon Hotel vs. Adana, GR No. 157637, May 16,
allegations should be proved. (Industrial Finance Corp. V. Tobias, 2005)
G.R. No. L-41555, July 27, 1997)
Atty. JZE: The latter is a bit aberrant; it does not actually fall
Example squarely to “whoever alleges, has the burden of proving it.”
In a prosecution for illegal possession of firearms, the information Remember that in labor cases, let’s say illegal dismissal cases, the
will contain an averment that the accused does not have a license to case is initiated when a complaint is filed coming from the laborer,
possess the firearm [negative averment]. the employee, which means he has the burden of proof by
substantial evidence that he was really illegally dismissed. Now
In this case, the negative averments is an essential ingredient of the remember the doctrine of equipoise, if the evidence of the parties are
offense, hence, this must be proven. equal, in effect it is the plaintiff who will lose because he failed to
discharge his burden. But in a labor case, even if technically
speaking they are in equal footing because of the doctrine of petitioner-spouses made no effort to communicate with the bank in
equipoise but because “in case of doubt xxx, the doubt should be order to clarify the matter.
ruled in favor of labor”, the laborer would still win.
The absence of any overt act on the part of petitioner-spouses to
Bar Question 1995 protect their interest from the time the mortgaged vehicle was
Q: Explain the equipoise doctrine in the law of evidence and cite its stolen up to the time they received the summons defies reason and
constitutional basis. (refer to previous discussion) logic. Their inaction is obviously contrary to human experience. In
addition, we cannot help but notice that although the mortgaged
DE LEON vs. BPI vehicle was stolen in November 1997, petitioner-spouses defaulted
GR No. 184565, Nov. 20, 2013 on their monthly amortizations as early as August 10, 1997. All these
taken together cast doubt on the truth and credibility of his
FACTS: On June 13, 1995, Christopher de Leon and his wife executed testimony. Failing to prove their defense, petitioner-spouses are
a Promissory Note, binding themselves to pay Nissan Gallery Ortigas liable to pay their remaining obligation.
the amount of P 458, 784.00 in 36 monthly installments. To secure
the obligation, the spouse constituted a chattel mortgage over the PRESUMPTIONS
vehicle. On the same day, Nissan Gallery Ortigas executed a Deed of
Assignment of its rights and interest under the Promissory Note in Review: What need not be proved?
favor of Citytrust Banking Corporation, which would later on be
merged and absorbed by BPI. 1. Agreed and Admitted Facts (Sec. 4, Rule 129);
2. Facts subject to judicial notice (Sec. 3, Rule 129); and
The spouses, however, failed to pay their monthly amortizations 3. Facts legally presumed (Sec. 2 and 3, Rule 131).
from August 10, 1997 to June 10, 1998. Thus, BPI sent them a
demand letter. On November 19, 1998, respondent BPI filed before What is a presumption?
the MeTC of Manila a Complaint for Replevin and Damages. A presumption is an inference as to the existence or non-existence
of a fact which courts are permitted to draw from the proof of other
Petitioner-spouse in their Answer averred that their obligation was facts.
extinguished because the mortgaged vehicle was stolen while the
insurance policy was still in force. They alleged that they informed A presumption is an assumption of fact resulting from a rule of law
Citytrust of the theft of the mortgaged vehicle through its employee, which requires such fact to be assumed from another fact or group
Meldy Endaya by fax and that BPI should have collected the of facts found or otherwise established in the action. (Black's., 5 th
insurance proceeds and applied the same to the remaining ed.)
obligation. BPI, according to the spouse, should bear the loss for
failing to collect the proceeds of the insurance. Q: Is presumption evidence?
A: A presumption is not evidence in itself but it affects the burden of
HELD: Section 1 of Rule 131 of the Rules of Court defines “burden of offering evidence. It is not evidence in itself but it is an assumption
proof” as “the duty of a party to present evidence on the facts in resulting from evidence.
issue necessary to establish his claim or defense by the amount of
evidence required by law.” In civil cases, the burden of proof rests Example
upon the plaintiff, who is required to establish his case by a X is the debtor of Z, creditor of P1 million payable in 12 monthly
preponderance of evidence. Once the plaintiff has established his installments. If evidence is introduced that the installment payment
case, the burden of evidence shifts to the defendant, who, in turn, for December has been received by the creditor, a presumption
has the burden to establish his defense. arises that the previous installments have been paid. This is because
under the law, the receipt of a later installment of a debt, without
In this case, respondent BPI, as plaintiff, had to prove that the reservation as to prior installments, shall give rise to the
petitioner-spouse failed to pay their obligations under the presumption that such installments have been paid. (Art. 1176, Civil
Promissory Note. Petitioner-spouses, on the other hand, had to Code)
prove their defense that the obligation was extinguished by the loss
of the mortgaged vehicle, which was insured. Types of Presumptions
Based on the chattel mortgage, the mortgagor must notify and A. Presumption Juris (Presumption of Law) – a deduction which
submit proof of the loss of the mortgagee. Otherwise, the the law expressly directs to be made from particular facts. A
mortgagee would not be able to claim the proceeds of the insurance presumption of law is an assumption which the law requires to
and apply the same to the remaining obligation. be made from the set of facts. It must be made whenever the
facts appear which furnish the basis for the interference. Such
In this case, petitioner's testimony that he sent notice and proof of type of presumption is reduced to fixed rules and form part of
loss of the mortgaged vehicle to Citytrust through fax lacks the system of jurisprudence.
credibility especially since he failed to present the facsimile report
evidencing the transmittal. His failure to keep the facsimile report or B. Presumption Hominis (Presumption of Fact) – a deduction
to ask for a written acknowledgment from Citytrust of its receipt of which reason draws from facts proved without an express
the transmittal gives us reason to doubt the truthfulness of his direction from the law to that effect. A presumption is one of
testimony. His testimony on the alleged theft is likewise suspect. To fact when the assumption is made from the facts without any
begin with, no police report was presented. Also, the insurance direction or positive requirement of a law. As such, it is totally
policy was renewed even after the mortgaged vehicle was allegedly discretionary on the court and is derived from circumstances of
stolen. And despite repeated demands from respondent BPI, a particular case through common experience of mankind.
Example October 3, 2016

Maja kissed Adonis from out of the blue. The logical presumption
arises that Maja likes Adonis. CONCLUSIVE PRESUMPTIONS
Conversely, Adonis kicked Matteo in the face without provocation. It Rule 131, Section 2. Conclusive presumptions. — The following are
can be logically presumed that Adonis does not like Matteo. instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or omission,
(This assumption of fact does not rise from any direction of the law. intentionally and deliberately led to another to believe a particular
It arises because reason itself allows a presumption from facts.) thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to
Classification of Presumptions of Law (Presumption Juris) falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the
A. Conclusive (presumption juris et de jure) - not permitted to be time of commencement of the relation of landlord and tenant
overcome by any proof to the contrary. A presumption is between them.
conclusive when the presumption becomes irrebuttable upon
the presentation of evidence and any evidence tending to rebut A presumption is conclusive when the presumption becomes
the presumption is not admissible. The presumption is in reality irrebuttable upon the presentation of the evidence and any
a rule of substantive law. (Ex: presumption of lack of evidence tending to rebut the presumption is not admissible.
discernment if you are below 9 year of age)
A conclusive or irrebuttable presumption is not a presumption at all.
B. Disputable (presumption juris tantum) - which the law permits It is a substantive rule of law directing that proof of certain basic
to be overcome or contradicted. A presumption is disputable or facts conclusively proves an additional fact which cannot be
rebuttable if it may be contradicted or overcome by other rebutted. Such presumption rests upon grounds of expediency or
evidence (Sec. 2[b], Rule 131, Rules of Court). When evidence public policy so compelling in character as to override the
that rebuts the presumption is introduced, the force of the requirement of proof.
presumption disappears.
The conclusive presumptions under the Rules of Court are based on
Example the doctrine of estoppel. Under this doctrine, the person making the
While the evidence of receipt of payment of a latter installment representation cannot claim benefit from the wrong he himself
gives rise to the presumption that the previous installments have committed.
been paid, yet when the evidence is shown that prior installments
remain unpaid, the presumption falls. The first conclusive presumption is often referred to as estoppel in
pais or estoppels by conduct.
Prima Facie
Prima Facie is a Latin expression meaning on its first appearance, or Conclusive presumption as to tenants under Section 2(b)
by first instance; at first sight. The literal translation would be “from
first face”, prima first, facie face. It is used in law to signify that on
DATALIFT VS. BELGRABIA
first examination, a matter appears to be self-evident from the facts.
G.R. No. 144268, August 30, 2006
In common law jurisdictions, prima facie denotes evidence which –
unless rebutted – would be sufficient to prove a particular position
Conclusive presumptions have been defined as “inferences which
or fact. the law makes so peremptory that it will not allow them to be
overturned by any contrary proof however strong” As long as the
Establishing a prima facie case means “Establishing a case” or lessor – lessee relationship between the petitioner and Belgravia
“making a case”.
exists as in this case, the former, as lessees, cannot by any proof,
however strong, overturned the conclusive presumption that
Atty. JZE: So the aim of evidence therefore is establishing a prima Belgravia has valid title to or better right of possession to the subject
facie case.
leased premises that they have.
For example, in a trial under Criminal law the prosecution has the
burden of presenting prima facie evidence of each element of the TAMIO VS. TICSON
crime charged against the Accused. In a murder case, this would G.R. No. 154895, November 18, 2004
include evidence that the victim was in fact dead, that the
defendant's act caused the death, and the evidence that the The lessees, who had undisturbed possession for the entire term
defendant acted with criminal intent. If no party introduces new under the lease, are estopped to deny their landlord’s title, or assert
evidence, the case stands or falls just by the prima facie evidence. a better title not only in themselves, but also in some third person
while they remain in possession of the leased premises and until
Conclusion they surrender possession to the landlord.
When a prima facie case is deemed established, it means that the
party with the initial burden of proof has discharged it. It means that This estoppel applies even though the lessor had no title at the time
the burden of evidence has now shifted to the other party who must the relation of lessor and lessee was created, and may be asserted
present evidence to meet the prima facie case against him. If he not only by the original lessor, but also by those who succeed to his
presents no evidence, he loses the case. title.
Indeed, the relation of lessor and lessee does not depend on the
former’s title but on the agreement between the parties, followed
by the possession of the premises by the lessee under such the burden of proof upon the party who alleges wrongdoing rather
agreement. As long as the latter remains in undisturbed possession, than the one who defends.
it is immaterial whether the lessor has a valid title – or any title at all
– at the time the relationship was entered into. Between the present (b) That an unlawful act was done with an unlawful intent;
parties, the lease – which was actually a sublease – was effective.
You’ve already learned this in Criminal Law. In criminal prosecutions,
you don’t have to present evidence of intent as mens rea is already
EXCEPTION presumed.
 The conclusive presumption set forth in Rule 131, Section 2(b)
does not apply in case where the landlord-tenant relationship (c) That a person intends the ordinary consequences of his
has not been sufficiently established or where the very voluntary act;
existence of the relationship is the very issue of the case
(CONSUMIDO vs. ROS, ET AL., G.R. No. 166875, July 31, 2007). A person is presumed to have intended the ordinary consequences
of his voluntary act, even if the wrongful act done be different from
 If there was a change in the nature of the title of the landlord that which he intended. This is related to the principle of praeter
during the subsistence of the lease, the presumption does not intentionem in criminal law. The unintended effect is considered
apply. outside the intention.
Civil law incarnations

BORRE vs. COURT OF APPEALS
G. R. No. L-57204, March 14, 1988
 Art. 2201. In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be
The rule on estoppel against tenants is subject to a qualification. It
those that are the natural and probable consequences of the
does not apply if the landlord’s title has defeated by a title
breach of the obligation, and which the parties have foreseen
paramount, subsequent to the commencement of lessor-lessee
or at the time the obligation was constituted.
relationship [VII Francisco, The Revised Rules of Court in the
Philippines 87 (1973)]. In other words, if there was a change in the
In case of fraud, bad faith, malice or wanton attitude, the
nature of the title of the landlord during the subsistence of the
obligor shall be responsible for all damages which may be
lease, then the presumption does not apply. Otherwise, if the nature
reasonably attributed to the non-performance of the
of the landlord’s title remains as it was during the commencement
obligation.
of the relation of landlord and tenant, then estoppel lies against the
tenant.
 Art. 2202. In crimes and quasi-delicts, the defendant shall be
liable for all damages which are the natural and probable
ERMITAÑO versus PAGLAS consequences of the act or omission complained of. It is not
G. R. 174436, January 23, 2013 necessary that such damages have been foreseen or could have
reasonably been by the defendant.
What a tenant is estopped from denying is the title of his landlord at
the time of the commencement of the landlord-tenant relation. If (d) That a person takes ordinary care of his concerns;
the title asserted is one that is alleged to have been acquired
subsequent to the commencement of that relation, the presumption The presumption is that a person takes ordinary care of his
will not apply. Hence, the tenant may show that the landlord’s title concerns or that he would exercise diligence of a good father of a
has expired or been conveyed to another or himself; and be is not family or of a person of ordinary prudence. The diligence of a
estopped to deny a claim for rent, if he has been ousted or evicted bonum pater familias is the default standard of care under the law.
by title paramount.
However, the reverse is true under Article 2180 of the Civil Code,
DISPUTABLE PRESUMPTIONS otherwise known as the vicarious liability rule, to wit:
These are presumptions which are satisfactory if uncontradicted, but Art. 2180. The obligation imposed by Article 2176 is
which may be contradicted and overcome by other evidence. demandable not only for one’s own acts or omissions, but also
for those of persons for whom one is responsible.
As the same name implies, disputable presumptions are therefore XXX
those that are susceptible to contradiction or rebuttal. The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all
(a) That a person is innocent of crime or wrong; diligence of a good father of a family to prevent damage.
Related to the constitutional presumption of innocence under (e) That evidence willfully suppressed would be adverse if
Article “In all criminal prosecutions, the accused shall be presumed produced;
innocent until the contrary is proved xxx”
This is known as the adverse presumption of suppression of
Take note that the presumptions apply to CRIME or WRONG evidence. This stems from human nature. A person with nothing to
hide will not suppress. Only a man who will be affected by adverse
The presumption applies to both criminal and civil cases inasmuch as evidence will attempt to hide it.
the provision is worded “Innocent of a crime OR WRONG”. A wrong
may thus refer to the violation of a right that is the basis for a cause REQUISITES
of action in a civil case. The effect of this presumption is to throw
The requisites for the presumption to apply are:
a. The evidence is material;

b. The party had the opportunity to produce it; and A pregnant woman, the alleged kidnapper, was allegedly seen by 4
c. The evidence is available only to the said party. witnesses. One of the witnesses, Mr. Organez, had no personal
knowledge. His testimony consists solely of what was told him by
EXCLUSIONS other witnesses.
The presumption that “evidence willfully suppressed would be HELD: While it may be true that the prosecution to present a witness
adverse if produced” does not apply if: or witnesses, it is undeniable that the non-presentation of a witness
is a tantamount to suppression of evidence, especially if the
1. The evidence is at the disposal of both parties. prosecution witnesses already presented, have no personal
knowledge of the facts which could establish the elements of the
This means that the witness or evidence cannot really be crime charged.
produced by the party who seeks to use the adverse
presumption against the suppressing party. It is under the Hence, the non-presentation of witnesses who allegedly saw the
exclusive control of the latter. Evidence can of course be pregnant woman, raises serious doubt as to the truthfulness of the
produced by availing of compulsory process of subpoena ad testimony of the sole witness presented.
testificandum and subpoena tecum.
Take note that:
2. The suppression was not willful.
 The presumption applies in both civil and criminal cases.
This means that the evidence cannot be produced by sheer  It can be invoked by either the prosecution or the Accused, or
force of circumstance and the suppression was not due solely
the plaintiff or the defendant, for that matter.
to the suppressing party’s will or caprice.
 However, a survey of cases would hint that an invocation of the
presumption by the accused rarely succeeds over the
In one case, the Supreme Court ruled that the suppression is
prosecution, the latter being held to have the prerogative of
not willful if the witness allegedly suppressed was suffering
determining whom to present as witnesses.
from a mental illness and could not stand judicial proceedings
 The accused is entitled to the presumption of innocence. Thus,
(PEOPLE vs. PADRIGONE, G.R No.137664,May 9,2002)
the adverse presumption of suppression, being the weaker
presumption, must yield to the first one. In principle, if the
3. The evidence is merely corroborative or cumulative.
prosecution suppresses evidence, this can be used as
This means that the evidence allegedly suppressed is one that reasonable doubt as to the moral certainty of the accused’s
would not prove something for the first time. Thus, if the guilt;
evidence of the kind allegedly suppressed already exists on the  The presumption will be taken against the accused ONLY if the
record, the presumption does not apply. application of the same does not impair his substantive rights
or if the court does not base his guilt solely on the said
4. The suppression is an exercise of a privilege. presumption.
 While the prosecution has the exclusive prerogative to
Examples are: determine which evidence to produce, the presumption will lie
 Matters covered by testimonial privilege such as Attorney- against it if the evidence on record itself require further
Client or Physician-Patient Privilege; corroboration or are insufficient.
 Exclusive prerogative of the prosecutor to determine the
REMEDY OF THE ACCUSED
witness to be presented.
 Considering the trend that the prosecution can rarely be
ANGELES vs.PEOPLE
affected by the adverse presumption in decided cases, what is
G.R. No.175175, September 29, 2008
the remedy of the accused who believes that the witness or
evidence suppressed is adverse to the prosecution? His remedy
The prosecutor has the exclusive prerogative to determine the
is to compel the production of such evidence in court.
witnesses to be presented for the prosecution .If the prosecution
 For testimonial evidence, he must ask the court to subpoena
has several eyewitnesses, as in the instant case, the prosecutor
the witness allegedly suppressed and use him as a hostile
need not present all of them but only as many as may be needed to
witness under Rule 132. For documentary evidence, he must
meet the quantum of proof necessary to establish the guilt of the
also compel its production by means of a subpoena duces
accused beyond reasonable doubt.
tecum.
TARAPEN vs. PEOPLE PEOPLE vs. DELA CRUZ

G.R. No. 173824, August 28, 2008 G.R. No. 175929, December 16, 2008
If the prosecution witnesses who allegedly material evidence If appellant felt that the prosecution was suppressing evidence, he
were presented in court and were cross-examined by the defense should have asserted during trial his constitutional night “to have
counsel, there can be no finding of suppression. compulsory process to secure the attendance of witnesses and the
production of evidence on his behalf.” This he did not do.
The presumption applies if evidence already still requires
corroboration. Appellant cannot now be heard for the first time on appeal to
complain that he could not secure the presence of witnesses at the
PEOPLE vs. ISLA trial. It does not appear that he made any effort to do so before or
during the progress of the trial, or that he sought the aid of the court
to compel the attendance on his witnesses, or objected to  Art. 1272. Whenever the private document in which the debt
proceeding without them. appears is found in the possession of the debtor, it shall be
presumed that the creditor delivered it voluntarily, unless the
RELATED PRESUMPTION OF FABRICATION OF EVIDENCE contrary is proved.
If a party resorts to fabrication of evidence, it is presumed that his Rationale

case is weak for there would be no need to fabricate evidence if his
case is strong. Human nature
(f) That money paid by one to another was due to the latter; (i) That prior rents or installments had been paid when a receipt for
the later one is produced;
This presumption stands to reason. There is no presumption of
solution indebiti or payment by mistake. The law also presumes a (j) That a person found in possession of a thing taken in the doing
person to be careful when it comes to matters of money. One of a recent wrongful act is the taker and the doer of the whole act;
wouldn’t part with his money unless he is entirely certain as to what otherwise, that things which a person possesses, or exercises acts
it is being paid for. of ownership over, are owned by him;
Rationale There are two presumptions here.
HUMAN NATURE First Presumption: Adverse Presumption from the Possession of

Stolen Goods
(g) That a thing delivered by one to another belonged to the latter;
 In Criminal Law, there are similar presumptions. First is the
There is no presumption of erroneous delivery such that when one presumption that the person in possession of the object of
delivers to another a thing, the latter or the person who accepts theft or robbery is deemed to be the author of the theft or
robbery. Also, the person in possession of a falsified or forged
delivery is the owner of the thing.
document is deemed to be the author of the falsification of
Application forgery.
 Take note that in order for the presumption to apply, three
 In commodatum, for instance, the borrower delivers or returns guidelines must be met: COMMISSION (of theft or robbery
the thing loaned to the lender who is then usually the owner of must be established), POSSESSION (of the object stolen by the
the thing. person against whom the presumption is to be taken against)
 In sale, the seller delivers the thing sold to the buyer who, in and SUCCESSION (or more accurately, that the commission of
the absence of conditions, then becomes the owner of the the crime must be recent and the possession must immediately
thing. Delivery transfers ownership. succeed the commission).
 The presumption must be deemed to exclude deliveries made  The presumption, therefore, does not apply in cases where the
in pursuance of certain contracts. For instance, it does not possession is very remote in time from the crime committed.
apply to the perfection of contracts of bailment. During the intervening period, the stolen property may have
 In commodatum, when the lender delivers the thing to the already changed hands so many times. The longer the time that
borrower, the latter is clearly not the owner. In deposit, elapses, the weaker the presumption becomes.
between the depositor and the depositary, it is the former who  Also, the presumption applies only if the accused is unable to
is the owner and not the latter. This is why the presumptions explain his possession satisfactorily.
here are disputable which means that they are only sufficient if
uncontroverted. What happens when the presumptions is applicable
(h) That an obligation delivered up to the debtor has been paid; Presumption of innocence disappears and presumption of guilt
actually supersedes it takes place.
The term “obligation “here must be understood to mean “evidence
of the obligation”. This could mean a promissory note or a bill of PEOPLE versus HONG
exchange such as a check. Where the maker of the check is already G.R. No. 181826, January 09, 2013
in possession of the same, there is a presumption that the obligation
represented by the check has been paid. Hong, Chua and Ang were prosecuted for violation of RA 6425 after
a buy-bust operation. They were convicted for possession and sale
Twin presumptions of payment in Civil Law of illegal drugs. The accused were exonerated by the SC on the count
for illegal sale. The SC ruled that:
 Art. 1271. The delivery of a private document evidencing a
credit, made voluntarily by the creditor to the debtor, implies It is material in illegal sale of dangerous drugs that the sale actually
the renunciation of the action which the former had against the took place. What consummates the buy-bust transaction is the
latter. delivery of the drugs to the poseur-buyer and, in turn, the seller’s
receipt of the marked money. While the parties may have agreed on
If in order to nullify this waiver it should be claimed to be in the selling price of the shabu and delivery of payment was intended,
officious, the debtor and his heirs may uphold it by proving that these do not prove consummated sale. Receipt of the marked
the delivery of the document was made in virtue of payment of money, ether done before delivery of the drugs or after, is required.
the debt.
In an attempt to prove a consummated sale, the prosecution heavily (m) That official duty has been regularly performed;
relied on the testimony of the police that Hong took a peek at the
money before they went to the restaurant for the swap with shabu. Omnia praesumuntur rite et solemniter esse acta donec probetur in
But looking at a thing does not transfer possession of it to the contrarium.
beholder. Such a tenet would make window shoppers liable for
theft. All things are presumed to have been done regularly until the
contrary is proved.
But, would they still be liable for possession?
Offices covered
Appellant’s exoneration from the sale of prohibited drugs does not
spell freedom from all criminal liability as they may be convicted for This presumption extends to persons who have been appointed
illegal possession of prohibited drugs under Section 89 of R.A. pursuant) to a local or special statute to act in quasi-official
6425.This Court has consistently ruled that possession is necessarily capacities and to professionals like lawyers and surgeons.
included in the sale of illegal drugs.
Rationale
The elements of illegal possession of prohibited drugs are as follows:
(a) the accused is in possession of an item or object which is 1. Innocence and not wrongdoing is to be presumed;
identified to be a prohibited drug; (b) such possession is not 2. An official oath will not be violated; and
3. A republican form of government cannot survive long unless a
authorized by law; and (c) the accused freely and consciously
limit is placed upon controversies and certain trust and
possessed the prohibited drug.
confidence reposed in each governmental department or agent
The evidence on record clearly established that appellant Chua was at least to the extent of such presumption.
in possession of the plastic bags containing prohibited drugs without
the requisite authority. Applying Section 3(j), Rule 131 of the Rules PEOPLE vs. DE GUZMAN
of Court, a disputable presumption arises that she is the owner of G.R. No. 106025, February 9, 1994
the bag its contents. It may be rebutted by contrary proof that the
accused did not in fact exercise power and control over the thing in Presumptions of this nature is indulged by the law for the following
question ,and did not intend to do soothed burden of the evidence reasons: first, innocence, and not wrong-doing, is to be presumed;
is thus shifted to the possessor to explain absence of animus second, an official oath will not be violated; and third, and third, a
possidendi. republican form of government cannot survive long unless a limit is
placed upon controversies and certain trust and confidence reposed
Here, Chua failed to present evidence to rebut the presumption. She in each governmental department or agent by every other such
claims that she was a victim of frame-up and extortion by the department or agent, at least to the extent of such presumption.
narcotics agents of the NBI. The defense is viewed with disfavor for Thus, this presumption evidences a rule of convenient public policy
it can be easily concocted. The defense of frame-up, often imputed universally applied and without which great distress would spring in
to police officers, requires strong proof when offered as a defense, the affairs of men.
because of the presumption that public officers acted in the regular
performance of their official duties. According to Dean Iñigo, paragraphs (l) and (m) constitute the
PRESUMPTION OF REGULARITY OF OFFICIAL ACTS.
Second Presumption: Presumption of Ownership
Applicability
”Things which a person possesses, or exercises acts of ownership
 GENERAL RULE: The presumption of regularity applies all cases,
over, are owned by him.”
to both civil and criminal cases as well.
This is a presumption that I do not necessarily agree with, based on  EXCEPTION:
a civil law and experience. o Petition for writ of amparo – presumption may not be
invoked by the respondent public officer or employee
Is the act of lending a thing an act of dominion or ownership? No. (Rule on the Writ of Amparo, A.M. No. 17-9-12-SC).
REGULARITY versus INNOCENCE

Art. 1938. The bailor in commodatum need not be the owner of
the thing loaned.
PEOPLE vs. D. PADILLA
(k) That a person in possession of an order on himself for the G.R. No. 172603, August 24, 2007
payment of the money, or the delivery of anything, has paid by the
money or delivered the thing accordingly; The presumption of regularity in the performance of official
functions cannot by itself affect the constitutional presumption of
innocence of the accused, particularly if the evidence for the
(l) That a person acting in a public office was regularly appointed
prosecution is weak. People v. Mirantes (1992) so teaches:
or elected to it;
Rationale The oft-cited presumption of regularity in the performance of official

functions cannot by itself affect the constitutional presumption of
It would cause great inconvenience if, in the first instance, strict innocence enjoyed by an accused, particularly when the
proof were required of appointment or election to office in all cases prosecution’s evidence is weak. The evidence of the prosecution
must be strong enough to pierce the shield of this presumptive
where it might merely be collaterally in issue.
innocence and to establish the guilt of the accused beyond
reasonable doubt. And where the evidence of the prosecution is (t) That an endorsement of negotiable instrument was overdue and
insufficient to overcome this presumption, necessarily, the judgment at the place where the instrument is dated;
of conviction of the court a quo must be set aside. The onus
probandi on the prosecution is not discharged by casting doubts (u) That a writing is truly dated;
upon the innocence of an accused, but by eliminating all reasonable
doubts as to his guilt. (v) That a letter duly directed a mailed was received in the regular
course of the mail;
(n) That the court, or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful exercise of BARCELON vs. CIR
jurisdiction; G.R. No. 157064 August 7, 2006
Lawful exercise of jurisdiction is presumed in all cases, be it superior Jurisprudence is replete with cases holding that if the taxpayer
or inferior courts, whether in the Philippines or elsewhere, unless denies ever having received an assessment from the BIR, it is
the record itself shows that jurisdiction has not been acquired or the incumbent upon the latter to prove by competent evidence that
record itself shows the absence of jurisdiction, in which case such notice was indeed received by the addressee. The onus
jurisdiction to render a judgment may not be presumed. probandi was shifted to respondent to prove by contrary evidence
that the Petitioner received the assessment in the due course of
(o) That all the matters within an issue raised in a case were laid mail.
before the court and the passed upon by it; and in like manner that
all matters within an issue raised in an dispute submitted for The Supreme Court has consistently held that while a mailed letter is
arbitration were laid before the arbitrators and passed upon by deemed received by the addressee in the course of mail, this is
them; merely a disputable presumption subject to controversion and a
direct denial thereof shifts the burden to the party favored by the
According to Dean Iñigo, (n) and (o) comprises the PRESUMPTION presumption to prove that the mailed letter was indeed received by
OF REGULARITY OF JUDICIAL ACTS. the addressee (Republic vs. Court of Appeals, 149 SCRA 351).
(p) That private transactions have been fair and regular; When a mail matter is sent by registered mail, there exists a
presumption, set forth under Section 3(v), Rules of Court, that it was
This is the PRESUMPTION OF REGULARITY OF PRIVATE
received in the regular course of mail. The facts to be proved in
TRANSACTIONS. This is a presumption that all men act fairly,
order to raise this presumption are:
honestly and in good faith, and that an individual intends to do right
rather than wrong and intends to do only what he has the right to
(a) that the letter was properly addressed with postage prepaid; and
do.
(b) that it was mailed.
Corollary to this, good faith is always presumed, and it is the burden
While mailed letter is deemed received by the addressee in the
of the party claiming otherwise to adduce clear and convincing
ordinary course of mail, this is still merely a disputable presumption
evidence to the contrary (DUTCH BOY PHILIPPINES, INC. vs. SIENIEL,
subject to controversion, and ad direct denial of the receipt thereof
G.R. No. 170008, January 19, 2009).
shifts the burden upon the party favored by the presumption to
prove that the mailed letter was indeed received by the addressee.
Conversely, fraud is a question of fact which must be alleged and
proved. Fraud cannot be presumed and must be proven by clear and
Take note that, in Civil Procedure:
convincing evidence (REMENTIZO vs. HEIRS OF MADARIETA, G.R. No.
170318, January 15, 2009).
Rule 13, Section 3. Manner of Filing - The filing of pleadings,
(q) That the ordinary course of business has been followed; appearances, emotions, notices, orders, judgments and all
other papers hall be made by presenting the original copies
This presumption is still as to regularity. It is deemed boarder thereof, plainly indicated as such, personally to the clerk of
because it appears to cover the ordinary course of business of both court or by sending them by registered mail. XXX In the second
public and private transactions. case, the date of the mailing of motions, pleadings, or any other
papers or payments or deposits, as shown by the post office
Persons engage in a given trade or business are presumed to be stamp on the envelope or the registry receipt, shall be
acquainted with the general customs, usages and other facts considered as the date of their filing, payment, or deposit in
necessarily incidents to the proper conduct of the business. court. The envelope shall be attached to the record of the case.
(r) That there was a sufficient consideration for the contract; (w) That after an absence of seven years, it being unknown
whether or not the absentee still live, he is considered dead for all
purposes, except for those of succession.
(s) That a negotiable instrument was given or indorsed for a
sufficient consideration; The absentee shall not be considered dead for the purpose of
opening his succession till after an absence of ten years. If he
Related to these is article 1354 of the civil code: disappeared after the age of seventy-five years, and absence of
five years shall be sufficient in order that his succession may be
Art. 1354. Although the cause is not stated in the contract, it is opened.
presumed that it exists and is lawful, unless the debtor proves
the contrary.
The following shall be considered dead for all purposes including (x) That acquiescence resulted from a belief that the thing
the division of the estate among the heirs: acquiesced in was conformable to the law or fact;
(1) A person on board a vessel lost during a sea voyage, or an (y) That things have happened according to the ordinary course of
aircraft which is missing, who has not been heard of for four years nature and ordinary nature habits of life;
since the loss of the vessel or aircraft;
(z) that persons acting as copartners have entered into a contract
(2) A member of the armed forces who has taken part in armed of co-partnership;
hostilities, and has been missing for four years;
Under the Civil Code
(3) A person who has been in danger of death under other
circumstances and whose existence has not been known for four Art. 1825. When a person, by words spoken or written or by
years; conduct, represents himself, or consents to another
representing him to anyone, as a partner in an existing
(4) If a married person has been absent for four consecutive partnership or with one or more persons not actual partners,
years, the spouse present may contract a subsequent marriage of he is liable to any such persons to whom such representation
he or she has well founded belief that the absent spouse is already has been made, who has, on the faith of such representation,
dead. In case of disappearance, where there is a danger of death given credit to the actual or apparent partnership, and if he has
the circumstances hereinabove provided, an absence of only two made such representation or consented to its being made in a
years shall be sufficient for the purpose of contracting a public manner he is liable to such person, whether the
subsequent marriage. However, in any case, before marrying representation has or has not been made or communicated to
again, the spouse present must institute a summary proceedings as such person so giving credit by or with the knowledge of the
provided in the Family Code and in the rues for declaration of apparent partner making the representation or consenting to
presumptive death of the absentee, without prejudice to the effect its being made: XXX
of reappearance of the absent spouse.
CORPORATION BY ESTOPPEL under BP 68
SUMMARY
Section 21. Corporation by estoppel. – All persons who assume
GENERAL RULE: The absentee is presumed dead for all purposes to act as a corporation knowing it to be without authority to do
after an absence of SEVEN (7) YEARS. so shall be liable as general partners for all debts, liabilities and
damages incurred or arising as a result thereof: Provided,
EXCEPTIONS: however, That when any such ostensible corporation is sued on
any transaction entered by it as a corporation or on any tort
 First, the absentee shall not be considered dead for the committed by it as such it shall not be allowed to use as a
purpose of opening his succession until after an absence of TEN defense its lack of corporate personality.
(10) YEARS.
 Second, if the absentee disappeared after the age of seventy- One who assumes an obligation to an ostensible corporation as
five years, an absence of FIVE (5) YEARS shall be sufficient in such, cannot resist performance thereof on the ground that
order that his succession may be opened. there was in fact no corporation.
 Third, the period of FOUR (4) YEARS is sufficient to pr4esume a
person dead for all purposes, including the opening of his CASES
succession under the circumstances where the4re is danger of  LIM TONG LIM vs. PHILIPPINE FISHING GEAR INDUSTRIES, INC.
death. G.R No. 136448, November 3, 1999
 Fourth, where there is a danger of death, and absence of only  CHRISTIAN CHILDREN’S FUND vs. NLRC
TWO (2) YEARS shall be sufficient for the purpose of contracting G.R No. L-84502, June 30, 1989
a subsequent marriage.  LOZANO vs DE LOS SANTOS
G.R. No. 125221, June 19, 1997
FAMILY CODE PROVISION
(aa) That a man and woman deporting themselves as husband and
Art. 41. A marriage contract6ed by any person during wife have entered into lawful contract of marriage;
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior (bb) That property acquired by a man and a woman who are
spouse had been absent for four consecutive years and the capacitated to marry each other and who live exclusively with each
spouse present has a well-founded belief that the absent other as husband and wife without the benefit of marriage or
spouse was already dead. In case of disappearances where under void marriage, has been obtained by their joint efforts, work
there is danger of earth under the circumstances set forth in or industry
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient. (cc) That in cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have acquire
For the purpose of contracting the subsequent marriage under properly through their actual joint contribution of money, property
the preceding paragraph the spouse present must institute a or industry, such contributions and their corresponding shares
summary proceeding as provided in this code for the including joint deposits of money and evidences of credit are equal.
declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. In my opinion, this provision is incomplete in as much as it:
 Does not provide for the effect of the presumption, declaring Art. 168. If the marriage is terminated and the mother
only that the properties are presumed to have been acquired contracted another marriage within three hundred days after
jointly. such termination of the former marriage, these rules shall
 Covers only cohabitations between a man and woman, thereby govern in the absence of proof to the contrary:
creating no presumptions as to the property relations of same-
sex cohabitations, which Is now a part of Filipino society. (1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to
Take note of Articles 147 and 147 of the Family Code have been conceived during the former marriage, provided it
be born within three hundred days after the termination of the
 Article 147 applies to a cohabitation between a man and a former marriage;
woman who are capacitated to marry each other and who live
together exclusively as husband and wife without the benefit of (2) A child born after one hundred eighty days following the
marriage or under a void marriage. Properties that they have celebration of the subsequent marriage is considered to have
acquired while they lived together shall be presumed to have been conceived during such marriage, even though it be born
been obtained by their joint efforts, work or industry and shall within the three hundred days after the termination of the
be owned by them in equal shares. former marriage.
 Article 147 still covers only heterosexual cohabitation but at
least it provides specifically the effect of the presumption of There is no presumption of legitimacy or illegitimacy when a child is
joint acquisition. The article provides that the properties born after 300 days following dissolution of marriage or the
acquired during cohabitation shall be owned by them in equal separation of the spouses. Whoever alleges the legitimacy or
shares. illegitimacy of such child must prove his allegation (Rule 131, Sec. 4).
 Article 148, on the other hand, covers cases of cohabitation not
falling under Article 147. The Article provides that only the Diagram
properties acquired by both the parties through their ACTUAL
joint contribution of money, property or industry shall be No presumption
owned by them in common in proportion to their respective
contributions.
The Presumption in Article 148 Subsequent marriage 300 days after

Termination of termination of
st st
1 marriage 1 marriage 180 days after the
In the absence of proof to the contrary, the contributions and Subsequent marriage
shares are presumed to be equal. This includes joint deposits of
money and evidences of credit like securities or bonds. (ee) That a thing once proved to exist continues as long as is usual
with thing of the nature;
QUESTION: What “cases of cohabitation not falling under Article
147 are covered by Article 148? This is known as the PRESUMPTION OF CONTINUITY OF EXISTENCE.
 Examples of Paras: When the parties are brother and sister, (ff) That the law has been obeyed;
whether a marriage between them has been celebrated or not
 Jurisprudence provides that Article 148 applies to bigamous
marriages, adulterous relationships, relationships where both (gg) That a printed or published book, purporting to be printed or
published by public authority, was so printed or published;
man and woman are married to other persons, and multiple
alliances of the same married man.
 Apparently, this provision does not apply to same sex (hh) That a printed or published book, purporting contain reports
cohabitations. Thus, the law is still incomplete. of cases adjudged in tribunals of the country where the book is
published, contains correct reports of such cases;
The Presumption of Paternity
(ii) That a trustee or other person whose duty it was to convey real
(dd) That if the marriage is terminated and the mother contracted property to a particular person has actually conveyed it to him
another marriage within three hundred days after such when such presumption is necessary to perfect the title of such
termination of the former marriage, these rules shall govern in the person or his successor in interest;
absence of proof to the contrary:
Correlate this to the provision of the law on contracts
(1) A child born before 180 days after the solemnization of the
subsequent marriage is considered to have been conceived during Remember that, rather than making perfunctory presumptions, the
such marriage, even though it be born within the 300 days after Civil Code actually distinguishes between the different types of
the termination of the former marriage. contracts.
(2) A child born after 180 days following the celebration of the Presumptions of Survivorship
subsequent marriage is considered to have been conceived during
such marriage, even though it be born within the 300 days after (jj) That except for purposes of succession, when two persons
the termination of the former marriage. perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are no
Family Code particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from the  If there is available evidence of survivorship (i.e. that one died
strength and the age of the sexes, according to the following rules: ahead of the other), even if purely circumstantial, the
paragraph does not apply at all.
1. If both were under the age of fifteen years, the older is deemed
to have survived;  Note finally that paragraph (jj) applies in practically every case
2. If both were above the age sixty, the younger is deemed to have “except for purposes of succession.”
survived;
3. If one is under fifteen and the other above sixty, the former is (kk) That if there is a doubt, as between two or more persons who
deemed to have survived; are called to succeed each other, as to which of them died first,
4. If both be over fifteen and under sixty, and the sex be different, whoever alleges the death of one prior to the other, shall prove the
the male is deemed to have survived, of the sex be the same, the same; in the absence of proof, they shall be considered to have
older; died at the same time.
5. If one be under fifteen or over sixty, and the other between
those ages, the latter is deemed to have survived. Under this provision, the doubt still refers to which among two
persons died first. However, this provision is specifically made to
Summary / Examples apply to persons who are called to succeed each other. They are
therefore mutual legal or intestate heirs.
Rule Example Presumption Effect
B is deemed If there is no doubt or if there is actual evidence, even
If both are A is 14 The older is deemed circumstantial, as to who died first, do not apply paragraph (kk).
to have died
under 15 B is 12 to have survived
ahead of A EXAMPLE
The younger is A is deemed  A and his son, B, died together during the eruption of Mt.
If both are A is 68
deemed to have to have died Pinatubo. A has no other heir. B, however, is survived by his
over 60 B is 61
survived ahead of B spouse C. If A died ahead of B, B inherits from A. Because B is
also dead, C would therefore get the combined estate of A and
If one is under B.
The younger is B is deemed
15 and the A is 14  However, if B died ahead of A, A inherits from B but the effect
deemed to have to have died
other is over B is 62 is different. If the deceased is survived by his parent and
survived ahead of A
60 spouse, they share in the inheritance in accordance with Article
893 of the Civil Code. Ultimately, C, the surviving spouse is not
If both be an heir of the deceased parent. Hence, C gets only her share
over 15 and A, male, is from B but does not inherit from A.
B is deemed
under 60 but 59. The male is deemed
to have died Effect
one is male B, female, to have survived
ahead of A.
and the other is 21
is female In order to get everything, C must prove that A died ahead of B.
Otherwise, she will not inherit from the estate left by A.
If both be
A, female, “DIED AT THE SAME TIME”
over 15 and B is deemed
is 59 The older is deemed
under 60 of to have died
B, female, to have survived aka presumption of simultaneous death or presumption of
the same ahead of A.
is 25 concurrence of death
gender
If one be The rule provides that in the absence of proof, both persons are
under 15 or deemed to have died at the same time. The rule however does not
The “in-betweener” A is deemed provide for the effect of concurrence of death. This is clarified under
older than 60 A is 61
is deemed to have to have died the Civil Code which provides that:
and the other B is 59
survived ahead of B.
between
those ages Art. 43. If there is a doubt, as between two or more persons
who are called to succeed each other, as to which of them died
Notes first, whoever alleges the death of one prior to the other, shall
prove the same; in the absence of proof, it is presumed that
 In paragraph (jj), remember that the presumptions are they died at the same time and there shall be no transmission
disputable. Hence, if there is evidence to prove that between a of rights from one to the other.
person who is 25 and 75, the 25-year-old died first, then the
presumption fails despite the rule provided in No. 5. Thus, in the previous example, if C is unable to prove that A died
ahead of B, the law presumes that they died at the same time.
 Under the same paragraph, note that both persons perished. Hence, because there is no transmission of rights from one the
Both of them are actually deceased. The question being other, C only inherits from B.
answered is simply “Who died ahead of the other?”
Rule 131, Section 4. No presumption of legitimacy or illegitimacy. –
There is no presumption of legitimacy of a child born after three
hundred days following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the legitimacy or The rationale for this is respect for the accused’s constitutional right
illegitimacy of such child must prove his allegation. of confrontation, or to meet the witnesses against him face-to-face.
To safeguard this right, Section 1 of Rule 132, of the Rules of Court
An interesting tidbit is the reason why it is 300 days when we all thus provides that the examination of witnesses presented in a trial
know that a child is born after only 9 months (roughly 270 days) in or hearing must be done in open court, and under oath or
the womb. affirmation. (People vs. Manhuyod, Jr., G.R. No. 124676, May 20,
1998)
Take note of the following interesting facts:
Requirements
 Article 108 of the Civil Code also provides: Children born after
the one hundred and eighty days next following that of the 1. The examination of the witness must be done in open court.
celebration of marriage or within the three hundred days next
following its dissolution or the separation of the spouses shall [In other words, in full view of the judge and of the parties to
be presumed to be legitimate. This presumption may be the case.]
rebutted only by proof that it was physically impossible for the
husband to have had access to his wife during the first one 2. The examination shall be done under oath or affirmation.
hundred and twenty days of the three hundred next preceding
the birth of the child. [Without that oath or affirmation, there is no way that you can
subject a witness to the pain of perjury. You cannot hold him
 It has been said also that, medically, it is possible for intra- accountable for any falsehood that he speaks unless there is
uterine life to exceed 9 months. In fact, the longest recorded that requirement of oath or affirmation.]
pregnancy that resulted in a live birth took place in 1944 to
1945 to a certain Beulah Hunter who carried her daughter for 3. The examination is for the purpose of eliciting answers that
375 days (about three months longer than the average shall be given orally.
pregnancy period).
[As a general rule, therefore, the answer of a witness would be
October 5, 2016 by words. When you examine a witness, it has to be a specific
question directed at the witness to elicit very specific
Study Guide (Pointers for Rule 131) information. You cannot ask in general. If you ask a very general
question to the witness, the witness might get confused and it
 Make sure that you study the updated lectures of Dean Iñigo on might lead to the possibility that the witness would narrate.
the matter. You should not narrate when you are testifying. That is subject
 Focus on the important topics, such as: to an objection.]
o Definition of burden of proof
o Two concepts of burden of proof [Reason: it is important for the judge to observe, what we call,
o The concept of prima facie case demeanor evidence. This means ‘what is the manner of the
o Distinguish burden of proof from burden of evidence witness’ testimony?’ How did he testify? Did he seem agitated
(repeating bar question) when he testified? Did he seem truthful when he testified? That
 Make sure that you are familiar with the disputable is why lawyers try to make it on the record when a witness
presumptions, with special emphasis on the following reacts in a certain way after asking a question, such as when a
presumptions: witness is crying. When there is emotion, it actually adds to the
o Adverse presumption of suppression of evidence spontaneity, truthfulness, credibility of the answers.]
o Several presumption of regularity
o Presumption of death due to absence [take note of Exceptions to the Rule that Examination Must Be Done in Open
st
the years; the reckoning points] Court (1 requisite)
o Presumptions of survivorship
o Presumptions of paternity [This can be found in Rule on the Examination of Child Witnesses.]
[Rule 131 is not the only repository of presumptions. In Civil Law, 1. Section 25 on live-link television
there are a lot of presumptions scattered there. In Rule 132, there is
also a presumption. In jurisprudence, there are also presumptions [Child is testifying in another room and there is a camera. The
that the Supreme Court established. There are also in Criminal Law.] testimony is just shown in court. Imagine a child will be
confronted by a seasoned lawyer. It is possible that the child
EXAMINATION OF WITNESSES will be intimidated by the lawyer. Or that the child is afraid to
go to court because he will see the accused.]
Rule 132, Section 1. Examination to be done in open court. — The
examination of witnesses presented in a trial or hearing shall be 2. Section 27 on videotaped depositions
done in open court, and under oath or affirmation. Unless the
witness is incapacitated to speak, or the question calls for a different 3. Section 29 on audiotaped in-depth investigative or disclosure
interviews
mode of answer, the answers of the witness shall be given orally.
[Remember that before the prosecution presents its case, it has
Rationale for the Requirements
to build its case first. Part of that would be interviewing a
witness. When it is done by in-depth investigative or disclosure
interviews, the transcript of that can actually be admissible in unless the judge says, “Off the record”, such as when the judge
evidence in place of testimony in open court.] scolds or when there is other sensitive information.]
[If you recall also in your Civil Procedure, remember that the [The second paragraph talks of the so-called presumption of
general rule is that a deposition is not a substitute for regularity of stenographic recordings. But most of the time, the TSN
testimony. However, where there has been a deposition of a has a lot of mistakes. An example is when the recording is inaudible,
witness taken already and the adverse party participated and then the stenographer will be constrained to write what he or she
was given the opportunity to cross-examine during the remembers.]
deposition-taking or if the witness is already dead or that the
witness is out of the province at a greater distance of 50 km Remedy If Notes Are Erroneously Transcribed
from the place of trial or hearing or is out of the Philippines,
such that he is out of the jurisdiction of the court and even a If the transcript of stenographic notes appears to be erroneous, the
subpoena cannot secure his attendance, or because he unable remedy is for the interested party to file a motion to correct
to testify because of age, infirmity or imprisonment. In such transcript of stenographic notes.
situations, the deposition can already take the place of open
court testimony.] A Transcript of Stenographic Notes, being an official entry in the
court’s records, is admissible in evidence and there is no necessity to
rd
Exceptions to the Rule that Answers Should Be Given Orally (3 produce the concerned stenographer as a witness (Fullero vs.
requisite) People, G.R. No. 170583, September 12, 2007).
1. If the witness is incapacitated to speak Rule 132, Section 3. Rights and obligations of a witness. — A
witness must answer questions, although his answer may tend to
[An example would be when the witness is a deaf-mute, you establish a claim against him. However, it is the right of a witness:
can take his testimony by sign language. Otherwise, there will
be a possible miscarriage of justice.] 1. To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
2. If the question calls for a different mode of answer 2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the
[An example is when the answer to the question is a gesture, or issue;
an action, or when the witness points to the accused or to a 4. Not to give an answer which will tend to subject him to a
specific part of his body that was injured. The prosecution will penalty for an offense unless otherwise provided by law; or
always ask the witness, “If you see the accused in the 5. Not to give an answer which will tend to degrade his reputation,
courtroom right now, would you be able to identify him?” unless it be to the very fact at issue or to a fact from which the
That’s identification of the accused. The witness will say yes, fact in issue would be presumed. But a witness must answer to
pretend to look around, and finally points at a person wearing the fact of his previous final conviction for an offense.
red. The interpreter will make it of record that the witness
pointed to a person wearing red. The interpreter will then ask [The only obligation of the witness under this section is that the
the person to state his name for the record. But the testimony witness must answer questions although his answer may tend to
there is actually a gesture; the witness pointing to somebody.] establish a claim against him. You cannot refuse to answer questions
as a general rule. But the witness has rights, as enumerated under
*Another example would be when the witness is asked, “How the same section.]
did the accused threatened you?” The witness will then signal
*finger slashing the throat/neck*.] st
1 right: To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor
[Another example is under the Judicial Affidavit Rule, where it is
not done in open court and not really done orally.] [The witness can claim this right from the opposing counsel or from
anybody in the courtroom except the judge. You cannot object to
Rule 132, Section 2. Proceedings to be recorded. — The entire the demeanor of the judge.]
proceedings of a trial or hearing, including the questions propounded
to a witness and his answers thereto, the statements made by the *Atty. JZE talks of an actual case. The adverse party’s witness kept
judge or any of the parties, counsel, or witnesses with reference to on pointing to his client and says “putaka!” over and over again.
the case, shall be recorded by means of shorthand or stenotype or by Atty. JZE objected to the derogatory statements. Judge Carpio
other means of recording found suitable by the court. apparently scolded him because Atty. JZE’s client was making faces
to the adverse party’s witness. *
A transcript of the record of the proceedings made by the official
stenographer, stenotypist or recorder and certified as correct by him 2nd right: Not to be detained longer than the interests of justice
shall be deemed prima facie a correct statement of such require
proceedings.
[The moment that you have been excused, you have no expectation
[Proceedings in court, regardless of stage, should be recorded. that you will be called again. Your purpose why you appeared in
Anything that happens in court is actually reduced into writing by court as a witness is already consummated and therefore, you
way of, what we call, Transcript of Stenographic Notes through a should not be detained any longer. It’s an imposition on your time.]
stenographer. The court stenographer is required to put into record
everything that is said during trial. Everything is made of record
*Atty. JZE talks of an actual case. His witness has been detained for 2. Transactional Immunity – Grants immunity to the witness from
5-7 years already because of several postponements. When his prosecution for an offense to which his compelled testimony
opponent asked for another postponement of the cross- relates.
examination, Atty. JZE asked the court to ensure the cross-  There is absolute immunity, both to prosecution and use
examination proceeds by objecting to the postponement. * of the statements given by the witness.
 [This is a greater immunity.]
rd
3 right: Not to be examined except only as to matters pertinent to
the issue The right against self-incrimination pertains only to:
*You cannot ask the witness, say, “What’s your favorite color?” or 1. natural persons, and
“Did you happen to have an affair before?” You cannot ask a witness 2. with respect to testimonial compulsion only.
juicy questions about her life just because, say, the witness is
beautiful . It is not pertinent to the issue.] [Purely mechanical or physical acts are not covered by the right
against self-incrimination. Remember the doctrinal case of People
4th right: Not to give an answer which will tend to subject him to a vs. Yatar.]
penalty for an offense unless otherwise provided by law
This right may be invoked in all kinds of proceedings where
[This is called the right against self-incrimination.] testimony is to be taken, including investigation by legislative
bodies.
5th right: Not to give an answer which will tend to degrade his
reputation, unless it be to the very fact at issue or to a fact from Right against Self-Degradation
which the fact in issue would be presumed. But a witness must
answer to the fact of his previous final conviction for an offense. The right not to give an answer which will tend to degrade his
reputation
[The right not to give an answer which will tend to degrade his
reputation is called the right of the witness against self- SUMMARY
degradation.]
General rule: A witness cannot refuse to answer questions. The
[The witness must answer to the fact of his previous final conviction witness has the obligation to answer questions, although his answer
for an offense because, anyway, it is of public record. Even if you are may tend to establish a claim against him. (Sec. 3)
asked, you have to answer truthfully because it will no longer tend
to degrade your reputation, being already of public record.] Exceptions:
Right against Self-Incrimination 1. Right against self-incrimination

“unless otherwise provided by law” 2. Right against self-degradation
[Remember: the right against self-incrimination is not absolute. It Exceptions to the exceptions:
depends on the party claiming the right. If you’re the accused, you
have the greater latitude to claim such right. But if you are an A witness may not invoke the right against self-incrimination nor the
ordinary witness, it’s not the case. You cannot refuse to take the right against self-degradation if:
witness stand but you can object or plead the fifth (Fifth
Amendment in the US) on the ground that your answer might tend 1. Such question is directed to the very fact at issue or to a fact
to incriminate you.] from which the fact at issue would be presumed; or
2. If it refers to his previous final conviction for an offense.
This refers to immunity statutes wherein the witness is granted (Regalado, Vol. II, pp. 841-842, 2008 ed.)
immunity from criminal prosecution for offenses. Examples:
ONG vs. SANDIGANBAYAN
 Under Sec. 8, R.A. 1379, the law providing for the forfeiture of G.R. No. 126858, Sept. 16, 2005
unlawfully acquired property, and
 Under P.D. 749, in prosecutions for bribery and graft [giving The constitutional assurance of the right against self-incrimination is
immunity to bribe-givers]. a prohibition against the use of physical or moral compulsion to
extort communications from the accused. It is simply a prohibition
Discharge as State Witness against legal process to extract from the accused’s own lips, against
[The situation is you are a co-accused but you do not seem to be the his will, admission of his guilt.
most guilty or you are the least guilty.]
Accused vs. Ordinary Witness
1. Use Immunity – Prohibits the use of the witness’ compelled
testimony and its fruits in any manner in connection with the  The accused cannot be compelled to testify or produce
criminal prosecution of witness. evidence in the criminal case in which he is the accused or one
 The witness will still be indicted for the commission of an of the accused. He cannot be compelled to do so even by
offense, but the statements given by the witness cannot subpoena or other process or order of the court. He cannot be
be used against him. He is not immune from prosecution; so required either for the prosecution, for co-accused or even
for himself.
 An ordinary witness, on the other hand, may be compelled to

testify by subpoena, having only the right to refuse to answer a Redirect examination
particular incriminating question at the time it is put to him. Re-examination by the party calling him to explain or
supplement his answers given during the cross-
Accused Witness Ordinary Witness examination. Questions on matters not dealt with during
Cannot be compelled to testify May be compelled to testify by the cross-examination may be allowed by the court in its
or produce evidence in the subpoena discretion. (Sec. 7)
criminal case in which he is the
accused or one of the accused, Have the right to refuse to
even by subpoena or other answer a particular Re-cross examination
process or order of the court incriminating question at the Re-examination by the adverse on matters stated in his re-
time it is put to him direct examination and also on such other matters as may
be allowed by the court in its discretion. (Sec. 8)
ROSETE vs. LIM
G.R. No. 136051, June 8, 2006 Rule 132, Section 5. Direct examination.— Direct examination is the
examination-in-chief of a witness by the party presenting him on the
Any witness may refuse to take the witness stand in civil and facts relevant to the issue.
administrative cases that partake the nature of or analogous to a
criminal proceeding. As long as the suit is criminal in nature, the
[When you present a witness, he will be testifying about your
party thereto can decline to take the witness stand. It is not the
evidence-in-chief, the elements of your cause of action, whether the
character of the suit involved but the nature of the proceedings that
testimony of the witness would tend to establish the same, or
controls.
simply to corroborate the testimony of a witness already presented
in court.]
[The right against self-incrimination is not only applicable to criminal
proceedings. It may be availed of in civil cases akin to a criminal [In direct examination, the witness is called to the witness stand by
proceeding, such as when a case will lead to your perpetual the lawyer. Then, he will be asked to state his name and other
disqualification to hold office. The character of the suit involve does personal circumstances for the record, and to take his oath. The
not control; it’s the nature of the proceedings that would determine lawyer, however, will not directly ask questions because there is the
the applicability of the right of self-incrimination.] requirement of a formal offer. The lawyer must formally offer the
testimony of the witness, which is the act of counsel in informing the
Read: court about what he expects to elicit from the mouth of the witness.
The testimony of the witness which was not formally offered can be
 Republic Act No. 6981 (Witness Protection, Security and
stricken from the record.]
Benefit Act)
Under the Rules, as promulgated, direct examination is supposed to
Rule 132, Section 4. Order in the examination of an individual be done in open court to guarantee the right to meet witnesses face
witness. — The order in which an individual witness may be to face and for the court to observe demeanor evidence.
examined is as follows:
In civil cases, Section 1, Rule 133, of the Rules of Court requires that
a. Direct examination by the proponent; in determining the preponderance or superior weight of evidence on
b. Cross-examination by the opponent; the issues involved, the court may, among other things, consider the
c. Re-direct examination by the proponent; “witnesses’ manner of testifying” which can only be done if the
d. Re-cross-examination by the opponent. witnesses give their testimony orally and in open court.
Order in The Examination of An Individual Witness However, this rule has now been modified by the judicial affidavit
rule.
[The order in the examination of a witness would be repeated for as
long as there is a witness. So, therefore, if you have five witnesses, JUDICIAL AFFIDAVIT RULE
you have to go through the order five times.] A.M. NO. 12-8-8-SC, SEPTEMBER 4, 2012
Direct examination  Requires that direct examination, which is the examination-in-

Examination-in-chief of a witness by a party presenting chief of a witness by the party presenting him on the facts
him on the facts relevant to the issue. (Sec. 5) relevant to the issue, shall be in the form of judicial affidavits,
subject to the usual mode of cross-examination.
 [It is called judicial affidavit because it is intended for
Cross-examination submission directly to the court.]
Examination by the adverse party as to any matters stated
in the direct examination or connected therewith, with Section 3. Contents of Judicial Affidavit. - A judicial affidavit shall be
sufficient fullness and freedom to test his accuracy and prepared in the language known to the witness and, if not in English
truthfulness and freedom from interest, or bias or the or Filipino, accompanied by a translation in English or Filipino, and
reverse and to elicit all important facts bearing upon the shall contain the following:
issue. (Sec. 6)
(a) The name, age, residence or business address, and occupation
of the witness;
(b) The name and address of the lawyer who conducts or supervises [It takes a main witness to testify for at least one hour. That is the
the examination of the witness and the place where the minimum and it can go longer. Hence, the purpose of judicial
examination is being held; affidavits isto cut testimony time by at least one half. Studies would
(c) A statement that the witness is answering the questions asked show that the testimony of the witness, beginning from direct until
of him, fully conscious that he does so under oath, and that he re-cross examination, the longest is direct examination.]
may face criminal liability for false testimony or perjury;
rd
(d) Questions asked of the witness and his corresponding answers, 3 content: A statement that the witness is answering the
consecutively numbered, that: questions asked of him, fully conscious that he does so under oath,
1) Show the circumstances under which the witness and that he may face criminal liability for false testimony or
acquired the facts upon which he testifies; perjury
2) Elicit from him those facts which are relevant to the
issues that the case presents; and  [The requirement that the testimony of the witness is under
3) Identify the attached documentary and object evidence oath is also present in the JAR.]
and establish their authenticity in accordance with the th
Rules of Court; 4 content: xxx 1) Show the circumstances under which the witness
acquired the facts upon which he testifies
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers  [This means that it is based on the personal knowledge of the
the oath or an officer who is authorized by law to administer witness.]
the same.
th
6 content: A jurat with the signature of the notary public who
Language Requirement administers the oath or an officer who is authorized by law to
administer the same
 A judicial affidavit shall be prepared in the language known to
the witness and, if not in English or Filipino, accompanied by a  [The lawyer mentioned under (b) is different from the notary
translation in English or Filipino. public under (f). Therefore, in a judicial affidavit, there should
be two lawyers—the one who conducts the examination under
[In an ordinary trial, what happens is you bring a witness to the (b) and the lawyer who notarizes the document under (f).]
witness stand and then you have to ask questions to be answered
directly by the witness, which means that every question that comes 2004 RULES OF NOTARIAL PRACTICE
from the mouth of the lawyer should be intended to elicit a specific
fact from the witness. The questions can be in the form of what, Section 6. “Jurat” refers to an act in which an individual on a single
when, where, why, how. A witness is prohibited from testifying in a occasion:
narrative form because it is no longer directed to a specific question
and does not produce one specific fact.] a. Appears in person before the notary public and presents an
instrument or document;
[What if a lawyer asks a question that is not answerable by specific b. Is personally known to the notary public or identified by the
facts but rather, requires the witness either to affirm or negate the notary public through competent evidence of identity as defined
gist of the question of the lawyer? That is not allowed because that by these Rules;
is what we call a leading question, a question which already c. Signs the instrument or document in the presence of the notary;
suggests to the witness the answer that the lawyer desires from him. and
It’s not the language of the witness, rather it is the language of the d. Takes an oath or affirmation before the notary public as to such
lawyer.] instrument or document.
[Premise No. 1: The Court has the right to know that the Judicial Affidavit
information supplied by the witness comes from his personal
knowledge. But if the witness merely confirms what the lawyer is  It is a statement of facts presented in a question and answer
saying, then it is no longer his language.] form. The questions are asked by counsel and answered by the
witness;
[Premise No. 2: An ordinary affidavit, such as an affidavit of loss, is o [It has to be correlatively numbered. The questions
normally prepared not in the language of the affiant but the are asked by counsel and answered by a witness.]
language of the person who prepared the affidavit. Hence, it is  It is made under oath or affirmation;
doubtful whether it is based on your personal knowledge. In fact, all  It serves a judicial purpose. It is used as a substitute for a
affidavits of loss are identical! That is why affidavits are not given witness’ testimony on direct examination;
probative value in court unless the witness himself comes to court  It may contain and identify a witness’ non-testimonial evidence;
and affirms the statements he made in the ordinary affidavit.]  It is prepared ex parte as cross-examination takes place only
after the judicial affidavit has been made.
The safeguards, therefore, are:
Distinctions Ordinary Affidavit Judicial Affidavit
1. The statements must be based on the witness’ personal An ordinary affidavit is A judicial affidavit is a
knowledge. simple a statement narration of facts
2. To make sure that it is based on his personal knowledge, it As to form under oath of facts under oath but in
must be stated in his own language.] (Wassmer vs. Velez, question and answer
1965) form.
Prepared ex parte but under the new rule, demeanor evidence can only be observed
As to how Always prepared ex
subject to later cross- starting from cross-examination.
prepared parte
examination in court  To compensate, Section 7 provides that, in every case, the
Not prepared by the court shall take active part in examining the witness to
A judicial affidavit
affiant but by another determine his credibility as well as the truth of his testimony
employs the affiant’s
who uses his own and to elicit the answers that it needs for resolving the issues.
own language. The
As to the language in writing
Rule requires that the
language the statements which Purpose: to save time
judicial affidavit must
used may either be omitted
contain the very
or misunderstood by In sum, the court saves time under JAR because:
statements of the
the writer (People vs.
affiant himself.
Ramos, 1983)  The testimony of the witness is translated in advance;
An ordinary affidavit  The attached documentary and object evidence are pre-
can be used for identified and pre-authenticated in accordance with the Rules
practically any legal of Court;
A judicial affidavit has
purpose, from  There is no more need for a lengthy direct examination;
only one use, which is
attesting to the fact of  Objections as to admissibility of testimonial and other evidence
As to uses to take the place of a
loss, non-tenancy, to are threshed our beforehand as the adverse party is furnished a
witness’ testimony in
the initiation of a copy of the judicial affidavit.
direct examination.
criminal complaint o [Objections in the judicial affidavit can be made
before the through writing. If objections are sustained by the
prosecutor’s office. court, the court will order the affiant to strike out a
The court shall not certain portion of the testimony of to rephrase a
An affidavit is merely consider the JA only if certain portion of the testimony as embodied in the
hearsay evidence the witness fails to judicial affidavit.]
where its appear at the
As to
affiant/maker did not scheduled hearing or if Section 6. Offer of and objections to testimony in judicial affidavit. -
admissibility
take the witness stand it does not conform to The party presenting the judicial affidavit of his witness in place of
(Dantis vs. Maghinang, the content (Sec. 3) direct testimony shall state the purpose of such testimony at the
2013) and attestation start of the presentation of the witness. The adverse party may move
requirements (Sec. 4) to disqualify the witness or to strike out his affidavit or any of the
An affiant must testify answers found in it on ground of inadmissibility. The court shall
The affiant does not
and be cross- promptly rule on the motion and, if granted, shall cause the marking
have to re-testify
examined in order for of any excluded answer by placing it in brackets under the initials of
inasmuch as his JA
As to how the contents of his an authorized court personnel, without prejudice to a tender of
already constitutes his
testimony is affidavit to be excluded evidence under Section 40 of Rule 132 of the Rules of Court.
direct testimony.
made admitted into
What the rule requires
evidence. In effect, he Scope of Application of the Rule
is that he reaffirms his
has to re-testify on his
JA.
affidavit. The applicability of this rule may refer to:
Counsel who fails to
appear without valid 1. The courts where the rule is applicable;
Cross-examination is
cause despite notice 2. The types of cases covered; and
waived by any of the
shall be deemed to 3. The stage of the proceedings where a judicial affidavit is
As to waiver means allowed by law,
have waived his required.
of cross- provided there is
client’s right to
examination direct examination on
confront by cross- Section 1. Scope. - (a) This Rule shall apply to all actions,
the contents of the
examination the proceedings, and incidents requiring the reception of evidence
affidavit.
witnesses there before:
present.
(1) The Metropolitan Trial Courts, the Municipal Trial Courts in
Criticisms Regarding JAR Cities, the Municipal Trial Courts, the Municipal Circuit Trial
Courts, and the Shari' a Circuit Courts but shall not apply to
 [One criticism is the supposed inability of the court to observe small claims cases under A.M. 08-8-7-SC;
the demeanor of the witness during direct examination. (2) The Regional Trial Courts and the Shari'a District Courts;
Because prior to the JAR, the witness will really be subjected to (3) The Sandiganbayan, the Court of Tax Appeals, the Court of
the keen eyes of the court from direct examination until the Appeals, and the Shari'a Appellate Courts;
termination of the re-cross examination. But in the JAR, during (4) The investigating officers and bodies authorized by the Supreme
the stage of direct testimony, the court cannot observe the Court to receive evidence, including the Integrated Bar of the
witness.] Philippine (IBP); and
 As to the rationale of allowing the court to examine demeanor (5) The special courts and quasi-judicial bodies, whose rules of
evidence, there is a marked difference from the procedure procedure are subject to disapproval of the Supreme Court,
under Rule 132. Before, the court can observe the witness’ insofar as their existing rules of procedure contravene the
manner of testifying from the direct to re-cross. However, provisions of this Rule.
(b) For the purpose of brevity, the above courts, quasi-judicial bodies,  Under the opening sentence of Section 2, the Rule applies
or investigating officers shall be uniformly referred to here as the to the presentation of the evidence-in-chief of the parties
"court." as well as to incidents and motions.
Courts Example 1
Under Section 1, the Rule applies to the following courts:  In a case for recovery of possession, the defendant filed a
motion to dismiss on the ground that the court has no
 All MTCs jurisdiction over the subject matter of the claim. He avers that
 All Shari’a Circuit Courts, District and Appellate Courts; the assessed value of the real estate exceeds the jurisdictional
 RTCs; parameter of cases cognizable by the MTC. Based on the rules
 Sandiganbayan; on civil procedure, there will be a hearing on his motion and
 Court of Tax Appeals; the movant may be required to testify.
 Court of Appeals;  So, the movant is required to file and serve his judicial affidavit
five days before the hearing of the motion.
 Investigating officers and bodies authorized by the Supreme
Court to receive evidence, including the IBP; and
Example 2
o [Disbarment cases in IBP]
 Special courts and quasi-judicial bodies, whose rules of
 A complaint was filed with a prayer for the issuance of a writ of
procedure are subject to disapproval of the Supreme Court.
preliminary attachment or injunction.
 Under the Rules, there will be a hearing on this prayer and
Type of Cases
testimony by the applicant.
 The rule requires the submission of judicial affidavits for this
 The Rule shall apply to all actions, proceedings, and incidents
incident as well.
requiring the reception of evidence. However, the Rule shall
not apply to small claims cases under A.M. 08-8-7-SC.  It is very clear under the JAR that it applies to all actions,
o [JAR is applicable in all testimonies of witnesses.] proceedings, and incidents requiring the reception of evidence.
 The Rule may apply to criminal cases in three situations as
provided under section 9, to wit; Section 2. Submission of Judicial Affidavits and Exhibits in lieu of
1. Where the maximum of the imposable penalty does direct testimonies. - (a) The parties shall file with the court and serve
not exceed six years; on the adverse party, personally or by licensed courier service, not
2. Regardless of the penalty involved, with respect to later than five days before pre-trial or preliminary conference or the
the civil aspect of the actions, or scheduled hearing with respect to motions and incidents xxx.
3. In any case where the accused agrees to the use of
the Rule. Service and Filing
 [If you’re the accused, you have the right to tell
the prosecutor to submit a judicial affidavit.]  The rule distinguishes between judicial affidavits submitted for
incidents and motions and judicial affidavits submitted as part
Section 12. Effectivity. - This rule shall take effect on January 1, 2013 of the evidence-in-chief of a party.
following its publication in two newspapers of general circulation not o For judicial affidavits submitted in support of
later than September 15, 2012. It shall also apply to existing cases. incidents and motions, the same must be filed and
served 5 days prior to the scheduled hearing of such
incidents or motions.
Take note that the JAR was made specifically applicable to cases
o For judicial affidavits submitted as part of a party’s
already pending at the time of its promulgation (Section 12). This
evidence-in-chief, the parties shall serve on the
means that, even if a pretrial had already been conducted, the
adverse party and file with the court not later than 5
presentation of evidence will be governed by the rule. According to
days before the scheduled pre-trial.
Justice Abad, the presentation of witnesses will be considered
incidents and the judicial affidavits should be submitted five days
Take note that under Section 6 of Rule 18, it is provided that:
before the dates of the scheduled hearings.
[Going back to Civil Procedure, Rule 18 on Pre-Trial, the deadline for Section 6. Pre-trial brief. The parties shall file with the court and
the submission of a pre-trial brief is 3 days prior to the date of the serve on the adverse party, in such manner as shall ensure their
pre-trial. Let’s say the pre-trial is October 8, the other party should receipt thereof at least three (3) days before the date of the pre-trial,
have been given a copy of the judicial affidavit on October 5. But their respective pre-trial briefs xxx.
under the JAR, judicial affidavits should be furnished 5 days before
or on October 3. You can attach your judicial affidavit together with Service and Filing in Criminal Cases
your pre-trial brief and submit the same 5 days prior to the
scheduled pre-trial in order to comply with the JAR. However, while  The general rule is simultaneous filing of judicial affidavits and
the JAR includes already a provision that you should attach your pre-trial briefs.
judicial affidavit to your pre-trial brief, lawyers would still submit  An exception can be found in Section 9.
their judicial affidavit 5 days prior to the date of the pre-trial by
impleading it as a submission. Two days later, they submit their pre- Section 9. Application of rule to criminal actions. – xxx
trial brief. Therefore, there are two submissions.] (b) The prosecution shall submit the judicial affidavits of its witnesses
not later than five days before the pre-trial, serving copies if the
The Stage of the Proceedings same upon the accused. The complainant or public prosecutor shall
attach to the affidavits such documentary or object evidence as he 1. The lawyer who conducts the examination, who also makes the
may have, marking them as Exhibits A, B, C, and so on. No further attestation, and
judicial affidavit, documentary, or object evidence shall be admitted 2. The lawyer who notarizes the attestation of the one conducting
at the trial. the examination.
(c) If the accused desires to be heard on his defense after receipt of
the judicial affidavits of the prosecution, he shall have the option to Effects of Non-Compliance
submit his judicial affidavit as well as those of his witnesses to the
court within ten days from receipt of such affidavits and serve a copy There are different consequences in case of:
of each on the public and private prosecutor, including his
documentary and object evidence previously marked as Exhibits 1, 2, 1. Failure to file the judicial affidavit;
3, and so on. These affidavits shall serve as direct testimonies of the 2. Failure to comply with the prescribed requirements; or
accused and his witnesses when they appear before the court to 3. Absence during the scheduled trial date.
testify.
October 12, 2016
Thus, the general rule (at least 5 days prior to pre-trial) applies to
the prosecution. The exception is in Section 9(c), which states that if Review: Attestation Requirement
the accused desires to be heard on his defense after receipt of the
judicial affidavits of the prosecution, he shall have the option to Section 4. Sworn attestation of the lawyer. - (a) The judicial
submit his judicial affidavit as well as those of his witnesses to the affidavit shall contain a sworn attestation at the end, executed by
court within 10 days from receipt of such affidavits and serve a copy the lawyer who conducted or supervised the examination of the
of each on the public and private prosecutor. witness, to the effect that:
(1) He faithfully recorded or caused to be recorded the
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of questions he asked and the corresponding answers that
direct testimonies. - (a) The parties shall file with the court and serve the witness gave; and
on the adverse party, personally or by licensed courier service, not (2) Neither he nor any other person then present or
later than five days before pre-trial or preliminary conference or the assisting him coached the witness regarding the latter's
scheduled hearing with respect to motions and incidents xxx. answers.
(b) A false attestation shall subject the lawyer mentioned to
How is Service and Filing Made disciplinary action, including disbarment.
Section 2 mentions only two modes of service or filing of judicial There is no requirement that the lawyer who prepared the judicial
affidavit: affidavit must be the one to present the witness in court.
1. By personal service, or In effect, there are at least two lawyers involved in the drafting of a
2. By licensed courier service. judicial affidavit:
The usual filing and service by registered mail is conspicuously 1. the lawyer who conducts the examination, who also makes the
absent, unless it is covered by the term “licensed courier”. Does this attestation and
mean that this mode is already not allowed? 2. the lawyer who notarizes the attestation of the one conducting
the examination.
 *It’s just a statement of preference by the law. Just make sure
that it gets there on time; otherwise, you will be in delay. The EFFECT OF NON-COMPLIANCE
Court recognizes that registered mail is snail mail.]
There are different consequences in case of:
Attestation Requirement
1. failure to file the judicial affidavit;
Section 4. Sworn attestation of the lawyer. - (a) The judicial 2. failure to comply with the prescribed requirements; or
affidavit shall contain a sworn attestation at the end, executed by 3. absence during the scheduled trial date.
the lawyer who conducted or supervised the examination of the
witness, to the effect that: 1. Failure to file judicial affidavit
(1) He faithfully recorded or caused to be recorded the questions he
asked and the corresponding answers that the witness gave; and A party who fails to submit the required judicial affidavits and
(2) Neither he nor any other person then present or assisting him exhibits on time shall be deemed to have waived their submission.
coached the witness regarding the latter's answers. (Effect is waiver)
(b) A false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment. The Rule allows for exceptions, provided the following requirements
are present:
There is no requirement that the lawyer who prepared the judicial
affidavit must be the one to present the witness in court. a. It must be with leave of court
In effect, there are at least two lawyers involved in the drafting of a b. The delay must be for a valid reason
judicial affidavit:
As to what constitutes a valid reason depends upon the
discretion of the court.
requires that the petition should be verified, contain supporting

c. It would not unduly prejudice the opposing party evidence and must be accompanied by a sworn certification of non-
forum shopping.
So if you are the opposing party, always object. If the
petitioner failed to submit a judicial affidavit, you (defendant) There is nothing in Rule 8 that compels the inclusion of judicial
object because the former has actually no case in court. But affidavits, albeit not prohibited. It is only if the evidence of the
other lawyers would hate you for that kay wala kay pakisama. petitioner would consist of testimony of witnesses that it would be
the time that judicial affidavits (affidavits of witnesses in the
d. The defaulting party pays a fine of not less than P1,000.00 nor question and answer form) must be attached to the petition or
more than P5,000.00, at the discretion of the court. complaint.
The fine goes to the Clerk of Court, to be remitted to the NG MENGTAM vs. CHINABANK
Supreme Court. GR 214054, August 5, 2015
e. It is availed only ONCE. FACTS: This case talks about the applicability of Section 5.
Subpoena – If the government employee or official, or the requested
2. Failure to comply with required contents witness, who is neither the witness of the adverse party nor a hostile
witness, unjustifiably declines to execute a judicial affidavit or
The court shall not admit as evidence judicial affidavits that do not refuses without a just cause to make the relevant books, documents,
conform to the content requirements of Section 3 and the or other things under his control available for copying,
attestation requirement of Section 4. The court may however allow authentication, and eventual production in court, the requesting
ONLY ONCE the subsequent submission of the complaint party may avail himself of the issuance of a subpoena ad
replacement affidavits before the hearing or trial provided the delay testificandum or duces tecum under Rule 21 of the Rules of Court.
is for a valid reason and would not unduly prejudice the opposing The rules governing the issuance of a subpoena to the witness in this
party and provided further, that public or private counsel case shall be the same as when taking his deposition except that the
responsible for their preparation and submission pays a fine of not taking of a judicial affidavit shall be understood to be ex parte.
less than P1,000.00 nor more than P5,000.00, at the discretion of
the court. ISSUE: WON Section 5 applies to a hostile witness
3. Absence during the scheduled trial date HELD: NO. Section 5 has no application to a hostile witness BUT
there is no need for a finding that a witness unjustifiably refused to
The court shall not consider the affidavit of any witness who fails to execute a judicial affidavit. (A hostile witness is a witness who will
appear at the scheduled hearing of the case as required. Counsel not favor you. If you want to call a hostile witness, you don’t have
who fails to appear without valid cause despite notice shall be to file a subpoena.)
deemed to have waived his client’s right to confront by cross-
examination the witnesses there present. Section 5 of the JAR contemplates a situation where there is a:
a. government employee or official or
JUDICIAL AFFIDAVIT RULE (JAR) Jurisprudence b. requested witness who is not the adverse party’s
witness nor a hostile witness.
DOLOT vs. PAJE (EN BANC)
GR 199199, August 27, 2013 If this person either unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make the relevant
FACTS: A petition was filed under Rule 8, Section 1 of the Rules of documents available to the other party and its presentation to the
Procedure for Environmental Cases. court, Sec 5 allows the requesting party to avail of issuance of
subpoena ad testificandum or duces tecum under Rule 21 of the
Section 1. Petition for continuing mandamus.—XXX the person Rules of Court.
aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty, attaching thereto supporting Thus, the adverse party witnesses and hostile witnesses being
evidence, specifying that the petition concerns an environmental excluded they are not covered by Section 5. Expressio unius est
law, rule or regulation, and praying that judgment be rendered exclusion alterius, the express mention of one person, thing or
commanding the respondent to do an act or series of acts until the consequence implies the exclusion of all others.
judgment is fully satisfied, and to pay damages sustained by the
petitioner by reason of the malicious neglect to perform the duties of Here, the requested witness is the adverse party’s witness.
the respondent, under the law, rules or regulations. The petition shall Regardless of whether he unjustifiably declines to execute a judicial
also contain a sworn certification of non-forum shopping. affidavit or refuses without just cause to present the documents, Sec
5 cannot be made to apply to him for the reason that he is included
The RTC dismissed the petition on the ground that the petitioners in a group of individuals expressly exempt from the provision’s
failed to attach judicial affidavits, among other infirmities. application.
ISSUE: WON the petition is infirm for failure to attach judicial The situation created before us begs the question:
affidavits
If the requested witness is the adverse party’s witness or a hostile
HELD: NO. The RTC erred in ruling that the petition is infirm for witness, what procedure would be followed?
failure to attach judicial affidavits. As previously stated, Rule 8
The JAR being silent on this point, we turn to the provisions 1. To impeach the credibility of the testimony
governing the rules on evidence covering hostile witnesses specially 2. To impeach the credibility of the witness
Section 12, Rule 132 of the Rules of Court. 3. To elicit admissions; and
4. To clarify certain matters.
Rule 132, Section 12. Party may not impeach his own witness. —
Except with respect to witnesses referred to in paragraphs (d) and (e) What is the scope of cross-examination?
of Section 10, the party producing a witness is not allowed to
impeach his credibility. 1. English Rule – Where a witness is called to testify to a particular
fact, he becomes a witness for all purposes and may be fully cross-
A witness may be considered as unwilling or hostile only if so examined upon all matters material to the issue, the examination
declared by the court upon adequate showing of his adverse interest, not being confined to the matters inquired about in the direct
unjustified reluctance to testify, or his having misled the party into examination.
calling him to the witness stand.
2. American Rule - Cross –examination is restricted to facts and
The unwilling or hostile witness so declared, or the witness who is an circumstances that have been stated in the direct examination of
adverse party, may be impeached by the party presenting him in all the witnesses.
respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross- What rule is observed in our jurisdiction?
examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief. GR: English Rule
Before a party may be qualified under Section 12, Rule 132 of the Exception: The American Rule is observed with respect to cross-
Rules of Court, the party presenting the adverse party witness must examination of an accused or a hostile witness.
comply with Section 6, Rule 25 of the Rules of Court:
DOCTRINE OF INCOMPLETE TESTIMONY
Rule 25, Section 6. Effect of failure to serve written interrogatories.
— Unless thereafter allowed by the court for good cause shown and When cross-examination cannot be done or completed due to
to prevent a failure of justice, a party not served with written causes attributable to the party who offered the witness, the
incomplete testimony is rendered incompetent and should be
interrogatories may not be compelled by the adverse party to give
stricken from the record.
testimony in open court, or to give a deposition pending appeal.
Exception: Where the prosecution witness was extensively cross-
In AFULUGENCIA VS METROBANK, this Court stated that “in civil
examined on the material points and thereafter failed to appear and
cases, the procedure of calling the adverse party to the witness
cannot be produced despite a warrant of his arrest. (People vs
stand is not allowed, unless written interrogatories are first served
Gorospe, GR 51513, May 15, 1984)
upon the latter.”
EFFECT OF LACK OF CROSS-EXAMINATION
One of the purposes of the above rule is to prevent fishing
expeditions and needless delays; it is there to maintain order and
The testimony of a witness who was not cross-examined is
facilitate the conduct of trial. It will be presumed that a party who
technically hearsay. Being hearsay, it should not be admissible.
does not serve written interrogatories on the adverse party
beforehand will most likely be unable to elicit facts useful to its case
In such a case, the remedy of the opponent is a MOTION TO STRIKE.
if it later opts to call the adverse party to the witness stand as its
A motion to strike is a legal motion given by one party in a trial
witness. Instead, the process could be treated as a fishing
requesting the presiding judge to order the removal of all or part of
expedition or an attempt at delaying the proceedings; it produces no
the opposing party’s pleading or of all or part of a trial witness’s
significant result that a prior written interrogatories might bring.
testimony.
In sum, Section 5 of the JAR expressly excludes from its application
CROSS-EXAMINATION CAN BE WAIVED
adverse party and hostile witnesses. For the presentation of these
types of witnesses, the provisions on the Rules of Court under the
Waiver of the right to cross-examine may be EXPRESS or IMPLIED.
Revised Rules of Evidence and all other correlative rules indicating
the mode of deposition and discovery rules shall apply.
On the matter of implied waiver:
CROSS EXAMINATION
DE LA PAZ vs. IAC
GR 71537, September 27, 1978
Rule 132, Section 6. Cross-examination; its purpose and extent. —
Upon the termination of the direct examination, the witness may be
The right of cross-examination is not an absolute right which a party
cross-examined by the adverse party as to many matters stated in
can demand at all times. The right is a personal one which may be
the direct examination, or connected therewith, with sufficient
waived expressly or impliedly by conduct amounting to a
fullness and freedom to test his accuracy and truthfulness and
renunciation of the right of cross-examination. Thus, where a party
freedom from interest or bias, or the reverse, and to elicit all
has had the opportunity to cross-examine a witness but failed to
important facts bearing upon the issue.
avail of himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the
Purposes witness will be received or allowed to remain in the record.
There must be a satisfactory showing of some concrete substantial

SUMMARY ground for the recall. There must be a satisfactory showing on the
movant’s part, for instance, that particularly identified material
What rule should be followed in case the failure to cross-examine points were not covered in the cross-examination, or that
is due to fortuitous causes such as the death or incapacity of the particularly described vital documents were not presented to the
witness? witness whose recall is prayed for, or that the cross-examination
was conducted in so inept a manner as to result in a virtual absence
It depends on the reason why cross-examination was not conducted thereof.
after the completion of testimony on direct examination.
Rule 132, Section 10. Leading and misleading questions. — A
1. If cross-examination was deferred at the instance of the question which suggests to the witness the answer which the
proponent or the witness himself, the testimony on direct must examining party desires is a leading question. It is not allowed,
be stricken out because the failure to cross-examine was due to except:
a cause not attributable to the opponent.
(a) On cross examination;
2. If cross-examination was deferred at the instance of the court (b) On preliminary matters;
(i.e., for lack of material time), the testimony on direct (c) When there is a difficulty is getting direct and intelligible answers
examination must be stricken out because the failure to cross- from a witness who is ignorant, or a child of tender years, or is of
examine was again not attributable to the opponent. feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
3. However, if the deferment was due to a cause attributable to (e) Of a witness who is an adverse party or an officer, director, or
the opponent, then the testimony on direct examination would managing agent of a public or private corporation or of a
stand, may be used by the court in its consideration of the partnership or association which is an adverse party.
controversy and is not susceptible to a motion to strike. In this
case, the conduct of the opponent himself amounts to a waiver. A misleading question is one which assumes as true a fact not yet
testified to by the witness, or contrary to that which he has
RE-DIRECT EXAMINATION previously stated. It is not allowed.
Rule 132, Section 7. Re-direct examination; its purpose and extent.

Rule 132, Section 11. Impeachment of adverse party's witness. — A
— After the cross-examination of the witness has been concluded, he
witness may be impeached by the party against whom he was called,
may be re-examined by the party calling him, to explain or
by contradictory evidence, by evidence that his general reputation
supplement his answers given during the cross-examination. On re-
for truth, honestly, or integrity is bad, or by evidence that he has
direct-examination, questions on matters not dealt with during the
made at other times statements inconsistent with his present,
cross-examination, may be allowed by the court in its discretion.
testimony, but not by evidence of particular wrongful acts, except
that it may be shown by the examination of the witness, or the
RE-CROSS EXAMINATION
record of the judgment, that he has been convicted of an offense.
Rule 132, Section 8. Re-cross-examination. — Upon the conclusion

of the re-direct examination, the adverse party may re-cross- Rule 132, Section 12. Party may not impeach his own witness. —
examine the witness on matters stated in his re-direct examination, Except with respect to witnesses referred to in paragraphs (d) and (e)
and also on such other matters as may be allowed by the court in its of Section 10, the party producing a witness is not allowed to
discretion. impeach his credibility.
RECALLING WITNESSES A witness may be considered as unwilling or hostile only if so

declared by the court upon adequate showing of his adverse interest,
Rule 132, Section 9. Recalling witness. — After the examination of a unjustified reluctance to testify, or his having misled the party into
witness by both sides has been concluded, the witness cannot be calling him to the witness stand.
recalled without leave of the court. The court will grant or withhold
leave in its discretion, as the interests of justice may require. The unwilling or hostile witness so declared, or the witness who is an
adverse party, may be impeached by the party presenting him in all
Q: Why is leave of court required? respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross-
A: Leave of court is required because recalling a witness is repugnant examined by the adverse party, but such cross-examination must
to his fundamental right “not to be detained longer than the only be on the subject matter of his examination-in-chief.
interests of justice require.” The court must be given the
opportunity to determine first whether or not the recall of the METHODS OF IMPEACHMENT
witness is unnecessary or merely vexatious.
Under Section 11, a witness may be impeached by the opponent:
CRITERIA FOR GRANT OF LEAVE
1. By contradictory evidence
PEOPLE vs. RIVERA 2. By evidence that his general reputation for truth, honestly, or
GR 98376, August 16, 1991 integrity is bad (in essence you are presenting character
evidence)
3. By evidence that he has made at other times statements Distinguish

inconsistent with his present testimony (aka “prior inconsistent LAYING THE PREDICATE LAYING THE BASIS
statements”) Refers only to impeachment of a Refers to a situation where
witness through prior evidence which is otherwise
OTHER MODES inconsistent statements incompetent will be introduced
into evidence because it falls
1. By showing improbability or unreasonableness of testimony; under the rules of exclusion
2. By showing bias, prejudice, and hostility;
3. By prior inconsistent acts or conduct; Rule 132, Section 15. Exclusion and separation of witnesses. — On
4. By showing social connections, occupation and manner of any trial or hearing, the judge may exclude from the court any
living; or witness not at the time under examination, so that he may not hear
5. By showing interest (Francisco, pp. 480-481, 1992 ed.) the testimony of other witnesses. The judge may also cause
witnesses to be kept separate and to be prevented from conversing
CHARACTER EVIDENCE TO IMPEACH with one another until all shall have been examined.
Rule 132, Section 14. Evidence of good character of witness. — Rule 132, Section 16. When witness may refer to memorandum. —
Evidence of the good character of a witness is not admissible until A witness may be allowed to refresh his memory respecting a fact, by
such character has been impeached. anything written or recorded by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any
PRIOR INCONSISTENT STATEMENTS other time when the fact was fresh in his memory and knew that the
same was correctly written or recorded; but in such case the writing
This is also known as LAYING THE PREDICATE. It is done in the or record must be produced and may be inspected by the adverse
following manner: party, who may, if he chooses, cross examine the witness upon it,
and may read it in evidence. So, also, a witness may testify from such
1. The witness must be confronted with such statements with the writing or record, though he retain no recollection of the particular
circumstances of the times, places and the persons present in facts, if he is able to swear that the writing or record correctly stated
which they were made; the transaction when made; but such evidence must be received with
caution.
2. The witness must be asked whether he made such statements,
and if so, allowed to explain them; and Possible Bar Question
3. If the statement be in writing it must be shown to the witness Distinguish between recorded recollection and refreshing
before any question is put to him concerning them (Sec 13) recollection.
When inapplicable Distinguish between past recollection recorded and present

memory refreshed (sometimes present memory revived)
Where the previous statements of a witness are offered as evidence
of an admission, and not merely to impeach him, the rule on laying PRIOR RECOLLECTION RECORDED
the predicate does not apply.
Witnesses can testify to the accuracy of a recording or
Thus, if the prior inconsistent statement appears in a deposition of documentation of their own out-of-court statement based on their
the adverse party, and not a mere witness, that adverse party ho recollection of the circumstances under which the statement was
testifies may be impeached without laying the predicate as such recorded or documented – even though the witness does not
prior statements are in the nature of admissions of said adverse remember the events attested to in the statement. It is sufficient
party. (Regalado, Vol. II, p. 852, 2008 ed.) that the witness is able to testify to having made the recording and
to having written an accurate statement at that time.
Purpose of Laying the Predicate
PRESENT MEMORY REFRESHED
The purpose of which is to allow the witness to admit or deny the
prior statement and afford him an opportunity to explain the same. A witness must testify from the basis of his current recollection, he
cannot ordinarily read from a document. However, if a witness
Non-compliance with the foundational elements for this mode of forgets something he at one time knew and had personal knowledge
impeachment will be a ground for an objection based on “improper of, he may be shown a writing to refresh his memory. The writing or
impeachment.” Over a timely objection, extrinsic evidence of a prior document used by the witness to refresh his memory cannot be
inconsistent statement without the required foundation is not admitted as evidence, it can only be used to refresh the witness’s
admissible. memory of something he once knew.
Review of concepts Rule 132, Section 18. Right to respect writing shown to witness. —
Whenever a writing is shown to a witness, it may be inspected by the
1. Voir Dire adverse party.
2. Qualifying the witness
3. Laying the basis or foundation
4. Laying the predicate
October 19, 2016 Atty JZE: What you need to remember is that entries in public
records are prima facie evidence of the facts therein stated. That
AUTHENTICATION AND PROOF OF DOCUMENTS makes the public documents self-authenticating documents.
WHAT is AUTHENTICATION? First class: Public documents as official records
Simply, it is the process of proving the due execution and Rule 132, Section 24. Proof of official record. — The record of public
genuineness of a document during litigation. documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
Atty JZE: You do not authenticate outside of litigation. If you want to publication thereof or by a copy attested by the officer having the
be more technical about it, in the case of SALES vs STA. MESA, the legal custody of the record, or by his deputy, and accompanied, if the
Supreme Court made this definition of authentication. Why? Because record is not kept in the Philippines, with a certificate that such
under the Rules of Court, there is no definition of authentication. officer has the custody. If the office in which the record is kept is in
foreign country, the certificate may be made by a secretary of the
SALES vs. STA. MESA MARKET embassy or legation, consul general, consul, vice consul, or consular
G.R. No. 157766, Ju1y 12, 2007 agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and
Authentication is the positive identification of the witness that the authenticated by the seal of his office.
document presented is genuine and had been duly executed or that
it is neither spurious nor counterfeit nor executed by mistake or SUMMARY OF SECTION 24
under duress.
The official record may be evidenced by:
Public or Private document
1. an official publication thereof
Rule 132, Section 19. Classes of Documents. — For the purpose of
their presentation evidence, documents are either public or private. Ex: a law has been passed by congress, what’s an official
publication of the law? Probably in an Official Gazette.
Public documents are:
(a) The written official acts, or records of the official acts of the 2. copy attested by the officer having the legal custody of the
sovereign authority, official bodies and tribunals, and public officers, record, or by his deputy, and accompanied, if the record is not
whether of the Philippines, or of a foreign country; kept in the Philippines, with a certificate that such officer has
(b) Documents acknowledge before a notary public except last wills the custody
and testaments; and
(c) Public records, kept in the Philippines, of private documents Atty JZE: Take note: “A copy attested by the officer having the
required by law to the entered therein. legal custody of the record” – Can you name a public officer
who has custody of a particular record? ROD. If you are the
All other writings are private. ROD, you are an official custodian of public records namely,
Certificates of Title. Remember that we have this Certificates of
Outside of the enumeration made by the rules, everything else Title under the Torrens Title and under PD 1529, there are 2
would be private document. What the law does not enumerate, it copies. One would be the owner’s duplicate certificate of title
excludes. and the other copy is kept by the ROD. Let us suppose you want
to get an original copy of the one kept by the ROD in his
registration book. Will you be able to get the exact original that
Rule 132, Section 23. Public documents as evidence. — Documents
is kept by the ROD? You cannot because later on, in Sec 26, we
consisting of entries in public records made in the performance of a
will learn that public records are irremovable.
duty by a public officer are prima facie evidence of the facts therein
stated. All other public documents are evidence, even against a third
What would the ROD do then? It will certify the copy and attest
person, of the fact which gave rise to their execution and of the date
that original copy is with him.
of the latter.
What about the phrase, “with a certificate that such officer has
Q: What would public documents serve as proof for? Evidence of the custody”? This is actually the red ribbon or blue ribbon in
what? the documents.
A: The facts that gave rise to their execution and the date of the If the record is in a foreign country, the certificate may be made by a
document itself. More so, it is a prima facie evidence of the facts secretary of the embassy or legation, consul-general, consul, vice-
stated therein should the documents contain entries in public consul, or consular agent or by any officer in the foreign service of
records made in the performance of a duty by a public officer. the Philippines stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office.
Cross-refer this to Rule 130, Section 44.
Rule 130, Section 44. Entries in official records. — Entries in official Second class: Public documents as notarial documents
records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially Rule 132, Section 30. Proof of notarial documents. — Every
enjoined by law, are prima facie evidence of the facts therein stated. 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. Examples of these are forms accomplished by a private citizen and
required by law to be submitted to a government office (i.e. tax
VILLAFRIA vs. PLAZO returns, birth certificate). Basically, it is a private document that
GR No. 187524 August 5, 2015 becomes public.
The notarization of a document carries considerable legal effect. Atty JZE: If you are gainfully employed, do you not file an ITR? You
Notarization of a private document converts such document into a file an ITR, you get a form, for example, from the BIR and then you
public one, and renders it admissible in court without further proof fill that out. You are a private individual filling up a public form.
of its authenticity. Thus, notarization is not an empty routine, to the Because it’s a private individual that fills it out, it is a private
contrary, it engages public interest in a substantial degree and the document. But because it is intended for submission to a public
protection of that interest requires preventing those who are not office, by process, it becomes a public record.
qualified or authorize to act as notaries public from imposing upon
the public and the Courts and administrative offices generally. Private Documents
So what do we get out of it?
Rule 132, Section 20. Proof of private document. — Before any
1. A private document, which is originally binding between the private document offered as authentic is received in evidence, its due
parties only, when converted into a public one, becomes execution and authenticity must be proved either:
binding against the whole world
2. There is no need for the tedious process of authentication (a) By anyone who saw the document executed or written; or
because a public document becomes self-authenticating. Thus, (b) By evidence of the genuineness of the signature or handwriting of
notarization is not an empty routine, to the contrary, it engages the maker.
public interest in a substantial degree and the protection of
that interest requires preventing those who are not qualified or Any other private document need only be identified as that which it
authorize to act as notaries public from imposing upon the is claimed to be.
public and the Courts and administrative offices generally.
Q: Is “genuineness of the signature or handwriting of the maker”
PRESUMPTION OF REGULARITY familiar?
A: Of course. Under Rule 130, normally, the opinion of an ordinary
LAZARO vs. AGUSTIN witness is not admissible but he can give his opinion with respect to
G.R. No. 152364, April 15, 2010 handwriting with which he has sufficient familiarity.
A notarized document carries the evidentiary weight conferred upon Section 20 highlights the distinction between a public document and
it with respect to its due execution, and documents acknowledged a private document. A private document requires authentication
before a notary public have in their favor the presumption of while a public document is normally self-authenticating. A private
regularity. (Atty JZE: Take note that this is a separate presumption document cannot be admitted in evidence if it has not been duly
from those enumerated on RULE 131.) However, this presumption is authenticated.
not absolute and may rebutted by clear and convincing evidence to
the contrary. When Authentication is Dispensed With
Atty. JZE: Now remember our quantum of proof: proof beyond 1. When the private document is an actionable document not
reasonable doubt, preponderance of evidence, substantial evidence, denied under oath by a party
and then clear and convincing evidence. What are instances where
the law requires clear and convincing evidence to prove a fact? Part Atty JZE: Recall that from Civil Procedure. You attach for
of that is this one. If you want to refute that presumption of example in your answer a receipt proving or tending to prove
regularity afforded to notarial documents, you have to do it by clear that you have paid the debt. Then it is not admitted under oath
and convincing evidence. But later on, when we go to 133, I will tell because, according to the plaintiff, the filing of the reply is
you everything under the law that would require clear and merely optional.
convincing evidence, just in case it gets asked in the bar or IN MY
EXAM. Q: In this case, do all matters alleged in the answer deemed
automatically controverted?
Moreover, not all notarized documents are exempted from the rule
on authentication. Thus, an affidavit does not automatically become A: No! You have to deny the genuineness and due execution of
a public document just because it contains a notarial jurat. The an actionable document under oath. This means that if you
presumptions that attach to notarized documents can be affirmed don’t file a reply, it is deemed admitted already. So once there is
only so long as it is beyond dispute that the notarization was regular. that implied admission, there is no need for authentication.
2. When the authenticity and due execution of the document are

Third class: Public record of a private document
otherwise admitted (i.e. during pre-trial or in a request for
admission);
Rule 132, Section 27. Public record of a private document. — An
authorized public record of a private document may be proved by the Atty JZE: During pre-trial, remember that one of the mandatory
original record, or by a copy thereof, attested by the legal custodian objects of pre trial is for the parties to stipulate as to facts or
of the record, with an appropriate certificate that such officer has documents. During this stage, you can ask the party to stipulate
the custody.
that what you submitted is a faithful reproduction of the

original and that the original appears to be duly executed and SUMMARY: HOW GENUINENESS OF HANDWRITING IS PROVED
authentic.
1. By any witness who actually saw the person writing the
3. The writing is a notarial document acknowledged, proved or instrument;
certified (Sec. 30);
2. By any person who is familiar or has acquired knowledge of
4. The writing is a public document or record (Sec. 19) the handwriting of such person, his opinion as to the
handwriting being an exception to the opinion rule;
5. When such genuineness and due execution are immaterial to
the issue. 3. By a comparison of the questioned handwriting from the
admitted genuine specimens thereof through autoptic
6. Where the private document is an ancient document (Sec. 21). proference; or
Atty. JZE: A witness will identify signature and compare it with

Rule 132, Section 21. When evidence of authenticity of private
signatures already admitted by the court to belong to a
document not necessary. — Where a private document is more than
particular person upon whom the writing is attributed. By that
thirty years old, is produced from the custody in which it would
comparison, by autoptic proference, it is authenticated when
naturally be found if genuine, and is unblemished by any alterations
there is a match.
or circumstances of suspicion, no other evidence of its authenticity
need be given.
4. By an expert witness.
ANCIENT DOCUMENT
Atty. JZE: An expert witness that is being referred to here is someone
who is trained or skilled in handwriting analysis, not someone who is
With respect to authentication, an "ancient document" is one that
an expert forger like my wife.
may be deemed authentic without a witness to attest to the
circumstances of its creation because its age that it is unlikely to
Rule 132, Section 25. What attestation of copy must state. —
have been falsified in anticipation of the litigation in which it is
Whenever a copy of a document or record is attested for the purpose
introduced.
of evidence, the attestation must state, in substance, that the copy is
a correct copy of the original, or a specific part thereof, as the case
Q: To reiterate, why is it that an ancient document can be admitted
may be. The attestation must be under the official seal of the
without authentication?
attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
A: If it is old or it is proven to be old, it is very unlikely that the
document has been fabricated in anticipation of litigation. But take
note of the important requisite – unblemished by any alteration or Atty JZE: This is applicable when you file for a record on appeal or a
cicumstances of suspicion. petition for review with the CA. Remember that there is a
requirement that all that you are going to submit there are original
REQUISITES copies or certified true copies of the original.
1. The private document be more than 30 years old; Q: Now, how will you submit an original copy when it is still kept by
2. That it be produced from a custody in which it would naturally the court?
be found if genuine;
3. That it is unblemished by any alteration or circumstances of A: Ask the Clerk of Court to attest that the copy is a certified true
suspicion (Sec. 21). copy of the original in the records of the court.
Rule 132, Section 22. How genuineness of handwriting proved. — Rule 132, Section 26. Irremovability of public record. — Any public
The handwriting of a person may be proved by any witness who record, an official copy of which is admissible in evidence, must not
believes it to be the handwriting of such person because he has seen be removed from the office in which it is kept, except upon order of a
the person write, or has seen writing purporting to be his upon which court where the inspection of the record is essential to the just
the witness has acted or been charged, and has thus acquired determination of a pending case.
knowledge of the handwriting of such person. Evidence respecting
the handwriting may also be given by a comparison, made by the Rule 132, Section 28. Proof of lack of record. — A written statement
witness or the court, with writings admitted or treated as genuine by signed by an officer having the custody of an official record or by his
the party against whom the evidence is offered, or proved to be deputy that after diligent search no record or entry of a specified
genuine to the satisfaction of the judge. (23a) tenor is found to exist in the records of his office, accompanied by a
certificate as above provided, is admissible as evidence that the
Cross-refer this provision to records of his office contain no such record or entry.
Rule 130, Section 50. Opinion of ordinary witnesses. — The opinion The certificate of lack of record under Section 28 serves no purpose
of a witness for which proper basis is given, may be received in other than to prove that no record exists based on the records of
evidence regarding — the office. It does not prove anything else.
xxx
(b) A handwriting with which he has sufficient familiarity; and Rule 132, Section 31. Alteration in document, how to explain. —
xxx The party producing a document as genuine which has been altered
and appears to have been altered after its execution, in a part • To enable the trial judge to know the or purposes for which the
material to the question in dispute, must account for the alteration. proponent is presenting the evidence;
He may show that the alteration was made by another, without his • On the other hand, this allows opposing parries to examine the
concurrence, or was made with the consent of the parties affected by evidence and object to its admissibility;
it, or was otherwise properly or innocent made, or that the alteration • Moreover, it facilitates review as the appellate court will not be
did not change the meaning or language of the instrument. If he fails required to review documents not previously scrutinized by the trial
to do that, the document shall not be admissible in evidence. court.
Atty JZE: There is a need to explain why there is alteration. Whether EFFECT OF LACK OF OFFER
or not the alteration is minor, the requirement to explain still
remains. Failure to do so means inadmissibility of evidence. As a general rule, if the proponent of a piece of evidence fails to
make a formal offer, the evidence will be excluded. The rule on
Rule 132, Section 32. Seal. — There shall be no difference between formal offer of evidence is not a trivial matter. Failure to make a
sealed and unsealed private documents insofar as their admissibility formal offer within a considerable period of time shall be deemed a
as evidence is concerned. waiver to submit it. Consequently, any evidence that has not been
offered shall be excluded and rejected by the court.
Rule 132, Section 33. Documentary evidence in an unofficial
language. — Documents written in an unofficial language shall not Example of Dean Inigo:
be admitted as evidence, unless accompanied with a translation into There is a witness that was presented but there was no offer in the
English or Filipino. To avoid interruption of proceedings, parties or beginning so the counsel immediately proceeded to ask questions.
their attorneys are directed to have such translation prepared before During the testimony, no objection was ever made by the adverse
trial. party. The witness just testified straight from beginning to end.
When there are no more questions for the witness, the adverse
Atty JZE: I had the occasion to use Cebuano in contracts in places in counsel stood up and said “Your Honor, we move to strike the
the bukid, like a contract of antichresis where the fruits will be used testimony” “Why counsel?” “On the ground that it was not formally
to pay the interest. Now, the creditor, who is my client, wanted to offered”. And it should be granted by the court. That’s how strict the
collect on the loan so his proof would be that contract. I had to make rule on formal offer is. If you do not formally offer it into evidence, it
a translation in English so that it would be admissible in evidence. will not be admitted. So that’s the remedy strike off from the
You have to accompany the original contract because you do not records.
substitute the original contract in Cebuano with the translated
contract in English. The law requires that you still present the The remedy of the opponent would be to move for the striking off of
original and have it accompanied with translation. the evidence from the records. The Court may also exclude the same
motu proprio.
OFFER OF EVIDENCE
EXCEPTIONS
There are 3 cases that decided by the Supreme Court that you need
Rule 132, Section 34. Offer of evidence. — The court shall consider
to remember. It is important for you to cite them by name. These
no evidence which has not been formally offered. The purpose for
are exceptions to the general rule that the court shall consider no
which the evidence is offered must be specified.
evidence that has not been formally offered. First would be:
Atty JZE: When you say offer, what do you do? Say for example you
have this document, and then you want to present it in court. The TIOMICO vs. COURT OF APPEALS
G.R. No. 122539 March 4, 1999
law requires that you have to offer it. You don’t just present it, you
have to offer it. Meaning, you have to inform the court why you are
presenting that evidence. SUBSTANTIAL COMPLIANCE. The absence of the words, “We are
formally offering the testimony for the purpose of...” should be
Another example: You want to present a witness. What you are considered merely as an excusable oversight. The fact that the
offering therefore would be testimonial evidence. The offer of purpose was stated is deemed substantial compliance to Section 32.
evidence may be done in the following manner:
Atty JZE: Substantial compliance – meaning you never said the words
COUNSEL: “Your Honor, the testimony of this witness is offered to we are formally offering the testimony of this witness. You never said
prove the following: 1, 2, 3, 4 , 5 and such other matters as are the word “offer” but maybe you said something else like “the
relevant to his cause if action. He will also identify documents your purpose of the testimony of this witness your Honor is blah blah
HONOR. May I proceed?” blah..” That’s TIOMICO, the SC said that is substantial compliance.
That should be considered merely as an excusable oversight.
Q: What is the function of a formal offer? Why is it necessary?
Then the 2 others we’ll take up jointly and it is very easy to
MABBORANG vs. MABBORANG remember: MATE and MATO which was cited in the case of
April 22, 2015 MABBORANG regarding formal offers.
Formal offer is necessary because judges are mandated to rest their • MATE and MATO cases (recently cited by the Supreme Court in the
findings of facts and their judgment only and strictly upon the 2015 case of MABBORANG)
evidence offered by the parties at the trial. Its function is:
PEOPLE vs. MATE
G.R. No. 1--49181, March 27, 1981
in the JAR does it state that it should be offered together with your
MATO vs. COURT OF APPEAIS documentary evidence/exhibits.
G.R. No. 116149, November 23, 1995
Q: What about exhibits?
MATO and MATE CASES
A: We are talking about documentary and object evidence exhibits.
The Supreme Court has relaxed the procedural rule and allowed the As provided in Section 8 of JAR, a party shall immediately make an
trial court to consider evidence not formally offered on the oral offer of evidence of his documentary or object exhibits upon
condition that the following requisites are present: the termination of the testimony of his last witness.
1. the evidence must have been duly identified by testimony duly Section 8. Oral offer of and objections to exhibits. – (a) Upon the
recorded; and termination of the testimony of his last witness, a party shall
immediately make an oral offer of evidence of his documentary or
2. the same must have been incorporated in the records of the case. object exhibits, piece by piece, in their chronological order, stating
the purpose or purposes for which he offers the particular exhibit.
Q: What is an example of records that is already incorporated in the xxx
records of the case without ever being presented during the main
trial or the presentation of evidence in chief? OBJECTIONS
A: CRIMINAL CASE – bail hearing. During a bail hearing, you present What’s the purpose of an objection? Why do we object?
evidence. If it is a non-bailable offense, you have to prove that the
evidence of guilt is not strong so that bail will be granted. So PURPOSE OF OBJECTIONS
whatever evidence you present during the bail hearing, that is
automatically incorporated in the records of the main case. 1. To keep out inadmissible evidence that would cause harm to a
client's cause;
CIVIL CASE – in a motion to dismiss. When you present evidence to
support your motion to dismiss, a preliminary hearing is necessary. 2. To protect the record, i.e. to present the issue of inadmissibility
Again, whatever is presented there is deemed incorporated in the of the offered evidence in a way that if the trial court rules
records of the main case. erroneously, the error can be relied upon as a ground for a
future appeal;
WHEN DO YOU MAKE AN OFFER?
3. To protect a witness from being embarrassed by the adverse
Rule 132, Section 35. When to make offer. — As regards the counsel;
testimony of a witness, the offer must be made at the time the
witness is called to testify. Documentary and object evidence shall be 4. To expose the adversary's unfair tactics like his consistently
offered after the presentation of a party's testimonial evidence. Such asking obviously leading questions; and
offer shall be done orally unless allowed by the court to be done in
writing. 5. To give the trial court an opportunity to correct its own errors
and at the same time warn the court that a ruling adverse to
Testimonial evidence is offered at the time the witness is called to the objector may supply a reason to invoke a higher court's
testify. On the other hand, documentary and object evidence should appellate jurisdiction. (Riano, Evidence: 71 Restatement for the
be offered after the presentation of a party’s testimonial evidence. Bar, p. 462, 2009 ed.)
Let’s talk about the JAR. Atty. JZE: Why do you object? When you object, what you are
actually telling the court is you are wrong! Why are you allowing this
Section 6. Offer of and objections to testimony in judicial affidavit. - kind of questioning? Why are you allowing the introduction of
The party presenting the judicial affidavit of his witness in place of evidence that is inadmissible? That’s what you are doing when you
direct testimony shall state the purpose of such testimony at the object, telling the court “hey something is wrong you have to correct
start of the presentation of the witness. it.”
XXX
Q: When do you make objections?
Q: What is a judicial affidavit, testimonial evidence or documentary
evidence? Rule 132, Section 36. Objection. — Objection to evidence offered
orally must be made immediately after the offer is made.
A: Under the JAR, you need to remember that it is used as a
substitute of a party’s direct testimony making it purely testimonial Objection to a question propounded in the course of the oral
even if it is in printed form. Therefore, based on that alone, you examination of a witness shall be made as soon as the grounds
have to offer it at the beginning of the testimony. You don’t have to therefor shall become reasonably apparent.
offer the affidavit together with the documentary exhibits.
An offer of evidence in writing shall be objected to within three (3)
Also, under the JAR, the party presenting the judicical affidavit of his days after notice of the offer unless a different period is allowed by
witness in place of direct testimony shall state the purpose of such the court.
testimony at the start of the presentation of the witness. Nowhere
In any case, the grounds for the objections must be specified.
Atty JZE: Remember, the general rule is that you offer exhibits at the
“Must be made immediately after the offer is made” end of all your testimonial evidence.
Atty JZE: I am not talking here about testimonial evidence only. Scenario: So immediately, Exhibit A, “Your Honor, we offer this
Although please remember that testimonial evidence is really offered exhibit for the purpose of blah blah blah”, then immediately the
orally at the beginning of the testimony. other party should object, if made orally. And the court should rule.
“Objectionable your honor, it violates the best evidence rule”. “Okay,
Now what about documentary? As a general rule they, should be objection sustained”. Because of this, the court will strike off that
orally offered. Immediately after the oral offer, make the objections. exhibit and will no longer be presented in court. But note that if the
That’s when you object. offer is made in writing, you must also object in writing.
“Objection to a question propounded in the course of the oral (c) Since the documentary or object exhibits form part of the
examination of a witness shall be made as soon as the grounds judicial affidavits that describe and authenticate them, it is
therefor shall become reasonably apparent.” sufficient that such exhibits are simply cited by their markings
during the offers, the objections, and the rulings, dispensing with
Atty. JZE: “What did A tell you?” “Objection your Honor, calls for a the description of each exhibit.
hearsay answer.” So immediately object when the ground becomes
apparent.
Atty JZE: This is the reason why you need your exhibits marked and
identified, which is usually done during pre-trial. And this is the
“An offer of evidence in writing shall be objected to within three
reason why a judicial affidavits must be submitted prior to the pre-
(3) days after notice of the offer unless a different period is
trial to make things easier.
allowed by the court.”
Q: What happens if for example, a party keeps on asking questions
Atty. JZE: Does this usually happen? Well, offer in writing, that
that would be objectionable, and then you object and then it's
happens a lot, but the 3 days to object? No. Why? You gave the party
overruled? And the same type of question is asked once again, and
who made the offer 15 days and you just give me 3 days. To be fair,
you object again, and you're overruled again. So what do you do?
you are also given 15 days. That is usually the standard operating
procedure in court.
A: You register your continuing objections instead of repeating your
objections over and over again.
In any case, the grounds for the objections must be specified. You
cannot just object for the sake of objection, there has to be a ground
CONTINUING OBJECTIONS
for objection so as not to waste the time of the court and the
witness.
Rule 132, Section 37. When repetition of objection unnecessary. -
When it becomes reasonably apparent in the course of the
Under the JAR
examination of a witness that the questions being propounded are of
the same class as those to which objection has been made, whether
Section 6. Offer of and objections to testimony in judicial affidavit. -
such objection was sustained or overruled, it shall not be necessary
XXX The adverse party may move to disqualify the witness or to
to repeat the objection, it being sufficient for the adverse party to
strike out his affidavit or any of the answers found in it on ground of
record his continuing objection to such class of questions.
inadmissibility.
Atty JZE: I remember a case governed by the summary rules, and
The court shall promptly rule on the motion and, if granted, shall
cause the marking of any excluded answer by placing it in brackets then we had to object over and over again to the inclusion of
under the initials of an authorized court personnel, without prejudice documents not previously marked, identified nor attached to the
to a tender of excluded evidence under Section 40 of Rule 132 of the affidavits of the witness.
Rules of Court.
Remember diba, under summary procedure for civil cases, you
cannot testify if you don't have an affidavit. You cannot present any
Under the JAR document if it has not been previously attached to an affidavit.
Summary rules man, so dapat paspas. And so the plaintiff now is
Section 8. Oral offer of and objections to exhibits. - xxx presenting documents proving an account or "listahan" amounting
(b) After each piece of exhibit is offered, the adverse party shall state to 500 pesos. This was identified as Exhibit A.
the legal ground for his objection, if any, to its admission, and the
Court shall immediately make its ruling respecting that exhibit. “Objection, Your Honor. That is inadmissible because it has not been
previously marked, identified nor attached to the affidavit and
(c) Since the documentary or object exhibits form part of the judicial therefore could not be presented.”
affidavits that describe and authenticate them, it is sufficient that
such exhibits are simply cited by their markings during the offers, the The court said, “I will allow that counsel on the ground of interest of
objections, and the rulings, dispensing with the description of each justice. The court is interested to know for the great interest of
exhibit. justice.”
(b) After each piece of exhibit is offered, the adverse party shall “Okay, very well Your Honor”. And then it became apparent to me
state the legal ground for his objection, if any, to its admission, and that Exhibit A was not the only one. Daghan kaayong listahan, utang
the Court shall immediately make its ruling respecting that exhibit. gud sa listahan. Niabot nalang ug 30K ang iyang utang unya wala
jud nagbayad bayad. Nakita nako, daghan kaayong lista, gusto niya
ipresent tanan. So I said, “Your Honor, I do believe that that is not REVIEW ON MATERIALITY AND RELEVANCY
the only evidence of such kind that has to be objected to, and we
Materiality answers the question: is it something that proves a fact
have no reason to suspend the court to change in ruling. So, we are
in issue, if not, it could be circumstantial.
registering our objection to such type of evidence”.
Relevancy: Does it have a tendency in reason to prove the fact in
And then the court will say, “Okay, noted for the record that the
issue, to advance the inquiry? You use logic and common sense.
counsel is objecting to such type of evidence”. This is an example of a
continuing objection.
So if you make a compound objection, the court, if it sustains the
objection, must specify the ground relied on. So the court may state
WHEN TO RULE
that the objection is sustained on the ground of immateriality but it
is overruled on the ground of relevancy. It may not directly prove a
Rule 132, Section 38. Ruling. The ruling of the court must be given fact in issue, but it may be a circumstantial evidence, therefore it
immediately after the objection is made, unless the court desires to
may be relevant.
take a reasonable time to inform itself on the question presented;
but the ruling shall always be made during the trial and at such time UNDER THE JAR
as will give the party against whom it is made an opportunity to
meet the situation presented by the ruling. The court is required to rule immediately or promptly as soon as the
objection is made.
The reason for sustaining or overruling an objection need not be
stated. However, if the objection is based on two or more grounds, a
Rule 132, Section 39. Striking out answer - Should a witness answer
ruling sustaining the objection on one or some of them must specify
the question before the adverse party had the opportunity to voice
the ground or grounds relied upon.
fully its objection to the same, and such objection is found to be
meritorious, the court shall sustain the objection and order the
General Rule: The ruling of the court must be given immediately answer given to be stricken off the record.
after the objection is made so as not to delay the resolution of the
case.
On proper motion, the court may also order the striking out of
answers which are incompetent, irrelevant, or otherwise improper.
Exception: Under exceptional circumstances, the court may actually
take time to consider its ruling on the objection. This is when the
ground is not immediately apparent to the court. Rule 132, Section 40. Tender of excluded evidence. - If documents or
things offered in evidence are excluded by the court, the offeror may
Atty JZE: But the ruling must always be made during trial. When I have the same attached to or made part of the record. If the
say during trial, it is not a particular trial date. So for example, the evidence excluded is oral, the offeror may state for the record the
party objects today, it is still acceptable if the court rules on the name and other personal circumstances of the witness and the
objection next week for as long as the trial is still going on, and the substance of the proposed testimony.
case has not been terminated.
This is what we call TENDER OF EXCLUDED EVIDENCE.
Also, the ruling must be given at such time as will give the party
against whom it is made an opportunity to meet the situation Atty JZE: Under the JAR, if the court finds that there are
presented by the ruling. What if the court rules that it will exclude objectionable questions and answers in the JA, it may order it to be
certain types of evidence? So it sustains the objection, and without stricken of in the record, but without prejudice to the proponent’s
that document, the case or the claim fails? right to make a tender of the excluded evidence.
So it has to be given time and opportunity to meet the situation So what does it say?
presented by the ruling of excluding certain types of evidence. What
would be the remedy? Remember that an order to exclude certain If documents or things offered in evidence are excluded by the court,
evidence is merely interlocutory. You cannot appeal from an the offeror may have the same attached to or made part of the
interlocutory order but you can file certiorari. Your other remedy record. Say for example, there's this document that you want to
would be to wait until the termination of the trial because definitely present, it was objected to, and objection was sustained. Therefore
you will lose. When the adverse decision is rendered, then file an you cannot present it, it is not admitted by the court, you cannot
appeal. But I would prefer certiorari, because it is immediate. You do continue, so what will you do? Have it made part of the records of
not have to wait for the case to end. the case.
Take note: The reason for sustaining or overruling an objection need If the evidence excluded is oral, the offeror may state for the record
not be stated. Isn't it unfair? You don't know why the objection is the name and other personal circumstances of the witness and the
being overruled or sustained. Actually no, because Res Ipsa Loquitor, substance of the proposed testimony.
it speaks for itself. So when you object, "Objection your honor,
immaterial", "objection sustained" meaning it is really immaterial. Actual example: my witness was not allowed to take the witness
That's the reason for the ruling, it is immaterial. The court does not stand because we were under the summary rules.
have to explain. If overruled, it is not immaterial. But what if you
raise a compound objection? The ruling of the judge was, without the affidavit, the witness cannot
testify. But I contended, "Your Honor, he is here under a subpoena by
A compound objection is based on two or more grounds. For the court, and because he is here under the subpoena by the court,
example: "Objection your honor, it is immaterial and irrelevant". he will not have the opportunity to make that affidavit and besides
your honor, he is going to testify on a public record like the police POSSIBLE BAR QUESTION
blotter. Therefore, he should take the witness stand. It is not covered
by the rule that he cannot testify if he does not have an affidavit. “Distinguish the English Exchequer rule from the harmless error
rule.”
The court did not like me. So I said, "Ok your honor I will just make a
tender of the excluded of evidence." “Proceed counsel!" So I said • English Exchequer Rule — mentioned in PEOPLE vs. TEEHANKEE,
"Your Honor, had you allowed us to present this witness, his G.R. Nos. 111206-08, October 6, 1995
testimony would have just been very simple... #1, #2.... so I was the
one who testified, everything that he would have said, and had it English Exchequer Rule Harmless Error Rule
made part of the record. It provides that a trial court's The appellate court will
error as to the admission of disregard an error in the
Now, we lost the case. We had to appeal. The two tendered excluded evidence was presumed to have admission of evidence unless, in
evidence, I can use that in my appeal. So what if the RTC judge kay caused prejudice and therefore, its opinion, some substantial
MTC man to. What if the RTC judge would allow the testimony of the almost automatically required wrong or miscarriage of justice
witness, kay di naman subject to summary rules, the court will allow new trial. has been occasioned.
that.
ENGLISH EXCHEQUER RULE
Tender of excluded evidence is also called proffer of evidence or
offer of proof. It provides that a trial court's error as to the admission of evidence
was presumed to have caused prejudice and therefore, almost
TENDER OF EXCLUDED EVIDENCE AKA PROFFER OF EVIDENCE OR automatically required new trial.
OFFER OF PROOF
Atty JZE: Kung gi admit sa court ang usa ka ebidensya that is totally
Where a party is denied the right to introduce evidence because inadmissible, it is presumed to cause prejudice, and it is a mistria.l
that evidence would be inflammatory, hearsay, or would lack You have to re-try. Trial de Novo.
sufficient authentication, that party must make a proffer of what the
evidence would have shown had the court allowed it. HARMLESS ERROR RULE (OPPOSITE)
PURPOSE The appellate court will disregard an error in the admission of

evidence unless, in its opinion, some substantial wrong or
1. To allow the court to know the nature of the testimony or the miscarriage of justice has been occasioned.
documentary evidence and convince the trial judge to permit
the evidence or testimony; and WHAT IS FOLLOWED IN THE PHILIPPINES?
2. To create and preserve a record for appeal. (Riano, Evidence: A We follow the harmless error rule, for in dealing with evidence
Restatement for the Bar, p. 477, 2009 ed) improperly admitted in the trial, courts examine its damaging quality
and its impact to the substantive rights of the litigant. If the impact
THIS IS CONFUSING is slight and insignificant, appellate courts disregard the error as it
will not overcome the weight of the properly admitted evidence
o Offer of evidence versus Offer of Proof against the prejudiced part (People v. Garcia, G.R. No. 105805, Aug.
o Offer of evidence versus Proffer of Evidence 16, 1994).
So make sure you are not confused. When you say offer of evidence, SUMMARY: THE STAGES IN THE COURT LIFE OF DOCUMENTARY
that's what you do prior to the presentation of testimonial evidence EVIDENCE
or at the end of testimonial evidence for exhibits. But proffer of
evidence is actually tender of excluded evidence. Offer of proof is
tender of these proof or evidence. 1. MARKING
Based on that, how do you now distinguish proof and evidence? 7. TENDER OF
EXCLUDED
2. IDENTIFICATION
EVIDENCE/OFFER
Evidence is that already admitted. You offer it, it's already admitted. OF PROOF
Proof is broader term which could include matters that are to be
presented or have been excluded. To my mind, that's the distinction
although the words are used interchangeably.
PROFFER OF EVIDENCE OFFER OF EVIDENCE

Only resorted to if admission is Refers to testimonial, 6. OBJECTIONS 3. AUTHENTICATION
refused by the Court for documentary or object evidence
purposes of on appeal that are presented or offered in
court by a party so that the court
can consider his evidence when it
comes to the preparation of the
5. FORMAL OFFER
decision. OF EXHIBIT 4. INSPECTION
1. MARKING - This process is to facilitate the identification of the 5. FORMAL OFFER OF EXHIBIT - After the termination of the
exhibit. It may be made during pre-trial or during trial. testimonial evidence, the proponent will then make a formal
offer and state the purpose for which the document is
Atty JZE: The purpose is to facilitate the identification of the presented. (Sec 34, Rule 132)
exhibit so that later on during trial, all you have to tell the court
is that" Your Honor, this exhibit has been previously marked as Under the rules, immediately after your testimonial evidence,
our exhibit A or exhibit B". Remember if you are the plaintiff, you have to make an oral offer of documents or exhibits unless
your exhibits will begin with A, B, C etc. If you are the the court allows you to submit a formal offer (in writing) of the
defendant, you begin with exhibit 1, 2, 3, etc. statements in its entirety.
Sir, what if your exhibit A has two pages, and a certain portion 6. OBJECTIONS - Objections to introduction of documentary
on the second page is your evidence. Example, your first page is evidence shall be made when it is formally offered. (Sec. 36,
your Exhibit A, the second page is you Exhibit A-1 because it is Rule 132)
one document. What if sa exhibit A-1, meaning the second
page, you want to mark a signature? What is the proper way of The rule says, within 3 days after notice of the formal offer
doing it? You are going to mark it as Exhibit A-1-a. Same for the (offer in writing), you have make the objection. But this is not
defendant. Exhibit 1-a-1. followed because of reciprocity. You give the plaintiff 15 days,
you give me 15 days also. That is what happens in court right
2. IDENTIFICATION - Presenting proof that the document being now.
presented is the same as the one referred to by the witness in
his testimony. 7. TENDER OF EXCLUDED EVIDENCE/OFFER OF PROOF - Remedy
of a party if the court improperly excluded an otherwise
Scenario admissible evidence (Sec 40, 132)
Atty: "Do you remember having executed a contract with me?" So the proponent of the documentary evidence would now
(Leading but preliminary question is allowed). have to resort to what is known as the tender of excluded
Ans: "Yes, I do". evidence or offer of proof or proffer of evidence. So if it is
Atty: "If i show you a copy of the contract, will you be able to testimonial evidence, you cite the substance of the testimony
identify the contract? before the court. If it is documentary evidence, you have it
Ans: "Yes, I can". made part of the records.
Atty: "Now, here's a contract, please examine." (so the witness
pretends to examine because he knows what it is already). You just manifest " Your honor, we are tendering this excluded
"And the signature that appears in the dorsal portion of the document and making part of the records of the case."
contract, what can you say about that?" (you're not allowed to
ask "is that your signature?" That is leading!) END
Ans: “That's my signature." That's identification.
Note: We have no class discussion on Rules 133 and 134.
3. AUTHENTICATION - Positive identification of the witness that
the document presented is genuine and has been duly
executed or that it is neither spurious, not counterfeit, not
executed by mistake or under duress.
What about authentication? Based on the ruling by the SC in

Sales vs Sta. Mesa, it is the act of the witness of identifying the
document and presenting it as genuine, and stating the
circumstances by which it was executed.
Atty: "Nganong kabalo ka sa circumstances behind the

execution?"
Ans:" Because I was there when it was executed."
4. INSPECTION - Whenever a writing is shown to a witness, it

may be inspected by the adverse party.
Atty JZE: Whenever you show your own witness a copy of a

document, the adverse party has the right to inspect it.
Remember that. And in fact, that inspection would actually be a
good time to ask for a stipulation.
So example naay witness dire. You gave him a copy so that he

could examine it. After he examined it, you give it to the other
party to inspect it. And the adverse counsel will now stipulate if
it appears to be the original or a fake reproduction of the
original.

BURDEN OF PROOF AND PRESUMPTIONS IN LAW

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

BURDEN OF PROOF AND PRESUMPTIONS IN LAW

Hochgeladen von

Copyright:

Verfügbare Formate

LAW ON EVIDENCE based on the lectures of ATTY.

Burden of proof, a duty Thesis

Exception to the exception

Example October 3, 2016

Civil law incarnations

a. The evidence is material;

TARAPEN vs. PEOPLE PEOPLE vs. DELA CRUZ

If a party resorts to fabrication of evidence, it is presumed that his Rationale

Rationale There are two presumptions here.

HUMAN NATURE First Presumption: Adverse Presumption from the Possession of

REGULARITY versus INNOCENCE

Rationale The oft-cited presumption of regularity in the performance of official

The Presumption in Article 148 Subsequent marriage 300 days after

Right against Self-Incrimination 1. Right against self-incrimination

 An ordinary witness, on the other hand, may be compelled to

Direct examination  Requires that direct examination, which is the examination-in-

requires that the petition should be verified, contain supporting

There must be a satisfactory showing of some concrete substantial

Rule 132, Section 7. Re-direct examination; its purpose and extent.

Rule 132, Section 8. Re-cross-examination. — Upon the conclusion

RECALLING WITNESSES A witness may be considered as unwilling or hostile only if so

3. By evidence that he has made at other times statements Distinguish

When inapplicable Distinguish between past recollection recorded and present

WHAT is AUTHENTICATION? First class: Public documents as official records

certificate of acknowledgment being prima facie evidence of the

2. When the authenticity and due execution of the document are

that what you submitted is a faithful reproduction of the

Atty. JZE: A witness will identify signature and compare it with

PURPOSE The appellate court will disregard an error in the admission of

PROFFER OF EVIDENCE OFFER OF EVIDENCE

What about authentication? Based on the ruling by the SC in

Atty: "Nganong kabalo ka sa circumstances behind the

4. INSPECTION - Whenever a writing is shown to a witness, it

Atty JZE: Whenever you show your own witness a copy of a

So example naay witness dire. You gave him a copy so that he

Das könnte Ihnen auch gefallen