AUTHENTICATION AND PROOF OF DOCUMENTS

A) Meaning of authentication
It is the process of proving the due execution and genuineness of a document. Not only
objects but also documents introduced in evidence need to be authenticated. It is a preliminary
step in showing the admissibility of evidence. 1

B) Meaning of Public and Private Instruments

Documents may either be public or private. This classification is for the purpose of their
presentation in evidence. Sec 19. of Rule 132 provided the classes of documents, thus:
SEC 19. Classes of Documents.- For the purpose of their presentation in evidence,
documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign
country;
(b) Documents acknowledged before a notary public except last wills and testaments;
(c) Public records, kept in the Philippines, of private documents required by law to be
entered therein. All other writings are private.

C) When a private writing requires authentication; proof of a private writing

Where the private document is offered in evidence as authentic, there is a need to prove
its due execution and authenticity. If the document or writing is not offered as authentic, it only
needs to be identified as that which it is claimed to be. 2

SECTION 20. Proof of private document. - Before any private document offered as
authentic is received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be. 3

D) When evidence of authenticity of private document not necessary

General Rule: A private document must be properly authenticated.
Exceptions: (a) When the private documents are classified as ancient one;
Under the "ancient document rule," for a private ancient document to be exempt from
proof of due execution and authenticity, it is not enough that it be more than thirty (30) years
old; it is also necessary that the following requirements are fulfilled:

1
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.
2
Franco v. People, G.R. No. 191185, February 1,2016, cited in Riano, 2016
3
Section 20, Rule 132, Rules of Court

1
(1) that it is produced from a custody in which it would naturally be found if genuine; and
(2) that it is unblemished by any alteration or circumstances of suspicion. (Sec. 21, Rule 132, Rules
of Court); 4
The last requirement of the "ancient document rule" that a document must be
unblemished by any alteration or circumstances of suspicion refers to the extrinsic quality of the
document itself. The lack of signatures on the first pages, therefore, absent any alterations or
circumstances of suspicion cannot be held to detract from the fact that the documents in
question, which were certified as copies of the originals on file with the Register of Deeds of
Pampanga, are genuine and free from any blemish or circumstances of suspicion.5
(b) When the genuineness and authenticity of an actionable document have not been
specifically denied under oath by the adverse party under Section 8, Rule 8 of the Rules of Court.
(c) When the genuineness and authenticity of the document have been admitted under
Section 4, Rule 129 of the Rules of Court.
(d) When the document is not being offered as authentic as implied from Section 20, Rule
132 of the Rules of Court, which requires authentication only when the document is offered as
authentic.6
E) How to prove the genuineness of a handwriting
The genuineness of a handwriting may be proved:
1) By any witness who believes it to be the handwriting of such person because:
(a) he has seen the person write; or
(b) he has seen writing purporting to be his upon which the witness has acted or
been charged;
2) By a comparison, made by the witness or the court, with writings admitted or treated
as genuine by the party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge;7
Sec. 22 of Rule 132 does not require expert testimony to prove the handwriting of a
person. Well-settled is the rule that resorting to handwriting experts is not mandatory.
Handwriting experts are not indispensable in examining or comparing handwriting or signatures.
Under Section 22, Rule 132 of the Revised Rules on Evidence, the handwriting of a person may
be proved by any witness who believes it to be the handwriting of such person because he has
seen the person write; or he has seen writing purporting to be his upon which the witness has
acted or has been charged, and has thus acquired knowledge of the handwriting of such person.8

4
Cercado-Siga v. Cercado Jr., G.R. No. 185374, March 11, 2015
5
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.

6
Patula v. People, 669 SCRA 135, 157, April 11, 2012
7
Section 22, Rule 132, Rules of Court
8
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2
 Moreover, the opinion of a non- expert witness, for which proper basis is given, may be
received in evidence regarding the handwriting or signature of a person with which he has
enough familiarity9.

F) Public Documents as Evidence

As stated in Section 23, Rule 132 of the Rules of Court, documents consisting of entries in
public records made in the performance of a duty by a public officer are prima facie evidence of
the facts therein stated. All other public documents are evidence, even against a third person, of
the fact which gave rise to their execution and of the date of the latter.10
Under this section, when a public officer in the performance of his duty, makes an entry
in the public record, the document of such entry is deemed prima facie evidence of the facts
stated in the entry. However, in the case of other public documents, the facts stated therein
constitute evidence of the facts that gave rise to the execution of such documents and of the
date of the execution of the same.11
Proof of Official Record; Attestation of a Copy
While a public document does not require the authentication imposed upon a private document,
there is a necessity for showing to the court that indeed a record of the official acts of official
bodies, tribunals or of public officers exists.12
Under Rule 132 of the Rules of Court (Revised Rules on Evidence):
Section 24. Proof of official record. — The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the record, or
by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that
such 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 embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign service of the Philippines stationed in
the foreign country in which the record is kept, and authenticated by the seal of his office.

G) Attestation of a copy
It is true that before a private document offered as evidence be received in evidence, its
due execution and authenticity must first be proved. However, it must be remembered that this
requirement of authentication only pertains to private documents and “does not apply to public
documents, these being admissible without further proof of their due execution or genuineness.
Two (2) reasons may be advanced in support of this rule, namely: said documents have been
executed in the proper registry and are presumed to be valid and genuine until the contrary is
shown by clear and convincing proof; and, second, because public documents are authenticated

9
Heirs of Amado Celestial v. Heirs of Editha G. Celestial, 408 SCRA 291
10
Section 23, Rule 132, Rules of Court
11
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.
12
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.

3
by the official signature and seals which they bear and of which seals, courts may take judicial
notice."13 Hence, in Heirs of Ochoa v. G & S Transport Corp., the Court held that in the
presentation of public documents as evidence, due execution and authenticity thereof are
already presumed. 14

Now, the rule on the attestation clause referred to in Sec. 24 of Rule 132 of the Rules of
Court is provided for my Sec. 25 of the same rule, to wit:

SEC. 25. What attestation of copy must state. — Whenever a copy of a document or
record is attested for the purpose 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 may
be. The attestation must be under the official seal of the attesting officer, if there be any,
or if he be the clerk of a court having a seal, under the seal of such court.

In other words, the attestation must state, in substance:

1. That the copy is a correct copy of the original, or a specific part thereof, as the case may
be;
2. 2. It must be under the official seal of the attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of such court (Sec. 25, Rule 132).

The certificate is required because of the general rule on the irremovability of public
records embodied in Sec. 26 of Rule 132, thus:

SEC. 26. Irremovability of public record. — Any public record, an official copy of which is
admissible in evidence, must not be removed from the office in which it is kept, except
upon order of a court where the inspection of the record is essential to the just
determination of a pending case.

A public record cannot be removed from the office in which it is kept without a court
order, such as a subpoena duces tecum, and even the court cannot order its removal therefrom,
except when essential to the just determination of a pending case. This rule, however, refers only
to a public record an official copy of which could be made available to the interested party and
is admissible in evidence.15

H) Public record of a public document

An authorized public record of a private document may be proved by:

13
Tan, Dean Ferdinand. Evidence: A Compendium for the Bench and the Bar. Rex Printing Company, Inc. (2014)
14
Heirs of Jose Marcial K. Ochoa, namely Ruby B. Ochoa, Michaela B. Ochoa and Jomar B. Ochoa vs. G&S Transport
Corporation, G.R. No. 170125, July 16, 2012.
15
Regalado, Florenz D.. Remedial Law Compendium, Volume 2..

4
 1. By the original record; or
2. By a copy thereof, attested by the legal custodian of the record, with an appropriate
certificate that such officer has the custody (Sec. 27, Rule 132).

Failure to comply will render the evidence offered as inadmissible. In, People v.
Catañeda,Jr.16, the Supreme Court agreed with the disposition of the Court of Tax Appeals that
“anent its offer of private documents, the prosecution likewise failed to comply with Section 27,
Rule 132 of the Rules of Court, which reads, “an authorized public record of a private document
may be proved by the original record, or by a copy thereof, attested by the legal custodian of the
record, with an appropriate certificate that such officer has the custody.” Considering that the
private documents were submitted and filed with the BOC, the same became part of public
records. Again, the records show that the prosecution failed to present the certified true copies
of the documents.”
I) Proof of lack of record
A litigation does not always involve evidence of the existence of a record. Sometimes, the
issue centers on the absence of an official record.17 On such matters, Sec. 28 of Rule 132 of the
Rules of Court governs, thus:
SEC. 28. Proof of lack of record.— A written statement signed by an officer having the
custody of an official record or by his deputy that after diligent search no record or entry
of a specified tenor is found to exist in the records of his office, accompanied by a
certificate as above provided, is admissible as evidence that the records of his office
contain no such record or entry.

Proof of lack of record of a document consists of written statement signed by an officer

having custody of an official record or by his deputy. The written statement must contain the
following matters18:
1. There has been a diligent search of the record;
2. That despite the diligent search, no record of entry of a specified tenor is found to exist
in the records of his office. (Sec. 28, Rule 132).

It should be noted that the written statement must be accompanied by a certificate that
such officer has the custody of official records.

Thus, the Supreme Court ruled in the case of People v. Lazaro y Servania19, that the
Certification issued by the Commanding Officer of the PNP-Firearm and Explosives Office, which

16
G.R. No. 208290, December 11, 2013.
17
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.
18
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.
19
G.R. No. 112090. October 26, 1999. G.R. No. 112090. October 26, 1999.

5
is the repository of all records regarding firearms in the Philippines, is competent and admissible
evidence to prove that accused-appellant is not a licensed holder or possessor of a firearm of any
kind or caliber. Indeed, the certificate of a custodian that he has diligently searched for a
document or an entry of a specified tenor and has been unable to find it ought to be as
satisfactory an evidence of its non-existence in his office as his testimony on the stand to this
effect would be.

J) How a judicial record is impeached.

A judicial record refers to the record of judicial proceedings. It does not only include
official entries or files or the official acts of a judicial officer20, but also the judgment of the
court21.
Sec. 29 of Rule 132 authorizes the impeachment of any judicial record if there be evidence
of the existence of any of the following grounds:
(a.) lack of jurisdiction in the court or judicial officer;
(b.) collusion between the parties; or
(c.) fraud in the party offering the record, in respect to the proceedings.

K) Proof of notarial documents.

The notarial seal converts a document from a private to a public document.22 A notarized
document is entitled to full faith and credit upon its face. Courts, administrative agencies and the
public at large must be able to rely upon the acknowledgment executed by a notary public. 23
A public document is admissible in the court without further proof of its due execution
and authenticity.24
Sec 30 of Rule 132 affirms the above principles, thus:

“Sec. 30. Proof of notarial documents. — Every instrument duly acknowledged or proved
and certified as provided by law, may be presented in evidence without further proof, the
certificate of acknowledgement being prima facie evidence of the execution of the instrument or
document involved."

The above rule presupposes that the document was notarized by a person duly authorized to
perform notarial functions. Without such authority, the private document does not become a
public document.25

L) How to explain alteration in a document.

20
Wharton's Criminal Evidence, 11th Ed., §805
21
Black's Law Dictionary, 5th Ed., 762
22
A.C. No. 8637. September 15, 2014; A.C. No. 9807. February 2, 2016
23
Fabay v. Resuena, A.C. No. 8723. January 26, 2016
24
Kummer v. People, G.R. No. 174461, September 11, 2013
25
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.

6
 The party producing the document as genuine but which bears alterations after its
exception has the duty to account for any alteration found in a document purported to be
genuine. For such purpose, he may show any of the following:
(a.) that the alteration was made by another without his concurrence; or
(b.) that the alteration was made with the consent of the parties affected by it;
(c.) that the alteration was otherwise properly or innocently made; or
(d.) that the alteration did not in anyway change the meaning or language of the
instrument.
Failure to do any of the above will make the document inadmissible in evidence. 26

M) Documentary evidence in an unofficial language

The Rules of Court provides that a document written in an unofficial language shall not
be admitted as evidence; it must be accompanied by a translation into English or Filipino. To
avoid interruption of court proceeding, attorneys are required to have such translation prepared
before trial.27

26
Sec. 31, Rule 132, Rules of Court
27
Riano, Willard B. Evidence (The Bar Lecture Series). Vol. 4506, Rex Printing Company, Inc., 2016.

7
 TESTIMONIAL EVIDENCE

➢ Testimonial or oral evidence is an evidence elicited from the mouth of a witness.28

➢ Viva voce = “living voice” or by word of mouth
➢ A human being (Witness) is called to the witness stand, is asked questions and answers
the questions of him.
A) Qualifications of a witness

Section 20, Rule 130 of the Rules of Court provides:

Witnesses; their qualifications. - Except as provided in the next succeeding
section, all persons who can perceive, and perceiving, can make known their perception
to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a
crime unless otherwise provided by law, shall not be a ground for disqualification.
Who may be a witness:
a. Can perceive;
b. Can make known his perceptions to others;
c. Must take either an oath or an affirmation; and
d. Must not possess any of the disqualifications imposed by law or the rules29

Factors that do not affect the competency of a witness:

a. Religious;
b. Political belief;
c. Interest in the outcome of the case; or
d. Conviction of a crime, unless otherwise provided by law. 30
Presumption of competency of a witness
General Rule:
A person who takes the witness stand, is presumed to be qualified to testify. A party who
desires to question the competence of a witness must do so by making an objection as soon as
the facts tending to show incompetency are apparent31
Exception(s):
There is prima facie evidence of incompetency in the following:
1. The fact that a person has been recently found of unsound mind by a court of
competent jurisdiction; or
2. That one is an inmate of an asylum32
A prospective witness must show that he has the following abilities:

28
Black’s Law Dictionary
29
Riano: The Bar Lecture Series, 2016

30
Sec. 20, Rule 130
31
Jones on Evidence, Vol. 3, Sec. 796
32
Torres v. Lopez, 48 Phil. 772

8
 1. To observe – The testimonial quality of perception;
2. To remember – The testimonial quality of memory;
3. To relate – The testimonial quality of narration; and
4. To recognize a duty to tell the truth – The testimonial quality of sincerity. 33
Time when the witness must possess the qualifications
The qualifications and disqualifications of witnesses are determined as of the time said
witnesses are produced for examination in court or at the taking of their depositions.34
Burden of proof
The burden is upon the party objecting to the competency of a witness to establish the
ground of incompetency.

COMPETENCY versus CREDIBILITY OF A WITNESS

COMPETENCY CREDIBILITY
Refers to the basic qualifications of a witness Refers to the believability of a witness
Is a matter of law or a matter of rule. Refers to the weight and trustworthiness
or reliability of the testimony
It has reference to the basic qualification of
a witness as his capacity to perceive and
communicate his perception to others.
It also includes the absence of any of the
disqualifications imposed upon a witness.
The court will not inquire into the
trustworthiness of a witness.

➢ It is axiomatic that truth is established not by the number of witnesses but by the quality
of their testimonies.

➢ Drug abuse will not render a person incompetent to testify. Drug abuse becomes relevant
only if the witness was under the influence of drugs at the time he is testifying35

➢ The number of witnesses does not determine the outcome of the case. A positive
identification will prevail over the defense of alibi, the latter being considered as a weaker
defense since it can be easily fabricated.36

33
Herrera, 1999

34
Regalado: Remedial Law Compendium,2008
35
Riano: The Bar Lecture Series, 2016
36
People v. Gani, G.R. No. 195523, June 5, 2013

9
 ➢ The relationship of a witness with a party does not ipso facto render him a biased witness
in a criminal case and likewise in a civil case

Credibility of a witness

➢ A testimony must not only come from a credible witness, but must be credible in itself,
tested by human experience, observation, common knowledge and accepted conduct
that has evolved through the years

Findings on the credibility of a witness

General Rule:
The determination of credibility of witnesses is properly within the domain of the trial
court as it is in the best position to observe their demeanor and bodily movements.
Exceptions:
1. The lower court has reached conclusions that are clearly unsupported by evidence; or
2. It has overlooked some facts or circumstances of weight and influence which, if
considered, would affect the result of the case.37

B) Disqualifications of witnesses

The qualifications and disqualifications of witnesses are determined as of the time they are
produced for examination in court or at the taking of the depositions. 38

By reason of mental incapacity elements:

a. The person must be incapable of intelligently making known his perception to others.
b. His incapability must exist at the time of his production for examination.
His incapacity at the time of perception, although without legal effect of his competency to
testify, would however concededly affect his credibility.
Test: Is the mental condition of the proposed witness at the time he is called to testify is such he
is incapable of intelligently making known his perception to others? 39

By reason of immaturity elements:

a. The mental maturity of the witness must render him incapable of perceiving the
facts respecting which he is examined.
b. He is incapable of relating his perception truthfully.

37
People v. Dalag, G.R. No. 129895, April 30, 2003
38
Bernardo, 2008, citing Angelo v. CA, G.R. No. 83392, June 26, 1992

39
Sec. 21 Rule 130

10
 The disqualification by reason of maturity must occur at the time he perceives the event.
This rule must be construed in relation to the Rule on Examination of a Child Witness.40 A child
witness is any person who at the time of giving testimony is below the age of 18 years. Over 18
years of age but is found by the court as unable to fully take care of himself from abuse, neglect,
cruelty, exploitation, or discrimination because of physical or mental disability or condition.41
Every child is presumed to be qualified to be a witness. When the court finds substantial
doubt on the ability of the child, the court shall conduct a competency examination motu proprio
or by motion of a party .42
A party who seeks competency examination must present proof of necessity of a
competency examination grounded on reason other than the age of the child.43
The competency examination of a child witness is not open to the public. Only the following are
allowed to attend the examination – judge and necessary court personnel, counsel for the
parties, guardian ad litem, one or more support persons of the child and the defendant unless
court finds it can be evaluated in his absence. 44
The competency examination shall be conducted only by the judge. 45
The questions asked at the competency examination shall be appropriate to the age, not
related to the issues at the trial but shall focus on the ability of the child to remember,
communicate, distinguish between truth and falsehood and duty to appreciate the duty to testify
truthfully.46
The assessment of the competency is designed to be continuing one. 47
The court may order that the testimony of the child be taken by live-link television if there
is a substantial likelihood that the child would suffer trauma from testifying. The trauma must be
of a kind which would impair the completeness or truthfulness of the testimony of the child.48
By reason of marriage:
The rule prohibiting testimony by one spouse against the other is based on society’s intent
to preserve the marriage relations and promote domestic peace.
A spouse testifying against the other creates an ugly sight inimical society’s interest.
The rule prohibiting a testimony in favor of the spouse is intended to discourage the
commission of perjury. Specific reasons for the rule as provided in Alvarez vs Ramirez:
a. There is identity of interests between husband and wife

40
AM 004-07-SC

41
Sec. 4(a) AM 004-07-SC
42
Sec. 6(b) AM 004-07-SC
43
Sec. 6(a) AM 004-07-SC
44
Sec. 6(c) AM 004-07-SC
45
Sec. 6(d) AM 004-07-SC
46
Sec. 6(e) AM 004-07-SC

47
Sec. 6(f) AM 004-07-SC

48
Sec. 25(f) AM 004-07-SC

11
 b. If one were to testify for or against the other, there is consequent danger of
perjury
c. The policy of the law is to guard the security and confidences of private life,
even at the risk of an occasional justice, and to prevent domestic disunion and
unhappiness
d. Where there is want of domestic tranquility, there is danger of punishing one
spouse through the hostile testimony of the other.
The marital disqualification rule under Sec 22 Rule 130 forbids the husband or the wife to
testify for or against the other without the consent of the affected spouse except as those
authorized by the rule.
In order that husband and wife may claim the privilege, it is essential that they may be
validly married. The existence of the valid marriage at the moment the witness-spouse gives the
testimony.
The rule applies whether or not the witness-spouse is a party to the case but the other
spouse must be a party.
It does not matter if the facts subject to the testimony occurred came to the knowledge
of the witness-spouse before the marriage. The affected spouse may still invoke the rule by
objecting to the testimony as long as it is offered during the marriage.
Be it noted that the testimony is prohibited only over the objection of the affected spouse
or the spouse against whom the testimony is offered. In other words, the benefit of the rule may
be waived and it may be done so impliedly or expressly.

Exceptions to the marital disqualification rule:

1. In a civil case by one against the other
2. In a criminal case for a crime committed by one against the other, or the latter’s
direct descendants or ascendants
(Sec 22 Rule 130)
XPN-XPN: In sustaining the CA allowing the testimony of Esperanza Alvarez, the
court explained – where marital and domestic relations are so strained that there is no
more harmony to be preserved nor peace and tranquility which may be disturbed, the
reason based upon such harmony and tranquility fails. In such a case identity of interests
disappears and the consequent danger of perjury based on that identity is non-existent.49

By reason of death or insanity of adverse party elements:

a. The suit is upon a claim by the plaintiff against the estate of said deceased or
person of unsound mind
b. The defendant in the case is the executor or administrator or a representative
of the deceased or the person of unsound mind

49
Alvarez vs Ramirez

12
 c. The witness is the plaintiff, or an assignor of that party, or a person in whose
behalf the case is prosecuted
d. The subject of the testimony is as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound mind.
(Sec 23 Rule 130). Dead Man’s Statute – levelling off the playing field between the lucky
survivor and the poor deceased that would seal the lips of the survivor by declaring him
incompetent to testify on the transaction between him and the deceased.
Its purpose to close the lips of the plaintiff when death has closed the lips of the
defendants in order to remove the plaintiff the temptation to do falsehood and the possibility of
fictitious claims against the deceased. 50
How to apply the rule:
a. The initial point of inquiry is as regard to the parties involved.
The plaintiff is the person who has claim against the estate of the decedent or the
person of unsound mind. He is the survivor.
The defendant is the representative of the deceased or he person of unsound
mind.
b. The rule contemplates a suit against the estate, its administrator or executor
and not a suit filed by the administrator or executor of the estate.51
Also, when the counterclaim is set up by the administrator of the estate, the case
is removed from the operation of dead man’s statute. 52
c. As to nature of the case, the rule does not apply when the action is not against
the estate, or not upon a claim or demand against the estate. The claim from the tenor of
the rule is civil and not criminal because the estate itself cannot be criminally liable.
d. The rule is obviously intended to be exclusive and does not prohibit a testimony
by mere witness to the transaction between plaintiff and the deceased and who has no
interest in such transaction. Thus, offering the testimony of a so-called disinterested
witness is not a transgression of the rule.
e. The incompetency imposed upon the witness is to testify on any matter of fact
occurring before the death of such deceased person or before such person became of
unsound mind. Hence, if the subject of the testimony is on some other matter, the witness
may testify on such matter. Also, since claim or demand against the estate implies a claim
adverse to the estate, a testimony beneficial to such estate should not be excluded. Thus
testimony favorable to the estate or to the insane person is not barred since the rule is
designed to protect the interest of the estate of the deceased or insane person.53

50
Tan vs CA, Garcia vs Vda de Caparas
51
Razon vs IAC
52
Sunga-Chan vs. Chua
53
Icard vs. Masigan, Bordalba vs CA

13
 f. The survivorship disqualification rule is intended to benefit the estate of the
deceased or insane person; hence this protection may be waived by : failing to object to
the testimony or cross-examining the witness on the prohibited testimony or by offering
evidence to rebut54

By reason of privileged communication:

The husband or the wife cannot be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage.
The application of the rule requires the following elements:
a. There must be valid marriage between the husband and the wife
b. There is a communication received in confidence by one from the other
c. Confidential communication was received during the marriage
The law insures absolute freedom of communication between the spouses by making it
privileged.55
The information acquired by a spouse before the marriage, even if received confidentially
does not fall squarely with the provisions. However, divulging the same way may be objected
under Sec 22 Rule 130. The tenor of Sec 22 Rule 130 does not distinguish as to when the
information subject of the testimony was acquired. Note that confidential information received
from third person is not covered by the privilege.56
For the information to be confidential, it must be made during and by reason of marital
relations and is intended not to be shared to others. Thus in US vs. Antipolo, wife was allowed in
prosecution for murder to testify husband’s dying declaration regarding the identity of the
assailant because there was no intent of confidentiality in the information.
The marital privilege rule, being a rule of evidence, may be waived by failure of claimant
to object timely to its presentation or by conduct that may be construed as implied consent.
(Sec 24 Rule 130).
Attorney-Client Privilege: Sec 24b Rule 130
1. There must be communication made by the client to the attorney or an advice
given by the attorney to his client;
2. The communication or advice must be given in confidence;
3. The communication or advice must be given either in the course of professional
employment or with a view to professional employment.
The present rule does not require a perfected attorney-client relationship for the privilege
to exist.57

54
Santos vs Santos

55
Zulueta vs CA
56
Sec. 24 Rule 130

57
Sec. 24(b) Rule 130

14
 It is commonly acknowledged that the privilege does not extend to communicate where
the client’s purpose is the furtherance of future intended crime or fraud.58
The statements of the client need not be made to the attorney in person. Those made to
the secretary, clerk, stenographer for transmission to the attorney for the purpose of
professional relationship or with a view to such relationship.59
A lawyer is bound to comply with Canon 21 of the Code of Professional Responsibility
which states that a lawyer shall preserve the confidences ad secrets of his client even after the
attorney-client relation is terminated.
Physician-Patient Privilege: Sec 24c Rule 130
Information which cannot be disclosed
1. Any advice given to the client;
2. Any treatment given to the client;
3. Any information acquired in attending such patient provided that the advice.
Treatment or information was made or acquired in the professional capacity and we=s
necessary to enable him to act in that capacity;
4. The information sought to be disclosed would tend to blacken the reputation of
the patient
The privilege applies to a civil case whether a patient is a party or not. Not in criminal case
presumably because the interest of the public in criminal prosecution would be deemed more
important than the secrecy of the communication.
Accordingly, this privilege protects the interest of the patient. It is designed to promote
health, not truth.
Also, it is opined that the rule does not require the relationship between the physician
and the patient be a result of contractual relationship but rather a quasi-contractual
relationship.60
The privilege does not apply to shield the commission of a crime or when the purpose is
unlawful.
The privilege survived the death of the patient.61
The privilege may be waived by the patient expressly or impliedly. The waiver may be in
a contract as in medical or in life insurance. When there is disclosure by the patient of the
information, there is necessarily a waiver.
Priest/Minister-Penitent Privilege: Sec 24d Rule 130

58
Wigmore on Evidence, Fourth Edition, 2017

59
Sec. 24(b) Rule 130

60
Art. 2167 NCC

61
Gonzales vs CA

15
 The person making the confession holds the privilege and the priest/minister hearing the
confession in his professional capacity is prohibited from making disclosure without the consent
of the person confessing.
The privilege also extends not only to confession made by the penitent but also the advice
given by the minister or priest. The confession and advice must be made or given pursuant to the
course of discipline of the denomination which the priest or minister belongs. 62
Not every communication made to administer or priest is privileged. The communication
must be made pursuant to confession of sins. 63

By reason of Privileged communication to public officers: Sec 24e Rule 130

Communications made to a public officer in official confidence are privileged when the court
finds that the disclosure would affect public interest. Hence, disclosure or non-disclosure is by
the determination of the court and not on the will of the officer.
National security matters and State secrets are confidential and a court will most likely uphold
the privilege.
Executive privilege; Presidential; communication privilege:
Executive privilege was elucidated in Senate vs. Ermita. In relation to its American
origins, the privilege has been described as the power of the government to withhold
information from the public, courts, and the Congress.
There is privilege against disclosure on certain matters involving state secrets
regarding the following:
a. Military
b. Diplomatic
c. Other National Security matters
(Chavez vs. PCGG)
The Constitution recognizes the right of the people to information on matters of public
concern and guarantees access to official records, documents and papers pertaining to official
acts, transactions, decisions as well as government research data used for policy development,
subject to such limitations as may be provided by law.64
In resolving the conflicting claims of the parties, the court first affirmed what it termed
the well-established jurisprudence that neither the right to informational the policy of full
disclosure is absolute, there being matters which albeit of matters of public concerns or public
interest, are recognized as privileged in nature.65
The rule for the claim of executive privilege to be invoked, there must be a formal claim
of the privilege, lodged by the head of the department which has control of the matter, and that
formal and proper claim of the privilege requires a precise and certain reason for preserving

62
Sec. 24(d) Rule 130
63
Wigmore on Evidence, Fourth Edition, 2017
64
Sec. 7 Art II Bill of Rights Constitution
65
AKBAYAN vs Aquino

16
confidentiality. This is a matter of respect for a coordinate and co-equal department. It was ruled
that the letter of Secretary Ermita to the respondents satisfies the requirement. 66
Privileged communications under the Rules on Electronic Evidence:
Privilege communications apply even to electronic evidence (Sec 3 Rule3).
Parental and filial privilege:
Under parental privilege rule, a parent cannot be compelled to testify against his child or
other direct descendants.
Under the filial privilege rule, a child may not be compelled to testify against his parents
or other direct descendants.
Both rules apply in both civil and criminal cases.
(Sec 25 Rule 130).
Exceptions (Art 215 NCC):
a. When such testimony is indispensable in a crime against descendant
b. In a crime committed by one parent against the other

C) Examination of witnesses
The examination of witnesses presented in a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for
a different mode of answer, the answers of the witness shall be given orally. 67
Proceedings shall be recorded 68

Rights and obligations of a witness

A witness must answer questions, although his answer may tend to establish a claim against
him. However, it is the right of a witness:

1. To be protected from irrelevant, improper, or insulting questions, and from harsh or

insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to a penalty for an offense unless
otherwise provided by law; or
5. Not to give an answer which will tend to degrade his reputation, unless it be to the very
fact at issue or to a fact from which the fact in issue would be presumed. But a witness
must answer to the fact of his previous final conviction for an offense. 69

66
Neri vs Senate Committees on Accountability of Public Officers
67
Sec. 1, Rule 132
68
Sec. 2, Rule 132
69
Sec. 3, Rule 132

17
 Order in the examination of an individual witness
The order in which an individual witness may be examined is as follows:
1. Direct examination by the proponent;
2. Cross-examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross-examination by the opponent. 70

This provision in the Rules of Court gives meaning to the right of a person against self-
incrimination. 71

Remedial Law; Evidence; When the question arises as to which of the conflicting versions
of the prosecution and the defense is worthy of belief, the assessment of the trial court is
generally given the highest degree of respect, if not finality. 72

Evidence; Witnesses; Findings of the trial court on the credibility of the witnesses are
accorded great weight and respect because it had ample opportunity to observe the demeanor
of the declarants at the witness stand, except when a fact or circumstance of weight and
influence has been overlooked, or its significance misconstrued by the trial court sufficient to
harbor serious misgivings on its conclusions. 73

Credibility of Witnesses; The findings and conclusions of the trial court on the credibility
of witnesses are entitled to great respect and will not be disturbed because it has the advantage
of hearing the witnesses and observing their deportment and manner of testifying.—Settled is
the rule that, unless some facts or circumstances of weight and influence have been overlooked
or the significance of which has been misinterpreted, the findings and conclusions of the trial
court on the credibility of witnesses are entitled to great respect and will not be disturbed
because it has the advantage of hearing the witnesses and observing their deportment and
manner of testifying. 74

Remedial Law; Evidence; Witnesses; The time-tested doctrine is that the matter of
assigning values to declarations on the witness stand is best and most competently performed
by the trial judge. – The credibility of witnesses is a matter best examined by, and left to, the trial
courts. The time-tested doctrine is that the matter of assigning values to declarations on the
witness stand is best and most competently performed by the trial judge. Unlike appellate
magistrates, it is the judge who can weigh such testimonies in light of the witnesses’ demeanor

70
Sec.4, Rule 132
71
Sec. 17, Art. III Constitution of the Philippines
72
Pp v. Garcia, G.R. No. 200529
73
Pp v. De Guzman, G.R. No. 192250
74
Pp v. Badilla, G.R. No. 218578

18
and manner of testifying, and who is in a unique position to discern between truth and falsehood.
Thus, appellate courts will not disturb the credence, or lack of it, accorded by the trial court to
the testimonies of witnesses. This is especially true when the trial court’s findings have been
affirmed by the appellate court. For them the said findings are considered generally conclusive
and binding upon this Court, unless it be manifestly shown that the trial court had overlooked or
arbitrarily disregarded facts and circumstances of significance. 75

Criminal Procedure; Witnesses; Impeachment of Witness; Every witness is presumed to

be truthful and perjury is not to be readily inferred just because apparent inconsistencies are
evinced in parts of his testimony; It is the duty of a party trying to impugn the testimony of a
witness by means of prior or, for that matter, subsequent inconsistent statements, whether oral
or in writing, to give the witness a chance to reconcile his conflicting declarations, such that it is
only when no reasonable explanation is given by him that he should be deemed impeached. 76

Rule 132, Sec. 10

Leading and misleading questions. – A question which suggests to the witness the answer
which the examining party desires is a leading question. It is not allowed, except:

(a) On cross-examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and intelligible answers answers from a witness
who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public
or private corporation or of a partnership or association which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the witness,
or contrary to that which he has previously stated. It is not allowed.

Rule 132, Sec. 11

Impeachment of adverse party’s witness. – A witness may be impeached by the party

against whom he was called, by contradictory evidence, by evidence that his general reputation
for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present testimony, but not evidence of particular wrongful acts, except that
it may be shown by the examination of the witness, or the record of the judgment, that he has
been convicted of an offense.

75
Pp v. Cardenas, G.R. No. 190342
76
People vs. Sambalam, G.R. No. 182789

19
 Rule 132, Sec. 12

Party may not impeach his own witness. – Except with respect to witnesses referred to
in paragraphs (d) and (e) of Sec. 10, the party producing a witness is not allowed to impeach his
credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled
the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may
be impeached by the party presenting him in all respects as if he had been called by the adverse
party , except by evidence of his bad character. He may also be impeached and cross-examined
by the adverse party, but such cross-examination must only be on the subject matter of his
examination-in-chief.

Rule 132, Sec. 13

How witness impeached by evidence of inconsistent statements. – Before a witness can
be impeached by evidence that he has made at other times statements inconsistent with his
present testimony, the statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he made such statements,
and if so, allowed to explain them. If the statements be in writing they must be shown to the
witness before any question is put to him concerning them.

D) Judicial Affidavit Rule

Judicial Affidavit Rule (A.M. No. 12-8-8-SC, September 4, 2012)
a. Rationale of the Rule Case congestion and delays plague most courts in cities, given the
huge volume of cases filed each year and the slow and cumbersome adversarial system that the
judiciary has in place. About 40% of criminal cases are dismissed annually owing to the fact that
complainants simply give up coming to court after repeated postponements. Few foreign
businessmen make long-term investments in the Philippines because its courts are unable to
provide ample and speedy protection of their investments, keeping its people poor. The Judicial
Affidavit Rule is aimed to reduce the time needed for completing the testimonies of witnesses in
cases under litigation and in place of the direct testimonies of witnesses.

b. Scope of the Judicial Affidavit Rule:

20
Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents requiring the
reception of evidence before: (1) The Metropolitan Trial Courts, the Municipal Trial Courts in
Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts.
c. The types of cases covered
The Judicial Affidavit Rule applies to the following type of cases:

a) The Rule shall apply to all actions, proceedings, and incidents requiring the reception
of evidence. However, the Rule shall not apply to small claims cases under A.M. 08-8-
7-SC. (Sec. 1, [a] (1), A.M. No. 12-8-8-SC)
b) The Rule may apply to criminal cases in three situations:
i. Where the maximum of the imposable penalty does not exceed six years;
ii. Regardless of the penalty involved, with respect to the civil aspect of the
actions; or
iii. In other cases, where the accused agrees to the use of the Rule.77
It is understood that the civil aspect of the criminal action refers to the action to recover civil
liability “arising from the offense charged” and which is deemed instituted with the criminal
action as provided in Sec. 1 of Rule 111 of the Rules of Court.

E) Admission, Confession and Res Inter Alios Acta Rule

➢ are often used interchangeably in ordinary concept, but, in literal and legal sense, the
two terms actually are distinct and differ from each other. Some of the distinctions
between the two are as follows:

Res inter alios acta Rule

Literally translates and means “things done between strangers ought not to injure those who
are not parties to them”78
The very embodiment of the subject rule is anchored on 2 branches:

1. " The rights of a party cannot be prejudiced by an act, declaration, or omission of

another, except as hereinafter provided." (Sec. 28 Rule 130 Admission by third party)
The first branch is based on the principle of good faith and mutual convenience, a
man's own acts, declarations and conduct are binding upon himself, and are evidence
against him. Yet it would not only be rightly inconvenient, but also manifestly unjust, that
a man should be bound by acts of mere unauthorized strangers.79
Exceptions to the Rule:
a. Admission by a co-partner or agent (Sec. 29, Rule 130)
b. Admission by a co-conspirator (Sec. 30, Rule 130)
c. Admission by Privies (Sec. 31, Rule 130)

77
Section 9 (a), Judicial Affidavit Rule107

78
Ibid.
79
People v. Tena, 1992, GR 100909

21
 2. The rule that evidence of previous conduct or similar acts at one time is not admissible
to prove that one did or did not do the same act at another time. (Sec 34, Rule 132)

Under this branch of Res inter alios acta Rule, it provides that admission of the so-
called “propensity evidence” is prohibited. Such evidence tends to show that what a
person has done at one time is probative of the contention that he has done a similar act
at another time. In simple wordings, the rule is: the past acts of the accused are
inadmissible to prove that he acted in conformity with such previous acts.80
Admission

- an act, declaration, or omission of a party as to relevant facts of the case81

Kinds of Admission:
a. Admission of the Party
The act, declaration, or omission of a party as to relevant fact maybe given in evidence
against him. (Sec. 26, Rule 130)
As stated from the above provision, an act, declaration and admission of a party as to a
relevant fact maybe given as evidence against him. This rule is based on the notion that
no man would make any declaration against himself, unless it is true. 82
b. Admission by Third-party
The rights of a party cannot be prejudiced by an act, declaration, or omission of another,
except as hereinafter provided." (Sec. 28 Rule 130)
The rule provided under the 1st branch of Res inter alios acta Rule applies.
c. Admission by co-partner or agent
The act or declaration of a partner or agent of the party within the scope of his authority
and during the existence of the partnership or agency, maybe given in evidence against
such party after the partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a joint owner, joint
debtor, or other persons jointly interested with the party. (Sec 29, Rule 130)
To reiterate, the following are requisites in order that admissions of a co-partner or agent
be admissible as evidence:

1. That the partnership, agency, joint interest is established by evidence other than act
or declaration (Sec 29 Rule 130)
2. The act or declaration of partner or an agent of the party is within the scope of
authority
An agent performs some service in representation of or on behalf of his principal,
thereby making him in legal contemplation, an extension of personality of the principal.

80
Riano, 2016.; Tan, 2014
81
Rules of Court, Sec 26 Rule 130
82
Riano, 2016

22
 83Hence, whatever is said by an agent to a third person, during the course of agency and
within the scope of his actual authority, relative to the business contemplated by the
agency, such statement may be admissible against principal. 84

3. The act or declaration was made during the existence of the partnership or agency
Any declaration made before the existence of partnership or agency, or those
made after, are not admissible against the other partners or the principal, but remains
admissible against the partner or agent making the declaration. 85

4. Such acts or declaration maybe given in evidence against such party after the
partnership or agency is shown other than acts of declaration

d. Admission by a conspirator
The act or declaration of a conspirator relating to the conspiracy and during its existence,
maybe given in evidence against the co-conspirator after the conspiracy is shown by evidence
other than such act or declaration.
A conspiracy exist when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (Art. 8, Revised Penal Code).
Illustrative case
Assume that two months after successful bank robbery, AAA was arrested as a direct
participant in the crime. During a television interview, he admitted his participation in the
robbery. He also implicated BBB and CCC as his other companions in planning and executing the
robbery. Is his statement admissible?
Answer: The statement is admissible as to him (Sec 26, Rule 130, Rules of Court) but not as to B
and C (Sec. 28, Rule 130,Rules of Court).86
To be admissible against BBB and CCC, the following requisites must concur:
a. The declaration or act be made or done during the existence of the conspiracy.
b. The declaration or act must relate to the conspiracy.
c. The conspiracy must be shown by evidence other than such declaration or act.
NOTE: The declarations under Sec. 30 of Rule I30 are merely extrajudicial statements or
declarations. When he testifies as a witness, his statements become judicial and are admissible
not only against him but also his co-accused.
General Rule: Extrajudicial confession or admission of one accused is admissible only against the
said accused but inadmissible against the other accused.
EXPN: If the declarant/admitter repeats in court his extrajudicial confession during trial and the
other accused is accorded the opportunity to cross examine the admitter. 87

83
Civil Code of the Philippines, Art. 1868
84
Hitchman Coal & Coke v. Mitchell, 245 U.S., 229, 62 L Ed 260, 38 S Ct 65
85
Riano, 2016
86
BAR 1991
87
People v. Buntag, 427 SCRA 180

23
 e. Admission by Privies

Where one derives title to the property from another, the act, declaration, or omission of the
latter, while holding the title, in relation to the property, is evidence against the former.88
“Privies” are persons who are partakers or have an interest in any action or thing, or any
relation to another.89
Examples: 90
a. A lessor and his lessee
b. A grantor and his grantee
c. An assignor and an assignee
d. An heir and his ascendants

Illustrative case:
AAA inherited a house and lot from his father, BBB. Assume that BBB, father of
CCC, while the former was alive, sold the property and, thereafter, openly told his
acquaintances that the same lot where his house stood had already been sold to DDD. Is
this declaration by BBB necessarily admissible against CCC? 91
Answer: No. It is not because the statement was made after BBB held his title to the land.
To be admissible against the successor-in-interest, the following requisites must be
present:
a. There must be an act, declaration or omission by the predecessor-in-interest.
b. The act, declaration or omission of the predecessor must have occurred while he
was holding (not after) the title to the property; and
c. The act, declaration or omission must be in relation to the property.
NOTE: When the former owner of the property made the declaration after he ceased to
be the owner of the property, the rule on admission by privies does not apply.
General Rule: The rights of a party cannot be prejudiced by an act, declaration, or
omission of another. 92

f. Admission by Silence
An act or declaration made in the presence and within the hearing or observation of a party
who does or says nothing when the act or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him to do so, maybe given in evidence
against him. 93

- The statement contains assertions against the party which, if untrue, would be
sufficient cause for the party to make a denial.

88
Rules of Court, Sec. 31, Rule 130
89
Black’s Law Dictionary 5th Ed., p. 1077
90
Riano, 2016
91
Ibid
92
Rules of Court, Sec 28, Rule 130, Rules of Court
93
Sec 32, Rule 130, Rules of Court

24
 - His failure to speak against the statement is admissible as an admission

Illustrative case
Suppose, upon seeing a policeman, a bystander, in the presence of other people, points
to a man and accuses him as the killer of another man found dead the night before. The
man pointed to does not respond. He does not deny the accusation. His failure to respond
may be given in evidence against him.
The idea of the rule on admission by silence is that if an accusation is made, and
a reasonable person would have denied the same if it were false, the failure to deny the
accusation by the person accused may be construed as an implied admission of the
truth of the accusation and may be given in evidence against him. 94
For silence to be deemed an admission, the following are necessary:
a. He heard and understood the statement;
b. He was at liberty to make a denial;
c. The statement was about a matter affecting his rights or in which he was interested
and which naturally calls for a response;
d. The facts were within his knowledge; and
e. The fact admitted from his silence is material to the issue.

g. Similar Acts as Evidence

As constituting one of the branches of Res inter acta Rule, the evidentiary rule of similar
acts as evidence provides that evidence that one did or did not do a certain thing at one time is
not admissible to prove that one did or did not do the same or a similar thing at another time,
evidence of similar acts maybe received to prove a specific intent or knowledge, identity, plan
system, scheme, habit, custom, or usage and the like. 95
The rationale of the evidentiary rule under the same subject on hand guards and avoids
the practical inconvenience of trying collateral issues and protracting the trial and prevents
surprise or other mischief prejudicial to litigants.96
Exceptions to the Rule, when evidence of similar acts or previous conduct can be
admissible: 97

a. Specific intent
b. Knowledge
c. Identity
d. Plan
e. System
f. Scheme
g. Habit

94
Riano, 2016
95
Tan, 2014
96
Cruz v. CA 293 SCRA 239
97
Riano, 2016; Tan, 2014

25
h. Custom
i. Usage
j. Actions based on fraud and deceit, and
k. Those circumstances in which evidence of the other similar crimes, acts or wrongs
previously committed by the accused are admissible to show that the offense for
which he is currently charged and his prior similar acts show the “signature” or
“handiwork” of the accused.

26
 HEARSAY RULE

"Section 36, Rule 130. Testimony generally confined to personal knowledge; hearsay
excluded. — A witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception, except as otherwise
provided in these rules."

A. Meaning of Hearsay
Evidence is called hearsay when its probative force depends, in whole or in part, on the
competency and credibility of some persons other than the witness by whom it is sought to
produce it.98
Although hearsay evidence presupposes lack of personal knowledge of the truth of the
fact asserted by a witness, the purpose for which the evidence is offered is a vital element of
hearsay evidence. It is the purpose for which the evidence is offered which would determine
whether the same is hearsay or not.99
A much clearer definition of "hearsay" is found in the Federal Rules of Evidence where
'hearsay' is defined as "...a statement, other than the one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted."100 There is
agreement that the following are the specific elements of hearsay evidence:
(a) First, there must be an out-of-court statement. It doesn't really matter what the form
of the statement is. It may be oral. It may be written. It may even be a conduct, as long as that
conduct is intended by the actor as an assertion. What matters is that the statement was not
made by the declarant in the hearing or trial.
(b) Second, that statement made out of court, is repeated and offered by the witness in
court to prove the truth of the matters asserted by the statement.

B. Reason for Exclusion of Hearsay Evidence

If a witness testifies on the basis of what others have told him, and not on facts which he
knows of his own personal knowledge, the testimony would be excluded as hearsay evidence.101
This is because the witness cannot be effectively cross-examined on the matters he testified to.
His answers to questions in open court would necessarily be based on the knowledge of a person
who is not in the witness stand. The latter, called the outside declarant, cannot be cross-
examined because he is not in court.102
Thus, in criminal cases for instance, the admission of hearsay evidence would be a
violation of the constitutional provision that the accused shall enjoy the right to confront the
witnesses testifying against him and to cross-examine them.103

98
Estrada v. Desierto, 356 SCRA 108
99
Riano, Evidence: The Bar Lecture Series (2016)
100
Federal Rules of Evidence (Rule 801[c])
101
Mallari v. People, 446 SCRA 74
102
Riano 2016
103
People v. Mamalias, 328 SCRA 760

27
 Hearsay evidence if not objected to is admissible. However, even if admitted, it has no
probative value.104

C. Exceptions to the Hearsay Rule

The Rules of Court enumerates the following exceptions to the hearsay rule 105:
(a) Dying declarations (Sec. 37, Rule 130)
(b) Declaration against interest (Sec. 38, Rule 130)
(c) Act or declaration against pedigree (Sec. 39, Rule 130)
(d) Family reputation or tradition regarding pedigree (Sec. 40, Rule 130)
(e) Common reputation (Sec. 41, Rule 130)
(f) Part of the res gestae (Sec. 42, Rule 130)
(g) Entries in the course of business (Sec. 43, Rule 130)
(h) Entries in official records (Sec. 44, Rule 130)
(i) Commercial lists and the like (Sec. 45, Rule 130)
(j) Learned treatises (Sec. 46, Rule 130
(k) Testimony or deposition at a former trial (Sec. 47, Rule 130).
The Rule on Examination of a Child Witness has likewise provided an exception to the Hearsay
Rule.
(a) Dying declarations (Sec. 37, Rule 130)

Sec. 37. Dying declaration. — The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his death is
the subject of inquiry, as evidence of the cause and surrounding circumstances of such
death.

A dying declaration or ante mortem statement is evidence of the highest order and is
entitled to utmost credence since no person aware of his impending death would make a careless
and false accusation. It is thus admissible, to provide the identity of the accused and the
deceased, to show the cause of death of the deceased, and the circumstances under which the
assault was made upon him.106 The law considers the point of death as a situation so solemn and
awful as creating an obligation equal to that which is imposed by an oath administered in court.107
Sec. 37 of Rule 130 provides that the declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his death is the
subject of inquiry, as evidence of the cause and surrounding circumstances of such death. 108 As
long as the relevance is clear, a dying declaration may now be introduced in a criminal or a civil
action and the relevance is satisfied where the subject of inquiry is the death of the declarant
himself.109

104
Mallari v. People, 446 SCRA 74
105
Riano 2016
106
Riano 2016
107
People v. Cerilla, 539 SCRA 251
108
Regalado Remedial Law Compendium Vol. II 2008
109
Riano 2016

28
 A dying declaration is admissible where the proponent of the evidence shows compliance
with the following basic evidentiary foundations required by Sec. 37 of Rule 130 of the Rules of
Court:
(1) That the declaration is one made by a dying person;
(2) That the declaration was made by said dying person under a consciousness of his
imminent death;
(3) That the declaration refers to the cause and circumstances surrounding the death of
the declarant and not of anyone else;
(4) That the declaration is offered in a case where the declarant's death is the subject of
inquiry (People v. Matito, 423 SCRA 617; Geraldo v. People, G.R. No. 173608, November
20, 2008).
(5) The declarant is competent as a witness had he survived (People v. Cerilla, 539 SCRA
251; Geraldo v. People, G.R. No. 173608, November 20, 2008).
(6) The declarant should have died.
(b) Declaration against interest (Sec. 38, Rule 130)

Sec. 38. Declaration against interest. — The declaration made by a person deceased or
unable to testify, against the interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to declarant's own interest, that
a reasonable man in his position would not have made the declaration unless he
believed it to be true, may be received in evidence against himself or his successors in
interest and against third persons.

This exception refers to a declaration made by a person who at the time his declaration
is presented in evidence is already dead or is unable to testify. This declaration must be one which
when made, was known to the declarant himself to be against his interest, pecuniary or moral,
and which would not have been made unless he believed it to be true. It is clear from the rule
that it is not enough that a declaration against interest was made. It is necessary that the
declarant knew that the statement was against his interest and which he would not have made
had it not been true.110 The declaration against interest made by the deceased, or by one unable
to testify, is admissible even against the declarant's successors in interest or even against third
persons.
(c) Act or declaration against pedigree (Sec. 39, Rule 130)

Sec. 39. Act or declaration about pedigree. — The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person related to
him by birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence other
than such act or declaration. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces also facts of family history
intimately connected with pedigree.

To be admissible as an exception to the hearsay rule, it must be shown that

(a) the declarant is dead, or unable to testify;

110
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(b) that the declarant is related by birth or marriage to the person whose pedigree is in issue;
(c) the declaration was made before the controversy; and
(d) the relationship between the two persons is shown by evidence other than such act or
declaration.111

(d) Family reputation or tradition regarding pedigree (Sec. 40, Rule 130)

Sec. 40. Family reputation or tradition regarding pedigree. — The reputation or

tradition existing in a family previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if the witness testifying be also a
member of the family, either by consanguinity or affinity. Entries in family bibles or
other family books or charts, engraving or rings, family portraits and the like, may be
received as evidence of pedigree.

This exception involves: (a) a statement by a member of the family either by consanguinity
or affinity; (b) the statement is about the reputation or tradition of the family in respect to the
pedigree of any member of the family; and (c) the reputation or tradition is one existing previous
to the controversy.

(e) Common reputation (Sec. 41, Rule 130)

Sec. 41. Common reputation. — Common reputation existing previous to the

controversy, respecting facts of public or general interest more than thirty years old, or
respecting marriage or moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of common reputation.

While common reputation in the community may establish a matter of public or general
interest, marriage or moral character, it cannot establish pedigree. This is established by
reputation in the family and not in the community.112

(f) Part of the res gestae (Sec. 42, Rule 130)

Sec. 42. Part of the res gestae. — Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with respect to
the circumstances thereof, may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.

The use of res gestae in the Philippines is limited to two matters: (1) spontaneous
statements, and (2) verbal acts. In spontaneous exclamations or statements, the res gestae is the
startling occurrence, whereas in verbal acts, the res gestae are the statements accompanying the
equivocal act.113 Spontaneous statements to be admitted in evidence must have the following
characteristics:
(a) That there is a startling event or occurrence taking place;

111
Riano 2016
112
Riano 2016
113
Talidano v. Falcom Maritime & Allied Services, Inc., G.R. No. 172031, July 14, 2008

30
 (b) That while the event is taking place or immediately prior to or subsequent thereto, a
statement has been made;
(c) The statements were made before the declarant had the time to contrive or devise a
falsehood
(d) That the statement relates to the circumstances of the startling event or
occurrence114, or that the statements must concern the occurrence in question and its
immediate attending circumstances

Verbal act is a statement accompanying an equivocal act material to the issue, and giving
it a legal significance.115 A verbal act presupposes a conduct that is equivocal or ambiguous, one
which in itself does not signify anything when taken separately. To be admissible under this
category, the following requisites must be present:
(a) The principal act to be characterized must be equivocal;
(b) The equivocal act must be material to the issue;
(c) The statement must accompany the equivocal act; and
(d) The statement gives a legal significance to the equivocal act

(g) Entries in the course of business (Sec. 43, Rule 130)

Sec. 43. Entries in the course of business. — Entries made at, or near the time of the
transactions to which they refer, by a person deceased, or unable to testify, who was in
a position to know the facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the performance of duty
and in the ordinary or regular course of business or duty.

The following are the elements of this exception:

(a) Entries were made at, or near the time of the transactions referred to;
(b) Such entries were made in the regular course of business;
(c) The person making the entries was in a position to know the facts stated in the entries;
(d) The person making the entries did so in his professional capacity, or in the
performance of duty and in the regular course of business; and
(e) The person making the entry is now dead or unable to testify116

(h) Entries in official records (Sec. 44, Rule 130)

Sec. 44. Entries in official records. — Entries made in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated.

The requisites for the admissibility in evidence of entries in official records, as an exception to
the hearsay rule, are:

114
Sec. 42, Rule 130, Rules of Court
115
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116
Northwest Airlines, Inc. v. Chiong, G.R. No. 155550, January 31, 2008.

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 (a) The entry was made by a public officer or another person specially enjoined by law to
do so;
(b) It was made by the public officer in the performance of a duty;
(c) The public office had sufficient knowledge of the facts.117

(i) Commercial lists and the like (Sec. 45, Rule 130)

Sec. 45. Commercial lists and the like. — Evidence of statements of matters of interest
to persons engaged in an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of any relevant matter
so stated if that compilation is published for use by persons engaged in that occupation
and is generally used and relied upon by them therein.

(j) Learned treatises (Sec. 46, Rule 130)

Sec. 46. Learned treatises. — A published treatise, periodical or pamphlet on a subject

of history, law, science or art is admissible as tending to prove the truth of a matter
stated therein if the court takes judicial notice, or if a witness expert on the subject
testifies, that the writer of the statement in the treatise, periodical or pamphlet is
recognized in his profession, or calling as expert in the subject.

History books, published findings of scientists fall within this exception if an expert on the
subject testifies to the expertise of the writer or if the court takes judicial notice of such fact.

(k) Testimony or deposition at a former trial (Sec. 47, Rule 130)

Sec. 47. Testimony or deposition at a former proceeding. — The testimony or

deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to cross-
examine him.

The testimony contemplated is one given in a former case or proceeding, judicial or

administrative, involving the same parties and subject matter. The testimony was given by one
who is now deceased or unable to testify. Said testimony may be given in evidence against the
adverse party provided the latter had the opportunity to cross-examine the witness who gave
the previous testimony.118 To be applicable, the following requisites must be satisfied:
(a) The witness is dead or unable to testify;
(b) His testimony or deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same interests;
(c) The former case involved the same subject as that in the present case, although on
different causes of action;
(d) The issue testified to by the witness in the former trial is the same issue involved in
the present case; and
(e) The adverse party had an opportunity to cross-examine the witness in the former
case.119

117
Sabili v. COMELEC 670 SCRA 664
118
Samalio v. Court of Appeals, 454 SCRA 462
119
Manliclic v. Calaunan, G.R. No. 150157, January 25, 2007

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(l) Exception to the Hearsay Rule Under the Rule on Examination of a Child Witness
A statement made by a child, in child abuse cases, describing any act or attempted act of
child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in
any criminal or non-criminal proceeding, although before such hearsay statement may be
admitted, certain requisites must concur:
(a) The proponent shall make known to the adverse party the intention to offer such
statement and its particulars to provide him a fair opportunity to object;
(b) If the child is available, the court shall, upon motion of the adverse party, require the
child to be present at the presentation of the hearsay statement for cross-examination
by the adverse party;
(c) When the child is unavailable (as when the child is deceased, suffers from physical
infirmity, mental illness, loss of memory, or because the child will be exposed to severe
psychological injury), the fact of such circumstance must be proved by the proponent and
the hearsay testimony shall be admitted only if corroborated by other admissible
evidence.120

120
Sec. 28, Rule on Examination of a Child Witness

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