Beruflich Dokumente
Kultur Dokumente
PART I
INTRODUCTION
LAW 3: CRIMINAL EVIDENCE
Outline of Part I
PART I. INTRODUCTION
1. Evidence Defined
2. Proof and Evidence Distinguished
3. Factum Probandum and Factum Probans
4. No Vested Right in Rules of Evidence
5. Purposes of Evidence Law
6. Specific Application of the Rules of Evidence in Judicial Proceedings
1. Judicial Notice
a. Definitions
b. Function
c. Requisites
d. Kinds
e. General Classed
f. Guiding Principles
2. Judicial Admissions
a. Definitions
b. Admission and Confession Distinguished
c. Function
d. Admission in Pleadings
e. Stipulations
LAW 3: CRIMINAL EVIDENCE
Outline of Part I
G. PRESUMPTIONS (Day 3: 17 slides)
1. Presumptions Construed
2. Distinction between the Role of Presumptions, Judicial Notice and Judicial
Admissions
3. Presumption and Inference Distinguished
4. Value of Presumptions
5. Reasons for Creating Presumptions
6. Classes of Presumptions
7. Presumption of Law and Presumption of Fact Distinguished
8. Conclusive Presumptions
9. Disputable Presumptions (Section 3 [a] to [kk], Rule 131)
10. Quasi-Conclusive Presumption
11. General Rules Concerning Presumptions
12. Conflicting Presumptions
13. Effect of Presumptions and Rebutted Presumption
PRELIMINARY MATTERS:
Evidence Defined
LEGAL DEFINITION under Section 1, Rule 128 of the Revised Rules of
Evidence (RRE 128.1):
Guilt of Accused must be proved beyond The plaintiff must prove his claim by a
reasonable doubt. preponderance of evidence.
To Admit Evidence:
MULTIPLE ADMISSIBILITY
Evidence is RELEVANT AND COMPETENT FOR TWO OR MORE PURPOSES
such evidence should be admitted for any and all the purposes for which it is
offered provided it satisfies all the requirements of law for its admissibility
CONDITIONAL ADMISSIBILITY
Where the evidence at the time of its offer APPEARS TO BE IMMATERIAL OR
IRRELEVANT UNLESS IT IS CONNECTED WITH THE OTHER FACTS to be
subsequently proved, such evidence may be received on condition that the other
facts will be proved thereafter, otherwise the evidence already given will be stricken
out.
CURATIVE ADMISSIBILITY
Doctrine treats upon the RIGHT OF A PARTY TO INTRODUCE INCOMPETENT
EVIDENCE IN HIS BEHALF WHERE THE COURT HAS ADMITTED THE SAME
KIND OF EVIDENCE adduced by the adverse party.
TYPES OF EVIDENCE:
Classification under the Revised Rules of Evidence
ACCORDING TO FORM
a) Object (Real) Evidence (RRE 130.1)
• Directly ADDRESSED TO THE SENSES of the court (Section 1, Rule 130)
and consists of tangible thing exhibited or demonstrated in open court
• Referred to as EVIDENCE BY AUTOPTIC PREFERENCE
Examples:
• Physical appearance of a person such as marks, scars, wounds,
fingerprints
• Weapons or Implements Used in the Commission of a Crime
• Photograph, x-ray, motion picture and video tape, computer
printout, map, diagram and sketch
TYPES OF EVIDENCE:
Classification under the Revised Rules of Evidence
1) Physical Evidence
2) Biological Evidence
Consists of body fluids or other bodily tissues, the
examination of which may identify the donor.
Examples: Blood, Semen, Saliva, Bone, Hair
3) Drug Evidence
4) Associative Evidence
Originates from contact between people, objects, people and
objects.
Used to provide links between evidence and individuals involved in a
crime.
Examples:
Latent fingerprints left on an object
Fibers left from contact of clothing with objects
Blood from physical injury
Semen from sexual assault
Saliva from spitting, cigarettes, or envelopes
Hair shed at a scene
Paint transferred during a burglary or automobile accident
Soil from scene
Impressions from tools, footwear, or tire
TYPES OF EVIDENCE:
Types of Evidence according of Law Enforcers
iii. Toxicology
Samples are typically collected by the medical examiner and referred
to a toxicologist for examination
GENERAL RULE: In both civil and criminal cases, the burden of proof LIES WITH
THE PARTY WHO ASSERTS AN AFFIRMATIVE ALLEGATION.
In CRIMINAL CASES:
PROSECUTION has to prove its AFFIRMATIVE ALLEGATIONS IN
THE INDICTMENT REGARDING THE ELEMENTS OF THE
CRIME, as well as the attendant circumstances,
DEFENSE has to prove its AFFIRMATIVE ALLEGATIONS
REGARDING THE EXISTENCE OF JUSTIFYING OR EXEMPTING
CIRCUMSTANCES, ABSOLUTORY CAUSES OR MITIGATING
CIRCUMSTANCES.
BURDEN OF PROOF:
Party Upon Whom Burden Rests
NEGATIVE ALLEGATIONS
General Rule: In both civil and criminal cases, NEGATIVE ALLEGATIONS DO NOT HAVE TO BE
PROVED.
Exception: In CIVIL CASE: Where such NEGATIVE ALLEGATIONS ARE ESSENTIAL PARTS of the
cause of action or defense in a civil case.
Example: In a civil case for breach of contract, the plaintiff has to prove the fact that the defendant did
not comply with his obligation thereunder (Hospicio de San Jose v. Findlay Millar Timber Co., 50 Phil
227), as although this is a negative allegation , it is an element of the plaintiff’s cause of action.
Example: In a criminal case for illegal possession of firearms, the prosecution has to prove the absence
of a license therefor (People v. Pajenado, L-27680-81, Feb 27, 1970).
In crimes of omission, the prosecution has to prove the non-performance by the accused of the required
act as, although that fact is a negative allegation, still such non-performance is either an essential
ingredient of the crime or is itself the indictable offense.
CIVIL CASES CRIMINAL CASES
Burden is on the PLAINTIFF who ASSERTS Burden of proof as to the offense charged or
AFFIRMATIVE ALLEGATIONS or the establishing the guilt of the accused lies or
DEFENDANT who ASSERTS AFFIRMATIVE rests on the PROSECUTION from the
DEFENSES beginning to the end of the trial
Evidence need not be given in support of a A negative fact alleged by the prosecution
negative allegation need not be proved
Exception: when such negative allegation is an Exception: when such negative fact forms
essential part of the statement of the right or an essential ingredient of the offense
title on which the cause of action or defense is charged
founded
Illustration: A civil case for breach of contract, Illustration: A criminal case for illegal
the plaintiff has to prove the fact that the possession of firearms, the prosecution has
defendant did not comply with his obligation to prove the absence of a license
BURDEN OF PROOF:
Quantum of Evidence Required
• IN CIVIL CASES: The quantum of evidence required to sustain the proponent of an issue
is PREPONDERANCE OF EVIDENCE.
IN PRELIMINARY INVESTIGATION:
Formerly, PRIMA FACIE Evidence (that there is reasonable ground to believe that the
accused has committed an offense) to Warrant the Filing of an Information.
TO SUSTAIN A CONVICTION:
Evidence of GUILT BEYOND REASONABLE DOUBT
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
HOW MADE: Admission is addressed to the court and may be made (SOP) –
(i) BY MEANS OF A STATEMENTS IN OPEN COURT, or
(ii) OF A PLEADING, or
(iii) OF A STIPULATION WITH THE OTHER PARTY OR PARTIES.
1.PROBABILITY
• One common reason for creating a presumption is TO RESOLVE A POINT THAT IS
HARD TO PROVE BY RESORTING TO PROBABILITY instead of requiring actual proof.
2.ACCESS TO EVIDENCE
• Sometimes evidence relating to a disputed issue is MORE READILY ACCESSIBLE TO
ONE PARTY THAN THE OTHER.
3.SOCIAL POLICY
• Many presumptions REST ON SOCIAL POLICY.
PRESUMPTIONS:
Classes
A. PRESUMPTION “HOMINIS” (OF FACT)
Logic of an ordinary man from daily experience.
An inference as to the existence of a fact not known, and founded upon a
knowledge of human nature and the motives which are known to influence
human conduct (Haws v. State of Georgia, 42 S.Ct. 204, 258 U.S. 1, 66 L.Ed.
431).
REDUCED TO FIXED RULES, and form a DERIVED WHOLLY AND DIRECTLY FROM
part of the system of jurisprudence to which THE CIRCUMSTANCES OF THE
they belong PARTICULAR CASE, by means of the
common experience of mankind
deduction which the law expressly directs to logic of an ordinary man from daily experience
be made from particular facts
PRESUMPTION OF FACT
PRESUMPTION OF LAW
(Praesumptiones Hominis)
(Praesumptiones Juris)
A deduction or inference which
A deduction which the LAW
REASON OR EXPERIENCE DRAWS
CONSIDERS AS ESTABLISHED
FROM OTHER FACTS PROVED.
FROM FACTS PROVEN.
CONCLUSIVE PRESUMPTION
Those which are not permitted to be
overcome by any proof to the
contrary, however, strong.
DISPUTABLE PRESUMPTION
That which suffices until overcome by
contrary evidence.
QUASI-CONCLUSIVE
PRESUMPTION
That which may not be rebutted by
any evidence other than those
specifically provided by law.
PRESUMPTIONS:
Conclusive Presumptions
I. Presumption of Innocence
II. Presumptions on Laws and Knowledge of the Law
III. Presumption of Regularity
a. Official Acts
b. Judicial Acts
c. Private Transactions
PRESUMPTIONS:
Disputable Presumptions
Applications of the Rule
EFFECT OF PRESUMPTIONS
PART TWO
RELEVANCE AND COMPETENCE
LAW 3 CRIMINAL EVIDENCE:
Outline of Part II
PART II RELEVANCE AND COMPETENCE
1.Basic Definition
2.Evidence Must Be Relevant to Be Admissible
3.Relevance Distinguished from Probative Value
4.Materiality
5.Collateral Matters
6.Circumstantial Evidence
7.Relevancy Requirement Underlies Other Rules of Evidence
2. Character Evidence
a. Introduction
b. The Rule
c. Character Defined
d. Character and Reputation, Distinguished
e. Uses
f. Methods of Proving Character
g. Character in Criminal and Civil Cases
h. Character of Witnesses
3. Previous Conduct Evidence
a. Basic Principle and Statement of the Rule
b. Rationale of the Rule
c. Application of the Rule
d. Purposes for Which Evidence May Be Offered
i. Listed Purposes
ii. Unlisted Purposes
4. Evidence of Habit or Routine Practice Admissible
5. Certainty That Prior Act was Committed
LAW 3 CRIMINAL EVIDENCE:
Outline of Part II
F. PAROL EVIDENCE (DAY 9: 16 slides)
DEGREE OF RELEVANCY
TYPES OF CIRCUMSTANCES
i. Antecedent Circumstances
ii. Concomitant Circumstances
iii. Subsequent Circumstances
RELEVANT EVIDENCE:
ANTECEDENT
CIRCUMSTANCES
CONCOMITANT
CIRCUMSTANCES
SUBSEQUENT
CIRCUMSTANCES
CIRCUMSTANTIAL EVIDENCE
• MORAL CHARACTER, HABIT OR
Circumstances • OPPORTUNITY that
CUSTOM, OR SIMILAR ACTS that If the accused was the only one
transpired after
prove intent, knowledge, identity, who had the chance to do the act, the
commission of an
plan, system, scheme, habit, such circumstance may be taken as act,
custom, or usage. indication that he was one who
• PLAN, DESIGN OR probably did the act.
including what a person
CONSPIRACY. • INCOMPATIBILITY did, may point to his
PLAN is the preparation behind When concomitant circum-stances
are incompatible with the doing of an
having committed the act.
the act which leads to the
inference, when the act is done, act by a person, then those
that an act is the result of the plan circumstances may be proven to show
that such person could not have been
Examples:
or design.
the author of the act.
CONSPIRACY is the concurrence
of wills to do a crime, which
The usual form of incompatibility is Flight or Concealment;
ALIBI.
concurrence can be established An alibi is a defense which
Abnormal behavior,
from indefinite acts showing concert capitalizes on the claim that the Excitedness, Nervousness,
of criminal design and interest. person was present in another place Despair; Traces or Marks left;
• MOTIVE for such length of time and under such
That which moves a person to do conditions as to render impossible his
Spoilation or Fabrication of
an act. Generally, motive is not being present in the locus criminis. evidence; and Possession of
required, although this may add to Generally, an alibi is a weak stolen goods.
other circumstantial evidence to defense. Thus, it must be proven by
establish guilt beyond reasonable means of positive, clear, and
doubt. It is valuable when there is convincing evidence. An eleventh
a doubt as to who of two suspects hour proof is unfavourable to the
accused.
is the culprit.
RELEVANT EVIDENCE:
Relevancy Requirement Underlies Other Rules of Evidence
The personal knowledge requirement helps insure that witnesses testify only about matters personally known to
them rather than engaging in conjecture and speculation (which would be irrelevant).
LAY OPINION
Opinions of lay witnesses (non-expert) are admissible only if they are based on the personal perception of the
witness and are helpful to the trier of fact. These requirements help insure that only relevant opinions are
admitted.
EXPERT OPINIONS
Expert opinions are admissible under Sec. 49, Rule 120 only if the expert is qualified and the opinion assists the
trier of fact. Again these requirements help insure the relevance of expert opinions.
AUTHENTICATION
Sec. 20, Rule 132 requires that a party offering exhibits (and certain other evidence) make a preliminary showing
that the items are what their proponent claims them to be. Authentication is simply a more specific application of
the relevancy requirement.
COMPETENT EVIDENCE:
Basic Definition
COMPROMISE CONSTRUED
Compromise offer might stem from the desire to avoid the time and expense of
litigation and trial, regardless of the merits; and to avoid the negative publicity
likely to attend certain claims.
3. Fairness
People should not be punished for doing the right thing. Allowing evidence of
a person’s laudable behavior to be used against him both punishes and
discourages that behavior.
MANDATORY EXCLUSION:
Civil settlement offers and Negotiations
EXCEPTION
The Rule
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an OFFER OF COMPROMISE by the
accused may be received in evidence as an IMPLIED
ADMISSION OF GUILT (RRE 130. 27 par. 2).
CRIMINAL CASES: OFFER OF COMPROMISE is
ADMISSIBLE in evidence as an IMPLIED ADMISSION OF
GUILT, EXCEPT (1) where compromise is ALLOWED BY
LAW like cases arising under the Tax Code, and (2) in
cases involving QUASI-OFFENSES (criminal negligence).
MANDATORY EXCLUSION:
Offer of Compromise in Criminal Cases
General Admission
Offer of compromise, VOLUNTARILY MADE BY THE ACCUSED WITHOUT THREAT OR
PROMISE, and the reply thereto, are ADMISSIBLE IN EVIDENCE upon his trial for a crime (U.S.
v. Maqui, 27 Phil 97).
Offer to marry the rape victim is an admission of guilt (People v. Casao, 220 SCRA 362 [1993]).
The act of the accused of pleading for forgiveness is analogous to an attempt to compromise,
which in turn can be received as an implied admission of guilt (People v. Espanol, 579 SCRA
326 [2009]).
While rape cases can in effect be compromised by actual marriage of the parties since criminal
liability is thereby extinguished (Art. 344, last par., Revised Penal Code), an offer to compromise
for a monetary consideration, and not to marry the victim, is an implied admission of guilt (People
v. Amiscua, L-31238, February 27, 1971).
In People v. Manzano (L-38449, November 25, 1982), the attempt of the parents of the accused
to settle the case with the complainant was considered an implied admission of guilt. At any
rate, the Supreme Court has held that an offer of marriage by the accused, during the
investigation of the rape case, is also an admission of guilt (People v. Valdez, G.R. No. 51034,
May 29, 1987).
MANDATORY EXCLUSION:
Offer of Compromise in Criminal Cases
Inadmissible in Crimes Allowed by Law to be Compromised:
A GUILTY PLEA that was NEVER WITHDRAWN may be ADMITTED against the
pleader in a LATER ACTION. SECTION 27, RULE 130 EXCLUDES GUILTY PLEAS
only if they were WITHDRAWN BEFORE JUDGMENT was entered ON THAT PLEA.
MANDATORY EXCLUSION:
Plea Evidence
THE RULE
./,”/.;,
CONFESSIONS:
Definitions
• In CRIMINAL CASES: A voluntary statement made by a person
charged with the commission of a crime or misdemeanor,
communicated to another person wherein he acknowledges
himself to be guilty of the offense charged, and discloses the
circumstances of the act or the share and participation which he had
in it (Spicer v. Comm., 21 Ky. L. Rep. 528, 51 S.W. 802; State v.
Gibson, 69 N.D. 70, 284, N.W. 209; Sango v. State, 52 Okl. Cr. 359,
5 P.2d. 400, 401; Edwards v. State, Okl. Cr. App. 288 P. 359, 361).
Also the act of a prisoner, when arraigned for a crime or
misdemeanor, in acknowledging and avowing that he is guilty of the
offense charged.
• In CIVIL CASES: A formal admission of some allegations made
by the other side. There can also be a confession of judgment in a
civil case where the party expressly admits his liability.
CONFESSIONS:
The Rule
The declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein, MAY BE
GIVEN IN EVIDENCE AGAINST HIM (Section 33, Rule 130).
RELATIVE CONFESSION
This is now obsolete but something like it is practiced in modern law, where
one of the persons accused or supposed to be involved in a crime is
PUT ON THE WITNESS STAND UNDER AN IMPLIED PROMISE OF
PARDON (State v. Willis, 71 Conn. 293, 41 A. 820).
SIMPLE CONFESSION
Made before a court in which the Made in any other place or occasion
case is pending and in the course of and cannot sustain a conviction
legal proceedings therein and, by unless corroborated by evidence of
itself, can sustain a conviction even in the corpus delicti (Section 3, Rule 33).
capital offenses.
Made in conformity to law before a court Made by a party elsewhere than before
in the course of legal proceedings. a court.
CONFESSIONS:
Requisites for Admissibility
TO BE ADMISSIBLE, IT IS NECESSARY THAT (“NO VICE”):
1.Several accused are tried together, confession made by one of them during the trial implicating
others is admissible against the latter (People v. Impit Gumaling, 61 Phil 165).
2.One of the accused is discharged from the information and testified as a witness for the
prosecution, his confession made in the course of his testimony is admissible against his co-
accused when corroborated by indisputable proof (People v. Bautista, 40 Phil 389).
3.If after having apprised of the confession of a co-accused, the accused ratifies or confirms it, the
same is admissible against him (People v. Francisco, 57 Phil 418).
4.There are several extra-judicial confessions made by several defendants and there is no
collusion with respect to said confessions, the facts that the statements therein are in all material
respects, identical, is confirmatory of the confession of the co-defendant, is admissible against his
other co-defendants (People v. Tagara, 137 SCRA 222). This is known as “interlocking confession.”
5.A statement made by one defendant after his arrest, in the presence of a co-defendant, confessing
his guilt and implicating his co-defendant who failed to contradict or deny it, is admissible
against his co-defendant (22 C.J.S. 1441).
6.The confession of one conspirator made after the termination of a conspiracy, is admissible against
his co-conspirator if made in his presence who assented to by him, or admitted its truth or
failed to contradict or deny it (2 Wharton’s Criminal Evidence, 11th ed., p. 1097).
CONFESSIONS:
Weight of Confessions
The WHOLE CONFESSION MUST BE PUT IN EVIDENCE by the prosecuting officer.
To allow the introduction of fragments of a confession admitting those indicative of the
prisoner’s criminality and suppressing others which, by limiting or modifying the former,
may establish his innocence, is utterly inconsistent with all principles of justice and
humanity (U.S. v. Gavarlan, 18 Phil 510).
Weight of Evidence: CONFESSION MUST BE CREDIBLE.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well
as compensation to and rehabilitation of victims of torture or similar practices, and their
families (Article III).
SEC. 17. No person shall be compelled to be a witness against himself (Article III).
CONFESSIONS:
Constitutional Prohibition
R.A. 7438, which was approved on April 27, 1992, has expanded or broadened the above constitutional provisions. Under this law, the rights
of persons arrested, detained or under custodial investigation and the correlative duties of public officers are:
1.Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.
2.Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates ay person for the
commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have
competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer private with the person
arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with
competent and independent counsel by the investigating officer.
3.The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or
thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by
his counsel of by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained
person, otherwise, such investigation report shall be null and void and of no effect whatsoever.
4.Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed
by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the
parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any
proceeding.
5.Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation,
shall be in writing and signed by such person in the presence of his counsel; otherwise such waiver shall null and void and of no effect.
6.Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his
immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his
counsel, or by any national non governmental organization duly accredited by the Commission on Human Rights or by any international
non-governmental organization duly accredited by the Office of the President. The person’s “immediate family” shall include his or her
spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or
ward.
CONFESSION:
Application of the Rule
A confession obtained from a person under investigation for the commission of an offense, who has not been
informed of his right (to silence and to counsel) is inadmissible in evidence if the same had been obtained after
the effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible in
evidence against the accused, if the same had been obtained before the effectivity of the New Constitution,
even if presented after January 17, 1973, and even if he had not been informed of his right to counsel, since no law
gave the accused the right to be so informed before that date (Magtoto v. Manguera, 63 SCRA 4).
We have consistently held that the rights guaranteed during a custodial investigation are not supposed to be merely
communicated to the suspect, especially if he is unlettered, but must be painstakingly explained to him so he can
understand their nature and significance. Moreover, manhandling of any sort will vitiate any extrajudicial confession
that may be extracted from him and renders it inadmissible in evidence against him (People v. Opida, 142 SCRA 295).
• The foregoing indubitably shows that while the appellant was informed of her right to remain silent and to hire a
lawyer to assist her, she was not, however, informed that if she could not secure a lawyer, the State will provide her
with one, to assist her in the custodial interrogation. The omission is a fatal defect rendering the extrajudicial
confession inadmissible in evidence as ruled in People v. Pascual, 109 SCRA 197 (People v. Quizon, 142 SCRA 362).
• An admission of guilt by a person not under police investigation specifically is not a confession (People v. Rama, 192
SCRA 274).
• It seems clear that the second paragraph of Article 125 of the Revised Penal Code as inserted by Republic Act 1083
makes it the duty on the part of any police or military officer to inform the person detained of his right to counsel at the
start of any custodial interrogation and that this duty was made a statutory one as early as 1954 upon the enactment
of the aforesaid Act (People v. Ribadajo, 142 SCRA 637).
CHARACTER EVIDENCE:
General Roadmap
It is suggested that you analyze any problem that potentially involves character evidence by asking
yourself the following questions:
a) In Criminal Cases:
1) The accused may prove his good moral character which is pertinent to the
moral trait involved in the offense charged.
2) Unless in rebuttal, the prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the offense
charged.
3) The good or bad moral character of the offended party may be proved if it
tends to establish in any reasonable degree the probability or improbability
of the offense charged.
b) In Civil Cases:
Evidence of the moral character of a party in a civil case is admissible only
when pertinent to the issue of character involved in the case.
c) In the case provided for in Rule 132, Section 14.
CHARACTER EVIDENCE:
The Rule
In CRIMINAL CASES, the prosecution may not at the outset prove the bad
moral character of the accused which is pertinent to the moral trait involved
in the offense charged. If the accused, however, in his defense attempts to
prove his good moral character then the prosecution can introduce
evidence of such bad moral character at the rebuttal stage.
Also, in CRIMINAL CASES, the GOOD OR BAD MORAL CHARACTER OF
THE OFFENDED PARTY may always be proved by either party as long as
such evidence tends to establish the probability or improbability of the offense
charged.
In CIVIL CASES, the MORAL CHARACTER OF EITHER PARTY thereto
cannot be proved unless it is pertinent to the issue of character involved in
the case.
In both civil and criminal cases, the bad moral character of a witness may
always be proved by either party (Section 11, Rule 132), but not evidence of
his good character, unless it has been impeached (Section 14, id.).
CHARACTER EVIDENCE:
The Rule
ACCUSED OR
COMPLAINANT OFFENDED PARTY WITNESS
• AT THE OUTSET, Prosecution • Offended party’s GOOD OR
MAY NOT PROVE THE BAD BAD MORAL CHARACTER
MORAL CHARACTER OF THE MAY ALWAYS BE
CRIMINAL ACCUSED
• If in his defense, ACCUSED
PROVED as long as it tends
CASE PROVES HIS GOOD MORAL to establish the probability
CHARACTER, the prosecution, in or improbability of the
REBUTTAL, can introduce the offense charged
BAD MORAL CHARACTER OF
ACCUSED
• WITNESS’BAD
MORAL CHARACTER
CRIMINAL MAY ALWAYS BE
AND CIVIL PROVED by either
party, but not his
CASES GOOD CHARACTER,
unless it has been
impeached
CHARACTER EVIDENCE:
Uses
The key to determining the ADMISSIBILITY OF
CHARACTER EVIDENCE is ASCERTAINING THE
PURPOSE for which that evidence is offered.
ii. Lets defendants in criminal cases prove that the alleged victim of the crime was
in fact behaving in a criminal manner himself, as happens in assault (physical
injury) cases where the defense tries to prove that the alleged victim started
the affray by showing that he was generally prone to violence.
CHARACTER EVIDENCE:
Element of Charge, Claim or Defense
For example, a defendant may have been convicted for theft on three
separate occasions. If he is then caught entering someone else’s
house, and he claims that he entered by mistake (“I thought it was a
friend’s apartment”), his three prior thefts (as shown by his three
convictions) might be proved to show that on this occasion he
intended to commit theft once again, and to rebut his claim of mistake.
Evidence of prior bad acts and similar narrow points is admissible
under Section 34, Rule 130, subject to possible exclusion.
CHARACTER EVIDENCE:
Methods of Proving Character
CHARACTER REPUTATION
IN GENERAL: Specific instances of conduct is NOT ALLOWED as proof of character because (i) it can be a highly
revealing indication of the person’s character, and (ii) it would consume too much time and divert a trial to side issues.
But for many of the most common uses of character evidence – in criminal cases when the defendant proves his own
good character or the prosecutor answers with proof of defendant’s bad character – ONLY REPUTATION OR OPINION
ARE ALLOWED, AND NOT SPECIFIC INSTANCES OF CONDUCT.
When this type of evidence is permitted, the witness will be asked to relate specific instances of conduct that
demonstrate a particular character trait.
But sometimes indeed CHARACTER CAN BE PROVED IN ORDER TO SHOW CONDUCT, as is true in sexual assault
and child abuse prosecutions and civil litigation arising out of such behavior, where the prosecutor (or the claimant in a
civil suit) can indeed OFFER PROOF OF SPECIFIC INSTANCES by the accused (or the defendant in a civil suit).
Character witness generally cannot be asked about specific instances of conduct on direct examination, but CAN BE
PURSUED ON CROSS-EXAMINATION, in order to test the basis for the testimony of the character witness.
Any specific instances of conduct by the principal that come out on cross-examination of the character witness are not
to be taken as proof of the character of the principal, but rather as some indication of the basis (or lack of basis) for the
opinion or reputation being reported.
The acts in question should be at least relevant to the trait of character in question.
CHARACTER EVIDENCE:
Character in Criminal Cases
CHARACTER OF ACCUSED
THE RULE
Sec. 51. x x x.
a) In Criminal Cases:
1) The accused may prove his good moral character which is pertinent
to the moral trait involved in the offense charged.
2) Unless in rebuttal, the prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the offense
charged. x x x.”
In criminal trial, Section 51(a)(1-2), Rule 130 allows the defendant to offer
evidence of a pertinent trait of (good moral) character to help prove that he
did not commit the charged crime. If he does introduce character evidence,
the prosecutor may offer (bad moral) character evidence in rebuttal.
CHARACTER EVIDENCE:
Character in Criminal Cases
PROSECUTION NOT ALLOWED TO INITIALLY ATTACK CHARACTER OF ACCUSED
The prosecution cannot initially attack the moral character of the accused, unless the same is
put in issue by him (People v. Acosta, 47 O.G. No. 1, 144).
It is an elementary rule of criminal procedure that the PROSECUTION IS NOT PERMITTED
TO TOUCH UPON THE CHARACTER OF THE ACCUSED IN THE ORIGINAL CASE and that
it is only after the defendant has elected to put his character in issue by calling witnesses and
adducing evidence in support of it that the prosecution is permitted to follow and disprove the
evidence offered (People v. Hodges, 46 Phil 502).
Whenever the accused chooses to put in issue his character by giving evidence showing it to
be good, the prosecution may rebut such evidence and may prove that the character of the
accused is bad (Underhill on Criminal Evidence, 2nd ed., 139-141).
REBUTTING EVIDENCE OF BAD REPUTATION IS ALWAYS ADMISSIBLE. The object of
permitting the prosecution to introduce such evidence is not for the purpose of showing the
bad character of the defendant; but it is for the purpose of refuting his claim that he has a
good character and thus to prevent the court from drawing therefrom the inference that the
accused is innocent of the crime charged (Ware v. State, 91 Ark. 555).
CHARACTER EVIDENCE:
Character in Criminal Cases
REASON FOR ALLOWING ACCUSED TO PROVE HIS GOOD MORAL CHARACTER:
Affords a presumption against the commission of crime.
This presumption arises from the improbability, as a general rule, as proved by common
observation and experience, that a person who has uniformly pursued an honest and upright
course of conduct will depart from it and do an act so inconsistent with it. Such a person
may be overcome by temptation and fall into crime and cases of that kind often occur, but
they are exceptions; the general rule is otherwise (Canceni v. People, 16 N.Y. 501).
“PERTINENT” TRAIT
Character evidence offered under this Rule must relate to the type of crime charged. An
accused may offer evidence of his peaceable disposition when charged with a crime of
violence such as assault (physical injuries), or he may offer proof of his honest tendencies
when charged with a crime of dishonesty, such as estafa.
The evidence of good character offered by the accused may and must relate particularly to
that trait of character which is involved in the crime charged, so that the proof of good
character will render it unlikely that he would be guilty of that particular crime (Edgington v.
U.S., 164 U.S. 361).
CHARACTER EVIDENCE:
Character in Criminal Cases
FORM OF PROOF
• The character witness, whether called by the defendant or the prosecution, can testify
ON DIRECT only as to REPUTATION OR OPINION, and NOT SPECIFIC INSTANCES.
ON CROSS-EXAMINATION, however, the character witness can be asked about
SPECIFIC INSTANCES OF CONDUCT by the person whose character is being proved.
THE RULE
3)The good or bad moral character of the offended party may be proved if it tends to establish
in any reasonable degree the probability or improbability of the offense charged.
This is another situation in which the criminal defendant may also offer evidence of
character to prove innocence: under Section 51 (a)(3), Rule 130, DEFENDANT MAY
OFFER EVIDENCE OF A PERTINENT TRAIT OF THE ALLEGED VICTIM’S
CHARACTER.
Example: Prosecution for Assault (Physical Injuries) in which defendant claims self-
defense. To prove that he acted in response to the alleged victim’s attack, or to prove
that he reasonably feared that the alleged victim was about to attack him, defendant
may offer evidence that the alleged victim is a violent person. In either case, the
alleged victim’s character for violence would support defendant’s self-defense claim.
CHARACTER EVIDENCE:
Character in Criminal Cases
FORM OF PROOF
A character witness, whether called by the defendant or the prosecutor, can TESTIFY ON
DIRECT ONLY ABOUT REPUTATION OR OPINION, not specific instances of conduct.
The prosecution may REBUT THE DEFENDANT’S CHARACTER EVIDENCE BY CROSS-
EXAMINING THE CHARACTER WITNESS who testified about the alleged victim’s character.
The cross-examination may further inquire into reputation, opinion, or may raise relevant specific
instances of conduct that cast doubt on the witness’s testimony. The prosecution may also call its
own witnesses to establish the alleged victim’s character.
The prosecutor is allowed to prove the character of the accused in one additional circumstance
(in addition to the situation in which the prosecutor offers evidence of the character of the
accused in order to rebut his proof of his own good character). The prosecutor may also offer
proof going to the character of the accused if he proves the character of the “alleged victim,” and
in this situation the prosecutor may prove “the same trait of character” in the accused.
When the defendant offers evidence of the alleged victim’s character, he opens the door to
victim’s character. Also, he opens the door to defendant’s character. The prosecution may
respond to defendant’s evidence concerning the victim’s character by presenting evidence that
defendant has the same character trait.
CHARACTER EVIDENCE:
Character in Criminal Cases
SPECIAL RULE FOR RAPE VICTIMS
R.A. No. 8505 (Rape Victim and Assistance Act of 1998)
which converted rape from a crime against chastity to a
public crime states that “In prosecutions for rape,
EVIDENCE OF THE COMPLAINANT’S SEXUAL
CONDUCT, OPINION THEREOF OR HIS/HER
REPUTATION, SHALL NOT BE ADMITTED UNLESS
and only to the extent that the court finds that such
EVIDENCE IS MATERIAL AND RELEVANT TO THE
CASE.” This places a heavy burden on the proponent to
demonstrate that the court should admit the evidence.
CHARACTER EVIDENCE:
Character in Civil Cases
THE RULE
Sec. 51 x x x.
(b) In Civil Cases:
In civil cases, for character evidence of a party to be admissible, the ISSUE INVOLVED
MUST BE CHARACTER, as, for example, in civil actions for damages arising from the
offenses of libel, slander or seduction.
In the following classes of actions, the reputed character of a person is material in mitigation of
damages, or to fix or remove a person’s liability:
1. In an action for defamation, the reputed character of the plaintiff is at issue, for a plaintiff
of poor reputed character would be entitled to less compensation for injury to his
reputation;
2. In an action for breach of promise to marry or for alienation of affection, the plaintiff’s
character is also at issue, for the injury to the feelings of a dissolute woman might well be
less than otherwise. So also, in a breach of promise to marry, the woman’s dissolute
character, if unknown beforehand to the promissor, might be an excuse for non-
performance;
3. In a prosecution for keeping a bawdy-house, the actual or reputed character of the
house or the persons frequenting it is at issue;
4. In a prosecution for keeping a gambling house, the actual or reputed character of the
house or of the persons frequenting it is at issue;
5. In a civil action for damages for seduction filed by a woman, the actual or reputed
character of the woman is at issue (Wigmore’s Code of Evidence, 3rd Ed., pp. 59-60).
CHARACTER EVIDENCE:
Character of Witnesses
THE RULE
Sec. 51. x x x.
Section 14. Evidence of good character of witness. – Evidence of the good character of a witness is not
admissible until such character has been impeached (Rule 132).
When a party voluntarily introduces evidence tending to impeach his own witness, he cannot afterward
introduce testimony to show that the reputation of his witness for truth and veracity is good (Mealer v.
State, 22 S.W. 142, 32 Tex. Cr. 102).
PRIOR CONDUCT EVIDENCE:
Basic Principle and Statement of the Rule
• THE RULE
Sec. 34. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is
not admissible to prove that he did or did not do the same or a similar thing at another time; but it may
be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or
usage, and the like (Rule 130).
Collateral facts as a general rule inadmissible. Consequently, evidence of other acts, even of a
similar nature, of the party whose own act or conduct or that of his agents and employees is in
question, IS NOT ADMISSIBLE to prove that the party did or omitted to do the same or a similar
thing at another time.
This is the second part of the rule embodied in the maxim res inter alios acta (rights of a party cannot
be prejudiced by an act, declaration, or omission of another). This rule refers not only to transactions
with which one of the parties is not connected, but also transactions between the same parties (Cf.
20 Am. Jur. § 302).
Evidence of this sort is not admissible “since the conduct of one man
under certain circumstances or towards certain individuals, varying as it
will necessarily be according to the motives which influence him, the
qualities he possesses and his knowledge of the character of those with
whom he is dealing, can never afford a safe criterion by which to judge
the behavior of another man toward other persons” (Tylor, Ev. [10th
Ed.] Sec. 317).
Likewise, such matters, though they may resemble the act in question,
may lead the court into too many collateral inquiries as to the
particular circumstances of each case, thus multiplying the issues,
unduly prejudicing the court and exposing a party to the injustice of
being called upon, without notice, to explain the acts of his life not shown
to be connected with the act in question (Cf. McKelvey, Sec. 137).
PRIOR CONDUCT EVIDENCE:
Application of the Rule
In criminal prosecution, proof which shows or tends to show
that the accused is guilty of the commission of other crimes
and offenses at other time, although of the same nature as the
one charged in the information, is INADMISSIBLE for the
purpose of showing the commission of the particular
crime charged, UNLESS THE OTHER OFFENSES ARE
CONNECTED WITH THE OFFENSE FOR WHICH HE IS ON
TRIAL (20 Am.Jur. § 309).
It is ILLEGAL AND MANIFESTLY UNFAIR TO REQUIRE A
MAN, who is charged with a specific crime in the indictment,
TO PREPARE A DEFENSE AGAINST OTHER CRIMES that
the State may attempt to rove against him, but which are not
charged in the indictment.
PRIOR CONDUCT EVIDENCE:
Purposes for which Evidence may be
Offered
EVIDENCE OF SIMILAR ACTS may be received to prove SPECIFIC INTENT, OR
KNOWLEDGE, IDENTITY, PLAN, SYSTEM, SCHEME, HABIT, CUSTOM OR USAGE, AND
THE LIKE, provided that there is a rational similarity or resemblance between the
conditions giving rise to the fact offered and the circumstances surrounding the issue
or fact to be proved.
The law in civil and criminal cases allows proof of acts other than the one charged which are
so related in character, time, and place of commission as to tend to support the conclusion
that they were part of a plan or system (20 Am.Jur. 303).
Sec. 34, Rule 130 lists permissible uses of specific instances of conduct, but the LIST IS
EXEMPLARY AND NOT EXHAUSTIVE. Prior crimes, wrongs, or acts must SPECIFY THE
PARTICULAR PURPOSE for which it is offered. The PROPONENT SHOULD NOT SIMPLY
RECITE THE USES listed in the Rule.
PRIOR CONDUCT EVIDENCE:
Purposes for which Evidence may be Offered
LISTED PURPOSES
UNLISTED PURPOSES
1. Motive
2. Opportunity
3. Preparation
4. Absence of Mistake or Accident
5. Proving Context
6. To Rebut Insanity Defense
7. To Rebut Entrapment Defense
8. To Show Consciousness of Guilt
9. To Contradict Defendant’s Testimony
10. To Prove Negligence
11. To Prove the Whole Case, Other Crimes may be Disclosed in Introduction of Evidence
PRIOR CONDUCT EVIDENCE:
Listed Purposes
COMMON PLAN, SCHEME OR SYSTEM
But proof of the commission of another crime is not properly admitted simply for
the purpose of identifying the defendant unless IT IS ABSOLUTELY
NECESSARY TO ESTABLISH IDENTIFICATION AS AN ELEMENT OF THE
CRIME.
Usually, this category describes cases in which the charged crime was
committed by means of a MODUS OPERANDI that is DISTINCTIVE AND
UNUSUAL THAT ALSO BEARS VERY CLOSE RESEMBLANCE TO SOME
CRIME THAT THE DEFENDANT COMMITTED ON A PRIOR OCCASION. In
this situation, it is sometimes said that the PRIOR CRIME AND THE CHARGED
OFFENSE ARE “SIGNATURE” CRIMES THAT WERE VERY PROBABLY
COMMITTED BY THE SAME PERSON. Hence, showing that the defendant
committed such a crime before in powerful evidence that he probably committed
the charged crime, and the evidence is admitted as proof of identity.
PRIOR CONDUCT EVIDENCE:
Listed Purposes
TO PROVE INTENT OR KNOWLEDGE
Prior crimes are sometimes highly probative on the issue of intent, but in this situation
generally there must be a CLOSE RESEMBLANCE between the prior crime and the
charged crime, or at the very least they must involve the same mental state.
Example:
In a trial of a prisoner for possessing objects designed or intended for use in escape,
proof of defendant’s involvement in prior escapes may be admissible to show his
intent or state of mind in possessing such objects (See United States v. Archer, 843
F.2d 1019 [7th Cir. 1988]).
Prior crime evidence is often used to prove knowledge. For example, if defendant is
charged with passing counterfeit currency, and he denies knowing it was counterfeit,
the fact that he was previously convicted of selling counterfeit currency could be
admitted to prove knowledge (United States v. Beaver, 524 F.2d 963 [5th Cir. 1975]).
PRIOR CONDUCT EVIDENCE:
Listed Purposes
The reason for the distinction is that HABIT describes particular behavior
in a specific setting and is by nature at least regular if not invariable. Thus,
it has greater probative value in proving conduct on a particular occasion
than does evidence of general propensities.
HABIT DEFINED
HABIT CHARACTER
SUFFICIENT INSTANCES
There must be a large enough sample to establish a pattern of behavior and a sufficient
uniformity of response.
The court decides whether the witness can describe enough instances to show habit. If
not, the testimony may be excluded.
OPINION
Most modern courts also allow habit to be proved by opinion testimony, provided the
witness has an adequate basis of personal knowledge.
PRIOR CONDUCT EVIDENCE:
Unlisted Purposes
Permissible uses for prior acts that lie beyond those listed in
Section 34, Rule 130, such as:
MOTIVE
When prior crimes are offered to prove motive, they, NEED NOT
BE SIMILAR IN NATURE TO THE CHARGED OFFENSE.
PRIOR CONDUCT EVIDENCE:
Unlisted Purposes
OPPORTUNITY
Sometimes evidence of a prior crime can show preparation for the charged
crime. For example, in a trial for attempted bank robbery, proof that on the prior
day, defendant stole a car to use as the getaway vehicle would be admissible
as evidence of preparation.
Proving prior crimes or acts can sometimes rebut a claim that the charged
crime was an accident or mistake. In many cases, for example, a defendant
charged with unlawfully receiving child pornography claims that he acquired it
by mistake, not realizing that he was purchasing images or videos of underage
children. To rebut this claim, the government proved defendant possessed
other child pornography (United States v. Dornhofer, 859 F.2d 1195 [4th Cir.
1988]).
PRIOR CONDUCT EVIDENCE:
Unlisted Purposes
PROVING CONTEXT
When the accused raises an insanity defense, evidence of prior acts is sometimes admitted
on the question whether defendant had cognitive ability or volitional control. For example,
prior crimes reveal defendant’s mental process and ability to orchestrate a crime. They may
also indicate that he appreciated the criminality of his conduct.
Sometimes courts admit prior crime evidence to show that defendant was predisposed to
committing a certain type of crime, hence was not entrapped by government misconduct
(overly aggressive “sting” operations). Some courts admit such evidence of predisposition.
Sometimes prior acts are used to show defendant’s consciousness of guilt. For example,
an attempt to escape or to bribe the arresting officer may be introduced to show the
defendant’s consciousness of guilt.
PRIOR CONDUCT EVIDENCE:
Unlisted Purposes
TO CONTRADICT DEFENDANT’S TESTIMONY
If, for example, defendant claims that he was never arrested or convicted
before, or “never in trouble with the law,” or that he never committed a crime
before, the prosecutor can rebut such statements by contradicting them in
appropriate ways. A claim of never being arrested can lead to counterproof
that defendant was arrested after all; a claim of never being convicted may
lead to proof that defendant was convicted; a claim of never being in trouble
with the law can lead to proof of prior arrests or convictions; a claim of never
having committed a crime can lead to counterproof that defendant was
convicted or that he committed prior crimes (which can be proved by
eyewitness testimony, often involving testimony by police or law enforcement
personnel who describe drug transactions).
PRIOR CONDUCT EVIDENCE:
Unlisted Purposes
TO PROVE NEGLIGENCE
This exception is applicable only in civil cases because the issue is not
strictly the culpability of the defendant but the issue is who was
responsible for or was the author of this act. In such case, evidence of
other acts, performed at other times, similar to the act charged under
investigation, is admissible (1 Wharton, Criminal Evidence, 554).
It has been said that there can be no better evidence of negligence than
the frequency of accidents.
PRIOR CONDUCT EVIDENCE:
Unlisted Purposes
TO PROVE THE WHOLE CASE, OTHER CRIMES MAY BE
DISCLOSED IN INTRODUCTION OF EVIDENCE
FORMS OF PROOF
STANDARD OF PROOF
PRIOR ACQUITTALS
A prior crime may be proved even if defendant has been charged and
acquitted of that crime (See Dowling v. United States, 493 U.S. 342
[1990]). Such use does not violate double jeopardy or due process
clauses, the judge can weigh probative value, and defendant can show
fact of acquittal. The acquittal establishes only the presence of
reasonable doubt and is not a specific determination that the defendant
was not involved in the earlier crime.
PAROL EVIDENCE:
The Rule
Sec. 9. Evidence of written agreements. – When the terms of an agreement
have been reduced to writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the terms of
the written agreement if he puts in issue in his pleading:
PAROL EVIDENCE is any evidence aliunde, whether oral or written, which is intended
or tends to vary or contradict a complete and enforceable agreement embodied in a
document.
Where two parties have made a contract and have expressed it in a writing to which
they have both assented as the complete and accurate integration of that contract,
evidence, whether parol or otherwise, of antecedent understandings and negotiations
will not be admitted for the purpose of varying or contradicting the writing.
The Parol Evidence Rule applies only to contractual documents (Cruz v. Court of
Appeals, 192 SCRA 209).
A total stranger to the writing is NOT BOUND by its terms and is allowed to introduce
extrinsic – or parol – evidence against the efficacy of the writing (Lechugas v. Court of
Appeals, 143 SCRA 335).
PAROL EVIDENCE:
Purpose of the Rule
Where the parties to a negotiation put only a part of their agreement in writing, by the
doctrine of “partial integration” or the so-called “collateral agreement rule”, parol
evidence may be offered to those parts of the agreement purposely omitted from the
writing.
The rule excluding parol evidence to vary or contradict a writing does not extend so far
as to the admission of extrinsic evidence to show prior or contemporaneous collateral
parol agreements between the parties, but such evidence may be received regardless
of whether or not the written agreement contains any reference to such collateral
agreement, and whether the action is at law or in equity (22 C.J. p. 1245).
Example: In case of a written contract of lease, the lessee may prove an independent
verbal agreement on the part of the landlord to put the leased premises in a safe
condition; and a vendor of realty may show by parol evidence that crops growing on
the land were reserved, though no such reservation was made in the deed of
conveyance (10 R.C.L. p. 1037).
PAROL EVIDENCE:
Rule Inapplicable to Strangers to Agreement
A party, entitled to the benefit from the operation of the parol evidence rule, may waive
said benefit by allowing oral evidence to be received without objection and without
any effort to have it stricken from the minutes or disregarded by the trial court. After
the trial has closed, he cannot, if he loses, invoke the rule in order to secure a
reversal of the judgment on appeal (32 C.J.S. 796).
By the explicit provision of Section 9, Rule 130, the term “agreement” includes wills,
thus extending the operation of the parol evidence rule.
• There is extrinsic (patent) ambiguity when the instrument on its face is unintelligible,
that is, where the words of the instrument are clear, but their application to the
circumstances is doubtful, as where a deed of donation contains the following: “I give
a parcel of land (without any description whatever) to my niece Jane.” The donation
is void: the uncertainty cannot be explained by parol evidence (5 Wigmore, 2nd ed. p.
414).
PAROL EVIDENCE:
Exceptions to the Parol Evidence Rule
CONTINUTATION ... AMBIGUITIES
In such case, parol evidence is admissible to show the circumstances under which the
contract was made, and the subject-matter to which the parties referred. Where the
ambiguity consists in the use of equivocal words designating the person or subject-
matter, parol evidence of collateral or extrinsic matter may be introduced for the purpose
of aiding the court in arriving at the meaning of the language used.
Example: A deed of mortgage was so worded as not to show whether it secured the
payment of a certain amount or also other amounts sued upon. Parol evidence is
admissible to explain this kind of ambiguity (National Bank v. Barretto, 53 Phil 955).
PAROL EVIDENCE:
Exceptions to the Parol Evidence Rule
MISTAKE OR IMPERFECTION IN THE WRITTEN AGREEMENT
Parol evidence is admissible in order to reform a written agreement because of the presence of
mistake. Four requisites must be satisfied, namely:
i. The mistake must be MUTUAL, i.e., a mistake on both sides, in that there was a valid contract
between the parties but the language used did not correctly set forth their agreement (Bank of
the P.I. v. Fidelity & Surety Co., 51 Phil 57);
ii. The mistake must be one of FACT and not of law, i.e., it should not spring from ignorance of the
legal implication or meaning of the terms of the agreement, but should be a misapprehension of
a fact;
iii. The mistake should be ALLEGED AND PUT IN ISSUE (Bank of the P.I. v. Laguna Coconut Oil
Co., 48 Phil 5);
iv. The mistake should be proved by CLEAR AND CONVINCING EVIDENCE, i.e. not merely by
preponderance of evidence, but by evidence of the clearest and most satisfactory character
(Centenera v. Garcia Palicio, 29 Phil 470).
Where these four requisites are satisfied, a contract may be reformed conformably to Articles
1359 and 1361 of the Civil Code.
PAROL EVIDENCE:
Exceptions to the Parol Evidence Rule
REFORMATION
When a party alleges that certain WRITING FAILS TO EXPRESS THE TRUE
INTENT AND AGREEMENT OF THE PARTIES AND THE SAME IS PUT IN
ISSUE IN THE PLEADINGS, PAROL EVIDENCE MAY BE ADMITTED by
the trial court in order TO ASCERTAIN THEIR REAL INTENT.
Example: Even when a document appears on its face to be a sale, the owner
of the property may prove that the contract is really a loan with mortgage by
raising as an issue the fact that the document does not express the true
intent of the parties, in which case parol evidence becomes competent and
admissible to prove that the instrument was in truth and in fact given merely
as a security for the repayment of a loan (Lustan v. Court of Appeals, 266
SCRA 663).
PAROL EVIDENCE:
Exceptions to the Parol Evidence Rule
VALIDITY
The reason for the rule is that the parties cannot be presumed to have intended the
written instrument to cover all their possible subsequent agreements which for that
reason may be considered as separate transactions.
Example: Plaintiff executed a deed of sale of a parcel of land, reserving the right to
repurchase it within a year. Before the expiration of the redemption period, the
defendant (vendee) orally extended the redemption period for one month upon the
plaintiff’s promise to repurchase it within that period. It was held that parol evidence was
admissible to prove the oral promise made by the defendant (Canuto v. Mariano, 37 Phil
840).
LAW 3 CRIMINAL EVIDENCE
PART THREE
PROPER FOUNDATION
LAW 3 CRIMINAL EVIDENCE:
Outline of Part III
PART III PROPER FOUNDATION
1.The Rule
2.Witness Defined
3.Qualifications of a Witness
4.Competent Witness
5.Competency and Credibility Distinguished
6.Competency of Witness is Presumed
7.Procedure for Determining the Competency of a Witness
8.Effect of Religious or Political Belief; of Pecuniary Interest; of Conviction for a Crime
9.Disqualified Witnesses
10.
Witness’s Character
LAW 3 CRIMINAL EVIDENCE:
Outline of Part III
C. OPINION RULE (DAYS 14-16: 30 Slides)
1.Introduction
i.Authentication Defined
ii. Steps in the Process
iii.Burdens
2. Tangible Objects
3. Writings
4. Public Records
5. Electronic Recordings
6. Photographs
7. X-rays and Other Kinds of Medical Images
8. Telephone Conversations
9. Computer Output
10. Demonstrative Evidence (Real and Illustrative Evidence)
PROPER FOUNDATION:
In General
Evidence law regulates proof of facts.
In this Part III, we address some basic rules that describe the
PERMISSIBLE SOURCES OF EVIDENCE AND OTHER FORMS OF
PROOF.
i. OBSERVATION
Witness must have observed the events to which he is testifying.
ii. RECOLLECTION
Witness must recollect the events at the time he is testifying.
iii.NARRATION
He must be able to communicate or narrate said events to the court.
GENERAL RULE: The qualifications and disqualifications of witnesses are
DETERMINED AS OF THE TIME THE SAID WITNESSES ARE
PRODUCED FOR EXAMINATION IN COURT or at the taking of their
depositions.
EXCEPTION: The competence of children of tender years AT THE TIME OF
THE OCCURRENCE TO BE TESTIFIED TO should be taken into account.
PROPER FOUNDATION:
Competency of a Witness
WITNESS DEFINED
i. to PERCEIVE,
ii. to RETAIN WHAT HAS BEEN PERCEIVED, and
iii. to EXPRESS WHAT HAS BEEN RETAINED.
CAPACITY TO PERCEIVE must be possessed by the witness AT THE TIME OF THE
OCCURRENCE OF THE ACT OR EVENT. His loss of perception later will not affect
his competency to testify, provided he can transmit what was perceived, before the
impairment of his perceptive faculties. Example: A saw the accused stabbed B. A
later became blind. A can still testify in court as to what he saw.
PROPER FOUNDATION:
Competency of a Witness
COMPETENT WITNESS
COMPETENCY CREDIBILITY
Denotes the personal qualification of the Denotes the veracity of the witness.
witness.
A witness may be competent, and yet He may be incompetent, and yet his
give incredible testimony. evidence if received, be perfectly
credible.
PROPER FOUNDATION:
Competency of a Witness
COMPETENCY OF WITNESS IS PRESUMED
QUESTIONING COMPETENCY
INTEREST IN THE OUTCOME OF THE CASE SHALL NOT BE A GROUND FOR DISQUALIFICATION. The
testimony of interested witnesses should be considered subject to the qualification that they are interested in the
outcome of the trial. The testimony should not be rejected on the ground of bias alone.
Attorney as Witness
There is NOTHING IN THE LAW OF EVIDENCE THAT MAKES AN ATTORNEY INCOMPETENT TO TESTIFY AS
A WITNESS. However, it is a rule of legal ethics that, EXCEPT ON MERELY FORMAL MATTERS, he should not
testify in a case in which he is engaged as counsel. It is not unusual for an attorney to testify to formal matters,
such as the identification of a document or the calculation of interest on a mortgage, on which there will be no
controversy. If he is called to testify to matters of a controversial nature, he should immediately withdraw from
the trial and have his case conducted by another counsel. Except when essential to the ends of justice, a lawyer
should avoid testifying in court on behalf of his client.
The mere fact that a witness had previously been convicted of a crime does not of itself
forbid his testimony from being received, unless otherwise provided by law (97 C.J.S. 459).
In other words, CONVICTION OF A CRIME OR THE POSSESSION OF A GUILTY
KNOWLEDGE ABOUT THE CRIME DOES NOT DISQUALIFY A PERSON FROM
TESTIFYING.
Formerly, a person convicted of a perjury was disqualified from testifying in court, as a part of
his penalty (Section 3, Act No. 1697, as revived by Act No. 2718). Under the Revised Penal
Code, however, that part of the perjurer’s penalty was removed (See Articles 183, 194 and
367, Revised Penal Code) Hence, a person convicted of perjury may testify.
The fact that a witness has been convicted of a felony is a circumstance to be taken into
consideration as AFFECTING HIS CHARACTER AND CREDIBILITY (Enrile v. Roberto, 61
Phil. 599).
PROPER FOUNDATION:
Disqualified Witnesses
DISQUALIFIED WITNESSES OR PERSONS WHO CANNOT TESTIFY
1.Those whose mental condition at the time of their production for examination, is such that they are incapable of perceiving and
making known their perception to others.
2.Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of
the facts respecting which they are examined, or of relating them truly.
3.Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or
other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such
deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such person became of unsound mind.
4.A husband cannot be examined for or against his wife without her consent; not a wife for or against her husband without his consent,
except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other.
5.No descendant can be compelled, in a criminal case, to testify against his parents and ascendants.
6.The husband or the wife during the marriage or afterwards, cannot be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage.
7.An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice
given thereon in the course of professional employment; nor can an attorney’s secretary, stenographer, or clerk be examined, without
the consent of the client and his employer, concerning any fact that knowledge of which has been acquired in such capacity.
8.A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined
as to any information which he may have acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the character of the patient.
9.A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him
in his professional character in the court of discipline enjoined by the church to which he belongs.
10.
A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the disclosure.
PROPER FOUNDATION:
Disqualified Witnesses
1. INSANE PERSONS
The Rule
(a) Those whose mental condition at the time of their production for examination, is such that
they are incapable of intelligently making known their perception to others.
Insanity Defined
There are two tests of insanity, e.g. (a) cognition – the complete deprivation of intelligence in
committing the act, and (b) volition – that there be a total deprivation of freedom of the will
(People v. Pascual, 220 SCRA 440 [1993]).
PROPER FOUNDATION:
Disqualified Witnesses
CONTINUATION... INSANE PERSONS
It should be noted that it is insanity “at the time of their production for
examination” that disqualifies; insanity at the time of the occurrence of the event
concerning which a person is to testify affect only his credibility, not his
competency to testify (Sarbock v. Jones, 20 Kan. 500).
PROPER FOUNDATION:
Disqualified Witnesses
CONTINUATION... INSANE PERSONS
A MENTAL RETARDATE IS NOT, PER SE, DISQUALIFIED FROM BEING A WITNESS. A mental retardate who has the ability
to make her perceptions known to others is a competent witness (People v. Erardo, 277 SCRA 643). In other words, a mental
retardate or a feebleminded person is not, per se, disqualified from being a witness, her mental condition not being a vitiation of
her credibility. It is now universally accepted that intellectual weakness, no matter what form it assumes, is not a valid objection
to the competency of a witness so long as the latter can still give a fairly intelligent and reasonable narrative of the matter
testified to (People v. Trelles, 340 SCRA 652).
Monomaniac as Witness
Monomania is a perversion or derangement of the reason or understanding with reference to a single subject or small class of
subjects, with considerable mental excitement and delusions, while, as to all matters outside the range of the peculiar infirmity,
the intellectual faculties remain unimpaired and function normally (Bohler v. Hicks, 120 Ga. 800, 48 S.E. 306, 307).
Monomania upon a subject, not in issue, does not necessarily render the witness incompetent if he understands the nature and
obligations of an oath, and can give a correct account of what he has seen or heard (3 Jones on Evidence, p. 1299-1301).
The PRESUMPTION OF COMPETENCY IS NOT APPLICABLE TO LAWFUL INMATE OF AN INSANE ASYLUM. Before he
can testify, his competency should be established by the party offering him (Pittburg & W.R. Co. v. Thompson, 27 C.A.A. 333, 82
Fed. 720).
Idiot as Witness
An idiot is one who has been without understanding from his nativity, and whom the law, therefore, presumes never likely to
attain any (State v. Haner, 186 Iowa 1259, 173 N.W. 225). Hence, AN IDIOT IS AN INCOMPETENT WITNESS.
PROPER FOUNDATION:
Disqualified Witnesses
CONTINUATION... INSANE PERSONS
Presumption of Competency
The LAW PRESUMES THAT EVERY PERSON IS OF SOUND MIND, in the absence of
proof to the contrary. In order to exclude a witness on the ground of insanity, such lack of
capacity must be shown by the opposing party. In such case the court will conduct a
preliminary hearing to determine the question, by examining and cross-examining the
alleged insane witness and such other witnesses who may have knowledge of his mental
condition.
The test of competency to testify is as to whether the individual has (1) sufficient
understanding to appreciate the nature and obligation of an oath and the consequences of
testifying falsely; and (2) sufficient capacity to observe and describe correctly the facts in
regard to which he is called to testify (State v. Prokosch, 152 Minn. 86, 187 N.W. 971).
PROPER FOUNDATION:
Disqualified Witnesses
2.DEAF AND DUMB PERSONS
DEAF AND DUMB PERSONS ARE NOT INCOMPETENT AS WITNESSES merely because they are deaf
and dumb if they are able to communicate the facts by a method which their infirmity leaves available to them,
and are of sufficient mental capacity to observe the matters as to which they will testify and to appreciate the
obligation of an oath; but where the person is not so educated as it is not possible to make him understand the
questions which are put to him, he is not competent (3 Jones on Evidence, Sec. 2111).
Formerly, deaf and dumb persons were considered incompetent witnesses. That theory, however, has been
entirely dispelled. Experience and observation have shown conclusively that the mere fact that a person is
deaf and dumb is not sufficient to justify the finding that he is incompetent as a witness (People v. Sasota, 52
Phil. 281; See also People v. De Leon, 50 Phil 539).
Deaf mute is not by reason thereof an incompetent witness (People v. Castaneda, 93 SCRA 56).
PROPER FOUNDATION:
Disqualified Witnesses
3.PERSONS UNDER THE INFLUENCE OF LIQUOR, DRUGS, OR UNDER HYPNOSIS
In General
Persons addicted to alcohol or drugs are not for that reason alone incompetent as witnesses;
the question, in each instance, is whether the witness was so bereft of his powers of
observation, recollection, or narration, that he is thoroughly untrustworthy as a witness on the
subject at hand (1 Wigmore, Sec. 499).
Intoxicated Persons
Drunkenness does not per se disqualify a witness from testifying. The court of Pennsylvania
said on this matter: “The point of inquiry is the moment of examination. Is the witness when
offered so besotted in his understanding as to be deprived of his intelligence? If he is,
exclude him; even if he be a hard drinker or habitual drunkard, yet, if at that time, he is sober,
and possessed of a sound mind, he is to be received (Gebba v. Shindle, 15 Serg & R. [Pa]
233).
PROPER FOUNDATION:
Disqualified Witnesses
3.CONTINUATION... PERSONS UNDER THE INFLUENCE OF LIQUOR, DRUGS, OR
UNDER HYPNOSIS
If the witness, at the time of examination, is so intoxicated by opium or other drugs that
he is deprived of his mental powers to such a degree as to be incapable of making
known his perception, he is disqualified from testifying. Otherwise, he is competent.
Hypnotic Influence
If it can be shown that the witness, at the time of his examination, is deprived by hypnotic
influence of that understanding which is necessary to enable him to perceive and make
known his perception to others, he would be incompetent. But courts cannot as yet take
judicial notice of the effect and extent of hypnotism.
PROPER FOUNDATION:
Disqualified Witnesses
4.CHILDREN
The Rule
(b) Children whose mental maturity is such as to render them incapable of perceiving the facts
respecting which they are examined and relating them truthfully.
Infant as Witness
An infant of tender years, incapable of receiving just impressions of an act or event, or of relating
them truly, cannot qualify as a witness. There is no exact or minimum age which determines the
competency of a witness, and the fact that a child is of tender years does not itself render him
incompetent as a witness. In other words, the test is whether he has intelligence enough to make it
worthwhile to hear him at all and whether he feels a duty to tell the truth.
PROPER FOUNDATION:
Disqualified Witnesses
4.CONTINUATION... CHILDREN
In determining the competency of a child witness, the court must consider his capacity (1) at
the time the fact to be testified occurred such that he could receive correct impressions
thereof; (2) to comprehend the obligation of an oath; and (3) to relate those facts truly to the
court at the time he is offered as a witness. The examination should show that the child has
some understanding of the punishment which may result from false swearing. The requisite
appreciation of consequences is disclosed where the child states that he knows that it is
wrong to tell a lie, and that he would be punished if he does so, or that he uses language
which is equivalent to saying that he would be sent to hell for false swearing. A child can be
disqualified only if it can be shown that his mental maturity renders him incapable of
perceiving facts respecting which he is being examined and of relating them truthfully
(People v. Virtucio, 326 SCRA 198).
PROPER FOUNDATION:
Disqualified Witnesses
4.CONTINUATION... CHILDREN
• Competency as a Witness
The Court has held that a witness is not incompetent to give a testimony simply
because he or she is of tender age. The requirements of a child’s competence as a
witness are as follows: (1) capacity of observation; (2) capacity of recollection; and (3)
capacity of communication. It is the DEGREE OF THE CHILD’S INTELLIGENCE THAT
DETERMINES THE CHILD’S COMPETENCE AS A WITNESS (People v. Delfino, G.R.
No. 171453, June 18, 2009).
The natural language of the child is that of innocence and truth and his testimony is
open to serious objections (3 Jones, Sec. 722).
PROPER FOUNDATION:
Disqualified Witnesses
4.CONTINUATION... CHILDREN
Under this new Rule, a “child witness” is defined as “any person who at the time of
giving testimony is below the age of eighteen (18) years. In child abuse cases, a
child includes one over eighteen (18) years but is found by the court as unable to
fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental disability or
condition. Section 3 of the Rule is liberally construed to uphold the best interests of
the child and to provide maximum accommodation of child witnesses without
prejudice to the constitutional rights of the accused.
PROPER FOUNDATION:
Disqualified Witnesses
4.CONTINUATION... CHILDREN
• The Rule on Examination of a Child Witness contains the following salient features:
The rule forbidding one spouse to testify for or against the other is based on PUBLIC POLICY.
The reasons given for the rule are: (1) There is identity of interests between husband and wife; (2) If one
were to testify for or against the other, there is consequent danger of perjury; (3) The policy of the law is to
guard the security and confidences of private life, even at the risk of an occasional failure of justice, and
to prevent domestic disunion and unhappiness; and (4) Where there is want of domestic tranquillity there
is danger of punishing one spouse through the hostile testimony of the other (Alvarez v. Ramirez, G.R.
143439, October 14, 2005, citing People v. Francisco, 78 Phil 694).
PROPER FOUNDATION:
Disqualified Witnesses
The incompetency under which the husband and wife is laboring under the above
quoted provision of the rules may be classified into two: (1) the incompetency to
testify as to anti-marital facts which are embraced in the provision that a husband
cannot be examined for or against his wife without her consent and vice versa, and (2)
incompetency to testify concerning marital confidential communications
between husband and wife which are embraced by the provision that neither can,
during the marriage or afterwards be, without the consent of the other, examined as to
any communication made by one to the other during the marriage (Wigmore on
Evidence § 2337).
PROPER FOUNDATION:
Disqualified Witnesses
5. CONTINUATION... MARITAL DISQUALIFICATION
Applicable only when one of the spouses Obtains even if the spouse is not a party.
is a party to the case.
Incompetency exists only during the Incompetency continues even after the
marriage. dissolution of the marriage.
PROPER FOUNDATION:
Disqualified Witnesses
5. CONTINUATION... MARITAL DISQUALIFICATION
Requisites in Order that Prohibition may be Applied
a. That the spouse for or against whom the testimony of the other is offered, is a party to the case
The privilege can only be invoked if the other spouse is a party to the case, the reason being that
“no one is examined for or against” one not party to the action or proceeding in which such witness
is called to testify. And the testimony of a witness is not evidence for or against any one not a party
to the action or proceeding in which such testimony is given (People v. Langtres, 64 Ca. 256).
One who invokes the benefit of the rule must assume the burden of establishing the existence of the
marital relation. The alleged wife or husband who objects to the competency of the witness may
testify to the marriage. Proof that the marriage is voidable does not make the witness competent. A
voidable marriage is valid until the same is annulled, and any valid marriage will establish the
competency. The general rule which renders a husband or wife incompetent to be a witness either
for or against the other has no application unless they are legally married and will not apply to a
bigamous one, nor to a paramour, nor to an affiance (58 Am Jur 139).
Upon the filing of a bond with sufficient sureties, the defendant Manuel Concepcion
was arrested at the instance of the plaintiff Petronila Salonga. In his answer to the
complaint, the defendant alleged that his arrest was unjust and illegal and sought to
recover damages from the plaintiff and her sureties. During the trial, the defendant
introduced as one of his witnesses Inocencio Reyes, the husband of the plaintiff
Petronila Salonga. The attorney for the plaintiff objected and the court excluded the
testimony of the witness. On appeal, it was held that the ruling of the lower court is
based upon the provisions of Article 383 of the Code of Civil Procedure, paragraph 3
of which reads in part as follows: “A husband cannot be examined for or against his
wife without her consent.” The ruling of the court was therefore without error and
should be affirmed (Salonga v. Concepcion, 3 SCRA 565).
PROPER FOUNDATION:
Disqualified Witnesses
5. CONTINUATION... MARITAL DISQUALIFICATION
It will be noted that said section prohibits a husband from giving testimony against his
wife without her consent, except in a civil action between husband and wife, and in a
criminal action when the crime was committed by one against the other.
Examples:
The accused was charged with bigamy. Held: His wife could testify against him
because it was a crime against his wife (U.S. v. Orosa, 7 Phil 247).
Wife may testify against her husband who commits rape against their daughter (Ordono
v. Daquigan, 62 Phil 270).
As a general rule, the husband can testify against the wife in an adultery case because
while adultery is in one sense a public crime, it can only be prosecuted, with few
exceptions on the complaint of the aggrieved party (U.S. v. Feliciano, 36 Phil 753).
PROPER FOUNDATION:
Disqualified Witnesses
5. CONTINUATION... MARITAL DISQUALIFICATION
The privilege applies only where such spouse has not given his consent to the
presentation of the other as a witness. FAILURE TO PROPERLY AND
SEASONABLY OBJECT WOULD BE IMPLIED AS CONSENT, AND WOULD
OPERATE AS A WAIVER OF THE PRIVILEGE. A waiver is also
accomplished when the protected spouse calls the other to testify in his
behalf.
Thus, where the husband accused of killing his son testified in his behalf and
at the same time imputed the commission of the crime to his wife, the court
allowed the wife to testify in rebuttal without the husband’s consent (People v.
Francisco, 44 O.G. [No. 12] 4847).
PROPER FOUNDATION:
Disqualified Witnesses
5. CONTINUATION... MARITAL DISQUALIFICATION
Privilege is Personal and can be Claimed only by Spouse
The right given by this section is personal to the husband or wife. In this case,
the only person who could object to the testimony of this witness was his wife
(Ortiz v. Aramburo, 8 Phil 98).
The privilege afforded by the rule is personal to the husband and wife, and the
right to object to the competency of one spouse pertains solely to the spouse
who is a party to the case and not to the other spouse who is offered as a
witness.
When Marital Disqualification Ceases
Marital disqualification ceases after the death or the divorce of one spouse.
In other words, when the marriage is dissolved by death, there is no more
marriage, and therefore, the privilege can no longer be claimed (Dickerman v.
Graves, 6 Cush. [Mass.] 309).
PROPER FOUNDATION:
Disqualified Witnesses
5.CONTINUATION... MARITAL DISQUALIFICATION
Exceptions to the Rule on Marital Disqualification
The rule on marital disqualification recognizes the following exceptions: (1) that the case in which
the husband or the wife is called to testify is a civil case instituted by one against the other, and
(2) that it is a criminal case for a crime committed by one against the other. These exceptions
include cases, whether civil or criminal committed against the offended spouse’s direct
descendants or ascendants. Thus, the offended husband can testify against his wife accused of
adultery. A wife may testify against her husband accused of raping their daughter.
Reason for the Exceptions
The reason why in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other, the wife or husband is allowed to testify against his wife (and
vice versa) is because the identity of interest disappears and the consequent danger of
perjury based on that identity is non-existent. Furthermore, the security and confidence of
private life which the law aims at protecting will be nothing but ideals which, through their
absence, merely leave a void in the unhappy home (People v. Francisco, supra).
PROPER FOUNDATION:
Disqualified Witnesses
6.DEAD MAN’S STATUTE OR SURVIVORSHIP DISQUALIFICATION RULE (DISQUALIFICATION BY
REASON OF DEATH OR INSANITY OF ADVERSE PARTY)
The Rule
Sec. 23. Disqualification by reason of death or insanity of adverse party. – Parties or assignors of parties to a
case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other
representative of a deceased person, or against a person of unsound mind, upon a claim or demand against
the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter
of fact occurring before the death of such deceased person or before such person became of unsound mind.
The object or purpose of the rule is to GUARD AGAINST THE TEMPTATION TO GIVE FALSE TESTIMONY
ON THE PART OF THE SURVIVING PARTY, AND TO PUT THE PARTIES TO THE SUIT UPON TERMS OF
EQUALITY IN REGARD TO THE OPPORTUNITY TO PRODUCE EVIDENCE. If one party to the transaction
is precluded from testifying by death, insanity, or other mental disabilities, the other party is not entitled to the
UNDUE ADVANTAGE of giving his own uncontradicted and unexplained account of the transaction (3 Jones §
773). For if death has closed the lips of one party, the policy of the law is to close the lips of the other.
PROPER FOUNDATION:
Disqualified Witnesses
Disqualification to Testify
Waiver
This rule is intended for the benefit of the estates of deceased or incompetent persons, the
REPRESENTATIVES OF SUCH PERSONS MAY WAIVE THE PROTECTION which this rule seeks to
afford (3 Jones § 780).
The benefit of this rule MAY BE WAIVED BY AN EXPRESS DECLARATION, OR IMPLIEDLY BY:
A party to an action against an executor or administrator of a deceased person, upon a claim against the estate of the latter, is absolutely prohibited by law from giving
testimony concerning such claim or demand as to anything that occurred before the death of the person against whose estate the action is prosecuted ( Maxilom v.
Tabotabo, 9 Phil 390).
The prohibition is applicable only to surviving parties but not to other witnesses who have no interest in the transaction ( Reyes v. Wells, 54 Phil 102).
The survivor’s disqualification rule is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the
surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. Where, as in the instant case, the purpose of the oral testimony is
to prove a lesser claim than what might be warranted by clear written evidence, to avoid prejudice to the estate of the deceased, the law has certainly no reason for its
application (Icard v. Masigan, 71 Phil 419).
Matters Prohibited
We believe that the matters prohibited by law are those occurring in the presence or within the hearing of the decedent to which he might testify of his personal knowledge
if he were alive. The intent and purpose of the law is to close the lips of the surviving party on matters upon which death has closed the lips of the decedent. Facts not
known personally to the latter cannot be said to be facts concerning which his lips have been closed by death for even before his death he could not testify thereto. The
object of the law is to secure mutuality between a surviving party and a deceased party; but when we seal the mouth of the former on facts to which the latter if alive cannot
testify, we are certainly securing not a mutuality but undue advantages for a deceased person (See also Moran, Comments on the Rules of Court, Vol. 5, 1980 ed., pp.
166-167).
PROPER FOUNDATION:
Witness’s Character
WITNESS’S CHARACTER
• The Rule
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 by evidence of
particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment
that he has been convicted of an offense.
Sec. 14. Evidence of good character of witness. – Evidence of the good character of a witness is not admissible until
such character has been impeached.
It should be noted that the good character of a witness is assumed and evidence to that effect will not be admitted until
his character has been attacked. If the witness has been impeached by testimony of witness as to his bad character
for veracity, he may offer testimony of his reputation for good character (Cf. Tracy, 197). Then the witness to bad
character may himself be discredited by obliging him to name if he can, any persons whose statements have justified
him in asserting the bad reputation as this is only the best way to expose unfounded testimony.
If the bad character is shown by conviction of crime, the witness is not allowed to deny the crime, since the conviction
is conclusive, but he may show any extenuating circumstances to prove that he does have a good character.
PROPER FOUNDATION: Opinion Rule
General Rule
The Rule
Sec. 48. General Rule. – The opinion of a witness is not admissible, except
as indicated in the following sections.
Whatever is presented to the senses of a witness, and of which he therefore receives direct
knowledge, he may state, provided it is relevant to the issue, and not excluded on some other
ground. This is a MATTER OF FACT.
On the other hand, what the witness THINKS in respect to the existence or non-existence of a fact
in issue is a MATTER OF OPINIION.
Opinion Evidence
OPINION EVIDENCE is the statement by the witness of an inference as to the existence or non-
existence of a fact in issue, based upon other facts presented directly to the sense of the witness
(Underhill’s Criminal Evidence, 5th Ed., Vol. II, p. 1089, 1103).
OPINION EVIDENCE is an inference or conclusion drawn by a witness from facts some of which
are known to him and others assumed, or drawn from facts which, though lending probability to the
inference, do not evolve it by a process of absolutely necessary reasoning (Lipscomb v. State, 75
Miss. 559, 23 So. 210).
PROPER FOUNDATION: Opinion Rule
General Rule
Classes of Opinion Evidence
Opinion evidence may be classified into: (1) LAY OPINION, that is, the conclusion
given by a lay or ordinary witness; and (2) EXPERT OPINION, or that which
embraces the conclusion of witness skilled in some science, art, trade, or calling.
Witnesses having no special skill, who have had personal observation, have
drawn inferences or made interpretations which the court could equally well make
from the same data of personal observation, if laid before them; and thus, if it is
possible to detail these data fully for the court, the witness’ own inferences are
superfluous. THIS STATEMENT REFERS TO ORDINARY OR LAY WITNESSES.
PROPER FOUNDATION: Opinion Rule
Admissibility in Evidence of Opinion of Ordinary Witness
The Rule
Sec. 50. Opinion of Ordinary Witnesses. – The opinion of a witness for which proper basis is given, may be
received in evidence regarding –
The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.
Under this rule, even a non-expert witness may given his opinion regarding: (a) identity of a person when he
knows said person; (b) handwriting of a person when he has knowledge of the latter’s handwriting; (c) the mental
sanity of a signer of a written instrument when the witness is a subscribing witness to an instrument, the validity of
which is in dispute, and (d) the mental sanity of a person.
In all these cases in which a non-expert witness may given his opinion, it is required that he should give reason
on which his opinion is based.
PROPER FOUNDATION: Opinion Rule
Admissibility in Evidence of Opinion of Ordinary Witness
GENERAL RULE: A witness can testify only to those facts which he knows
of his personal knowledge, he is not allowed to state conclusions or
inference which are for the court to make.
EXCEPTIONS : (In these three (3) instances, it is required that the reason
for the opinion be given in order that it may be received in evidence):
Instantaneous Impressions
• Instantaneous Impressions are derived from facts, “successively perceived,”
which unite in an involuntary conviction as to the state or condition of people or
things in action. A typical example of this concerns speed.
• A well-established rule, resulting from the universal emphasis on speed in all
fields of endeavour, permits any ordinarily intelligent person, having a
reasonable basis in observation at a time, in a place and under circumstances
which spontaneously produce intelligent mental conviction, to testify to the
speed of a train, an automobile, or other moving object (Zylstra v. Graham, 244
Mich. 319, 221 N.W. 318).
• The foregoing are called apparent exceptions because the statements given by
the witness are really based on facts that cannot be fully detailed. The witness
stated the result of his observation made at the time, of appearances that could
not be reproduced or accurately described in words to the court; and his
testimony related to a subject-matter within the common observation and
experience of men (Com. V. Sturtivant, 117 Mass. 122, Am. Rep. 401).
PROPER FOUNDATION: Opinion Rule
Admissibility in Evidence of Opinion of Ordinary Witness
The other exceptions to the rule is found in Sec. 50 of Rule 130, which states that the opinion of a
witness may be received in evidence regarding – (1) The identity of a person about whom he has
adequate knowledge, (2) The handwriting with which he has sufficient familiarity, and (3) The mental
sanity of a person with whom he is sufficiently acquainted.
Identity
An ordinary witness may give his opinion regarding the identity of a person when he has adequate
knowledge of his identity. A person may be identified by his voice, his left-handedness, his tattoo
marks, or his skills.
Example:
An identification by the sound of the voice of the accused is sufficient, where it appears that the
witness was intimately acquainted with the accused for a number of years (U.S. v. Manabat, 7 Phil.
209).
Familiarity with the physical features, particularly those of the face, is the best way to identify a
person (People v. Magpayo, 226 SCRA 13 [1993]; People v. Suyu, 499 SCRA 177 [2006]).
PROPER FOUNDATION: Opinion Rule
Admissibility in Evidence of Opinion of Ordinary Witness
Handwriting
An ordinary witness may give his opinion regarding the handwriting of a person, with which he has sufficient familiarity.
This subject is well-covered by Sec. 22 of Rule 132.
A witness may know the handwriting of a person either because he saw the writing being made or because he is
familiar with the handwriting of such person. He is familiar with the handwriting of such person either because with
frequency he saw him write or because he saw writing purporting to be of such person which the witnesses have acted
or have been charged and thus acquired knowledge of such handwriting. The witness is allowed to examine the writing
in question and declare his belief, founded on his previous knowledge, concerning the genuineness (Pate v. People, 8
Ill. 644, 660).
Mental Sanity
An ordinary witness may give his opinion as to the sanity or insanity of a person with whom he is sufficiently
acquainted. Though not an expert, he may be permitted to state the result of his observation, notwithstanding it
involves in a sense his opinion or judgment such as the apparent state of health of a person, whether a person is drunk
or sober, or other characteristic or state which manifest itself to the apprehension of the common observer.
Example:
The testimony of the witnesses to the will and those persons related to the testator are competent and admissible to
prove the mental sanity of the deceased at the time he dictated his will (Jocson v. Jocson, 46 Phil 701).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
The Rule
Sec. 49. Opinion of Expert Witness. – The opinion of a witness requiring special knowledge,
skill, experience or training which he is shown to possess, may be received in evidence.
Expert evidence is admissible only if (a) the MATTER to be testified to is one that
REQUIRES EXPERTISE, and (b) the WITNESS HAS BEEN QUALIFIED as an expert.
Hypothetical questions may be asked of an expert to elicit his opinion. Courts, however,
are not necessarily bound by the expert’s findings (People v. Florendo, 68 Phil 619).
Three (3) things must concur to justify the admission of the testimony of an expert
witness:
i. The subject under examination must be one that requires that the court has the aid
of knowledge or experience such as men not especially skilled do not have, and
such therefore as cannot be obtained from the ordinary witnesses;
ii. The witness called as an expert must possess the knowledge, skill or experience
needed to inform the court in the particular case under consideration.
iii. Like other evidence, expert testimony is not admissible as to a matter not in issue.
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Qualification of Experts
The true test of the admissibility of expert testimony is not whether the subject matter is common or uncommon, or
whether many persons or few have some knowledge or experience, not common to the world, which renders their
opinions founded on such knowledge or experience any aid to the Court in determining the questions at issue
(Taylor v. Monroe, 43 Conn., 44).
The test is to inquire whether the witness’ knowledge of the matter in relation to which his opinion is asked is such,
or so great, that it will probably aid the trier in his search for the truth (State v. Killeen, 79 N.H. 201, 107 Atl. 601).
Professionals are not the only experts. Amateur who acquires special knowledge which makes his opinion
valuable to the court may be utilized as expert witnesses. The education or experience of the would be expert
witness is determined by the court.
It is not enough that a witness who is being presented as an expert belongs to the profession or calling to which
the subject matter of the inquiry relates. He must further show that he possesses special knowledge as to the
question on which he proposes to express an opinion, and the following factors are required to qualify a person ad
an expert witness: (1) training and education; (2) particular first-hand familiarity with the facts of the present case;
and (3) presentation of the authorities or standards on which his opinions are based (People v. Santos, 65 O.G.
7469 [CA]).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Determination of Qualification of Expert to Testify
i. PRELIMINARY EVIDENCE IS REQUIRED TO SHOW QUALIFICATIONS OF THE WITNESS and this is found in the
testimony of the witness himself.
ii.The PROCEDURE IS TO “QUALIFY THE WITNESS, that is, the proponent will ask the witness about his position,
education, training, experience along the particular field in question, the number of times he encountered a similar or
identical problem and so on.
iii.After the questions on his qualifications and competence have been answered, the court will ask the opposing counsel
whether he admits the competence of the witness to testify as an expert. If the opposing counsel admits the
competency of the witness, the latter will be allowed to give his expert testimony. This is also true even if the opposing
counsel does not admit the competency of the witness. In such case, the opposing counsel, in the meanwhile, may
object to questions calling for expert opinion on the ground that the witness has not qualified, however, the objection
will not be sustained because of the usually favourable aspects of the testimony on direct examination.
iv.The opposing counsel may be allowed to cross-examine the witness as to the latter’s qualification only during the
regular cross-examination.
v.Before a witness presented as an expert can be asked to give any opinion on the subject of inquiry, his qualification as
an expert must first be shown and he may then STATE THE FACTS SHOWING HIS REQUISITE KNOWLEDGE AND
SKILL. The question as to the qualifications of a witness to give expert testimony is left to the discretion of the trial
judge, whose ruling is not reversible unless clearly erroneous (Bradley v. District of Columbia, 20 App. D.C. 169).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Basis for Expert Opinion
Before the opinion of the expert can be admitted, the BASIS FOR THE OPINION MUST BE
SHOWN TO THE COURT.
If the witness bases his opinion on “facts observed by him,” he must testify as to such facts.
Where the expert witness is required to give an opinion based on facts known personally to
him he must first state those facts before giving an opinion thereon, if the witness has no
knowledge of the facts of the case except as they have been stated to him as a basis for his
opinion, the facts on which the opinion is based must be stated first before the opinion is
given. This may be done in the form of a hypothetical question.
Example of hypothetical question: “Assuming that the following facts to be so and so, what is
your opinion Mr. Witness as to the extent of the recovery of the patient” (Cf. Kempsey v.
McGinniss, 21 Mich. 123).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Mode of Examining an Expert Witness; Hypothetical Questions
An expert witness, called to give his opinion, may have no personal observation of the data on
which his opinion is to be based; other witnesses may dispute them and the court may not believe
them. Hence, the expert must have those data stated to him hypothetically in the question, so that
the court may be able to reject this opinion later, if he does not accept the data that were its basis.
Examples:
Prosecution for murder, (a) B, a ballistic expert, has examined a bullet found in the body and
compared it with a bullet fired from a revolver found in E’s room. He is asked: From your
examination of these bullets, would you say whether the bullet found in the deceased came from
this revolver? This is improperly phrased; the question should be, “Assuming that bullet A, shown to
you, was taken from the body of the deceased, would you say that it came from this revolver?” (b)
In the same case, the hospital surgeons have testified to the condition of the body, the nature of the
wound, the location of the bullet, etc., then upon the issue whether the death was due to the bullet
wound or to some other cause, a specialist surgeon is called; he should be interrogated in this form:
“Doctor, assuming that the hospital surgeons found the heart to be so-and-so, the lungs to be so-
and-so, the bullet to have been at such-and-such a place, etc., state whether or not in your opinion
the bullet wound was the cause of this man’s death” (Wigmore on Evidence, Student Textbook, p.
160).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Weight Given to Expert Opinion
Expert opinion is weighed by the court like other testimony, in the light of (1) his
academic background on the subject; (2) his experience, professional standing
and training in the line; (3) the relative objectivity of his views; and (4) the
degree of concordance of his views with the facts proved. The court cannot
arbitrarily disregard the testimony of experts or skilled witnesses; and make an
unsupported finding contrary to the opinion.
Whether or not courts are bound by the testimony of an expert depends greatly
upon the nature of the subject of inquiry. If the same is one that falls within the
general knowledge of judges, court are not bound by the conclusions of even a
real expert along such line (Paras v. Narciso, 35 Phil 244; Dolar v. Diansin, 55
Phil 479). It is only where the subject of inquiry is of such a technical nature
that a layman can possibly have no knowledge thereof that courts must depend
and rely upon expert evidence (Raymundo v. Legaspi, 47 O.G. 897, cited in
NARIC v. First National Security & Assurance Co. Inc., 64 O.G. 100607 [CA]).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Subject of Expert Testimony
Common subjects of expert testimony are:
i. Handwriting
ii. Fingerprint
iii. Ballistics
iv. Medicine
v. Unwritten Law
vi. Value of Properties and Services
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Handwriting
The identity of any handwriting may be proved by introducing into evidence a writing which is to serve as a
standard or criterion for comparing the disputed writing. When the writing is proven to be a true specimen of
the person’s handwriting, the expert should be permitted to compare the true specimen with the disputed
writing, and to give his opinion as to whether the two writings before the court were written by the same
person.
The genuineness of a handwriting may be proved by the following:
i. A witness who actually saw the person writing the instrument (Sec. 22, Rule 132);
ii. A witness familiar with such handwriting and who can give his opinion thereon, such opinion being an
exception to the opinion rule (Sec. 50, Rule 130);
iii. A comparison by the court of the questioned handwriting and admitted genuine specimen thereof; and
iv. Expert evidence (Sec. 49, Rule 130).
Expert evidence on handwriting is, at best, weak and unsatisfactory. Less weight should be given to
inferences from comparison, than to direct and credible testimonies of witnesses as to the matters within their
personal observation (Cirujano v. PNB, 59 O.G. 8404 [CA]).
As a rule, the opinions of handwriting experts are not necessarily binding upon the courts, more so where the
expert was not presented as a witness to give the party adversely affected by his opinion the opportunity to
cross-examine him (Encabo v. Cebu Portland Company, L-17571, December 17, 1966). The OPINION OF
HANDWRITING EXPERTS ARE NOT CONCLUSIVE UPON THE COURT (Moore on Facts, Sec. 642; Calangi
v. Amurao, CA-G.R. No. 2278-R, December 10, 1948; Incion v. Lumbera, CA-G.R. No. 5415-R, March 26,
1954; Geromo v. COMELEC, G.R. No. 58578, November 2, 1982).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Fingerprint
It is an impression of the lines and whorls on a finger tip, used to identify a person.
In testifying, the fingerprint expert should be permitted to compare the fingerprints of the
suspect and the fingerprints in question through their photographic enlargement and
point out the dots, the islands, and bifurcations, etc. of the papillary ridges, and the
similarity to each other on the two prints being compared. When this is done, the expert
may now draw his conclusion. In this procedure, the expert aids the court to see what
he has been so that they may draw the conclusion which he has reached (Ladd, Cases
and Materials on Evidence, p. 597).
Physicians and surgeons of practice and experience are experts. Hence, their
opinions upon questions that are embraced in their profession and practice are
admissible in evidence. A medical expert may base his opinion upon a clinical
history of the case under consideration, and in order to make his testimony
intelligible, he may testify as to the observations he made and also as to what
his patient said to him in describing his bodily condition and the character and
manifestations of his sickness, pains, etc (5 Ency. Of Evidence, 608).
A doctor who did not actually conduct an autopsy of the victim is competent to
testify where he was presented as expert witness and the autopsy examination
was conducted under his direct supervision (People v. Padiernos, 69 SCRA
484).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Unwritten Law
The term “unwritten law” refers to those laws in common law countries which grew out of custom and
which, without having been reduced to writing in the beginning, were handed down by the tradition
from one generation to another, and accepted by them as the law.
Unwritten foreign laws may be proved by the evidence of witnesses who are competent to testify on
the question. Thus, the common law of another state may be proved by the testimony of lawyers,
jurist and other who are shown to have knowledge of such laws. Such evidence is regarded as the
best evidence under the circumstances.
Illustrations:
A witness who possess the necessary qualifications may testify regarding the existence and nature of
a provision of the unwritten law of foreign country. It can be proved by the testimony of competent
witness instructed in the law (Ennis v. Smith, 14 How, 400, 14 L.Ed. 472; Woodbridge v. Austin, 2 Tyl.
364, 367). In the absence of anything to the contrary as to the character of a foreign law, it will be
presumed to be the same as the domestic law on the same subject (Lim v. Collector of Customs, 36
Phil 472).
Foreign laws cannot be proven by the affidavit of a person not versed in the law, especially by ex
parte affidavit which was not presented or received in evidence. A foreign law may be proved by the
certificate of the officer having charge the original, under the seal of the state or country. It may also
be proved by an official copy of the same, published under the authority of the particular state and
purporting to contain such law (Yanez de Barnuevo v. Fuster, 29 Phil. 606).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Value of Properties and Services
Witness to value need not be an expert but he must be (a) familiar by observation with
standard of value for the class of things to be valued and (b) acquainted by observation
with the specific thing to be valued (Wigmore on Evidence, Stud. Text, Sec. 102).
Example: A witness to the value of a land need not be a real estate broker or had dealing
in land. It is sufficient that he be acquainted with land values and that he must have seen
the lot which is the subject of litigation.
The knowledge of values in most cases does depend upon professional or other special
skill; and witnesses without having any special experience or training as would entitle
them to be called experts, may yet have gained such knowledge of the land, or other
subject under injury, as to aid the court in arriving at a conclusion. Persons by their
common experience and observation necessarily gain some knowledge as to the values
of those articles which are in common use by all or nearly all; and their evidence as to
such values is not excluded by the fact that experts may have more accurate knowledge
as to such values. x x x. The qualification of the witness, is of course, a question for court
(Galian v. State Assurance Co., 29 Phil 413).
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
IMPEACHMENT OF EXPERT WITNESS
Introduction
DNA (deoxyribonucleic acid) is the fundamental building block of a person’s entire genetic
make-up. DNA is found in all human cells and is the same in every cell of the same
person. Genetic identity is unique. Hence, a person’s DNA profile can determine his
identity.
DNA analysis is a procedure in which DNA extracted from a biological sample obtained
from an individual is examined. The DNA is processed to generate a pattern, or a DNA
profile, for the individual from whom the sample is taken. This DNA profile is unique for
each person, except for identical twins (See The UP NSRI DNA Analysis Laboratory, A
Primer on DNA-based Paternity Testing [2001]).
Somewhere in the DNA framework are sections that differ. They are known as
“polymorphic loci,” which are the areas analyzed in DNA typing (profiling/genetic tests,
fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other
words, DNA typing simply means determining the “polymorphic loci”
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Admissibility of DNA Analysis as Evidence (Rule on DNA Evidence)
To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal
case, the evidence collected from the crime scene is compare with the “known” print. If a
substantial amount of the identifying features are the same, the DNA or fingerprint is
deemed to be a match. But then, even if only one feature of the DNA or fingerprint is
different, it is deemed not to have come from the suspect.
Tijing v. Court of Appeals, G.R. No. 125901, March 8, 2001: A Writ of habeas corpus was
issued against respondent who abducted petitioner’s youngest son. Testimonial and
documentary evidence and physical resemblance were used to establish parentage.
However, it was observed that: parentage will still be resolved using conventional
methods, unless we adopt the modern and scientific ways available. Fortunately, we
have now the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute (UP-NSRI)
DNA Analysis Laboratory has now the capability to conduct DNA typing using short
tandem repeat (STR) analysis. For it was said, the courts should apply the results of
science when completely obtained in aid of situations presented, since to reject said
result is to deny progress.
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Jurisprudence on the Admissibility of DNA analysis as Evidence
In Yatar, a match existed between the DNA profile of the semen found in the victim and
the DNA profile of the blood sample given by appellant in open court. The Court,
following Vallejo’s footsteps, affirmed the conviction of appellant because the physical
evidence, corroborated by circumstantial evidence, showed appellant guilty of rape with
homicide.
In De Villa, the convict-petitioner presented DNA test results to prove that he is not the
father of the child conceived at the time of the commission of the rape. The Court ruled
that a difference between the DNA profile of the convict-petitioner and the DNA profile of
the victim’s child does not preclude the convict-petitioner’s commission of rape.
PROPER FOUNDATION: Opinion Rule
Opinion of Expert Witness
Salient Features of the RULE ON DNA EVIDENCE
1. DNA testing may be ordered by the appropriate court either motu proprio or on
application of any person who has a legal interest in the matter in litigation. DNA testing
order shall issue after due notice and hearing.
2. DNA testing order shall be immediately executory and shall not be appealable. Petition
for certiorari shall not stay the implementation unless an injunctive order is issued.
3. Grant of a DNA testing application shall not be construed as an automatic admission into
evidence of any component of the DNA evidence.
4. Post-conviction DNA testing is available without prior court order to the prosecution or
any person convicted by final and executory judgment.
5. Probative value of DNA evidence assessed on the basis of (i) chain of custody; (ii) DNA
testing methodology; (iii) forensic DNA laboratory; and (iv) reliability of the testing result.
6. Convict or the prosecution may file a petition for a writ of habeas corpus in the court of
origin if the results of the post-conviction DNA testing are favorable to the convict. If
petition is meritorious, court shall reverse or modify the judgment of conviction and order
the release of the convict.
7. DNA profiles and all results or other information obtained from DNA testing shall be
confidential.
MOVIE CLIP: Conviction
PROPER FOUNDATION: AUTHENTICATION
Introduction
AUTHENTICATION DEFINED
BURDEN
The BURDEN of LAYING THE FOUNDATION (authenticating proffered
evidence) rests with the PROPONENT.
PROPER FOUNDATION: AUTHENTICATION
Tangible Objects
WAYS TO AUTHENTICATE TANGIBLE OBJECTS
Chain of Custody
Definition Any instrument authorized by a competent official with solemnities required by law. A deed or instrument by a private person, without the intervention of a public notary or other person
legally authorized, by which document some disposition or agreement is proved, evidenced or set
forth.
(1) Written official acts or records of official acts of the sovereign authority, official bodies and tribunals
and public officers, whether of the Philippines or of a foreign country;
(2) Documents acknowledged before a notary public except last wills and testaments; and All other writings are private documents.
Types/Classification (3) Public records, kept in the Philippines, of private documents required by law to be entered therein.
Before a private document is admitted in evidence, it MUST BE AUTHENTICATED, except: (1) ancient
Admissible WITHOUT FURTHER PROOF OF DUE EXECUTION, GENUINENESS OR AUTHENTICATION. documents; (2) documents whose authenticity are judicially admitted by opponent; (3) documents
As to Authentication
bearing a certification of acknowledgment; and (4) replies to letters.
Methods of Authentication (1) By any one who saw the writing executed;
(2) By evidence of the genuineness of the handwriting of the maker; or
(3) By a subscribing witness.
Entries in public records made in the performance of a duty by a public officer are PRIMA FACIE EVIDENCE
(good until rebutted by reliable contradictory evidence) of the FACTS therein stated.
Probative Value
As to Persons Bound Evidence even AGAINST A THIRD PERSON. Binds ONLY THE PARTIES WHO EXECUTED THEM OR THEIR PRIVIES insofar as DUE
EXECUTION AND DATE of document are concerned.
Certifications issued by Certification attests NOT ONLY TO THE EXISTENCE of the original copy in custody of the certifying officer, BUT Certification issued and made admissible in evidence attests only AS TO THE EXISTENCE OF THE
ALSO TO ITS GENUINENESS. ORIGINAL, but NOT TO ITS GENUINENESS.
Legal Custodian
INTRODUCTION
Authenticating a writing may involve:
A witness with personal knowledge –
i. who recognizes the writing itself because of its
distinctive characteristics, or
ii. who can authenticate the writing by describing how it
was kept (as part of business records, for instance)
and giving other circumstantial proof.
PROPER FOUNDATION: AUTHENTICATION
Writings
DEFINITION
DOCUMENTARY EVIDENCE
DOCUMENT
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; and
c) Public records, kept in the Philippines, of private documents required by law
to be entered therein.
Any instrument authorized by a competent official with the solemnities required by law is
a PUBLIC DOCUMENT (Legaspi v. Court of Appeals, 142 SCRA 82).
The evidentiary nature of public documents must be sustained in the absence of strong,
complete and conclusive proof of its falsity or nullity (Legaspi v. Court of Appeals, 142
SCRA 82).
IMPORTANCE OF DISTINCTION
THE RULE
Sec. 20. Proof of Private Document. – Before any private document offered as
authentic is required in evidence, its due execution and authenticity must be
proved either:
Any other private document need only be identified as that which it is claimed to
be.
PROPER FOUNDATION: AUTHENTICATION
Private Writing
DEFINITION OF TERMS
3. by a subscribing witness.
PROPER FOUNDATION: AUTHENTICATION
Private Writing
CONTINUATION... METHODS OF AUTHENTICATION
1. PROOF OF SIGNING
The act of writing or signing is merely one kind of act done, and it can be
EVIDENCED LIKE OTHER ACTS BY APPROPRIATE TESTIMONIAL
EVIDENCE.
Thus, the carbon copy of a post-mortem report of the doctor who performed
the autopsy was admissible in evidence, for it had been signed by the
physician who executed it; besides, his signature was identified by him at the
witness stand.
PROPER FOUNDATION: AUTHENTICATION
Private Writing
CONTINUATION... METHODS OF AUTHENTICATION
2. PROOF OF SIGNATURE
This method of authenticating a document is referred to as “EVIDENCE OF THE
GENUINENESS OF THE HANDWRITING OF THE MAKER.”
i. Has seen the person whose handwriting is in question write at least once.
iii. Is an expert on the subject of handwriting, and gives his opinion from a comparison
of the document in question with an admittedly genuine specimen.
ANCIENT DOCUMENTS
THE RULE
1) Age,
When a document is so old that there would be no available witnesses
to its execution or to its handwriting, certain circumstances may exist
which may be considered sufficient to evidence genuineness.
2) Contents, and
When a writing containing matters which could have been known only to
the one who wrote it, this is a strong evidence of its genuineness.
3) Custody of documents
The presence of a document in official custody, in the natural place
where a document of the particular sort would be found, is sufficient
evidence of its genuineness to admit it. The witness producing it must
testify to the circumstance.
PROPER FOUNDATION: AUTHENTICATION
Private Writing
CONTINUATION... ANCIENT DOCUMENTS
THE RULE
Public Documents Admissible Without Proof of its Authentication and Due Execution
Public document, once admitted, must be sustained in full force and effect, in the
absence of strong, complete, and conclusive proof of its falsity or nullity.
Public policy demands that public documents be admitted without further proof of their
due execution or authentication. Reason: The normal business of government would be
disrupted if public officials were to devote a great part of their time to attending as
witnesses in court.
While it is true that a public document is admissible without proof of its authentication and
due execution, it is not a perfect document with respect to the truthfulness of the
statements made therein.
When the validity of an agreement in a public document is in issue, parol evidence may
be introduced to show irregularity or fraud, mistake or imperfection, failure to express the
true intent and agreement of the parties, invalidity of the agreement, or to explain an
intrinsic ambiguity.
PROPER FOUNDATION: AUTHENTICATION
Public Document
Continuation... PUBLIC DOCUMENTS AS EVIDENCE
Acts Ratified Before a Notary Public
A public document duly acknowledged before a notary public, under his hand
and seal with his certificate thereto attached, is admissible in evidence without
further proof of its due execution and delivery until some question is raised as
to the verity of said acknowledgment and certificate. One of the very purpose
of requiring documents to be acknowledged before a notary public is to
authorize such documents to be given in evidence without further proof of
their execution and delivery (Antillon v. Barcelon, 37 Phil 148; Domingo v.
Robles, 453 SCRA 814 [2005]).
PROPER FOUNDATION: AUTHENTICATION
Public Document
Continuation... PUBLIC DOCUMENTS AS EVIDENCE
A document is not readily admissible by the mere fact of its being classified as a public
document. Its ADMISSION WILL BE DENIED IF IT IS EXCLUDED BY AN
EXCLUSIONARY RULE, such as the hearsay rule, or by a rule of privilege.
(Chamberlayne § 1004).
Tax receipts and declarations of ownership for taxation purposes are public documents,
by themselves alone do not constitute proof of ownership, but they constitute some
proof showing good faith on the part of the person occupying and retaining possession
of the property (Elumbaring v. Elumbaring, 12 Phil 384). Likewise, burial certificate is a
public document, but it is proof only of the fact of the death and burial of the deceased,
but not proof of the information contained therein as to the cause of the death (U.S. v.
Barbosa, 1 Phil 741).
PROPER FOUNDATION: AUTHENTICATION
Public Document
OFFICIAL PUBLICATION
There are only few official publications by which a public or official record may be proved. “The
Official Gazette shall contain all legislative acts and all resolutions of a public nature of Congress, all
executive orders, such as decisions or abstracts of decisions of the Supreme Court as may be
deemed by said court of sufficient importance to be so published, and such other official documents
as are usually in an Official Gazette which may be designed for publication by the President of the
Philippines. The publication of any law, resolutions, or other official documents in the Official Gazette
shall be prima facie evidence of its authenticity.”
With respect to the decisions of the courts in the Philippines, aside from the Official Gazette, there
are two official publications: (1) the Philippine Reports for the Supreme Court, and (2) the Appellate
Court Reports for the Court of Appeals. And with respect to the proceedings and official acts of the
Congress of the Philippines, the only official publication is the Congressional Record.
It should be noted that there are proceedings of judicial or administrative nature which are required to
be published in newspapers of general circulation. Such publications are not considered proof of the
copy as published. It must be accompanied by an affidavit of the editor or publisher of the newspaper
to the effect that the proceeding or order had in fact been published.
PROPER FOUNDATION: AUTHENTICATION
Public Document
CONTINUATION... PROOF OF OFFICIAL RECORDS
• AUTHENTICATION OF CERTIFIED COPIES OF PUBLIC RECORDS
Where the law permits the use of a certified copy of public or official records,
the proponent should authenticate it, that is, he must SHOW THAT THE
PAPER OFFERED BY HIM IS INDEED THE CERTIFIED COPY ALLOWED BY
LAW. It must be ascertained that the paper to be offered is a custodian’s
certified copy – that he is in fact the lawful custodian of that class of document,
and that his signature appearing therein is genuine or if there is a seal, that the
seal was genuinely his seal place there by him (5 Wigmore § 1679).
A certified copy of a public document to be admissible as evidence of the
contents of the original must be a CERTIFIED LITERAL COPY thereof.
(Government of Philippine Islands v. Martinez, 44 Phil 817).
With respect to public writings, the record having been originally prepared in his
office and he having custody of the same can certify as to its genuineness. A
certified copy of an original in a public office proves prima facie the original to
have been on file in the public office when it was made; and for this plain
reason, the officer’s certificate has accorded to it the sanctity of a deposition;
he certifies that the preceding copy is faithfully drawn from the original, which
exists in the secretary’s office (U.S. v. Wigging, 14 Pet. 334, 346, 10 L.Ed. 481).
With respect to public records of private writings, the certifying officer can not
speak of the genuineness of the private deed (5 Wigmore § 1677).
PROPER FOUNDATION: AUTHENTICATION
Public Document
MODE OF ATTESTATION OF COPIES OF PUBLIC RECORDS
THE RULE
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 court having a seal, under the seal of such court.
Of a public document originating from the public office, the certification issued and made admissible
in evidence attests not only to the existence of the original copy in the custody of the certifying officer,
but also to its genuineness.
Of private documents, the certification issued and made admissible in evidence attests only as to the
existence of the original, but not to its genuineness, or to its validity as a deed.
CERTIFIED COPY OF RECORD KEPT BY JUSTICE OF THE PEACE
Justices of the peace were not expressly authorized by law to take acknowledgment of documents
of this class. The mere fact that the said justice did take the acknowledgment of the document in
question did not have the effect of making it a public document. Therefore, Article 1216 of the
Civil Code does not apply to it. The fact remains, however, that the said document was actually
made and signed by the parties to it, and it was recorded in the records of the justice of the peace
and is, therefore, a private document, and as such is binding upon the parties. It should have
been admitted in evidence for the purpose of showing the rights and relations of the parties under
and by virtue of its terms. In the present case, the copy offered in evidence by the plaintiff was
certified to be a true copy of the record of the justice of the peace (Elumbering v. Elumbering, 12
Phil 384).
PROPER FOUNDATION: AUTHENTICATION
Public Records of a Private Document
CERTIFIED COPY OF PARISH RECORDS UNDER FORMER
SOVEREIGNTY
Parish priests continue to be legal custodians of the parish records kept under
the laws enforced during the former sovereignty, and are authorized to issue
true copies in the form of certificates, of the entries, contained in said books.
The latter, for the purpose of proving the acts to which they refer, have not lost
the character of public documents which they possessed under the former
laws (U.S. v. Ibanez, 13 Phil 686).
Public record of a private writing in evidence of the fact that the private writing
is of record but not of its contents, due execution and genuineness
(Government of the Philippine Islands v. Martinez, 44 Phil 817).
PROPER FOUNDATION: AUTHENTICATION
Public Document
THE RULE
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.
The accused was prosecuted for the offense of practicing medicine without
having previously obtained the proper medical certificate of registration issued
by the Board of Medical Examiners. To prove the offense, the prosecution
presented a certification showing that accused was not a registered physician,
signed by the chairman of the Board of Medical Examiners, wherein it was
stated, in part, that “there is nothing in the records of this Board to show that
Mr. Fernando Quebral is a registered physician.” The Supreme Court
sustained the admission of this document under the foregoing principle stated
in this section. Held: The certificate of the custodian that he has diligently
searched for a document or an entry of a specified tenor and had been unable
to find it ought to be usually as satisfactory for evidencing its non-existence in
his office as his testimony on the stand to this effect would be (People v.
Quebral, 68 Phil 564).
PROPER FOUNDATION: AUTHENTICATION
Public Document
HOW JUDICIAL RECORDS IMPEACHED
• THE RULE
Sec. 29. How Judicial Record Impeached. – Any judicial record may be impeached by evidence of:
(a) want 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.
JUDICIAL RECORD may be defined as the record, official entry, or files of the proceedings in a court
of justice, or of the official act of a judicial officer in an action, suit, or proceedings. A judgment of the
court is an example of judicial record.
A judgment of the court is a public document, the original judgment may be admitted without further
authentication or a certified copy thereof issued by clerk of court may be admitted in lieu thereof.
Thus, if the judgment is in personam, and the parties to the case in which the judgment is sought to
be offered does not have any relation of privity with the parties in the judgment, the said judgment
would be immaterial. If the judgment is in rem, no one within the jurisdiction can complain about its
admission in evidence, unless objection is premised on the grounds of (1) lack of jurisdiction, (2)
collusion between the parties, or (3 of fraud in the party offering the record.
PROPER FOUNDATION: AUTHENTICATION
Public Document
Continuation... HOW JUDICIAL RECORDS IMPEACHED
• A JUDGMENT VOID FOR WANT OF JURISDICTION
A judgment void for want of jurisdiction may be likened to a “dead limb on the
judicial tree, which should be lopped off or wholly disregarded as the
circumstances require” (People v. Harrison, 84 Cal. 607).
It should be noted that a judgment may be set aside on proof that the parties
acted in collusion, or that the judgment was procured through bribery, or that
the defendant was fraudulently induced not to appear in the proceedings, or
that he was led to believe that appearance was unnecessary as plaintiff had
told him that the suit would be dismissed.
PROPER FOUNDATION: AUTHENTICATION
Public Document
Continuation... HOW JUDICIAL RECORDS IMPEACHED
There are two kinds of fraud, namely: INTRINSIC and EXTRINSIC FRAUD.
2. EXTRINSIC FRAUD is fraud based on some fact from without, some fact which was not before
the court that pronounced the judgment. There must be an extrinsic fraud in order to vitiate the
judgment; only extrinsic fraud in procuring a judgment is a ground to nullify it.
There can be no question as to the right of any person adversely affected by a judgment,
to maintain an action to enjoin its enforcement, and to have it declared a nullity, on the
ground of fraud and collusion practised in the very matter of obtaining the judgment, when
such fraud is extrinsic or collateral to the matters involved in the issues raised at the trial
which resulted in such judgment (Anuran v. Aquino, 38 Phil 29).
PROPER FOUNDATION: AUTHENTICATION
Public Document
THE RULE
PROOF OF ALTERATION
If a writing appears to have been altered, the party producing the writing as
genuine must account for the alteration. The alteration may be (1) made by
another without his concurrence, (2) made with consent of parties affected,
(3) properly or innocently made, or (4) did not change the meaning or
language (See Section 32, Rule 132).
PROPER FOUNDATION: AUTHENTICATION
Public Document
CONTINUATION... DOCUMENT ALTERED AFTER ITS EXECUTION
DOCUMENT ALTERED AFTER ITS EXECUTION
This section refers to a situation where the document “appears to
have been altered after its execution.” If the document is not
presented as genuine, the requirement under this section does not
apply. The requirement that the proponent must satisfactorily account
for the alteration, before the document may be received in evidence,
applies only: (1) where the writing is produced as genuine; and (2)
where the alteration is material to the question in dispute. The
explanation may be any one of the following: (a) that the alteration
was made by another without his concurrence; (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 change the meaning or language of the instrument.
PROPER FOUNDATION: AUTHENTICATION
Public Document
• CAUTION REQUIRED
Since recordings can be altered and manipulated, both by simple techniques of splicing
and editing and by highly sophisticated techniques, courts were once very cautious, but
contemporary standards are simpler and more flexible.
• COMPLETENESS
Evidence in the form of recorded conversations typically presents problems of
completeness which states that the proponent must offer “any other part” of a recording
that “ought in fairness to be considered contemporaneously” with the part that the
proponent chooses to offer. Sometimes less than all is presented because only part of
a conversation is relevant and the recording goes on for a long time, and sometimes
the difficulty is that parts of the conversation are not adequately recorded. Usually
objections based on incompleteness do not require exclusion of the whole tape.
PROPER FOUNDATION: AUTHENTICATION
Electronic Recordings
TWO-STEP AUTHENTICATION
The first step involves showing what process was followed and why it is reliable. In
the common setting of a criminal case, one court put it this way: The government must
“go forward with respect to the competency of the operator, the fidelity of the
recording equipment, [and] the absence of material deletions, additions, or alterations
in the relevant portions.” See United States v. Biggins, 551 F.2d 64 (5th Cir. 1977).
The second step involves showing who participated in the conversation, which can be
done by voice identification, testimony by a participant in the conversation, or
testimony by people who made the recording if they know who was present and which
voice belongs to whom.
PROPER FOUNDATION: AUTHENTICATION
Electronic Recordings
TRANSCRIPTS
When the witness testifies to something said by another during a call that the witness received (an
incoming call), usually the witness cannot establish the identity of the calling party merely by
testifying that he identified himself as a certain person (“Hello Witness, this is Frank calling”). There
are typically two ways to identify the calling party.
i. Voice Identification
If the witness knows the person who called her, she may identify that person by testifying that she
recognized his voice (“I recognized the person calling me as Frank”). The witness may acquire the
requisite personal knowledge either before or after the call, and even casual familiarity suffices as
the basis for voice recognition testimony.
ii. Content
Sometimes parties to a phone call discuss an event, transaction, or plan, and other proof connects
the person at the distant end to such matters. Or the incoming call indicates that the caller is
replying to an earlier query or call from the witness herself. Such statements by the voice on the
distant end of an incoming call are circumstantial of the identity of the caller that can suffice to
authenticate the phone call, and self-identification by the caller (“this is Frank”) counts in this
calculus (even though it is not enough by itself).
PROPER FOUNDATION: AUTHENTICATION
Telephone Conversations
When the witness is the calling party, the task of identifying the voice
at the distant end is made somewhat easier by the fact that the
witness may rely at least in part on the number she dialled. If it is
programmed into the witness’ own telephone, her past experience of
reaching the person in question by pressing that button helps prove
that this time when she pushed that button she reached the same
phone (hence the same person). If the witness “looked it up,” the
very fact that a standard listing stated that a particular number was
assigned to a particular person is enough to make the same point. If
a court is not convinced by such foundations, there are other common
means for supplementing such testimony, and these may make the
authenticating proof even more convincing even if more is not, strictly
speaking, required.
PROPER FOUNDATION: AUTHENTICATION
Telephone Conversations
Continuation... OUTGOING PHONE CALLS
i. Voice Identification
As with incoming calls, the witness may identify the person on the distant end of an outgoing call by
voice recognition.
For calls to a residence, self-authentication and just a few more details about the content of the
conversation can be convincing. The witness testifies that she pressed the button programmed to
dial Frank’s phone, that the answering voice identified itself as Frank (“yes, this is Frank”) and that
what the answering voice said thereafter was something that fits Frank’s situation (“I’m still laid up
with that cold I caught last week”).
For calls to a business, dialing the number assigned to the ABC Company and having a
conversation on appropriate business matters are strong indications that the call reached the ABC
Company and the person who answered was employed there. The authentication requirement is
satisfied by testimony showing these points.
PROPER FOUNDATION: AUTHENTICATION
Computer Output
MANIPULATION
HEARSAY ISSUES
7. Records, data or information kept in electronic form in the regular course of business
are exempted form the hearsay rule, provided that (i) they are proven or shown by the
testimony of the custodian or other qualified witness, and (ii) it is proven that
compilation of such data, records or information is a regular practice.
8. The electronic evidence must be proved before it is offered as authentic, in any of the
following manner: (i) evidence that it has been signed digitally by the person, (ii)
evidence that appropriate security procedures were applied as may be authorized by
law, or (iii) other evidence showing integrity and reliability to the satisfaction of the court.
9. Electronic signature may be authenticated by: (i) evidence to prove the method to
establish and verify a digital signature, (ii) other means provided by law, (iii) any means
to satisfy the court of its genuineness.
10. The method of proving electronic documents is by affidavit evidence (personal
knowledge and indication of the competence of the affiant to testify on the matters
contained therein).
PROPER FOUNDATION: AUTHENTICATION
Computer Output
Continuation... RULES ON ELECTRONIC EVIDENCE (A.M. No. 01-7-01-SC 2001-07-17)
11. Witness may testify via internet (electronic testimony). Examination of the witness is
done electronically, the entire proceedings shall be transcribed stenographically.
Transcript must be certified and indicate that the proceedings were electronically
recorded.
12. Ephemeral Electronic Evidence (refers to telephone conversation, tape recordings, text
messages, chat sessions, streaming audio or video or other forms of communication
that is not recorded or retained) is admissible in evidence, provided that it proven by
testimony of the person who was a party to the same, or has personal knowledge of
the same, or in the absence thereof, by other competent evidence. If communication is
recorded, is shall be proven as an electronic document.
13. Admissibility and Proof of Audio, Video or Photographic Evidence: The evidence is
admissible provided they are (i) shown, presented, or displayed to the court; (ii) and
identified, explained or authenticated by the person who produced the same; or (iii) by
a competent testimony on the accuracy thereof.
PROPER FOUNDATION: AUTHENTICATION
Demonstrative Evidence
This term is sometimes defined as evidence that “appeals to the senses,” or
more narrowly as evidence that conveys a “firsthand sense impression,” or (more
narrowly still) as “illustrative evidence.” The second definition (proof conveying a
“firsthand sense impression”) seems most satisfactory because the first
describes all proof and the third excludes proof having independent probative
force (e.g. bank surveillance photographs).
“REAL” VERSUS “ILLUSTRATIVE”
Physical objects actually involved in the events in litigation are known as “real”
evidence (a murder weapon in a criminal case, the break pedal that failed in a
product liability case). In contrast, physical objects used to illustrate testimony,
like a schematic drawing of the floorplan of a room, are called “illustrative”
evidence. The term “demonstrative evidence” reaches bth these categories,
when defined as indicated above to mean proof that provides a firsthand sense
impression. Some courts and commentators use “demonstrative” evidence to
mean only “illustrative” evidence (and not “real” evidence). It seems more useful
to treat both illustrative and real evidence as part of the larger category of
demonstrative evidence.
PROPER FOUNDATION: AUTHENTICATION
Demonstrative Evidence
Such items as these, made specially for use in trial, are common examples of
demonstrative evidence. The proponent must simply show, typically by means
of testimony by the person who made the item or by testimony of someone
familiar with the thing being depicted, that the item is an accurate portrayal.
DISPLAYS, DEMONSTRATIONS, ANIMATIONS
ANIMATIONS
PART FOUR
PROPER FORM
LAW 3 CRIMINAL EVIDENCE:
Outline of Part IV
PART IV PROPER FORM
A. PRESENTATION OF EVIDENCE (DAYS 22-23: 68 Slides)
1.Examination of Witnesses
2.Proceedings to be Recorded
3. Rights and Obligations of a Witness
4. Order in the Examination of Individual Witness
5. Offer and Objection
6. Testifying Effectively as a Law Enforcer
7.Judicial Affidavit Rule
8.Impeachment and Rehabilitation
Sec. 1. Examination to be done in open court. The examination of witnesses presented in a trial
or hearing shall be done in open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a different mode of answer, the answers of the
witness shall be given orally.
DEFINITION
WITNESS: A person called in a judicial or similar proceeding to give testimony under oath (Radin,
Law Dictionary, 2nd Edition, p. 374). The term witness has reference to those who testify in a
cause or give evidence before a judicial tribunal (58 AmJur 24).
IN OPEN COURT: A phrase describing an act done publicly in the presence of the judge, and the
other officers of the court. Opposed to “in chambers” (Radin, Law Dictionary, 2nd Edition, p. 231).
OATH: Any form of attestation by which a person signifies that he is bound in conscience to
perform an act faithfully and truthfully (Vaughn v. State, 146 Tex. Cr. R. 586, 177 S.W. 2d 59, 60).
AFFIRMATION: An affirmation is a solemn and formal declaration or assertion that the witness
will tell the truth, etc., this being substituted for an oath in certain cases. A solemn declaration
without oath (Ashdown v. Manitoba Free Press Co., 6 Man. 578).
PROPER FORM: PRESENTATION OF EVIDENCE
Examination of Witnesses
REASON FOR THE RULE
It is within the SOUND DISCRETION OF THE TRIAL JUDGE to determine whether a witness
will be required to testify by question and answer, or will be permitted to testify in narrative
form.
1. it would be the best way of getting at what he knew or could state concerning the matter
at issue;
2. it would expedite the trial and would perhaps furnish the court a clearer understanding of
the matters related as they occurred;
3. if material parts of his evidence cannot be easily obtained through piecemeal
testimonies.
The form and nature of the questions that may and may not be propounded to a
witness are the following:
THE RULE
All inferior courts (now Metropolitan and Municipal Trial Courts) are
REQUIRED TO KEEP RECORDS OF THEIR PROCEEDINGS,
including the taking of testimonies of witnesses, in the same manner
as courts of first instance (now Regional Trial Court), stenographers
being provided for such courts (See also Batas Pambansa Blg. 129).
GENERAL RULE
Every citizen has a DUTY TO TESTIFY in any case in the court where he is called upon to do so. The
above section also makes it the OBLIGATION OF THE WITNESS TO ANSWER ALL THE QUESTIONS
PERTINENT TO THE MATTER AT ISSUE, though said answer may expose him to civil liability.
The general rule is subject to exceptions, namely, HE NEED NOT GIVE AN ANSWER WHICH WILL
HAVE:
2. a DIRECT TENDENCY TO DEGRADE HIS CHARACTER unless it be to the very fact at issue or to a
fact from which the fact at issue will be presumed.
The second exception has reference to questions that may directly tend to degrade the character of
the witness, otherwise termed PRIVILEGE AGAINST SELF-DEGRADATION. The exception to the
exception is where it is to the very fact at issue or to a fact from which the fact at issue may be
presumed.
PROPER FORM: PRESENTATION OF EVIDENCE
Rights and Obligations of a Witness
THE RULE
1. The DIRECT EXAMINATION on behalf of the opponent to support the latter’s stand; the direct
examination should COVER ALL THE FACTS WHICH THE PARTY EXPECTS TO ELICIT FROM
THE WITNESS.
2. The CROSS-EXAMINATION by the opponent to weaken or discredit the testimony given on the
direct examination. Its real purpose is TO BRING OUT THE TRUTH OF THE FACTS TESTIFIED
TO IN THE FIRST STAGE.
3. The RE-DIRECT EXAMINATION by the proponent TO REBUT THE CROSS-EXAMINATION; and
4. The RE-CROSS EXAMINATION by the opponent TO REFUTE THE MATTERS DISCLOSED IN
THE DIRECT EXAMINATION.
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
DEFINITIONS
DIRECT EXAMINATION of witness is the examination-in-chief of a witness, that is, the initial examination by the
party calling him, on the facts relevant to the issue. The witness may be interrogated as to the facts within his
knowledge and relevant to the issue. The function of direct examination is to build up the theory of the case.
DIRECT EXAMINATION
THE RULE
Sec. 5. Direct examination is the examination-in-chief of a witness by the party presenting him on
the facts relevant to the issue.
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
THE RULE
Sec. 6. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party
as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to
test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important
facts bearing upon the issue.
PRINCIPLES OF CROSS-EXAMINATION
EVERY HUMAN ASSERTION, offered testimonially as evidence of truth of the fact asserted must be
SUBJECTED TO TWO (2) TESTS, namely: (1) the person making the assertion must be SUBJECT TO CROSS-
EXAMINATION by the opponent, that is, if the opponent desires to test the truth of the assertion made by the
witness; and (2) the person making the assertion must be CONFRONTED BY THE OPPONENT AND THE
TRIBUNAL, that is, the assertions were made and the answers were given in the presence of the opponent and
the tribunal (Wigmore’s Code of Evidence, 3rd ed., p. 259).
This OPPORTUNITY FOR CROSS-EXAMINATION IS A RIGHT, not a privilege, and if no opportunity for cross-
examination is given, by reason of desistance, supervening inability, illness or death of the witness, the direct
testimony of said witness cannot be used and must be stricken from the record (Tracy, 173).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
OBJECTS OF CROSS-EXAMINATION
CARDINAL RULE in the trial of cases is NOT TO CROSS-EXAMINE A WITNESS UNLESS THERE IS SOME
REASON FOR IT (WellmanI, The Art of Cross-Examination).
A party should only cross-examine a witness if it will serve any of the following purposes:
1.To AMPLIFY OR EXPAND THE STORY given on the direct examination so as to place the facts in a different
light;
3.To DISCREDIT THE WITNESS’ TESTIMONY by showing the absurdity of the story he told on direct
examination – that it is contradictory of other evidence in the case of the circumstances and probabilities; and
4.To DISCREDIT THE WITNESS (Tracy, Handbook of the Law of Evidence, 176).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
SCOPE OF CROSS-EXAMINATION
WIDE LATITUDE AND LEEWAY FOR CROSS-EXAMINATION OF A WITNESS because the latter is
ordinarily sympathetic or friendly with the party who presented him.
Thus, if a part of a conversation or transaction has been given in direct testimony, the remainder, if
relevant, may be divulged through cross-examination, as the inquiry and answer may tend to impeach,
rebut, explain or qualify the testimony which has already been given (Jones on Evidence, Vol. III, 1522).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
The court, upon objections of counsel or on its own motion, should DISALLOW SUCH
CROSS-EXAMINATION (3 Jones on Evidence, 1558).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
THE RULE
Sec. 7. After the cross-examination of the witness has been concluded, he may be re-examined by the party
calling him, to explain or supplement his answers given during the cross-examination. On re-direct examination,
questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion.
Re-direct examination by the proponent is the THIRD STAGE IN THE ORDER OF EXAMINATION OF AN
INDIVIDUAL WITNESS. At the conclusion of the cross-examination of a witness, the party in whose behalf he
was called (proponent) may RE-EXAMINE him. RE-DIRECT EXAMINATION IS A MATTER OF RIGHT, not merely
a privilege which may be granted or withheld by the court in the exercise of judicial discretion (Gary v. Nat. St. Ry.,
165 N.Y. 457, 459 N.E. 362).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
The principal object of re-examination is to PREVENT INJUSTICE to the witness and the party
who has called him BY AFFORDING AN OPPORTUNITY TO THE WITNESS TO EXPLAIN OR
AMPLIFY THE TESTIMONY WHICH HE HAS GIVEN ON CROSS-EXAMINATION AND TO
EXPLAIN ANY APPARENT CONTRADICTION OR INCONSISTENCY IN HIS STATEMENT, an
opportunity which is not ordinarily afforded to him during his cross-examination. The witness
may be allowed to reaffirm or explain his statements, their meaning or import, and to minimize or
destroy discrediting tendencies (Jones on Evidence, Vol. III, §1615). Therefore, important
reasons for it, one should not re-direct examine a witness.
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
The re-direct examination should ORDINARILY BE CONFINED TO THE MATTERS AS TO WHICH THE
WITNESS WAS CROSS-EXAMINED; IT SHOULD NOT EXTEND TO COLLATERAL MATTERS WHICH
HAVE NOT BEEN TOUCHED UPON IN THE CROSS-EXAMINATION (Amich v. Montross, 206 Iowa 51,
A.L.R. 1147) UNLESS ALLOWED BY THE COURT IN ITS DISCRETION. On re-direct examination, a
witness may be given an opportunity to explain his testimony or answers given on cross-examination. Thus,
when on cross-examination, the witness was asked about a certain conversation, on re-direct, the witness
may be examined as to the details of such conversation (Avil, p. 1618).
The party calling the witness has no right, without leave of court, to re-enter upon subjects which have been
inquired into in the direct examination (Dutton v. Woodman, 57 Am. Dec. 46; Rigs v. State 145 Ind. 560, 43
N.E. Zoa).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
RE-CROSS EXAMINATION
THE RULE
Sec. 8. Upon the conclusion of the re-direct examination, the adverse party may re-cross examine the witness on matters stated in his redirect
examination, and also on such other matters as may be allowed by the court in its discretion.
After the re-direct examination of a witness by the party who called him, the adverse party is given an opportunity for re-cross examination. The
PURPOSE IS TO OBTAIN TESTIMONY WHICH MAY TEND TO DENY, MODIFY, OR EXPLAIN THE FACTS ANSWERED IN THE RE-DIRECT
EXAMINATION.
Re-cross examination is limited by this rule to matters stated in the re-direct examination, such as subjects opened upon on re-direct
examination, yet the court, in the exercise of its discretion, may allow questions not covered by the re-direct examination. It should be noted that
if no new matter was brought on the re-direct examination, re-cross examination is a matter wholly discretionary with the trial court (State v.
Hoppis, 27 N.C.C. 406).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
RECALLING WITNESSES
THE RULE
Sec. 9. After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require.
With proper leave of court, a witness who has been previously examined by both parties may be RECALLED TO THE STAND FOR FURTHER EXAMINATION TO CLARIFY
CERTAIN ISSUES and satisfy the mind of the trial court on certain questions presented in the course of the trial. The COURT IN ITS DISCRETION MAY OR MAY NOT GRANT
SUCH LEAVE. In the exercise of this discretion, the court should be guided by the demands of justice. Recalling a witness is proper even after the parties have rested their case.
The DISCRETION OF THE TRIAL COURT in recalling a witness and in admitting further evidence after the party offering has rested WILL NOT BE REVIEWED, EXCEPT IN
CLEAR CASES OF ABUSE.
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
CONTINUATION... RECALLING WITNESSES
The court in its discretion may recall witnesses if there are RELEVANT MATTERS THAT NEED CLARIFICATION (Castillo v. Sebullina, 31 Phil 518).
While trial court should, of course, be at all times strictly impartial as between litigants, they may and should go so far as to INDICATE AND SUGGEST THE FORM OF QUESTIONS TO AND THE METHOD OF
EXAMINATION OF A WITNESS where it appears that the examining counsel, through inexperience or misunderstanding, is unable to extract evidence which is competent and essential to his client’s case ( Michael & Co. v.
Enriquez, 33 Phil 87).
Any of the PARTIES TO A CASE MAY OBJECT TO IMPROPER QUESTIONS PUT BY THE COURT to a witness, otherwise, he cannot raise the objection for the first time on appeal (Lopez v. Standard Oil Co., 5 Phil 549).
The attempt to recall was made after the prosecution had rested its case; and that the complaining attorney has not shown the facts intended to be elicited from the desired cross-examination, with a view to indicating the
prejudice resulting from the refusal of the trial court (People v. Enojo, 77 Phil 28).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
LEADING QUESTIONS
•THE RULE
Sec. 10. A question which suggest 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 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.
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
Continuation... LEADING QUESTIONS
DEFINITION
LEADING QUESTION: A QUESTION WHICH SUGGESTS TO THE WITNESS THE ANSWER which the examining party desires, is a leading question (Section 10, Rule 132, Revised Rules of Court).
If the question suggests the answer desired by putting the words into the mouth of the witness, it is a leading question (Wigmore on Evidence §769).
Testimony elicited by leading question in direct examination is of doubtful value. It is not really the testimony of the witness but that of counsel.
MISLEADING QUESTIONS are QUESTIONS WHICH ASSUME THE TRUTH OF FACTS which are in issue or assume material fact which have not been proved, or certain answers to have been given
to prior questions, when such answers have not been given (Underhill, Criminal Evidence § 387).
It is not permissible to address to a witness a question which erroneously assumes that a material fact has been proved or that the witness has testified to facts either on direct or cross-examination
(People v. Mather, 4 N.Y. 229, 21 A. Dec. 221).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
Continuation... LEADING QUESTIONS
A leading question propounded to a witness, by creating an inference in his mind, causes him to testify in accordance with the suggestion conveyed by the
question; his answer may be ‘rather an echo of the question than a genuine recollection of events (People v. Limpo, 49 Phil 94).
It will be IMPOSSIBLE FOR THE COURTS TO ARRIVE AT THE REAL FACTS in any case and to be able to do justice IF LEADING QUESTIONS SUCH AS WERE
PERMITTED in the present case shall be tolerated (See also U.S. v. Dula, 23 Phil. 132).
The general rule is that LEADING QUESTIONS ARE NOT ALLOWED ON DIRECT EXAMINATION. In other words, during the examination of a witness in chief, the
examining attorney is not allowed to ask leading questions. The examining attorney must not lead his own witnesses, although he may lead those of his adversary.
This rule is recognized and enforced in criminal as well as in civil case.
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
Continuation... LEADING QUESTIONS
REASON BY LEADING QUESTIONS ARE GENERALLY NOT ALLOWED IN THE DIRECT EXAMINATION
1. The party calling the witness knew at the outset what the latter will prove or what he will expect to prove. If leading questions will be allowed, the answers would
be favorable to the points he wish to prove, and thus, evading the parts against him, and ultimately PREVENT THE WHOLE TRUTH FROM BEING KNOWN.
2. It is supposed that the witness has a bias or prejudice in favor of the party by and for whom he is called and is hostile to his opponent. If leading questions will be
allowed, and UNSCRUPULOUS OR UNPRINCIPLED WITNESS WOULD LIKELY DISTORT THE TRUTH AND JUSTICE WILL BE FRUSTRATED.
The doctrine assigned as error of the court the admission of suggestive questions. This QUESTION MUST HAVE BEEN RAISED DURING THE TRIAL AND
OBJECTION MADE IMMEDIATELY AFTER EACH SUGGESTIVE QUESTION. Failure of the defense to do so prevents this Court from taking note of the issue
(People v. Solon, 79 Phil 214).
PROPER FORM: PRESENTATION OF EVIDENCE
Order in the Examination of Individual Witness
1. On Cross-Examination
2. On Preliminary Matters
3. When there is difficulty in getting direct and intelligible answers form a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute
4. Of an Unwilling or Hostile Witness
5. 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
6. Where the Witness’ Power of Recollection Appears to be Feeble or Uncertain
7. To Identify Persons or Things
8. To Rebut Certain Statements Made
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
OFFER OF EVIDENCE
THE RULE
Sec. 34. The Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be
specified.
THE RULE
Sec. 35. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence. Such offer
shall be done orally unless allowed by the court to be done in writing.
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
NEW RULE
This is a new rule. The PURPOSE of requiring testimonial evidence to be offered beforehand is evidently to ENABLE THE COURT TO KNOW WHETHER OR
NOT THE SAME IS INDISPENSABLE OR RELEVANT TO THE CASE.
The purpose of the express formal offer of oral evidence before the witness testifies is merely TO DETERMINE, ON THE BASIS OF THE STATED
SUBSTANCE OF THE TESTIMONY AND ITS PURPOSE, WHETHER THE WITNESS SHALL BE ALLOWED TO TESTIFY. Once the witness is allowed to
testify, each question propounded to elicit specific oral evidence may still be objected to as soon as a ground for objection becomes reasonably apparent.
A party offering a particular document must specify the purpose for which it is being offered (Chua v. C.A., 206 SCRA 339 [1993]).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
OFFER OF TESTIMONIAL EVIDENCE
WHEN MADE: Formal offer begins the MOMENT A WITNESS IS CALLED TO THE WITNESS STAND AND INTERROGATED BY COUNSEL.
HOW MADE: Party calling the witness must GIVE A GIST OF THE PROPOSED TESTIMONY AND WHAT IT SEEKS TO ESTABLISH.
(1) whether the intended testimony would ASCERTAIN THE TRUTH respecting a matter of fact that is in issue or
(2) may RULE THAT THE INTENDED TESTIMONY IS IRRELEVANT OR THAT IT DOES NOT AFFECT THE LITIGATED ISSUES in a substantial manner and it need not be
presented; or
The ADVERSE PARTY, having been apprised of the proposed testimony, (1) may choose to STIPULATE THEREON, thereby foregoing the presentation and cross-examination of
the witness or (2) may RAISE OBJECTIONS against the testimony of the witness.
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
OFFER OF DOCUMENTARY AND OBJECT EVIDENCE
WHEN MADE: When the party is about to “rest” his case, that is, after having called all the witnesses on his side.
HOW MADE: The offer of documentary and object evidence should be done orally and the purpose for which they are being offered specified.
However, the court may, upon motion, permit the offer to be made in writing as when voluminous documentary evidence are to be presented.
As a matter of practice, all exhibits, whether admitted or rejected, are attached to the record, and should be there when the case is elevated to the
Court of Appeals. If an exhibit sought to be introduced in evidence is rejected by the trial court, the party introducing it should ask the court’s
permission to have the exhibit attached to the record. (Velez v. Chaves, 50 Phil 676).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
CONTINUATION... WHEN TO MAKE OFFER
It should be noted that DOCUMENTS NOT FORMALLY OFFERED EVEN IF MARKED, IDENTIFIED OR AUTHENTICATED ARE MERE SCRAPS OF PAPER and should not be considered by the court (People v. Santito, Jr., 201
SCRA 87). This includes annexes attached to pleadings, unless the truth of their contents has been judicially admitted.
The rule that the court shall not consider any evidence not formally offered admits certain exceptions, viz:
1. Under the Rule on Summary Procedure, where no full-blown trial is held in the interest of speedy administration of justice;
2. In summary judgments under Rule 35 where the judge bases his decisions on the pleadings, depositions, admissions, affidavits and documents filed with the court;
3. Documents whose contents are taken judicial notice of by the court;
4. Documents whose contents are judicially admitted;
5. Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in the record and became the subject of cross-examination
of the witnesses who testified on them during the trial, e.g. marijuana involved in a prohibited drugs prosecution (People v. Napat-A, 179 SCRA 403).
Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves been incorporated in the records of the case (Tabuena v. Court of
Appeals, 196 SCRA 650).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
OBJECTION
• THE RULE
Sec. 36. Objection to evidence offered orally must be made immediately after the offer is
made. Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor shall become reasonably
apparent. An offer of evidence in writing shall be objected to within three (3) days after
notice of the offer unless a different period is allowed by the court. In any case, the
grounds for the objections must be specified.
If the counsel asks a question that opposing counsel considers improper and prejudicial to his
case, he should object, stating the ground of his objection. The PURPOSE is TO PREVENT
AN ANSWER TO A QUESTION PUT TO A WITNESS, OR TO STOP THE RECEIPT OF A
DOCUMENT IN EVIDENCE UNTIL THE COURT HAS HAD OPPORTUNITY TO MAKE A
RULING UPON ITS ADMISSIBILITY. The objection lays the foundation for an exception to an
adverse ruling by the court, warning both court and counsel that such adverse rulings may be
the basis of appellate review (53 AmJur 115, 116).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
Continuation... OBJECTION
The OBJECTION of counsel for the defendant was therefore, PREMATURE, specially as the fiscal HAD NOT YET STATED FOR WHAT PURPOSE he would introduce the said
records, much less because he HAD NOT STATED THAT HE INTENDED TO PROVE THE FALSE CERTIFICATES BY SAID RECORDS. So was the ruling of the respondent
judge sustaining the objection; both were premature and beside the point. x x x. And the TIME FOR OBJECTING TO EVIDENCE IS WHEN THE SAME IS OFFERED.
A PROTEST OR OBJECTION AGAINST THE ADMISSION OF ANY EVIDENCE that a protest or objection against the admission of any evidence MUST BE MADE AT THE
PROPER TIME, AND THAT IF NOT SO MADE, IT WILL BE UNDERSTOOD TO HAVE BEEN WAIVED. The proper time to make a protest or objection thereto, or from the
presentation of the proof the admissibility of the evidence is, or may be, inferred. When no timely objection or protest was made against the admission of parol evidence in
respect to a contract relative to real estate, and when the motion to strike out said evidence came too late; and if, on the other hand, the party against whom such evidence was
presented cross-questioned the witnesses who testified to the contract, the said party will be understood to have waived the benefits of the law, and such parol evidence is
competent and admissible (Abrenica v. Ganda, 34 Phil. 739).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
Continuation... OBJECTION
Objection to the introduction of evidence should be made before the question is answered. In other words, the OBJECTION MUST BE MADE IMMEDIATELY AFTER THE QUESTION IS ASKED AND
BEFORE ANSWER IS GIVEN. When no objection is made a motion to strike out the answer comes too late. A party has the RIGHT TO OBJECT TO EVIDENCE WHICH HE CONSIDERS
INADMISSIBLE EVEN IF THE QUESTIONS WERE ASKED BY THE JUDGE (Lopez v. Standard Oil Co., 5 Phil 549). A motion to strike out the answer is proper (a) when the answer of the witness is not
responsive to the question, or (b) the answer contains an objectionable feature, such as hearsay.
• OBJECTION CLASSIFIED
1. GENERAL OBJECTION: A common objection to evidence is made in the following form: Objected to as irrelevant, immaterial, and incompetent. This is called a general objection and is referred to as “lazy man’s objection” ( Tracy, e.t., p.
172). The first two are valid grounds for objection without need of specification or explanation.
2. SPECIFIC OBJECTION: An objection is specific when it states therein why or how the evidence is irrelevant or incompetent (Rush v. French, 1 Ariz. 99, 25 Pac. 816). Examples: (a) Objection to the question for being leading; (b)
Objection to the question for it calls for hearsay evidence; (c) Objection to the question for lack of basis, or it assumes a fact not established; (d) Objection to the question for it invades the field of confidential communication; (e) Objection
to the question for being vague; (f) Objection to the question for it calls for a conclusion of law; (g) Objection to the question for it calls for a conclusion of fact; (h) Objection to the question for being argumentative; (i) Objection to the
question for the proper foundation has not been laid; and (j) Objection to the question for it calls for the opinion of the witness.
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
Continuation... OBJECTION
OBJECTION TO EVIDENCE
1. FORMAL OBJECTIONS are BASED ON THE DEFECTIVE FORM OF THE QUESTION ASKED, such as: (1) Leading questions (these are questions which suggest to the
witness the answer desired); (2) Misleading questions (which assume as true a fact not testified to by the witness, or contrary to that which he has previously stated); (3)
Argumentative questions (which challenge a witness’ testimony by engaging him in an argument); (4) Ambiguous, Uncertain, Indefinite or Vague questions (these questions are not
allowed because the witness cannot understand from the form of the question just what facts are sought to be elicited); (5) Double or Multiple questions (which are two or more
queries in one); and (6) Repetitious questions (those already answered).
2. SUBSTANTIVE OBJECTIONS are THOSE BASED ON THE INADMISSIBILITY OF THE OFFERED EVIDENCE, e.g. (1) Irrelevant, immaterial; (2) Best evidence rule; (3) Parol
evidence rule; (4) Disqualification of witness; (5) Privileged communication; (6) Res Inter Alios Acta; (7) Hearsay; (8) Opinion; (9) Evidence illegally obtained; and (10) Private
document not authenticated.
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
WHEN REPETITION OF OBJECTION UNNECESSARY
THE RULE
Sec. 37. When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been
made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such
class of questions.
A SINGLE OBJECTION TO A CLASS OF EVIDENCE WHEN FIRST OFFERED AND AN EXCEPTION TO AN ERRONEOUS RULING ADMITTING IT IS SUFFICIENT, and neither the objection nor the
exception is waived by failure constantly to repeat them when subsequent offers of the same class are made (Salt Lake City v. Smith, 104 Fed. 457).
The COURT MAY TREAT THE OBJECTION AS A CONTINUING ONE. It is unnecessary when the objection has once been distinctly made further to vex the court with useless objections and exceptions. x x
x. We believe that in accordance with these rules seasonable objection and exception was made to the introduction of a class of hearsay testimony as incompetent. The objections made by the counsel for
the plaintiff seems to have been understood by the court as applying to each question. Since no one was misled this should be sufficient (Ed. A. Keller & Co. v. Ellerman & Buchnall Steamship Co., 38 Phil
514).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
Continuation...WHEN REPETITION OF OBJECTION UNNECESSARY
EXCEPTIONS
3. Where objection to evidence was SUSTAINED BUT REOFFERED at a later stage of the trial
THE RULE
SEC. 38. Ruling.— The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall
always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the
ground or grounds relied upon. (38a)
RULE STATED
Parties who offer objections to questions on whatever ground are entitled to a ruling at the time the objection is made unless they present a question with regard to which the court desires to inform itself before making its
ruling. In that event, it is perfectly proper for the court to take a reasonable time to study the question presented by the objection; but a RULING SHOULD ALWAYS BE MADE DURING THE TRIAL AND AT SUCH TIME AS
WILL GIVE THE PARTY AGAINST WHOM THE RULING IS MADE AN OPPORTUNITY TO MEET THE SITUATION PRESENTED BY THE RULING. It is error for a court to reserve its decision upon an objection to evidence
until after the trial is closed (Lopez v. Valdez, 21 Phil 644).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
Continuation ... RULING
Objections made by parties must be RESOLVED BY THE COURT IMMEDIATELY AFTER THEY ARE MADE OR DURING THE TRIAL and at such time as shall give the party against whom it is made an opportunity to meet the situation
presented by the ruling. However, where the OBJECTION RAISES A TENUOUS QUESTION OF LAW, the court may REQUIRE THE PARTIES TO SUBMIT MEMORANDA TO ASSIST IT IN RESOLVING THE QUESTION. In other words, the
ruling by the court on an objection must be given immediately after an objection is made, unless the court desires to take a reasonable time to inform itself on the question presented, but the ruling shall always be made during the trial and at such
time as will give the party against whom it is made an opportunity to meet the situations presented by the ruling. Unless the objection is resolved, the examination of the witness could not be expected to continue since, in all likelihood, the next
question would depend on how the objection is resolved.
If the court on appeal believes that the rejected evidence should have been admitted, but the admission of the evidence would not in any way vary the result, the decision of the trial court will be maintained. Otherwise, the decision is subject to
reversal. In other words, IF THE RULING OF THE TRIAL COURT IS TO ADMIT THE EVIDENCE AND SUCH RULING IS INCORRECT, THE DECISION WILL BE MAINTAINED IF IT CAN BE SUPPORTED BY OTHER EVIDENCE. IF THE
RESULT IS OTHERWISE, A NEW TRIAL SHOULD BE GRANTED.
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
CONTINUATION ... RULING
When an OBJECTION REFERS TO A DOCUMENT BEING OFFERED AS EVIDENCE and is SUSTAINED, it means that the court declares the DOCUMENT
INADMISSIBLE as evidence. When the OBJECTION IS OVERRULED, it means that the COURT ADMITS THE DOCUMENT AS EVIDENCE (Consumer’s Ice Co. v.
Jenning, 42 W.E. 879; 100 Va. 719).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
STRIKING OUT ANSWER
THE RULE
SEC. 39. Striking out answer.— Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be
meritorious, the court shall sustain the objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n)
In other words, a motion to strike out answer or testimony is proper in the following instances, namely:
The motion to strike out evidence should be directed with precision to the matter sought to be stricken, and it should specify the grounds on which it is based. When the grounds are specified, all other grounds
are deemed waived.
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
Continuation... STRIKING OUT ANSWER
The COURT MAY, IN ITS DISCRETION, STRIKE OUT INCOMPETENT OR IRRELEVANT EVIDENCE, EVEN THOUGH THE SAME HAD BEEN PREVIOUSLY ADMITTED WITHOUT
OBJECTION. Similarly, the court may, upon its own motion, strike out evidence improperly admitted at any time during the day of the trial or at any time before the close of the trial, or even
during the closing argument of the counsel (Arevalo v. Dimayuga, 49 Phil 894).
In the course of long experience we have observed that justice is most effectively and expeditiously administered in the courts where trivial objections to the admission of proof are received
with least favor. The PRACTICE OF EXCLUDING EVIDENCE ON DOUBTFUL OBJECTIONS TO ITS MATERIALITY OR TECHNICAL OBJECTIONS TO THE FORM OF THE QUESTIONS
SHOULD BE AVOIDED. In a case of any intricacy, it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether testimony
is relevant or not; and where there is no indication of bad faith on the part of the attorney offering the evidence, the court may as a rule safely accept the testimony upon the statement of the
attorney that the proof offered will be connected later (Prats & Co. v. Phoenix Insurance Co., 52 Phil 807).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
TENDER OF EXCLUDED EVIDENCE
THE RULE
SEC. 40. Tender of excluded evidence.— If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (n)
WHEN AN ATTORNEY IS NOT ALLOWED BY THE COURT TO PRESENT TESTIMONY WHICH HE THINKS IS COMPETENT, MATERIAL AND NECESSARY TO PROVE HIS CASE, HE
MUST MAKE AN OFFER OF PROOF (TENDER OF EXCLUDED EVIDENCE). This is the METHOD OF PROPERLY PRESERVING THE RECORD TO THE END that the question may be
saved for the purposes of review. This is a right given to the examining party to inform the court what is expected to be proved and procuring exceptions to the exclusion of the offered
evidence so that the upper court may determine from the record whether the proposed evidence is competent (Maxell v. Haber, 92 Ill. App. 510).
PROPER FORM: PRESENTATION OF EVIDENCE
Offer and Objection
Continuation... TENDER OF EXCLUDED EVIDENCE
If the EXCLUDED EVIDENCE IS DOCUMENTARY OR OBJECT, the party producing it should ASK THE COURT’S PERMISSION TO HAVE THE SAME ATTACHED TO THE RECORD. The
purpose is to protect, for purposes of appeal, the party whose evidence is rejected.
If the EXCLUDED EVIDENCE IS ORAL, the offeror must make an “offer of proof,” that is, he must state for the record the name and other personal circumstances of the witness and the
substance of the proposed testimony, without having the witness present and calling him. In other words, TO CONSTITUTE AN OFFER OF PROOF, THE OFFEROR (COUNSEL) MUST MAKE
A STATEMENT FOR THE RECORD THE NAME AND OTHER PERSONAL CIRCUMSTANCES OF THE WITNESS AND WHAT HE EXPECTS TO PROVE BY THE WITNESS.
The court below erred in taking into consideration in its decision evidence which it had ruled out at the trial of the case; if, after the close of the trial, the court upon mature reflection arrived at
the conclusion that some of its rulings were erroneous, it SHOULD HAVE REOPENED THE CASE BEFORE REVERSING THEM (Tinsay v. Yusay, 47 Phil 639).
PROPER FORM: PRESENTATION OF EVIDENCE
Testifying Effectively as a Law Enforcer
SUMMARY ON HOW TO TESTIFY EFFECTIVELY IN COURT AS A LAW ENFORCEMENT OFFICER
1.The law enforcement professional may receive a SUBPOENA, much like any other witness. He or she may be served
directly with the subpoena. He or she may not receive a subpoena at all but may merely receive a call from the
prosecutor advising that he or she is needed as a witness in a particular case.
2.The general rule for a law enforcement professional is: WEAR TO COURT WHAT ONE WEARS TO WORK. If the
officer wears a uniform to work, then that is what he or she should wear to court. A professional who does not wear a
uniform should wear business attire to court. Those who come to court on their days off may also choose to wear a
suit instead of their uniform, as they are coming to court in their personal vehicles.
3.A witness SHOULD NOT SPEAK TO THE JUDGE, DEFENSE COUNSEL, DEFENSE WITNESSES, AND THE
DEFENDANT DURING COURT RECESS.
4.After each question posed on direct and cross-examination, the witness should PAUSE FOR A SECOND TO SEE IF
THERE ARE ANY OBJECTIONS. If there is an objection, the witness should not answer the question until the judge
has ruled. If the judge sustains the objection, the witness may not answer the question. If the judge overrules the
objection, the witness may then answer the question.
5.A law enforcement professional who cannot remember the answer to a question asked should state that he or she
does not remember. If there is anything that the witness believes will refresh his or her recollection, such as a written
report, he or she should so state. If, and only if, the witness’s memory is refreshed, he or she may truthfully respond to
the question.
6.When asked an argumentative question on cross-examination to which the defense attorney insists upon a yes or no
answer, the witness should wait for the prosecutor to object. If there is no objection, the witness should inform the
judge that he or she cannot intelligently answer the question with a yes or a no. If the judge insists that the witness
answer the question, he or she should answer as best he or she can and try to explain fully on redirect examination.
PROPER FORM: PRESENTATION OF EVIDENCE
A.M. No. 12-8-8-SC Judicial Affidavit Rule
SALIENT FEATURES OF THE JUDICIAL AFFIDAVIT RULE
1. Functions of Judicial Affidavits: (i) they take the place of direct testimonies; and (ii) they identify and authenticate documentary or object
evidence in the case.
2. Submission of Judicial Affidavits, How and When: They are to be filed (i) with the court and copies served on the adverse party, personally or
by licensed courier service; and (ii) not later than 5 days before pre-trial or preliminary conference or the scheduled hearing with respect to
motions and incidents.
3. Preparation of Judicial Affidavits: In the language known to the witness but, if this is not in English or Filipino, it is to be accompanied by a
translation in English or Filipino. Testimonies will be quoted in pleadings in their original version with the English or Filipino translation in
parenthesis provided by the party, subject to counter translation by opposing side.
4. Content of the Judicial Affidavit: (i) Personal circumstance of the witness; (ii) the identity of the lawyer who conducts or supervises the
examination of the witness; (iii) the place where the examination is being held; and (iv) a statement that the witness is answering the
questions under oath and that he may face criminal liability for false testimony or perjury.
5. Contents of the Affidavit Proper: (i) numbered questions and answers showing personal knowledge of the facts that the witness is testifying
on; (ii) questions and answers that elicit fact relevant to the issues; and (iii) questions and answers that identify the attached documentary
and object evidence and establish their authenticity in accordance with the Rules of Court.
6. Responsibility of the Examining or Supervising Lawyer: He must execute a sworn attestation at the end of the judicial affidavit that (a) he
faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (b) neither
he nor any other person then present coached the witness regarding his answers.
7. Consequence of a False Attestation: It will subject the lawyer-examiner or the supervising lawyer to disciplinary action, including disbarment.
8. Judicial Affidavits of Uncooperative Witnesses: If the government employee or official, or the requested witness, unjustifiably declines to
execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available
for copy, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of Court.
No judicial affidavit is required from the adverse party or hostile witness since he can be queried with leading questions
as in cross The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking
PROPER FORM: PRESENTATION OF EVIDENCE
A.M. No. 12-8-8-SC Judicial Affidavit Rule
Continuation ... SALIENT FEATURES OF THE JUDICIAL AFFIDAVIT RULE
deposition except that the taking of a judicial affidavit shall be understood to be ex parte.
9.Remedy of Opposing Party if Inadmissible Evidence is Introduced via the Judicial Affidavit: The rule requires the party presenting the judicial
affidavit of his witness to state at the start of the presentation of the witness the party’s purpose for presenting such testimony. The adverse
party may then move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The
court shall promptly rule on the motion and, if granted, shall cause the exclusion of the offending answer by placing it in brackets. Moreover,
if cross examination reveals an inadmissible testimony in the judicial affidavit, the adverse party could of course also ask for its striking out.
This is without prejudice to a tender of excluded evidence under Section 40, Rule 132 of the Rules of Court.
10.
Cross-Examination of Witness: The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the
exhibits attached to the same. Since he has been given a copy of the judicial affidavit long before the hearing, the adverse party would have
no reason to seek postponement. The party who presents the witness may also examine him as on re-direct.
11.
Examination of the Witness by the Court: The Judicial Affidavit Rule signals the shift in our system for hearing cases from purely adversarial
to a combined adversarial and inquisitorial system, patterned after many successful models in the world. In every case, the judge shall take
active part in examining the witness. He is not limited to asking clarificatory questions; he may also ask questions that will determine the
credibility of the witness, ascertain the truth of his testimony, and elicit the answers that the judge needs for resolving the issues.
12.
Offer of Documentary and Object Exhibits: After terminating the testimony of his last witness, a party shall immediately make an oral offer of
evidence of his documentary and object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he
offers the particular exhibit. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection to it, if any,
and the court shall immediately make its ruling respecting that exhibit.
13.
Application of the Judicial Affidavit Rule to Criminal Actions: Judicial Affidavit Rule shall apply to all criminal actions where (i) the maximum of
the imposable penalty does not exceed six years; (ii) irrespective of the penalty involved, where the accused agrees to the use of judicial
affidavits; (iii) with respect to the civil aspect of the actions, whatever the penalties involved are.
14.
Submission of Judicial Affidavits in Criminal Actions, When: The prosecution shall submit the judicial affidavits of its witnesses not later than
five (5) days before the pre-trial, serving copies of the same upon the accused. No further judicial affidavit or documentary or object evidence
may be admitted at the trial. If the accused desires to be heard on
PROPER FORM: PRESENTATION OF EVIDENCE
A.M. No. 12-8-8-SC Judicial Affidavit Rule
Continuation ... SALIENT FEATURES OF THE JUDICIAL AFFIDAVIT RULE
his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial
affidavit as well as those of his witnesses to the court within ten (10) days of receipt of such affidavits and serve a copy
of each on the public and private prosecutors or keep his silence.
15. Effect of Party’s Failure to Submit his Judicial Affidavit: Party shall be deemed to have waived their submission. But the
court may give him one last chance if the delay is for a valid reason, would not unduly prejudice the opposing party, and
the defaulting party pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court.
16. Effect of Absence of Witness or of Counsel at the Scheduled Hearing: The court shall not consider the affidavit of any
absent witness. Counsel who fails to appear without valid cause shall be deemed to have waived his right to cross
examine.
17. Effect of Submission of Non-Compliant Judicial Affidavits: The court shall not admit them in evidence. But it may allow
only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the
delay is for a valid reason, would not unduly prejudice the opposing party, and the public or private counsel responsible
for their preparation and submission pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion
of the court.
18. Application of the Judicial Affidavit Rule to Existing Cases and Existing Cases which had already undergone Pre-Trial:
Remaining testimonies shall be treated as incidents to be heard by judicial affidavits.
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
IMPEACHMENT OF ADVERSE PARTY’S WITNESS
THE RULE
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 by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he
has been convicted of an offense. (15)
Witnesses are called to the stand to substantiate the allegations in the pleadings. The adverse party may now bring out data to the attention of the court for the PURPOSE OF DISCREDITING OR DEVALUATING THE TESTIMONIES OF THE
WITNESSES.
THIS PROCESS IS KNOWN AS “IMPEACHMENT”. Thus, IMPEACHMENT is defined as the process of introducing evidence to diminish the credibility of a person whose testimonial statement has been already admitted (3 Wigmore on
Evidence § 875). IMPEACHMENT is the adducing of proof that a witness is unworthy of belief (State v. Roybal, 33 N.M. 540, 273, P. 919, 922).
THE RULE
SEC. 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate 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. (6a, 7a)
GENERAL RULE: Party producing a witness is not allowed to impeach his credibility
EXCEPTIONS:
(1) When his witness is the adverse party, or has become an unwilling or hostile witness in
all respects as if he had been called by the adverse party.
(2) When the witness is treacherous and proves unexpectedly hostile in his testimony
upon the stand (Underhill’s Criminal Evidence, 4th ed. § 422).
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
Continuation... PARTY MAY NOT IMPEACH HIS OWN WITNESS
It would be grossly unfair to permit a witness to entrap a party into calling him by making a statement favourable to that party’s contention, and then, when he is called and accredited by that
party and gives testimony at variance with his previous statement and against that party’s interest, to deny the party calling him the right to impeach him by showing that he was induced to do
so by a previous statement of the witness made under such circumstances as to warrant a reasonable belief that the witness would repeat the statement when called to testify. The previous
statement must be contradictory to the witness’ testimony (58 AmJur 444, 445).
By CREDIBILITY OF WITNESSES is meant their disposition and intention to tell the truth in the testimony they have given.
PERSONAL CREDIBILITY OF A WITNESS means that which would lead a court to believe or disbelieve what the witness has said by reason of his appearance and manner before them while
testifying (98 C.J.C. 322, 323).
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
CONTINUATION... PARTY MAY NOT IMPEACH HIS OWN WITNESS
Plaintiff cannot refuse to abide by the assertions of its own witness, especially where, as in this case, it stands uncontradicted. Having invited the court to believe him, it will not be
permitted to doubt his credibility. “The plaintiff called as its own witness the defendant, and thereby estopped itself from contending that the defendant was unworthy of credit.” Of
course, there are some exceptions to this rule, but no circumstances appear of record to justify the making of any exception in this particular instance (Bank of the Philippine Islands
v. Rigor, 36 O.G. 925).
It is true that under Section 340 of the Code of Civil Procedure, the party producing a witness is not allowed to impeach his own witness, but the prohibition refers to impeaching his
credit by evidence of bad character. The same section, however, allows that he may be contradicted by other evidence. In the case of International Bank Corporation v. Yared (59
Phil 72), the Supreme Court held that a litigant who finds himself compelled to present an adversary in a suit as a witness is not bound by the testimony given by the latter against
him and can impugn the veracity thereof by means of evidence to the contrary. (Dumlao v. Bachar, 37 O.G. 2150).
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
Continuation... PARTY MAY NOT IMPEACH HIS OWN WITNESS
ADVERSE PARTY
In order that a party may be considered as ADVERSE PARTY, he must be adverse to the party calling him, and be actively seeking a recovery against, or
opposing a recovery by, such party, or a person for whose immediate benefit the action was brought or defended (98 C.J.C. 109, 110).
HOSTILE WITNESS
A hostile witness is one who manifests so much hostility or prejudice under examination-in-chief that the party who has called him, or his representative, is
allowed to cross-examine him, that is to treat him as though he had been called by the opposite party.
A PARTY MAY CONTRADICT HIS OWN WITNESS
A party is not precluded from proving by other witnesses that the facts were otherwise than that stated by his former witness. The former may contradict the
latter by other evidence, even though it incidentally discredits him.
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS
THE RULE
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. (16)
LAYING THE FOUNDATION OR PREDICATE
In laying the predicate for the admission of inconsistent verbal statements, it is necessary that said statements should be related to the witness, with the circumstances of times and places
and the persons present, and he must be asked whether he uttered such statements. If he admits having uttered the statements, he should be allowed to explain them. If he denies having
uttered them, they may be proved by any person to whom or in whose hearing the statements were made (6 Jones § 2411).
By way of summary, before the credibility of a witness and the truthfulness of his testimony can be impeached by evidence consisting of his prior statements which are inconsistent with his
present testimony, the cross-examiner must lay the predicate or the foundation for impeachment and thereby prevent an injustice to the witness being cross-examined. The witness must be
given a chance to recollect and to explain the apparent inconsistency between his two statements and state the circumstances under which they were made.
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
Continuation... HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS
Proof of alleged inconsistent statements whether verbal or written, cannot be admitted on objection of the other party because of failure to lay the predicate. If this requirement is not observed, the alleged
inconsistency cannot be pointed out on appeal.
The counsel who has neglected to lay the predicate, in the discretion of the court, may be allowed to recall the witness for the purpose ( People v. Glover, 141 Cal. 233, 74 Pac. 745).
1.If the previous statements of a witness are offered as evidence of admission and not merely to impeach him.
2.In the case of dying declaration, proof of contradictory or inconsistent statements of the deceased may be admitted without laying any foundation therefore, inasmuch as this is no longer possible.
3.Where there is waiver on the part of the opposite party, the laying of the predicate for the admission of contradictory statements is excused.
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
EVIDENCE OF GOOD CHARACTER OF WITNESS
THE RULE
SEC. 14. Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached. (17)
Where the witness has been impeached, it is only fair that the party who summoned the witness be allowed the opportunity to restore the witness’ credit or diminish the effect of the impeaching
data. The summoning party may adduce any data relevant to the restoration of the credit of the impeached witness, either by denying the discrediting fact or explaining away its significance.
This is the process called “rehabilitation” (4 Wigmore § 1100).
It should be noted that the good character of a witness is assumed and evidence to that effect will not be admitted until his character has been attacked. If the witness has been impeached by
testimony of witness as to his bad character for veracity, he may offer testimony of his reputation for good character (Cf. Tracy, 197).
If the bad character is shown by conviction of crime, the witness is not allowed to deny the crime, since the conviction is conclusive, but he may show any extenuating circumstances to prove
that he does have a good character.
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
EXCLUSION AND SEPARATION OF WITNESSES
THE RULE
SEC. 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that
he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all
shall have been examined. (18)
The court, on any trial or hearing, may exclude any witness who is not under examination form the courtroom. Similarly, the court may order the separation of witnesses
during the trial or hearing. The object of such an order is to elicit the truth by securing testimony not influenced by the statements of other witnesses or the suggestion of
counsel, as well as to prevent the collusion and concert of testimony among witnesses (6 Jones on Evidence § 1321).
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
Continuation... EXCLUSION AND SEPARATION OF WITNESSES
While a witness is under examination, all witnesses who have not yet testified may be excluded and kept separate so as to prevent them from conversing with one another until all
have been examined (U.S. v. Sison, 6 Phil 421).
The rule, however, is not applicable to parties in a civil case who are entitled to be present during the trial (Paez v. Berenguer, 8 Phil 454; Muerteguy v. Delgado, 22 Phil 109), nor to
an accused in a criminal case who is entitled to be confronted with all the witnesses for the prosecution, nor to the offended person, although the court may imposed as a condition
that the prosecution, if it desires to use the offended person as a witness, should examine him first (Heywood v. State, 12 Ga. A., 643, 77 S.E. 1130; Smart v. State, 112 Tenn., 539,
87 S.W. 586).
With regard to the trial judge’s refusal to order the exclusion of Juan Samson, the principal witness of the Government, from the court room during the hearing it is within the power
of said judge to do so or not, and it does not appear that he has abused his discretion (People v. Lua Chu, 56 Phil. 44).
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
WHEN WITNESS MAY REFER TO MEMORANDUM
THE RULE
SEC. 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction
at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in
such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So,
also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction
when made; but such evidence must be received with caution. (10a)
Where there is lapse or loss of recollection of a witness regarding a certain fact about which he is called to testify. There are two (2) courses available to the examining counsel:
1. To ask a leading question without stating the particular required for this may set the train of thought on the roll again; or
2. Where present recollection cannot be revived, a memorandum recording past recollection.
The first is usually described as “present recollection revived,” and the second is described as “past recollection recorded..
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
Continuation... WHEN WITNESS MAY REFER TO MEMORANDUM
The witness may be allowed to refer to a memorandum for the purpose of refreshing his memory respecting a fact. This method is permitted provided:
1. The record or memorandum was written by the witness or under his direction;
2. It was written at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing;
3. The writing must be produced and may be seen by the adverse party who may cross-examine the witness upon it, and read it in evidence.
A witness may testify from such memorandum or writing, though he retains no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made.
In “present recollection revived,” the testimony of the witness whose memory has been refreshed with the aid of a memorandum is the main evidence; in “past recollection recorded,” the content of the
memorandum is used as a substitute for present memory, to both cases, it must be established that the memorandum was written by the witness or under his direction at the time when the fact was still
fresh in his memory and he knew that the same was correctly stated in the writing. Furthermore, the adverse party is given the opportunity to inspect the memorandum so he may object to its use; cross-
examine the witness upon it; and read it in evidence.
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
WHEN PART OF TRANSACTION OR WRITING OR RECORD GIVEN IN EVIDENCE, THE REMAINDER ADMISSIBLE
THE RULE
SEC. 17. When part of transaction, writing or record given in evidence, the remainder admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of
the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence. (11a)
Ordinarily, a witness who takes the stand to testify an event or occurrence will recount that which is favourable to the side that calls him, or that he knows only a portion of the event. Others may have remembered only
certain portions that impressed them and need to be reminded of other portions of the speech or writing. The thought of any speech or writing cannot be ascertained without taking the utterance as a whole. Hence, the
idea is that, in evidencing the tenor of a declaration or writing, the whole should, as much as possible, be put in evidence, with precision of words and entirety of parts ( 9 Wigmore § 2094).
The idea embraces many rules of evidence particularly in respect of confessions, admissions, and self-contradictory statements. For clarity, they should be divided into: (1) Rules of Compulsory Completeness, and (2)
Rules of Optional Completeness. The question is “Is it necessary that the whole of a declaration or writing be offered?”
PROPER FORM: PRESENTATION OF EVIDENCE
Impeachment and Rehabilitation
RIGHT TO INSPECT WRITING SHOWN TO WITNESS
THE RULE
SEC. 18. Right to inspect writing shown to witness.— Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9a)
The writing submitted to the witness must, on request, be shown to opposing counsel for his use on cross-examination.
Where a document is introduced in evidence by a party, the adverse party has the right to inspect it to enable him to cross-examine the witness, to test the witness’ actual memory. When the
document is shown to and read by a witness while on the stand, the opposing counsel is allowed to inspect the document. The documentary evidence should not be admitted if the opposing
counsel was not given the opportunity to inspect it. However, inspection of the document is not required where the document was merely identified and not read by the witness. Where a
document is produced upon request, the requesting party may inspect it without first being placed in evidence (88 C.J.S. 167-168).
PROPER FORM: BEST EVIDENCE RULE
Introduction
RATIONALE
• The main reasons for the Best Evidence Doctrine are three (3) in number:
EXCUSED NONPRODUCTION
• DOCUMENT: A deed, instrument or other duly authorized paper by which something is proved, evidenced or set
forth (U.S. v. Orera, 11 Phil 596; cf. People v. Camacho, 44 Phil 484).
• DOCUMENTARY EVIDENCE: That which is furnished by written instruments, inscriptions and documents of all
kinds (32 C.J.S. 475).
• WRITINGS: Anything that contains or memorializes numbers, letters, or words. In other words, the concept of
“writings” is broadly interpreted. It applies to “legally operative” documents like contracts and “formally kept”
material like business records, and it also applies to essentially ALL written material.
• ORIGINAL: The document whose contents are to be proved. The original of a document is one the contents of
which are the subject of inquiry.
• DUPLICATE: Essentially any copy that does not require human faculties to comprehend the original and recreate
it. The definition reaches the common product of all modern office copiers, as well as old-style carbon copies.
• SECONDARY EVIDENCE: Other evidence substituted for the original document. May consist of (i) a copy of said
document, (ii) a recital of its contents in an authentic document, or (iii) the recollection of witnesses. As amended,
the present rule authorizes the availment of such secondary evidence in the aforesaid order as stated therein
(Sec. 5, Rule 130).
PROPER FORM: BEST EVIDENCE RULE
Doctrine in Operation
THE RULE
• Sec. 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the following cases:
a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the
offeror;
b) When the original is in the custody of under the control of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;
c) When the original consists of numerous accounts or other documents which cannot be examined in court without
great loss of time and the fact sought to be established from them is only the general result of the whole; and
d) When the original is a public record in the custody of a public officer or is recorded in a public office.
a) The original of a document is one the contents of which are the subject of inquiry.
b) When a document is in two or more copies executed at or about the same time, with identical contents, all such
copies are equally regarded as originals.
c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of
the transaction, all the entries are likewise equally regarded as originals.
PROPER FORM: BEST EVIDENCE RULE
Doctrine in Operation
BEST EVIDENCE RULE
The rules of evidence provide that WHERE THE CONTENTS OF THE DOCUMENT
ARE THE FACTS IN ISSUE, the BEST EVIDENCE IS THE INSTRUMENT ITSELF
(Sps Hutchison v. Buscas, G.R. No. 158554, May 26, 2005).
Not every writing is considered a document for purposes of the best evidence rule. If
a writing is offered not to prove its contents but to prove some other fact, e.g., that the
writing exists, or that it is done on sheepskin, or the size of the paper it is written on, it
is, for purposes of evidence, only object evidence. To determine the admissibility of
object evidence, the best evidence rule does not apply. Hence, the original writing
need not be presented. The existence or condition of that writing may be proved, at
once, by any other evidence, like oral testimony (People v. Tandoy, 192 SCRA 28).
PROPER FORM: BEST EVIDENCE RULE
Doctrine in Operation
Since the very contents of the document are vital, the original should be
produced. The purpose of the rule is to AVOID THE RISK OF ERROR in
trusting to somebody’s copy or recollection of the words of a document. It is a
basic rule of evidence that the ORIGINAL COPY PREVAILS OVER A MERE
PHOTOCOPY (People v. Tidula, 292 SCRA 596). MERE PHOTOCOPIES OF
DOCUMENTS ARE INADMISSIBLE (Heirs of Severa Gregorio v. Court of
Appeals, 300 SCRA 565).
• GENERALLY
This rule applies only when the contents of a document is the subject of inquiry not
where the issue is only as to whether or not such document was actually executed or
exists, or on the circumstances relevant to its execution (Citibank, N.A. v. Sabeniano,
504 SCRA 458 [2006]).
It is elementary principle of the law of evidence that the best evidence of which the case
in its nature is susceptible and which is within the power of the party to produce, or is
capable of being produced, must always be adduced in proof of every disputed fact.
Secondary evidence is never admissible unless it is made manifest that the primary
evidence is unavailable, as where it is shown that it has been lost or destroyed, is
beyond the jurisdiction of the court, or is in the hands of the opposite party who, on due
notice, fails to produce it. Where primary evidence is available so that a fact may be
proved by secondary evidence, the proponent of the secondary evidence is required to
produce the best secondary evidence which exists and which is in his power to produce
(20 Am Jur, Evidence § 403, 404, pp. 364, 365; cited in Kneedler v. Paterno, 85 Phil
183).
PROPER FORM: BEST EVIDENCE RULE
Doctrine in Operation
Continuation... APPLICATION OF THE RULES
(1) By Affidavit Evidence: based in personal knowledge and indication of the competence of the
affiant to testify on the matters contained therein. The contents of the affidavit shall be affirmed in
open court and may be cross-examined as a matter of right by the adverse party in a summary
hearing; or
(2) By Electronic Testimony: when an examination of a witness is done electronically, the entire
proceedings shall be transcribed stenographically. The transcript must be certified and indicate that
the proceedings were electronically recorded. The electronic evidence, the recording and the
transcript shall form part of the records of the case and shall be deemed as prima facie evidence of
the proceedings.
PROPER FORM: BEST EVIDENCE RULE
Doctrine in Operation
Continuation... APPLICATION OF THE RULES
Where a witness had already testified that the test booklet, with the exception of one
page, was burned by her, the best evidence rule will not apply and the contents of the
booklet may be proved by the recollection of witnesses (People v. Domondon, 43 SCRA
411).
The attestation clause duly signed is the best evidence as to the date of signing because
it preserves in permanent form a recital of all the material facts attending the execution of
the will (Gonzales v. Court of Appeals, 90 SCRA 183).
Fact that there was conflict of testimony as to identity of photographer who took a
photograph of the signing and attestation of the will not a requirement of law, is of minor
importance. What matters most is the photograph itself (Gonzales v. Court of Appeals,
90 SCRA 183).
PROPER FORM: BEST EVIDENCE RULE
Doctrine in Operation
Continuation... APPLICATION OF THE RULES
CERTIFICATES
To prove torture inflicted by the police, the medical certificate alone without the testimony of the examining
physician is inadmissible (People v. Villagracia, 226 SCRA 398 [1993]).
A death certificate is admissible to prove the residence of the decedent at the time of his death (Fule v. Court
of Appeals, 74 SCRA 189).
Ledgers and bank statements are the primary evidence of deposits made thereto (People v. Tanjutco, 23
SCRA 361).
An accused’s letter to the parents of the sexually offended girl while detained in jail is admissible to prove
identity of the offender (People v. Santos, 85 SCRA 705).
PROPER FORM: BEST EVIDENCE RULE
Doctrine in Operation
WHAT IS THE ORIGINAL OF A DOCUMENT
The “ORIGINAL” is the document whose contents are to be proved. The original of a document is one the contents of which
are the subject of inquiry. Even a mere photocopy of a document may be an original if it is the contents of that photocopy that
are inquired into.
As to what is the “original” may depend on the act of the parties in dealing with a particular set of documents and the
substantive law applicable to the kind of issue should be taken into account.
Example: A reporter sends a libellous article for publication. If the editor refuses to publish said article and the reporter sues
him for payment, the libellous article as sent by him is the “original document” for him to prove. If the editor publishes said
article, and a libel case was filed, the printed article is the original for the libellee to prove.
When the document is in two or more copies, provided that it was executed at or about the same time, with identical
(1)
contents.
Example: When an order for merchandise is written out on a pad with a carbon inserted between the sheets and the parties
signed the first impression, the two writings could be considered “duplicate originals” although one is a carbon impression.
When an entry is repeated in the regular course of business, one being copied from another at or near the time of the
(2)
transaction.
In order that all entries may be regarded as originals, the two requisites must be present: (1) repeated entries in the regular
course of business; and (2) the copying is made at or near the time of the transaction.
PROPER FORM: BEST EVIDENCE RULE
When the Rule does not Apply
The BEST EVIDENCE RULE CANNOT BE INVOKED in the following cases, namely:
1.When the evidence sought to be introduced INVOLVES SOME EXTERNAL FACT ABOUT THE
WRITING, like its existence, execution, or delivery without reference to its terms.
2. When the WRITING IS ONLY “COLLATERAL” TO THE ISSUE INVOLVED IN THE CASE on trial.
This is the COLLATERAL FACTS RULE. Thus, where the purpose of presenting a document is not to
prove its contents, but merely TO GIVE COHERENCE TO, OR TO MAKE INTELLIGIBLE, the testimony
of a witness regarding a fact contemporaneous to the writing, the original of the document need not be
presented. In this case, the contents of the document are not sought to be proven, but are simply
incidental to the fact being testified to. Thus, the best evidence rule cannot apply (Air France v.
Carrascoso, 18 SCRA 155).
3. When photographs, maps, or such things as tags, cards, or small articles with names or inscriptions
upon them, if they are treated as things.
5.Where a party has made admissions as to the contents of a document or where the contents of a
document become the subject of inquiry upon the cross-examination of a witness.
PROPER FORM: BEST EVIDENCE RULE
When the Rule does not Apply
Pleadings filed via fax machines are not considered originals and are at
best exact copies. As such, they are not admissible in evidence, as there
is no way of determining whether they are genuine or authentic (Garoida
v. Sales, Jr., 338 SCRA 484).
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
DEFINITIONS
SECONDARY EVIDENCE is that which is inferior to primary. Thus, a copy of an instrument, or oral
evidence of its contents, is secondary evidence of the instrument and contents. It is that species of
evidence which becomes admissible, as being the next best, when the primary or best evidence of the
fact in question is lost or inaccessible; as when a witness details orally the contents of an instrument
which is lost or destroyed (Williams v. Davis, 56 Tex. 253; Baucum v. Geoarge, 65 Ala. 259; Roberts v.
Dixon, 50 Kan. 436, 3 P. 1083).
SECONDARY EVIDENCE is that which shows that better, or primary evidence, exists as to the proof of
the fact in issue, it being first shown that the primary evidence of the fact is not obtainable. Secondary
evidence performs the same function as that of primary evidence, but is deemed less reliable and worthy
of belief – e.g., in a prosecution for resisting or hindering certain officers in the execution of a search
warrant, the warrant itself is better evidence of what it contains than a copy thereof, and a check is better
evidence of what it contains than the stub (Wharton, Criminal Evidence, 11th Ed., § 387).
SECONDARY EVIDENCE of the contents of writing is admitted upon the theory that the original cannot
be produced by the party by whom the evidence is offered within a reasonable time by the exercise of
reasonable diligence. Until, however, the non-production of the primary evidence has been sufficiently
accounted for, secondary evidence is not ordinarily admissible. This rule applies to criminal as well as
civil suits (Wharton, Criminal Evidence, 11th Ed., § 433).
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
THE RULE
Sec. 5. Where original document is unavailable. – When the original document has been lost or destroyed, or cannot be
produced, the offeror upon proof of its execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy or by a recital of its contents in some authentic document, or by the testimony of witnesses
in the order stated.
In order that such secondary evidence may be admissible, there must be proof by satisfactory evidence of (1) due execution
of the original, (2) loss, destruction or unavailability of all such originals, and (3) reasonable diligence and good faith in the
search for or attempt to produce the original (Zaldivar v. Mun. of Talisay, 18 Phil 262; cf. Tan v. CA, G.R. No. 56866, June 27,
1985). The amendment to this section requires that the loss, destruction or unavailability of the document was not due to the
offeror’s bad faith.
The due execution of the document should be proved through the testimony of either (1) the person/s who executed it; (2) the
person before whom its execution was acknowledged; or (3) any person who was present and saw it and recognized the
signatures, or one to whom the parties thereto had previously confessed the execution thereof (Director of Lands v. CA, L-
29575, April 30, 1971). Intentional destruction of the originals by a party who, however, had acted in good faith does not
preclude his introduction of secondary evidence of the contents thereof.
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
When the original writing has been lost or destroyed, upon proof of its execution and loss or
destruction, its contents may be proved (1) by a copy, or (2) by a recital of its contents in
some authentic document, or (3) by the recollection of witnesses.
This is called “LAYING THE FOUNDATION,” or preparing the basis for the admission of
secondary evidence.
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
METHODS OF LAYING THE FOUNDATION
The writing itself must be produced unless it has been lost or destroyed, in which case, before its contents may be proved by other evidence, it
must be shown by the person offering the secondary evidence (1) that the document was duly executed and delivered, where delivery is
necessary, and (2) that it has been lost or destroyed.
The execution and delivery may be ESTABLISHED (1) by the person or persons who executed it, (2) by the person before whom its execution was
acknowledged, or (3) by any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and
recognized the signature, or (4) by a person to whom the parties to the instruments had previously confessed the execution thereof.
DESTRUCTION OF THE INSTRUMENT MAY BE PROVED BY ANY PERSON KNOWING THE FACT. The loss may be shown by any person who
knew the fact of its loss, or by anyone who has made, in the judgment of the court, a sufficient examination in the place or places where the
document or papers of similar character are usually kept by the person in whose custody the document was lost, and has been unable to find it; or
who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. If it appears, on an attempt to prove
the loss, that the document is in fact in existence, then the proof of the loss or destruction fails and secondary evidence is inadmissible unless
Section 6, Rule 130 (when original document is in adverse party’s custody or control) should be applicable.
When the proper foundation for the reception of secondary evidence has been laid, the Best Evidence Rule insists on a preference in the type of
secondary evidence that will be presented. Hence, before a party may offer the testimony of witnesses to prove the contents of a lost original, he
must first show or prove that no copy of the document exists and, in addition, that there exist no authentic document reciting the contents of the
unavailable original. This second layer of foundations may of course be established by oral testimony, but it must be established (Benchbook for
Trial Court Judges).
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
The secondary evidence may consist of (1) a copy of said document, (2) a recital of its contents in an authentic
document, or (3) the recollection of witnesses. The former rule was that any or all of these three kinds of
secondary evidence may be availed of (E. Michael & Co., Inc. v. Enriquez, 33 Phil 87) and the sufficiency of such
proof was addressed to the sound discretion of the judge. However, as amended, the present rule authorizes the
availment of such secondary evidence in the aforesaid order as stated therein.
However, where the law specifically provides for the class or quantum of secondary evidence to establish the
contents of a document, or bars secondary evidence of a lost document, such requirement is controlling. Thus,
secondary evidence of a lost notarial will should consist of the testimony of at least two credible witnesses who
can clearly and distinctly establish its contents (Sec. 6, Rule 76); while the proof required for the probate of a
holographic will (Sec. 5, Rule 76) appears to rule out any testimonial evidence of its contents in case of loss of the
original, although there is a dictum to the effect that it may possibly be proved by authentic photographic or
photostatic copies thereof (see Gan v. Yap, 104 Phil 509).
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
WHEN ORIGINAL IS IN ADVERSE PARTY’S CUSTODY
Sec. 6. When original document is in adverse party’s custody or control. – If the document is in the custody or control of
the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.
Sec. 7. Evidence admissible when original document is a public record. – When the original of a document is in the
custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the
public officer in custody thereof.
Under this Rule, the production of the original document is procured by mere notice to the adverse party, and the
requirements for such notice must be complied with as a condition precedent for the subsequent introduction of
secondary evidence by the proponent. Generally, therefore, it presupposes that the document to be produced is
intended as evidence for the proponent who is presumed to have knowledge of its contents, secondary evidence
thereof being available in case of its non-production.
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
ADVERSE PARTY CONSTRUED
The term ADVERSE PARTY is not necessarily confined to plaintiffs as against defendants, or vice versa; the other party
to the action. Example: when the plaintiff is in possession of the original document which is needed as evidence by the
defendant, the adverse party is the plaintiff or vice versa.
CUSTODY CONSTRUED
CUSTODY is defined as the care and possession of a thing, and means the keeping, guarding, care, watch, inspection,
preservation or security of a thing, and carries with it the idea of the thing being within the immediate personal care and
control of the person to whose custody it is subjected; charge; immediate charge and control, and not the final, absolute
control of ownership, implying responsibility for the protection and preservation of the thing in custody (Southern Carbon
Co. v. State, 171 Misc. 566, 13 N.Y.S. 2d 7, 9).
CUSTODY of property means such a relation towards it as would constitute possession if the person having custody had
it on his own account (State v. Columbus State Ban, 124 Neb. 231, 246 N.W. 235, 238).
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
CONTROL CONSTRUED
To control a thing is to have the right to exercise a directing or governing influence over it.
Control is the power or authority to manage, direct, superintend, restrict, regulate, direct,
govern, administer, or oversee (State v. First State Bank of Jud., 52 N.D. 231, 202 N.W.
391, 402).
The “control” involved in determining whether “principal and agent relationship” or “master
and servant relationship” is involved must be accompanied by power or right to order or
direct (Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E. 2d 972,
975).
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
ORIGINAL IN THE HANDS OF ADVERSE PARTY
Three (3) essential elements or requisites that must co-exist before the contents of the original
document in the possession of the adverse party may be proved by secondary evidence, viz:
ELEMENTS EXPLAINED
“Custody” or “control” by the adverse party is not to be interpreted technically. It is sufficient that the adverse party has control or
possession over the original document, though technically it may be in the possession or control of a third person.
Once, “custody” or “control” by the adverse party over the original document is established, the proponent shall demand or give
notice to the adverse party, signifying that the document will be needed. This is to show that the proponent has attempted and
failed to obtain the said document and has done all that he can to obtain it. The demand or notice for the production of the
original document must be in writing.
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
Continuation... ELEMENTS EXPLAINED
DEMAND OR NOTICE
Demand or notice is not necessary where the pleadings contain implied notice. Thus, where by the nature of the suit or
complaint, the defendant is virtually told by the plaintiff that the latter will need to prove, as a material part of his case, the
contents of a specific document which is in the opponent’s possession, no further demand or notice is necessary (How v.
Hall, 14 East 274, 277). Likewise, demand or notice to produce the original writing is not necessary where the writing is
itself a notice. Reason: One is not required to give a demand or notice to produce, which would lead to an endless
succession of notices. Furthermore, one is not required to demand or give notice to produce a writing where it has been
wrongfully obtained or withheld by the adverse party. This should be alleged and proved by the proponent.
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
Continuation... ELEMENTS EXPLAINED
Where there is failure or refusal to produce the original document, its content of said document may be proved by secondary evidence as in the
case of loss. The failing or refusing party, as a PROPER PENALTY FOR UNFAIR TACTICS, is BARRED TO PRODUCE THE ORIGINAL
DOCUMENT to contradict the other party’s copy or evidence of its contents.
When the adverse party refuses to produce the original of a document on the ground that the contents of the document will incriminate him, the
notifying party may still prove the terms of the document by secondary evidence even if the contents thereof would really incriminate the adverse
party. Reason: This would not violate the privilege against self-incrimination, for the privilege is merely that the possessor himself shall not
furnish incriminating evidence, and not that others shall not through their own witnesses do so (4 Wigmore § 1209).
Justified refusal or failure of the adverse party to produce the document does not give rise to the presumption of suppression of evidence, or
create an unfavourable inference, against him. It only authorizes the introduction of secondary evidence.
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
KINDS AND DEGREES OF SECONDARY EVIDENCE
Secondary evidence of the contents of a document is any evidence other than the original writing itself. Where the proper foundation is laid for the
introduction of a secondary evidence, that is, the contents of a writing, the proponent may now prove the contents of said document either by:
1) A COPY OF THE ORIGINAL WRITING. – A simple copy of the writing is sufficient It need not be a certified copy. What is necessary is that the simple
copy faithfully contains the terms of the original writing.
2) A RECITAL OF ITS (ORIGINAL WRITING) CONTENTS IN SOME AUTHENTIC DOCUMENTS. - An “authentic document” means that the document
should be genuine. It need not be a public document.
3) BY THE RECOLLECTION OF WITNESSES. – A witness, qualified to testify to the contents of a document, may repeat the terms of the original
document according to his recollection in one of two ways:
a) He may have written down its words at the time of perusal, in successive stages, by writing the few words that he can carry precisely in his mind for the
moment, and so on until the whole is transcribed; or
b) He may have taken an alleged copy already made by another or by himself, and compared it with the original, word for word or clause for clause
(Wigmore § 1266).
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
Continuation... KINDS AND DEGREES OF SECONDARY EVIDENCE
The kinds of secondary evidence may vary in the degree of reliability. The ORDER OF RELIABILITY may be as follows:
Sec. 8. Party who calls for document not bound to offer it. – A party who calls for the production of
a document and inspects the same is not obliged to offer it as evidence.
When demand or notice is required and given and the adverse party produces the document
asked for, the notifying party is not bound to offer the document as evidence. In other words, the
notifying party who calls for the production of a document and inspects it is not obliged to offer the
same as evidence. It is only when the notifying party has examined the document and offered it
in evidence that it assumes the status of evidentiary matter.
PROPER FORM: BEST EVIDENCE RULE
Secondary Evidence
APPLICATION OF THE RULE
• CARBON COPIES
A signed carbon copy of duplicate of a document executed at the same time as the original is what is known as duplicate original,
and, as such, may be introduced as evidence without accounting for the non-production of the original (Buentipo v. Civil Service
Commissioner, 9 SCRA 856).
It is alleged that the invoices sought to be introduced, which were produced by the use of carbon sheets, and which thereby
produced a facsimile of the originals, are regarded as duplicate originals and may be introduced as such, even without
accounting for the non-production of the originals (People v. Quinones, 44 O.G. No. 5, 152, 155; People v. Tan, L-14257, July 31,
1959).
• PHOTOSTATIC COPIES
Secondary evidence may also be presented when the original is in the possession of a person living beyond the jurisdiction of
the court (Reynolds on Evidence § 66; Jones on Evidence, Vol. 1, p. 424, 4th Ed.).
Photographs of records which can be brought into court may also be received in evidence (II Wharton, Criminal Evidence, 11th
ed., 1237).
LAW 3 CRIMINAL EVIDENCE
PART FIVE
NO EXCEPTIONS TO ADMISSION CAN APPLY
LAW 3 CRIMINAL EVIDENCE
Outline of Part V
1.Introduction
2.General Principles
3.Covered Privileges
i. Marital (Spousal) Privilege
ii. Attorney-Client Privilege
iii. Physician-Patient Privilege
iv. Clergy (Priest-Penitent) Privilege
v. Governmental Privilege
vi. Other Privileged Communications
LAW 3 CRIMINAL EVIDENCE
Outline of Part V
B. HEARSAY (DAYS 27-29: 93 Slides)
1.Hearsay in General
2.Hearsay Exceptions
a. Hearsay Exemptions
i. Party Admission
ii. Prior Statements by Witnesses
b. Exceptions: Availability of Declarant Immaterial
i. Res Gestae
• Excited Utterance
• Verbal Acts
• Present Sense Impression
iiOfficial Records*
iii. Family Records*
iv. Treatises*
v. Commercial Lists
vi. Common Reputation
c. Exceptions: Declarant’s Unavailability Required
i. Dying Declaration*
ii. Former Testimony or Deposition
iii. Declaration Against Interest*
iv. Statements of Personal or Family History*
v. Business Records
PRIVILEGES
General Principles
The privilege rules are founded on the following BASIC CONCEPTS:
a. Nature of Privileges
• PRIVILEGE RULES APPLY AT ALL STAGES OF A JUDICIAL PROCEEDING and it PREVENTS DISCLOSURE OF
CONFIDENTIAL COMMUNICATIONS between people in certain relationships.
b.Covered Privileges
• All the confidential communication privileges protect persons involved in specifically defined relationships.
c. Confidential Communications
• Only communications that qualify as confidential communications are protected from disclosure, and even if the
communication is protected, the information communicated by the holder is not.
(a) The husband or the wife, during or after the marriage, cannot be examined without
the consent of the other as to any communication received in confidence by one from
the other during the marriage except in a civil case by one against the other, or in a
criminal case for a crime committed by one against the other or the latter’s direct
descendants or ascendants;
POLICY AND REASON OF THE PRIVILEGE
The great object of the rule prohibiting the disclosure of marital communications is TO
SECURE DOMESTIC HAPPINESS BY PLACING THE PROTECTING SEAL OF THE
LAW UPON ALL CONFIDENTIAL COMMUNICATIONS BETWEEN HUSBAND AND
WIFE; and whatever has come to the knowledge of either by means of the hallowed
confidence which the relation inspires, cannot afterwards divulged in testimony even
though the other party be no longer living (Greenleaf on Evidence § 337).
PRIVILEGES: COVERED PRIVLEGES
Marital (Spousal) Privilege
REQUISITES
Privilege between husband and wife does not protect either from being examined as to their
communications in the presence of third persons, as a CONVERSATION HAD IN THE PRESENCE
OF A THIRD PARTY IS NOT PRIVILEGED. Hence, a third person who happens to overhear a
confidential conversation between husband and wife may be examined as to such conversation
though his presence was unknown to the spouse. The rule also applies whether such conversation
was overheard accidentally or by design (3 Wharton’s Criminal Evidence, 11th ed. § 1253).
Since the confidential nature of the communication is the basis of the privilege, the SAME CANNOT
BE INVOKED WHERE IT WAS NOT INTENDED TO BE KEPT IN CONFIDENCE BY THE
SPOUSE WHO RECEIVED THE SAME, as in the case of a dying declaration of the husband to his
wife as to who was his assailant (U.S. v. Antipolo, 37 Phil 726), which communication was
obviously intended to be reported to the authorities.
WAIVER
THE RULE
(b) An attorney cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the
course of, or with a view to, professional employment, nor can an attorney’s
secretary, stenographer, or clerk be examined, without the consent of the client
and his employer, concerning any fact the knowledge of which has been
acquired in such capacity;
BASIS OF PRIVILEGE
In all cases where the relation of attorney and client exists, all communications
made for the purpose and in the course of the employment, are regarded as
privileged and the rule of exclusion is strictly enforced (Philippes v. Chase, 201
Mass. 443, 87 N.E. 1909).
PRIVILEGES: COVERED PRIVLEGES
Attorney-Client Privilege
REQUISITES
In order that the rule of privilege may apply, the RELATION OF ATTORNEY AND CLIENT
MUST ACTUALLY EXIST BETWEEN THE PARTIES AT THE TIME WHEN THE
COMMUNICATION IS MADE OR THE INFORMATION ACQUIRED. But where a person
consults an attorney with a view to employing him professionally, any information acquired
by the attorney in the course of interviews or negotiations looking forward toward such
employment is privileged and cannot be disclosed, even though no actual employment of
the attorney as such follows, and notwithstanding the attorney may be afterward employed
by the adversary of the person who made such communication (70 C.J. 404, 406).
For the privilege to apply, the ATTORNEY MUST HAVE BEEN CONSULTED IN HIS
PROFESSIONAL CAPACITY, even if no fee has been paid therefor. Preliminary
communications made for the purpose of creating the attorney-client relationship are
within the privilege (8 Wigmore 587) and are now included in the amendment to this rule.
However, if the communications were not made for the purpose of creating that
relationship, they will not be covered by the privilege even if thereafter the lawyer
becomes the counsel of the party in a case involving the statements (People v. Enriquez,
256 Ill. 221).
PRIVILEGES: COVERED PRIVLEGES
Attorney-Client Privilege
COVERED COMMUNICATION
Where the attorney was himself a conspirator in the commission of the crime, the privilege does not attach. It is
well settled that in order that a COMMUNICATION BETWEEN A LAWYER AND HIS CLIENT MAY BE
PRIVILEGED, IT MUST BE FOR A LAWFUL PURPOSE. Every COMMUNICATION BETWEEN AN ATTORNEY
AND A CLIENT FOR A CRIMINAL PURPOSE is a conspiracy and an attempt at a conspiracy which is NOT ONLY
LAWFUL TO DIVULGE, but must PROMPTLY BE DISCLOSED (People v. Sandiganbayan, G.R. Nos. 115439-41,
July 16, 1997).
No express request for secrecy, to be sure, is necessary, but the mere relation of attorney and client does not
raise a presumption of confidentiality, and the circumstances are to indicate whether by implication and the
communication was a sort intended to be confidential. These circumstances will of course vary individual cases,
and the ruling must therefore depend much on the case in hand (VIII Wigmore on Evidence § 2311).
Communications covered by the privilege include verbal statements and documents or papers entrusted to the
attorney, and of facts learned by the attorney through the act or agency of his client.
PRIVILEGES: COVERED PRIVLEGES
Attorney-Client Privilege
WHEN PRIVILEGE DOES NOT APPLY
Privilege does not apply to communications which are (1) intended to be made PUBLIC;
(2) intended to be COMMUNICATED TO OTHERS; (3) intended for an UNLAWFUL
PURPOSE; (4) RECEIVED FROM THIRD PERSONS not acting in behalf or as agents of
the client; or (5) made in the PRESENCE OF THIRD PARTIES who are strangers to the
attorney-client relationship.
For the application of the attorney-client privilege, the period to be considered is that DATE WHEN
THE PRIVILEGED COMMUNICATION WAS MADE BY THE CLIENT TO THE ATTORNEY in
relation to either a crime committed in the past or with respect to a crime intended to be committed
in the future.
The PRIVILEGE IS PERMANENT, AND DOES NOT CEASE although the litigation has ceased or
the relation of attorney and client terminated (Doyle v. Reeves, 152 Alt. 882). NEITHER DOES
DEATH OF THE CLIENT AFFORD A GROUND FOR THE DISCLOSURE of the privileged
communications. However, if the issue is as to the validity of the will, the identity of persons named
therein as beneficiaries, or the like, the attorney may testify to the facts which are relevant to such
issues (Coates v. Semper, 82 Minn. 460, 85 N.W. 217).
To the client only belongs the privilege and he alone can invoke it. He may claim the privilege not
only when his attorney is called upon to disclose professional communications, but also when he
himself is asked to disclose it. When the privilege belongs to two or more clients, the consent of
each is essential to constitute a waiver, to permit testimony concerning the professional
communication (Wharton’s Criminal Evidence § 1237).
PRIVILEGES: COVERED PRIVLEGES
Attorney-Client Privilege
LAWYER’S SECRETARY, STENOGRAPHER OR CLERK ALSO DISQUALIFIED
Privilege protects the confidential communications made by the client to the attorney not only from
the attorney himself, but also from his secretary, stenographer, or clerk, when their knowledge has
been acquired in such capacity. The privilege could easily be defeated if persons in an attorney’s
employ were allowed to testify against the consent of the client. According to the rule, the attorney
is also entitled to prohibit his employees from disclosing such confidential communications.
The most common instance of loss of the privilege is by express consent of the client to the
introduction of evidence on the privileged matter. And when such evidence is introduced without
the seasonal objection, the client is deemed to have impliedly consented to it, in such case a
waiver is also accomplished. There is no implied waiver when the introduction of evidence on the
privileged matter was made where the client is not a party or is not present during the hearing
(Wilson v. Ohio Farmer’s Ins. Co., 164 Ind. 462, 73 N.E. 892).
When the party for whose protection the privilege was created introduces evidence on the
privileged matter or cross-examine the other party as to such matter he is deemed to have lost the
privilege.
PRIVILEGES: COVERED PRIVLEGES
Physician-Patient Privilege
THE RULE
REQUISITES
Not necessary that the physician-patient relationship was created through the voluntary act of
the patient. Thus, the treatment may have been given at the behest of another, the patient
being in extremis.
Other information gathered by the physician from the patient (1) after the
RELATION HAS CEASED, (2) while ACTING NOT IN THE PERFORMANCE
OF HIS PROFESSIONAL DUTY or (3) which he may have OBTAINED
INCIDENTALLY BY OBSERVATION OR USE OF THE SENSES which are not
necessary to enable him to treat or prescribe for the patient are not covered by
the privilege (3 Jones § 160).
Privilege PROTECTS NOT ONLY THE COMMUNICATIONS made by the patient to the physician,
surgeon, obstetrician or dentist, BUT ALSO THE OPINIONS OR PRESCRIPTIONS GIVEN BY THE
LATTER TO THE PATIENT, for the reason that the privilege of the patient may easily be defeated,
for the nature of his ailment may in many instances be revealed from the prescriptions given by the
physician.
Matters within the privilege MAY TAKE ANY FORM, whether orally, by affidavit, certificate,
deposition, or medical records of hospital or asylums, and facts learned by observation of the use of
the senses (Bryant v. Modern Woodmen of America, 125 N.W. 261).
Privilege does not apply where (1) the communication was NOT GIVEN
IN CONFIDENCE; (2) the communication is IRRELEVANT TO THE
PROFESSIONAL EMPLOYMENT; (3) the communication was made for
an UNLAWFUL PURPOSE; as when it is intended for the commission
or concealment of a crime; (4) the information was INTENDED TO BE
MADE PUBLIC; or (5) there was a WAIVER OF THE PRIVILEGE either
by provisions of contract or law.
Under Rule 28 of the Rules of Court, the results of the physical and
mental examination of a person when ordered by the court are intended
to be made public, hence they can be divulged in that proceeding and
cannot be objected to on the ground of privilege. Also, results of
autopsies or post-mortem examinations are generally intended to be
divulged in court, aside from the fact that the doctor’s services were not
for purposes of medical treatment.
PRIVILEGES: COVERED PRIVLEGES
Physician-Patient Privilege
•DURATION OF THE PRIVILEGE
PRIVILEGE DOES NOT CEASE UPON THE DEATH OF THE PATIENT, NOR UPON TERMINATION OF THE
PROFESSIONAL RELATION. Reason: The purpose of the law would be thwarted, and the policy intended to be
promoted thereby would be defeated, if death removed the seal of secrecy from the communications and disclosures
which a patient should make to hhis physician (Westover v. Aetha Life Ins. Co., 99 N.Y. 69).
WAIVER
Privilege is created for the protection of the patient, hence, it cannot be claimed by any other person who is a party to
the case. Thus, the accused cannot object to the testimony of a physician as to the nature of the deceased’s wound
and the cause of his death (Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A.L.R. 1348).
The law uses the words “clergyman or priest”. It also includes minister or pastor.
Only communications made by a penitent to a minister or priest and the purpose of which is to seek
absolution or spiritual aid are under the protection of this privilege. A confession made may not be
privileged unless it was made in the course of discipline enjoined by the rules or practice of the
church to which the pastor and penitent belonged (Sherman v. State, 170 Ark. 148, 729 S.W. 353).
THE RULE
(e) A public officer cannot be examined during his term of office or afterwards, as
to communications made to him in official confidence, when the court finds that
the public interest would suffer by the disclosure. (21a)
The evidence is excluded, not for the protection of the witness of the party in
the particular case, but upon general grounds of PUBLIC POLICY, because of
the confidential nature of such communications AND THE PUBLIC INTEREST
that may suffer from such disclosure (Worthington v. Scribner, 109 Mass. 487,
489).
Communications made in official confidence to a public officer are privileged
where the PUBLIC INTEREST WOULD SUFFER BY THE DISCLOSURE.
PRIVILEGES: COVERED PRIVLEGES
Governmental Privilege
RATIONALE OF THE DISQUALIFICATION
It is, therefore, deemed advisable that whenever the executive department considers
that certain matters or communications should not be divulged, the opinion or
decision shall be regarded as binding upon the courts and testimony concerning
them will not compelled (8 Wigmore § 2378).
PUBLIC INTEREST
Something in which the public, the community at large, has some pecuniary
interest, or some interest by which their legal rights or liabilities are affected. It
does not mean anything so narrow as mere curiosity, or as the interests of the
particular localities, which may be affected by the matters in question (State v.
Crockett, 86 Okl. 124, 206 P. 816, 817).
Where no public interest would be prejudiced, this rule does not apply (Banco
Filipino v. Monetary Board, G.R. No. 70054, July 8, 1986).
PRIVILEGES: COVERED PRIVLEGES
Governmental Privilege
REQUISITES
In order that the privilege may attach, it is necessary that the following requisites must
concur:
1. The privilege applies only to the identity of the informant, not to the contents of his
statement as such, for, by hypothesis, the contents of the communications are to be used
and published in the course of prosecution.
2. If the identity of the informer is admitted or known, then there is no reason for pretended
concealment, and the privilege of secrecy would be merely an artificial obstacle to proof.
3. The privilege applies to communications to such officers only as have a responsibility or
duty to investigate or to prevent public wrongs, and not to officials in general. This
ordinarily signifies the police, and officials of criminal justice generally.
4. Even where the privilege is strictly applicable, the trial court may compel disclosure, if it
appears necessary in order to avoid the risk of false testimony or to secure useful
testimony (VIII Wigmore on Evidence § 2374).
PRIVILEGES: COVERED PRIVLEGES
Governmental Privilege
i. THE RULE
WITHOUT PREJUDICE TO HIS LIABILITY UNDER THE CIVIL AND CRIMINAL LAWS, the
publisher, editor or duly accredited reporter of any newspaper, magazine or periodical or general
circulation cannot be compelled to reveal the source of any news report or information
appearing in said publication which was related in confidence to such publisher, editor or
reporter, unless the Court or a House or Committee of Congress finds that such revelation is
demanded by the security of the State (Sec. 1, Republic Act No. 58, otherwise known as the
Press Freedom Law, as amended by Republic Act No. 1477, approved on June 15, 1956).
• Interpreting this provision of law, the Supreme Court said, “the phrase interest of the state’ is
quite broad and extensive. It is of course more general and broader than ‘security of the state.”
• However, Section 1 of RA 58 has been amended. The phrase ‘interest of the state,’ was
amended for “security of the State,” which is more limited in its scope.
PRIVILEGES: COVERED PRIVLEGES
Other Privileged Communications
CONCILIATOR/MEDIATOR-PARTY PRIVILEGE
i. Article 233 of the Labor Code (P.D. 442), as amended, provides that all information and statements made at
conciliation proceedings shall be treated as privileged communications and shall not be used a evidence in the
National Labor Relations Commission, and conciliators and similar officials shall not testify in any court or body
regarding any matter taken up at the conciliation proceedings conducted by them.
Pertinent portions of Section 9 of Republic Act No. 9285, known as the “Alternative Dispute Resolution Act of
2004,” thus provide:
Sec. 9. Confidentiality of Information. – Information obtained through mediation proceedings shall be subject to
the following principles and guidelines:
b) A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from
disclosing a mediation communication.
c) Confidential Information shall not be subject to discovery and shall be inadmissible in any adversarial
proceeding, whether judicial or quasi-judicial. x x x.
PRIVILEGES: COVERED PRIVLEGES
Other Privileged Communications
PARENTAL AND FILIAL PRIVILEGE
i. THE RULE
SEC. 25. Parental and filial privilege. – No person may be compelled to testify against his parents,
other direct ascendants, children or other direct descendants. (20a)
The parental and filial privilege is very much akin to the incapacity arising from marriage. This
privilege is necessary to preserve “family cohesion.”
The purpose of this provision is to preserve the sacred sentiments between members of the same
family (Report of the Code Commission on Civil Code, p. 35).
PARENTAL AND FILIAL PRIVILEGE MAY BE INVOKED IN CIVIL AND CRIMINAL CASES.
This rule has been modified by Art. 215 of the Family Code which states “No descendant shall be
compelled, in a criminal case, to testify against his parents and grandparents, except when such
testimony is indispensable in a crime against the descendant or by one parent against the other.”
The Family Code in contrast with the above Rules of Court permits two (2) exceptions where a child
may be compelled to testify against his parents or ascendants.
PRIVILEGES: COVERED PRIVLEGES
Other Privileged Communications
THE RULE
DEFINITION OF HEARSAY
HEARSAY is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.
If one therefore testifies to facts which he learned from a third person not sworn as a
witness to those facts, his testimony is inadmissible as hearsay evidence.
Literally, it is what the witness says he heard another person say (Stockton v.
Williams, 1 Doug. Mich. 546, 570, citing 1 Starkie on Evidence, p. 229).
HEARSAY: HEARSAY IN GENERAL
Rationale for the Rule against Hearsay
Grounds usually assigned for the rejection of hearsay evidence are:
STATEMENT: An oral or written assertion or non-verbal conduct of a person, if it is intended by the person as an assertion (the
words or conduct must be an attempt to state a piece of information). If words or conduct form an assertion, they constitute a
statement, and satisfy the first component of the hearsay definition.
STATEMENT MADE “OTHER THAN WHILE TESTIFYING AT THE TRIAL OR HEARING”: Any statement not made at the trial or
hearing at which it is offered qualifies under this part of the rule. Thus, a statement made to a police officer at the scene of a
crime is one made “other than while testifying at the trial or hearing” if it is later offered at the trial in a different case.
STATEMENT “OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED”: The most difficult part of the
hearsay definition is the requirement that the statement be offered “to prove the truth of the matter asserted.” To determine
whether a statement qualifies under this part of the rule, you must make two determinations:
(1) Determine the purpose for which the proponent has offered the statement; and
(2) Determine the first inference in the chain of reasoning that leads form the statement to the conclusion. We call this the FIRST
INFERENCE RULE: a statement is “offered in evidence to prove the truth of the matter asserted” only if the first inference from
the statement must be true in order for the statement to prove the factual conclusion the party wishes to prove. This sounds
complicated, but it is not. The first inference rule is really just another way of saying that a statement is hearsay if the matter it
asserts has to be true in order for the evidence to be relevant. If it must be true, that means the statement is “offered to prove the
truth of the matter asserted.”
HEARSAY: HEARSAY IN GENERAL
Statement of the Hearsay Rule
HEARSAY: HEARSAY IN GENERAL
Distinction between Hearsay and Lack of
Personal Knowledge
There is a difference between a hearsay objection and an objection that the witness
lacks personal knowledge, and yet the two objection overlap.
A witness who did not see an event, but did hear about it from others, lacks personal
knowledge. Assuming that she testifies but makes no reference to what she was
told, the other side might well raise a lack-of-knowledge objection on learning during
cross that the witness did not herself see what she described. Here the right
objection is lack of personal knowledge.
But if the witness, in answering the question, quotes or describes a statement made
to her by another, then the hearsay objection becomes appropriate, and an
objection might well stress both lack of knowledge and hearsay.
These statements are admitted not as proof of the truth of the facts revealed
therein but only as to the fact that they have been made as part of the narration
of a witness (Alfonso v. Juanson, 228 SCRA 239 [1993]).
Under the doctrine of independently relevant statements, only the fact that such
statements were made is relevant, and the truth or falsity thereof is immaterial.
The hearsay rule does not apply, hence, the statements are admissible as
evidence. Evidence as to the making such statement is not secondary but
primary, for the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact.
Example: In a prosecution for slander, a witness may testify that he heard the accused
uttered slanderous words. The making of the statements is the principal fact in issue,
and the witness is called upon to testify as to a matter within his personal knowledge.
There is no question of hearsay involved (McKelvey on Evidence § 147).
These statements are admissible because the fact of their making throws light upon the
question of the truth or falsity of the disputed facts; not because they state anything in
regard to the existence or non-existence of such facts, but because they in some way
illustrate an attitude or state of mind or other evidential fact from which the main facts
may be inferred (McKelvy § 208).
HEARSAY: HEARSAY IN GENERAL
Doctrine of Independently Relevant Statements
Continuation... STATEMENTS WHICH ARE CIRCUMSTANTIAL EVIDENCE OF THE FACTS IN ISSUE
Statements which may identify the time, date, place and person in question may be
testified to by a witness without any violation of the hearsay rule.
Example: A witness may testify that he remembered that it was A who took his car
because at that time B who was visiting with witness told him that A’s face resembles that
of C.
• If a witness testified that he saw B took the car in issue, the opposing party, in order to
rebut the testimony of the witness, may introduce previous statements of the same
witness made out of court, to the effect that he did not see B take the car. These
statements are introduced to impeach the credibility of the witness.
HEARSAY: HEARSAY IN GENERAL
Hearsay Evidence Not Objected to is Admissible
DEFINED
ADMISSIONS CLASSIFIED
JUDICIAL ADMISSION is one made in pleadings filed or in the progress of a trial as to dispense with the
introduction of evidence otherwise necessary or to dispense with some rule of practice necessary to be observed
and complied with (Jones on Evidence, 2nd Ed. § 894).
EXTRAJUDICIAL ADMISSION is one made out of court, or in another judicial proceeding (McLemore v. Nuckolls,
27 Ala. 662).
The most important distinctions between judicial and other admissions, is that strictly, judicial admissions are
conclusive upon the party making them, while other admissions are, as a rule and where the elements of
estoppels are not present, disputable (Barber v. Bennett, 60 Vt. 662, 15 Atl. 438).
2. EXPRESS AND IMPLIED ADMISSIONS
EXPRESS ADMISSIONS are such as are made in express terms and of the very fact in issue or in dispute. They
may be oral or written (1 Encyclopedia of Evidence, p. 360).
IMPLIED ADMISSIONS are those which result from an act done or undone; from conduct, silence, or
acquiescence (Anderson’s Law Dictionary). Implied admissions are those which result from some act of failure to
act of the party.
HEARSAY: HEARSAY EXCEPTIONS
Party Admission
Continuation... ADMISSIONS CLASSIFIED
ADOPTIVE ADMISSION occurs when the party, though not making the statement himself or herself, adopts a statement made
by another, usually by silence in the face of an accusation.
Example: As two men are walking toward each other on the street, one points to the other and says, “That’s the man who killed
my brother.” If the other man hears the statement but does not respond with a denial, then such a lack of response will
constitute an adoption of the statement as truth. An adoptive admission will be found when, under the circumstances, a
reasonable person would be expected to respond and deny the accusation.
VICARIOUS ADMISSION is a statement not actually made by the party but by an individual acting on behalf of a party. Such an
individual may be acting as either a person expressly authorized to speak on behalf of the party, an agent or an employee, or a
co-conspirator.
If the statement was made by someone authorized to speak for the party opponent, then the statement must concern the subject
matter about which the person was authorized to speak.
If the statement was made by an employee, the statement must concern a matter within the scope of employment and must be
made during the time of employment.
A co-conspirator’s statement is one made by a co-conspirator during the course of the conspiracy and in furtherance of the
conspiracy. Not all co-conspirator’s statements are admissible. If a co-conspirator makes a statement after the conspiracy has
ended, usually after the arrest, such statements are not admissible within the co-conspirator’s statements exemption.
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
THE PARTY’S OWN STATEMENT
THE RULE
Sec. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence
against him.
The declarations made by a defendant, or a third party by his authority, if relevant, are admissible against one charged with a
crime. If the defendant has made statements constituting an admission of the facts charged in the complaint, relevant thereto,
they are admissible against him.
A man’s acts, conduct, declarations, wherever made, provided they are voluntary, are admissible against him, for the reason that
it is fair to presume that they correspond with the truth, and it is his fault if they do not (U.S. v. Ching Po, 23 Phil 578).
Admissions are RECEIVABLE AGAINST THE PARTY WHO MADE THEM, but not in his favor, because then they would be self-
serving. Self-serving evidence is the unsworn statement of a party intended to favor his own interest which is made out of court.
An admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to him.
All proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether or not objection is interposed
(Elayda v. Court of Appeals, 199 SCRA 349 [1991]).
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
THE PARTY’S ADMISSION BY ADOPTION
THE RULE
Sec. 32. Admission by Silence. An act or declaration made in the presence and within the hearing or observation of a
party who does or says nothing when the act or declarations is such as naturally to call for action or comment if not
true, and when proper and possible for him to do so, may be given in evidence against him.
The rule that the silence of a party against whom a claim or a right is asserted may be construed as an admission of
the truth of the assertion rests on that instinct of our nature, which leads us to resist an unfounded demand. The
common sense of mankind is expressed in the popular phrase, silence gives consent, which is but another form of
expressing the maxim of the law, qui tacet consenter videtur (Perry v. Jonson, 59 Ala. 648).
Before the silence of a party can be taken as an admission of what is said against him, it must appear:
1. That he heard and understood the statement;
2. That he was at liberty to interpose a denial;
3. That the statement was in respect to some matter affecting his rights or in which he was then interested, and
calling naturally for an answer;
4. That the facts were within his knowledge; and
5. That the fact admitted or the influence to be drawn from his silence would be material to the issue (III Jones on
Evidence § 1044).
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
Continuation... THE PARTY’S ADMISSION BY ADOPTION
In a prosecution for rape, it appears that a party having been attracted by the cries of the alleged offended party, went to the
scene of the crime, and that one of them, seeing the defendant get up from the alleged place where the woman claimed the
crime was committed, asked, “What’s this?” and the defendant made no explanation of his conduct or his presence there, and
left the place forthwith. Held: The unexplained silence of a man surprised in company with a woman by whom he is there and
then charged with rape, under circumstance which would naturally call for an indignant denial of such a charge by an innocent
man, is evidence tending to establish his guilt of the crime thus charged (U.S. v. Bay, 27 Phil 495).
Silence of a person in the fact of a direct accusation may be taken as a quasi-confession (People v. Pilones, 84 SCRA 167).
The doctrine of acquiescence does not ordinarily apply to statements made in the course of judicial proceedings, because it is
not the right or duty of a party to interrupt the order of proceedings, by denials or contradictions, and his silence cannot,
therefore, under such circumstances, be deemed an admission (Wilkins v. Stidger, 22 Cal. 231, 83 Am. Dec. 67).
The rule on admission by silence is not applicable where the defendant in his answer specifically denied the plaintiff’s averments
(Aballe v. Santiago, 7 SCRA 925).
Failure of a suspect to deny the charge against him during the police investigation cannot be taken against him (People v. Hizon,
L-51449, September 20, 1989).
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
AN ADMISSION BY A PERSON AUTHORIZED BY A PARTY TO SPEAK
THE RULE
Sec. 28. Admission by Third Party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as
hereinafter provided.
This rule embodies the familiar maxim RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET which means that a “transaction between two
parties ought not to operate to the disadvantage of a third” (Caroll v. Tye Tp., 101 N.W. 897, 13 N.D. 458). Thus, a thing done between others
should not bind or affect a party to a suit.
Whatever one says or does should affect him; it should not bind others. Consequently, the act, declaration or omission of another should not
affect or prejudice the rights of a party to a suit; nor should proceedings, judicial or non-judicial, against one affect another. A party may assent
to a statement uttered by another person, thereby becoming his own admission.
The rule on RES INTER ALIOS ACTA provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.
Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused ( People v. Vda. De
Ramos, 451 Phi. 214) and is considered as hearsay against them (People v. Tizon, Jr., G.R. Nos. 133228-31, July 30, 2002).
The reason for this rule is that: on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are
evidence against him. So are his conducts and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a
man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought
their acts or conduct be used as evidence against him (Tamargo v. Awingan, G.R. No. 177727, January 19, 2010).
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
Continuation... AN ADMISSION BY A PERSON AUTHORIZED BY A PARTY TO SPEAK
There are exceptions to the rule that a party cannot be prejudiced by the act,
declaration or omission of another, to wit:
ADMISSION BY A PARTNER, AGENT OR OTHER PERSON JOINTLY INTERESTED WITH THE PARTY
THE RULE
Sec. 29. Admission by co-partner or agent. – The act or declaration of a partner or agent of the party within the scope of his authority and during
the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence
other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested
with the party.
The following requisites must be presented in order that this provision will apply, to wit:
1. That the partnership, agency, or joint interest is proven by evidence other than the act or declaration sought to be admitted;
2. That the admission is within the scope of the partnership, agency or joint interests; and
3. That the admission was made while the agency, partnership, or joint interest was in existence (Francisco, Trial Technique, Vol. II, pp. 157-158).
Statements by lumber company’s agent to owner of house under construction that was backing contractor are admissible against the principal
(Clem v. Forbess, Tex. Civ. Appl. 10 S.W.Ed. 223).
Where scope of agency and authority is sufficiently broad, a general manager or superintendent may make an admission of liability which is
admissible against the principal (Davidson v. Long Island Home, 278 N.Y.S. 167).
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
Continuation... EXCEPTIONS TO THE RULE
ADMISSION BY CONSPIRATOR
THE RULE
Sec. 30. Admission by Conspirator. – The act or declaration of a conspirator relating to the conspiracy and
during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.
The rule admitting the act or declaration of a conspirator against his co-conspirator is FOUNDED UPON
PRINCIPLES WHICH APPLY TO AGENCIES AND PARTNERSHIPS, for it is reasonable that, where a body
of men assume the attribute of individuality, whether for commercial, business, or for the commission of a
crime, the association should be BOUND BY THE ACTS OF ONE OF ITS MEMBERS IN CARRYING OUT
THE DESIGN; and the legal principle governing in cases where several are connected to one of those
concerned in the furtherance of the original enterprise with reference to the common object is, in the
contemplation of law, the act or declaration of all (16 C.J. 644; 22 C.J.C. 1291).
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
Continuation... EXCEPTIONS TO THE RULE
ADMISSION BY CONSPIRATOR
Three requisites must exist in order that an admission of a conspirator against a co-conspirator may be admitted, to wit:
1. That the conspiracy be first proved by evidence other than the admission itself;
2. That the admission relates to the common object; and
3. That it has been made while the declarant was engaged in carrying out the conspiracy (People v. Estrella, 10250-CR, March 21, 1972).
CONSPIRACY DEFINED
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Article
8, Revised Penal Code).
The rule on admissibility of an act or declaration of a confederate after conspiracy is shown by evidence other than such act or declaration is
applicable to extrajudicial acts or declarations (People v. Dacanay, 49 O.G. 919).
Acts and declarations of a conspirator cannot be admitted in evidence as against a conspirator, unless such acts were performed or such
declarations made in aid or execution of the conspiracy (U.S. v. Raymundo, 14 Phil 416).
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
ADMISSION BY PRIVIES
THE RULE
Sec. 31. Admission by Privies. – Where one derives title to property from another, the
act, declaration, or omission of the latter, while holding the title, in relation to the
property, is evidence against the former.
PRIVITY DEFINED
ADMISSION BY PRIVIES
Admissions of one who is privy to title, such as a former owner or grantor, assignor, transferor or
vendor, are admissible against the successor in interest, so long as the act or declaration has
relation to the property and is made before the sale, assignment or other disposal of his interest.
As the act or declaration is of a fact consciously against interest when made the statement is
quite as reliable as the testimony of the declarant (Morgan, Rationale of Vicarious Admissions, p.
479).
Since the basis of the admission by a predecessor in interest is privity of title, the admission can
be used only by the one who claims under an interest derived from the predecessor. Such
evidence cannot be used to contradict the terms of a written instrument, i.e. to vary the terms of a
deed or destroy the record of title.
HEARSAY: HEARSAY EXCEPTIONS
Types of Party Admission
Continuation... EXCEPTIONS TO THE RULE
ADMISSION BY PRIVIES
The admission must have been made during the grantor’s ownership of the property in order that it
will be admissible under this rule. In other words, it is only the grantor’s admission, while holding title
to the property that can be admitted as against the grantee or transferee.
There are three (3) instances where declarations made after the transfer are admissible against the
grantee or transferee, namely:
1.Where the declarations are made in the presence of the grantee or transferee and he acquiesces in
the statements or asserts no rights where he ought to speak;
2.When there has been a prima facie case of fraud established as where the thing granted has a
corpus and the possession of the thing after the transfer remains with the transferor; and
3.Where the evidence establishes a continuing conspiracy to defraud, which conspiracy exists
between the vendor and the vendee (2 Jones on Evidence § 912).
HEARSAY: HEARSAY EXCEPTIONS
Prior Statements by a Witness
• Statements by the witness that contradict the witness’s current in-court testimony.
For example: A witness to a robbery testifies in court that the getaway car was
green, two-door Chevrolet Camaro. The same witness had previously testified at
the preliminary investigation that the getaway car was a red, four-door Ford Taurus.
The preliminary investigation statement is a prior inconsistent statement that is now
admissible during the cross-examination of the witness. However, in order for the
prior statement to qualify as an exemption under this rule, the prior statement must
have been made under oath and must have been subject to the penalty of perjury at
a trial, hearing, another proceeding, or in a deposition. Inconsistent statements not
under oath are not admissible under this exemption.
HEARSAY: HEARSAY EXCEPTIONS
Prior Statements by a Witness
CONTINUATION... TYPES OF PRIOR STATEMENTS BY WITNESSES
• Prior consistent statements do not have to be under oath and thus may be out-of-court
statements. Prior consistent statements are statements made previously that are consistent
with the present testimony of the witness. They are admissible only to rebut a charge of recent
fabrication, improper influence or motive.
For example: Suppose a child claimed that she had been abused by one of her parents.
Subsequently, the parents decide to get annulled, and both parents want custody of the child.
At the child abuse hearing, the child is called to testify about the alleged abuse. In defense,
each parent claims that the child is fabricating the story of abuse to remain with the other
parent after the annulment. On redirect examination of the child, the prosecution will seek to
offer a prior consistent statement that the child gave to a police detective at the time of the
alleged abuse. This statement was given prior to the time that the parents decided to get
annulled, and therefore could not be tainted by any motive to stay with a particular parent.
HEARSAY: HEARSAY EXCEPTIONS
Prior Statements by a Witness
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.
RES GESTAE means “things done,” that is, an occurrence or a transaction. Res gestae are
events speaking for themselves through instinctive and spontaneous words or acts of the
participants. To be admissible as part of the res gestae, a statement must be an act talking for
itself, not the person talking about the act.
What is said or done by participants under the immediate spur of a transaction becomes thus
part of the transaction that speaks. It is this spontaneous word or act done under the immediate
spur of the transaction, and not the mere assertion about the transaction which is admissible as
part of the res gestae.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Res Gestae
TEST OF STATEMENT AS RES GESTAE
The test to whether declaration is part of res gestae depends on whether declaration was facts talking through party or party
talking about facts. The distinguishing question is, “Is the evidence offered that of the event speaking through the participants?” If
so, what was thus said can be introduced without calling those who said it. Is the evidence offered that of observers speaking
about the event? If so, such observers must be called to testify. The former is admissible as a true exception to the hearsay rule;
the latter is hearsay which is not admissible.
For evidence to be admissible as res gestae, there must be an act in itself admissible in the case independently of the declaration
that accompanies it; a declaration uttered simultaneously, or almost simultaneously, with the occurrence of the act; and the
explanation of the act by what is said when it happens (Staley v. Royal Pines Park, 202 N.C. 155, 162 S.E. 202, 203).
The reason for admissibility of res gestae are: TRUSTWORTHINESS and NECESSITY.
1. TRUSTWORTHINESS because the statements are made instinctively, while the declarant’s mental powers for deliberation in
concocting matters are controlled and stilled by the shocking influence of a startling occurrence, so that all his utterances at the
time are the reflex products of immediate sensual impressions, unaided by retrospective mental action, and, therefore, they are
but pure emanations of the occurrence itself, the facts speaking through him, and not vice versa.
2. NECESSITY because said natural and spontaneous utterances are more convincing than the testimony of the same person on
witness stand (State v. McLaughhin, 138 La. 598; U.S. v. King, 34 Fed. 314; Little Rock R. Co. v. Leverret, 48 Ark. 333; Illinois
Cent. R. Co. v. Lowery, 63 S. 952; Wesley v. State Ala., 182; Mobile v. Ascraft, 48 Ala. 31).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Res Gestae
GENERAL REQUISITES FOR ADMISSIBILITY
1. The principal fact, the res gestae, must be a startling occurrence or equivocal act;
2. The statements must have been made before the declarant had time to contrive or
devise or the verbal act must be contemporaneous with or must accompany the
equivocal act; and
3. The statements must concern the occurrence in question and its immediately attending
circumstances.
4. Excited Utterance
5. Verbal Acts
6. Present Sense Impression
7. Present State of Mind or Intent
8. Declaration of Physical Condition or Statements for Purposes of Medical Diagnosis or
Treatment
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
EXCITED UTTERANCE
The Rule
Sec. 42. 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. x x x.
The declarant’s spontaneous exclamation is better than is likely to be obtained from him
upon the stand, and this by itself alone is sufficient to justify the exception (VI Wigmore §
1748). The circumstantial probability of trustworthiness consists in the consideration that
in the stress of nervous excitement the reflective faculties may be stilled and the
utterance may become the unreflecting and sincere expression of one’s actual
impressions and belief (Id., §1749).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
The occurrence, speaking for itself, must be startling enough to produce nervous excitement. The
idea is psychologically sound, namely, that the emotional excitement of a sudden external event may
produce an utterance which represents the person’s actual impressions received, unaltered by any
conscious reflection that might produce misrepresentation. The following have been considered
startling occurrences: death, collision, shooting, abduction, accident, birth, and the like (1 Wharton
769).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
It should be noted that a declaration which fails to qualify as a dying declaration due to the lack of
element of consciousness of impending death may be considered as part of res gestae. It was held
that the statement of the deceased as to his state, the attack on him and the name of his assailant is
admitted under this exception (People v. Palamos, 49 Phil 601).
Second Requisite: Statements Made Before the Declarant had Time to Contrive or Devise
The utterance must be made soon after the startling occurrence, before time has elapsed for
deliberate reflection. The factors to be considered in determining spontaneity are lapse of time, the
absence or presence of opportunity for fabrication, the mental and physical condition of the declarant,
and the nature and form of the declaration. It is necessary that there was an opportunity for the
declarant to deliberate or fabricate, the declaration must be instinctive rather than deliberate. The
declaration must be made at a time when the declarant was under nervous excitement on account of
the occurrence. These are the indicia of verity which the law accepts as a substitute for the usual
requirements of an oath and opportunity for cross examination (Illinois Central Ry. V. Lowery, 148 Ala.
443, 65 So. 952).
Third Requisite: Statements Must Relate to the Questioned Occurrence or its Circumstances
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
The statement must relate to the circumstances of the event. The range of events varies according to
the crime which is charged and the particular facts constituting the criminal transaction. Thus, the
statement of the victim who was severely wounded, “I do not know, I am not to blame” was admitted
as part of res gestae (People v. Nartea, 74 Phil 8).
• There is a split among the decisions on whether to admit excited utterances of mere bystanders or whether to
admit only declarations by the actor himself and therefore to require that the declarant actually be involved in
the exciting event, but our decisions would seem to dispense with this requirement (See People v. Ner, G.R.
No. 25504, July 31, 1969, 28 SCRA 1151 [1969]; People v. Cantonjos, G.R. No. 136748, November 21, 2001,
370 SCRA 105 [2001]; People v. Palmones, G.R. No. 136303, July 18, 2000, 336 SCRA 80 [2000]). Thus, the
declarant need not be the victim of the event, he may be only a bystander, provided that he has the usual
testimonial qualifications that would be required of him if testifying on the stand (6 Wigmore § 1751).
• Illustrative Cases: Consider the case of an assault victim, hospitalized for seven weeks with brain damage,
who upon coming home from the hospital was shown a newspaper article containing a photograph of the
defendant accused of the assault. Upon seeing the photograph, the victim, in great distress, pointed to the
picture and said, “He killed me, he killed me!” The court considering the testimony describing these events
and the retelling of the statement held that the statement was admissible within the excited utterance
exception to the hearsay rule (U.S. v. Napier, 518 F.2d 316 (9th Cir. 1975), cert. Denied, 423 U.S. 895, 96 S.Ct.
196, 46 L.Ed.2d 128 [1975]).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
VERBAL ACTS
The Rule
Sec. 42. x x x. 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.
VERBAL ACTS are utterances which accompany some act or conduct to which it is
desired to give a legal effect. When such act has intrinsically no definite legal
significance, or only an ambiguous one, its legal purport or tenor may be ascertained by
considering the words accompanying it, and these utterances thus enter merely as a
verbal part of the act.
Example: A was seen handling money to B. We do not know whether A was paying a
debt, or lending the money, or turning the money for safekeeping. The legal effect of the
act of handing money is incomplete without the words accompanying it; hence, the words
of A and B are admissible as verbal parts of the act (Wigmore on Evidence [Student Text],
p. 217).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
Must be contemporaneous or
must accompany the equivocal
VERBAL ACTS Equivocal Act act
There seems as yet to be no express recognition in this jurisdiction of the hearsay exception
for present sense impressions under the res gestae rubric.
Limitations
1. The subject matter of the statement must DESCRIBE or explain some event or
condition.
2. The statement must be made while the declarant was perceiving an event or
immediately after perceiving that event.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
Illustrative Example
A girl observing a man in a department store says to her friend, “That leather outfit with
spikes that man is wearing is funny looking”; or a husband says to his wife while
observing their neighbour, “John’s running quite fast, looks like he’s late for work”; or a
woman may see a car drive through an intersection against the red light and say
immediately thereafter, “That man drove right through that red light.” Anyone who
overheard these statements may testify to them, provided there is sufficient evidence to
show that the declarant actually perceived these events.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
The rule further provides specific examples, such as statements of intent, plan,
motive, design, mental feeling, pain and bodily health. Memory of events is
specifically excluded. If the exception allowed the memory of events to be
encompassed within the state of mind definition, the virtual destruction of the
hearsay rule would result.
The principles of reliability and necessity justify the state of mind exception, as well as all
other exceptions to the hearsay rule. Statements falling within the exception are
generally considered reliable because the declarant is deemed to be the best
commentator on his or her own state of mind. Reliability is furthered because, since the
statement is limited to the then-existing state of mind of the declarant, there is a reduced
possibility for untruthfulness, at least with respect to memory. Of course, a person could
always lie about what is on his or her mind, but unless the circumstances show some
basis for suspicion along those lines, the statement will be admitted. Necessity also
justifies this exception, in that evidence of a person’s state of mind is limited to what the
person says and does. Obviously, we cannot look inside a person’s head to see what he
or she is thinking, so the declarant’s state-of-mind commentary is the most accurage
reflection of these thoughts. Moreover, later repetition of this statement in court is the sole
means of bringing the statement before the fact-finder. The exception basically rests on a
single principle – the declarant is the best witness to what is in his or her own mind.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
As the exception now exists under the modern rules of evidence, there are
three requirements:
Illustrative Examples
Following statements are generally admissible as state of mind exceptions to the hearsay rule: “I don’t trust
Jim,” or “I hate people who don’t signal,” or “I love Nancy! I would never do anything to hurt her,” or “I’m
leaving for London tonight.” Statements describe the declarant’s state of mind at the time the statement was
made.
First statement may be indicative of the declarant’s motive for refusing to entrust Jim with money.
Second statement could show the declarant’s motive for getting out of his car and attacking another driver.
Third statement may show the declarant’s lack of motive for the murder of Nancy.
Last declaration indicates that the declarant was planning to take a trip to London.
Anyone who overhears declarations of a declarant’s state of mind may testify to them in court, as these
statements assist in arriving at the truth in each situation.
In Estrada v. Desierto (G.R. Nos. 146710-15, April 3, 2001, 356 SCRA 108, 136 [2001]), the Supreme Court
accepted statements of a person showing his state of mind as excepted from the hearsay ban because they
are independently relevant statements, i.e., they are relevant whether they are true or not because they are
circumstantial evidence of the facts in issue. In issue there was whether President Estrada had resigned or
should be considered as resigned as of January 20, 2001. On this issue, the published diary of Angara,
Estrada’s Executive Secretary, containing statements of Estrada as “Pagod and pagod na ako. Ayoko na,
masyado nang masakit. Pagod na akko sa red tape, bureaucracy, intriga. I just want to clear my name, then I
will go,” was admitted as they reflected Estrada’s state of mind and is circumstantial evidence of his intent to
resign.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions Under Res Gestae
DECLARATION OF PHYSICAL CONDITION OR STATEMENTS FOR
PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT
Defined
OFFICIAL RECORDS
The Rule
Sec. 44. Entries in Official Records. – Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law, are prima facie evidence of
the facts therein stated.
Reasons for Admissibility
The reasons for the admissibility of official entries without the necessity of
presenting in court the officer or person who made them are: (1) NECESSITY,
and (2) TRUSTWORTHINESS.
The necessity of the evidence lies in the impracticability of disrupting official
business by constantly calling the recording officials to the stand. The special
circumstance of trustworthiness lies in official duty, for this not only produces a
sense of responsibility for accuracy, but also subjects the official to a penalty of
misfeasance.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
It is necessary that the official written statement should have been made by public officer.
It is not essential that the record, to be admissible as a public register, should be kept by
the chief public officer himself. What is sufficient is that the entries are made under his
direction by person authorized by him (Galt v. Galloway, 4 Pert. [U.S.] 332, L.Ed. 376). It
is not necessary that a book, to be admissible as a public register, be required by an
express statute to be kept, not that the nature of the office should render the book
indispensable; it is sufficient that the book be directed by the proper authority to be kept.
Thus, official registers, though not required by law, as convenient and appropriate modes
of discharging official duties, are admissible (Bell v. Kendrick, 25 Fla. 778).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
If the statement is made by a public officer, his duty need not be one expressly
established by law or regulation. Thus, an official register to be admissible under the
present exception it is not necessary that it be required by an express statute to be kept,
not that the nature of the office should render the same indispensable; it is sufficient that
it be directed by the proper authority to be kept (Kyburg v. Perkins, 6 Cal. 674).
To qualify statements as official information acquired by the officer who prepared the report,
the person who made the statements not only must have personal knowledge of the facts but
must have the duty to give such statements for record. Thus, the material facts recited in the
reports prepared by the fire department and police department regarding a fire that broke out
at a gasoline station as to the cause and circumstance of the fire were not within the personal
knowledge of the investigating officers (Africa v. Caltex, 16 SCRA 448).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
The police blotter was admitted under Rule 130, Section 44 of the Rules of Court (Lao v.
Standard Ins. Co., G.R. No. 140023, August 14, 2003). Under the said rule, the following are
the requisites for its admissibility: (a) that the entry was made by a public officer, or by another
person, specially enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law; and (c) that the public
officer or other person had sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information (Africa v. Caltex Phil. Inc., 123
Phil 272).
The police blotter was properly admitted as they form part of official records (People v. Dy, 158
SCRA 111). Entries in police records made by a police officer in the performance of the duty
especially enjoined by law are prima facie evidence of the fact therein stated, and their
probative value may be either substantiated or nullified by other competent evidence (U.S. vs.
Que Ping, 40 Phil 17).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
Although police blotters are of little probative value, they are nevertheless admitted and
considered in the absence of competent evidence to refute the facts stated therein. This is
unlike People v. Mejia (341 SCRA 118) where it was held that “entries in the police blotters
should not be given undue significance or probative value,” since the Court there found that
“the entries in question are sadly wanting in material particulars.”
Entries in public or official books or records may be proved by the production of the books
or records themselves or by a copy certified by the legal custodian thereof.
Entries in public records made by a public officer in the performance of the duty specially
enjoined by law are only prima facie evidence of the fact therein stated, and their
probative value may be either substantiated or nullified by other competent evidence
(U.S. v. Que Ping, 40 Phil 17).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
FAMILY RECORDS
The Rule
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 thereon be also a
member of the family, either by consanguinity or affinity. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and the like, may be received
as evidence of pedigree.
The admission of the declarations as to pedigree made by deceased persons who were
members of or intimately connected with the family is that such persons were familiar
with those matters of family history, tradition and repute with which the members of most
families are familiar, although based upon hearsay within the family, and that, having
been made before any controversy had arisen, there was not motive to speak other than
the truth.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
There are two (2) ways of proving pedigree of a person, namely: (1) by the act or declaration of
a relative who is deceased, or unable to testify; and (2) by the reputation or tradition existing in
the family in respect to the pedigree of such person, a matter covered by this rule.
Under this rule, it is not required that the declarant be dead, or unable to testify, before the
testimony of the declarant be admitted. Furthermore, it is not required that the relationship
between the witness and the family be proved by independent evidence. This may be shown
by the witness’ own testimony (Smith v. Heeny, 54 S.W. 801).
The following requisites must be present in order that family reputation or tradition regarding
pedigree may be admissible:
Forms of Reputation
TREATISES
The Rule
The reasons for the admissibility of learned treatise are: (1) NECESSITY and (2)
TRUSTWORTHINESS.
Trustworthiness because the learned witness in writing his work or article has no motive
to misrepresent and he knows that every statement he makes will be subject to criticism
and open to refutation (VI Wigmore on Evidence, p. 6).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
Continuation... TREATISES
The published treatise, periodical or pamphlet on a subject of history, science or art themselves
and the fact that they are generally accepted as authorities on the subject matter, may be
judicially recognized. Hence, the same are admissible as tending to prove the truth of the matter
stated therein without the necessity of an expert testimony as to the qualification of the author.
If a treatise, periodical or pamphlet is not judicially recognized or that the matter is not one which
can be the proper subject of judicial notice then, it is indispensable that the controverted facts be
established by presenting the treatise, periodical or pamphlet itself in evidence. The writer of the
treatise, periodical or pamphlet, must be shown beforehand to be recognized in his profession or
calling as expert in the subject. This will require another witness who will testify to this fact which
means here the summoning of any one in the profession or calling of the writer and ascertaining
form the witness the writer’s standing as an authority (Wigmore §1694, p. 8). He will merely
testify that the writer of the statement in the treatise, periodical or pamphlet, is recognized in his
profession or calling as expert in the subject.
Historical works, scientific treatises and laws are examples of learned treatises.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
COMMERCIAL LISTS
The Rule
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 it generally used and relied upon by
them therein.
The reasons for the admissibility of commercial list and the like without the necessity of presenting in
court the authors, compilers, or publishers thereof who made them are (1) NECESSITY, and (2)
TRUSTWORTHINESS.
Necessity because of the inaccessibility of the authors, compilers, or publishers in other jurisdiction
but also because of the great practical inconvenience in summoning each individual whose personal
knowledge has gone to make up the final result.
Trustworthiness because the lists, registers, reports, etc., prepared for the use of the trade or
profession, are habitually made with such care and accuracy as will lead them to be relied upon for
commercial and professional purposes (VI Wigmore on Evidence, p. 22, 23).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
Trade journals reporting prices current and other market data, mortality tables compiled
for life insurance, abstracts of title compiled by reputable title examining institutions or
individuals, business directories, animal pedigree registers, and the like. Unofficial
reports of judicial decisions, when shown to be recognized by the profession, are also
admissible in evidence.
The following must exist before a written statement made by a public official is admissible
in evidence as tending to prove the truth of the matter as stated in this rule are:
1. The public official would be qualified to testify to the matter stated as a witness.
2. He is under an official duty to make the statement, and
3. The document containing the statement is open to public inspection.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
The statements of official matters under this rule may be contained in (1) an official
register or record kept in a book or in a file in official custody, or (2) a report or return by
an official of his official action kept in official custody, or (3) an official certificate delivered
to a person requesting it and thereafter subject to disposition by him (Morgan, Basic
Problems of Evidence, p. 279).
Authentication
As a prerequisite to the introduction in evidence of commercial lists and the like, it must
be first shown that the same are accurate and that they are based upon reliable sources
of information. However, there are cases where the proof of their accuracy as well as
evidence as to how the information published is obtained are not required (20 Am. Jur.
819).
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
COMMON REPUTATION
THE RULE
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.
1. Facts of public or general interest more than thirty (30) years old;
2. Individual moral character; and
3. Marriage and related facts.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
The reasons for the admissibility of common reputation is the (1) necessity arising from
the inherent difficulty of obtaining any other evidence than that in the nature of common
reputation, and (2) trustworthiness of the evidence arising from (a) the supposition that
the public is conversant with the subject to be proved because of their general interest
therein, and (b) the fact that the falsity or error of such evidence could be corrected by
other testimony since the public are interested in the same (Wigmore on Evidence §1582,
1583).
1. That the matter to which the reputation refers to is of public or general interest and
more than 30 years old;
2. That the reputation is one formed in the community interested; and
3. That it existed ante litem motam.
HEARSAY: AVAILABILITY OF DECLARANT IMMATERIAL
Distinct Hearsay Exceptions
The requisites for admissibility of common reputation respecting ancient matters are:
1. That the matter to which the reputation refers is of public or general interest;
2. That the matter is ancient, that is, more than 30 years old;
3. That the reputation is ancient;
4. That the reputation is one formed in the community interest; and
5. That it existed ante litem motam, i.e., previous to the controversy.
The requisites for admissibility of common reputation respecting moral character are:
Form of Reputation
The reputation may either be in the form of oral or written statements. The form in which
the reputation is presented is immaterial, whether in the form of individual writings, maps,
leases, surveys, old deeds, and the like, the important thing is that the evidence
represents common repute.
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
DYING DECLARATION
The Rule
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.
DYING DECLARATIONS are the statements made by a person after the mortal wound
has been inflicted, under belief that death is certain, stating facts concerning the cause
of, and the circumstances surrounding, the homicide (Wharton, Criminal Evidence, 11th
ed., p. 836).
There are four (4) requisites which must occur in order that a dying declaration
may be admissible:
1. That the declaration refers to the material facts which concern the identity of
the deceased or the accused, the cause and circumstances of the killing.
2. That is was made by the declarant under a consciousness of impending
death.
3. That the declarant must have been competent as a witness if he had been
called upon to give testimony in court.
4. The new rule does not require that it be offered in a criminal case only, as
was the rule before.
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
NECESSITY because the declarant’s death renders impossible his taking the
witness stand and it often happens that there is no other equally satisfactory
proof of the crime.
It is settled by a long line of decisions that such declarations, when they tend to exculpate or
exonerate the defendant, may be introduced by him and admissible in evidence (U.S. v. Antipolo, 37
Phil 726; People v. Martinez, 42 Phil 85; U.S. v. Clemente, 22 Phil 277).
The written declaration must be authenticated and proved as any document offered in evidence.
Proper basis must be laid for the introduction of a dying declaration, it consist of proof that the
declaration was made under the consciousness of impending death. This may be done in the nature
of assertions of the declarant, his bodily condition, his conduct, his wounds, from which may be
deduced his consciousness of approaching death.
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
Burden of Proof
The burden of proof is on the party introducing the dying declaration in evidence. The accused
may introduce the dying declarations which tend to exculpate or exonerate him (People v.
Martinez, 42 Phil 85).
After a dying declaration is proved with all the essential requisites of its admissibility, its
credibility and weight should be determined by the court, by the same rules that are used in
testing the weight and credibility of a living witness’s testimony. Although, as a general rule,
when a person is at the point of death, every motive to falsehood is silenced, and the mind is
induced by the most powerful considerations to speak the truth, and therefore his statements,
under such circumstances, deserve great weight (U.S. v. Singson, 41 Phil 53).
Dying declarations constitute per se at least a grave, conclusive and decisive indication of the
culpability of the persons designated by the dying man, inasmuch as it must be assumed that
he, being in so precarious a condition, spoke truthfully, and that he was not induced by a
desire to tell a lie and to injure an innocent person (U.S. v. Jakan Tucko, 20 Phil 239).
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
The Rule
The reasons for the admissibility of testimony at a former proceeding are (1) NECESSITY
for the testimony, and (2) its TRUSTWORTHINESS. The former testimony of a witness,
who could no longer testify, given in a former action is admitted to prevent a failure of
justice because the probabilities of the truth having been told are so great as to justify the
resort to that testimony.
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
For Section 47, Rule 130 to apply, the following requisites must be satisfied:
After satisfying all the foregoing requirements, the testimony at former case will not be admitted
unless the party offering the same proves the necessity for the admission of said former testimony.
Thereafter, the former testimony may be proved:
2. By oral evidence given by one who was present at the time the testimony was given.
If the transcript of stenographic notes are not made evidence by statute, either expressly or by
necessary implication or was not admissible because uncertified as required by law, such
reporter or stenographer may be called to the stand to give oral proof of the former testimony.
Said notes may be used to refresh the memory of the reporter or stenographer, and may even be
read by him, if he swears that they were made when the testimony was taken, that they contain
its substance.
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
Forms of Declaration
Declarations may be oral or written, its forms is immaterial, provided all the essential
requisites for its admissibility are present. Thus, a deposition which cannot be used as
such because of defects may be admissible as a declaration against interest (McKelvey §
257).
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
The new rule has omitted the words “pecuniary or proprietary” interest. Therefore, it may
now be safely said that admissions against penal interest are not admissible.
Form of Declaration
The Rule
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.
There are several factors which give TRUSTWORTHINESS to the entries in the course of business,
thus: the inertia of habit which tends ordinarily against false entries, the fact that in a system of
regular entries, an error or a misstatement would tend to be detected or exposed, either by customers
or by fellow-employees, and where the entrant is a mere employee, there is the additional risk of
censure and disgrace form the employer or superior in case of inaccuraries, an element which
induces exactness (5 Wigmore § 369).
HEARSAY: HEARSAY EXCEPTIONS
Declarant’s Unavailability Required
The following are the requisites for the admissibility of business entries: