Op EVIDENCE(Part VIII of IX)

I. Evidence (Rule 128-133)

A.General Provisions

1. Definitions

Rule 128, Sec. 1. Evidence defined. - Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1)

Evidence – the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

Relevant evidence – evidence which has a relation to the fact in issue as to induce belief in its existence or non-existence; evidence which tends in any reasonable degree to establish the probability or improbability of the fact in issue.

Material evidence – evidence which is directed to prove a fact in issue as determined by the rules of substantive law and pleadings; evidence of such quality of substantial importance to the particular issue, apart from its relevance

Escolin: The terms “relevant” and “material” are practically the same. They are used interchangeably by the SC.

Competent evidence – evidence which is not excluded by the law or by the Rules of Court

Direct evidence – evidence which proves a fact in dispute without the aid of any inference or presumption

Circumstantial evidence – proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence

Expert evidence – testimony of a witness regarding a question of science, art or trade, when he is skilled therein

Prima facie evidence – evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence

Conclusive evidence – evidence which is incontrovertible and which the law does not allow to be contradicted

Cumulative evidence – evidence of the same kind and character as that already given and tends to prove the same proposition

Corroborative evidence – evidence of a different kind and character tending to prove the same point

Best evidence – evidence which affords the greatest certainty of the fact in question

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Secondary evidence – evidence which is necessarily inferior to primary/best evidence and shows on its fact that better evidence exists

Factum probans – the evidentiary fact by which the factum probandum is to be established; material evidencing the proposition, existent, and offered for the consideration of the tribunal

Factum probandum – the ultimate fact sought to be established; proposition to be established, hypothetical, and that which one party affirms and the other denies

Factum probandum Factum Probans

Proposition to be established Material evidencing the proposition

Conceived of as hypothetical; that which one party affirms and the other denies

Conceived of for practical purposes as existent, and is offered as such for the consideration of the court

Collateral facts – matters other than facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue

Real evidence – evidence furnished by the things themselves, or view or inspection as distinguished from a description by them of a witness; that which is addressed directly to the senses of the court without the intervention of a witness

Rebuttal evidence – evidence which is given to explain, repel, counteract or disprove facts given in evidence by the adverse party

Positive evidence – when a witness affirms that a fact did or did not occur

Negative evidence – when a witness states that he did not see or know the occurrence of a fact

2. Distinguish

Admissibility of evidence Weight of evidence

Pertains to the ability of the evidence to be allowed and accepted subject to its relevancy and competence

Pertains to the effect of evidence admitted

Substantive essence or characteristic feature of evidence as would make it worthy of consideration by the court before its admission

The probative value of evidence which the court may give to admit after complying with the rules of relevancy and competency

Proof Evidence

Effect and result of evidence Medium of proof

End Result Means to the end

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3. Scope

a. Rule 128 §2

Sec. 2. Scope. - The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2a)

b. CasesReyes v. CA, 216 SCRA 25 (1992) The Rules of Court, and its rules on Evidence, are not even suppletorily applicable to agrarian cases. Special law allows affidavits to be admitted in evidence in agrarian courts, even without the witness testifying nor subject to cross-examination.

Escolin: Note that in Reyes, what was presented were affidavits. Ordinarily, affidavits are not admissible before the regular courts because there is no opportunity for the other party to cross-examine. Depositions are admissible because there was an opportunity for the adverse party to cross-examine.

Imperial Textile Mills, Inc. v. NLRC, 217 SCRA 237 (1993) The unverified position paper is a mere procedural infirmity which does not affect the merits of the case. Procedural technicalities do not strictly apply to proceedings before the LA.

The rules of evidence does not apply to

.1 probation board

.2 CTA

.3 SEC

.4 Immigration cases

.5 LA/NLRC

.6 CAR

B.Admissibility of Evidence

Sec. 3. Admissibility of evidence. - Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a)

Requisites for admissibility

.1 relevant

.2 competent

1. Relevancy

a. Rule 128 §4

Sec. 4. Relevancy; collateral matters. – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except

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when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4a)

Relevance – relation to the facts in issue as to induce belief in its existence or non-existence

Evidence on collateral matters allowed only when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.

b. CasesBautista v. Aparece, 51 OG 805 (1995)

Lopez v. Heesen, 365 P.2d 448 (1961)

State of Missouri v. Ball, 339 S.W2d 783 (1960)

2. Competence

a. Rule 128 §3

Sec. 3. Admissibility of evidence. - Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (3a)

Competence – not excluded by the law or the RoC

b. Constitutional rules of exclusion

1)Art. III, Secs. 2 and 3

Art. III, Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Art. III, Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

2)Art. III, Sec. 12

Art. III, Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of

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counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(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.

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3)Art. III, Sec. 17

Art. III, Section 17. No person shall be compelled to be a witness against himself.

Absolutely inadmissible – evidence obtained

.1 from unreasonable searches and seizures, or

.2 in violation of the right of privacy of communication and correspondence

Relatively inadmissible (inadmissible only against the person whose rights are violated, admissible for other purposes) – evidence obtained

.1 in violation of the right be informed of the right to remain silent and to have competent and independent counsel

.2 from means which vitiate the free will

.3 in violation of the right against self-incrimination

c. Statutory rules of exclusion

1)NIRC, §201, as amended by RA 8424

Sec. 201. Effect of Failure to Stamp Taxable Document. — An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled.

No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled.

Failure to stamp a document required by law to be stamped shall render the document inadmissible in any court until the requisite stamp or stamps shall

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have been affixed thereto and cancelled (§201 NIRC). This is an absolute inadmissibility.

2)General Banking Act of 2000, RA 8791, §55.1 (b)

Sec. 55. Prohibited Transactions. -

55.1. No director, officer, employee, or agent of any bank shall –

(b) Without order of a court of competent jurisdiction, disclose to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity: Provided, That with respect to bank deposits, the provisions of existing laws shall prevail;

Elements of the exclusion

.1 director, officer, employee, or agent of any bank

.2 disclosure to unauthorized person

.3 information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity

.4 without a court order

de Leon: Note that this provision covers only property in the custody of the bank other than bank deposits. For bank deposits, RA 1405 governs. Note also that the provision does not state the nature of the inadmissibility. I submit that it is a rule of absolute inadmissibility.

3)RA 1405: Law on Secrecy of Bank Deposits

Sec. 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.

GR: All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office.

Exceptions

.1 written permission of the depositor

.2 impeachment, or

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.3 order of a competent court in cases of

.a bribery or

.b dereliction of duty of public officials, or

.4 where the money deposited or invested is the subject matter of the litigation.

de Leon: I submit that this is a rule of absolute inadmissibility.

4)RA 4200: Wire-tapping

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

Unlawful acts

.1 any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise described:

.2 any person to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured in the manner prohibited by this law; or

.3 any person to replay the same for any other person or persons

.4 any person to communicate the contents thereof, either verbally or in writing, or

.5 any person to furnish transcriptions thereof, whether complete or partial, to any other person:

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The use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished xxx.

Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.

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Conditions for valid wiretapping

.1 any peace officer

.2 authorized by a written order of the Court

.3 in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping, espionage and other offenses against national security:

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in

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violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Information obtained in violation of the anti-wiretapping act is absolutely inadmissible.

Ramirez v. CA, 248 SCRA 590 (1995) Even a person privy to a communication who records his private conversation with another without the knowledge of the latter violates the anti-wiretapping act. The recording is inadmissible in evidence.

Gaanan v. IAC, 145 SCRA 112 (1986)

Salcedo Ortañez v. CA, 235 SCRA 111 (1994)

C.What Need Not be Proved3 things that need not be proved

.1 matters of mandatory judicial notice

.2 matters of discretionary judicial notice

.3 judicial admissions

1. Judicial notice

a. Mandatory (Rule 129 §1)

Sec. 1. Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a)

Mandatory Judicial Notice

.1 existence and territorial extent of states, their political history, forms of government and symbols of nationality

.2 the law of nations

.3 the admiralty and maritime courts of the world and their seals

.4 the political constitution and history of the Philippines

.5 the official acts of the legislative, executive and judicial departments of the Philippines

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.6 the laws of nature

.7 the measure of time, and

.8 the geographical divisions

Sermonia v. CA, 233 SCRA 155 (1994) In determining prescription in a prosecution for bigamy, the reckoning point is actual discovery of the subsequent marriage by the offended party, not from the registration of the marriage contract. The doctrine of constructive knowledge does not apply, even if it is more favorable to the accused.

b. Discretionary (Rule 129 §2)

Sec. 2. Judicial notice, when discretionary. - A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a)

Discretionary Judicial Notice – matters which are

.1 of public knowledge, or

.2 are capable of unquestionable demonstration, or

.3 ought to be known to judges because of their judicial functions

c. When hearing required (Rule 129 §3)

Sec. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.(n)

When court takes judicial notice

.1 During trial, on any matter – allow the parties to be heard thereon

.2 After trial, and before judgment or on appeal – any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case

Hearing is necessary when

.1 During the trial, the court

.a motu propio, on request of a party

.b announces its intention to take judicial notice of any matter

.2 After trial

.a before judgment or on appeal

.b motu propio, on request of a party

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.c takes judicial notice of any matter, and

.d if such matter is decisive of a material issue in the case

Hence, the court can take judicial notice of any matter during the trial as long as there is a hearing. If trial is already over, the court can take judicial notice only of matters decisive of a material issue in the case as long as there is a hearing (p. 88, Francisco).

de Leon: Why on earth would a court take judicial notice of a matter which is not decisive of a material issue in a case?

City of Manila v. Garcia, 19 SCRA 413 (1967)

Baguio v. Vda. de Jalagat, 42 SCRA 337 (1971)

Prieto v. Arroyo, 14 SCRA 549 (1965)

Ozaeta Romulo etc. , 92 SCRA 1 (1979)

Yao-Kee v. Sy-Gonzales, 167 SCRA 736 (1988)

Tabuena v. CA, 196 SCRA 650 (1991) As a general rule courts are not authorized to take judicial notice, in the adjudication of cases pending before them, of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge. However, an exception is when in the absence of objection, and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of the opposing party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives by the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending.

People v. Godoy, 250 SCRA 676 (1995)

2. Judicial admissions

a. Rule 129 §4

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Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a)

Requisites for judicial admission

.1 made by a party

.2 in the course of the proceedings

.3 in the same case

de Leon: If the admission was made in outside the proceedings or in another case, it is also admissible under admissions of a party (Rule 130, Sec. 26).

The admission may be contradicted only by showing that

.1 it was made through palpable mistake or

.2 no such admission was made

b. Instances of Judicial admissions Instances of Judicial admissions

.1 the genuineness and due execution of an actionable document copied or attached to a pleading, when the other party fails to specifically deny under oath (Rule 8 §8)

.2 material allegations in the complaint, when the other party fails to specifically deny it (Rule 8 §11)

.3 admissions in superseded pleadings, when offered in evidence (Rule 10 §8)

.4 act, declaration, or omission of a party as to a relevant fact (Rule 130 §26)

.5 implied admission of guilt in an offer of compromise by the accused in criminal cases, except quasi-offenses and those allowed by law to be compromised (Rule 130 §27)

.6 admission by silence (Rule 130 §32)

c. CasesLucido v. Calupitan, 27 Phil. 48 (1914)

Torres v. CA, 131 SCRA 24 (1984)

D.Object and Documentary Evidence

1. Rule 130 §1-2

Sec. 1. Object as evidence. – Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a)

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Object Evidence – evidence addressed to the senses of the court

Ocular inspection qualifies as object evidence.

Sec. 2. Documentary evidence. – Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. (n)

Documentary evidence – any material containing modes of written expressions offered as proof of their contents

2. CasesPeople v. Bardaje, 99 SCRA 388 (1980)

Sison v. People, 250 SCRA 58 (1995)

Adamczuk v. Holloway, 13 A.2d 2 (1940)

State v. Tatum, 360 P. 2d 754 (1961)

E. Best Evidence Rule

1. Rule 130 §3-4

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 or 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. (2a)

Best Evidence Rule – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself

Exceptions: When the original

.1 has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

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.2 is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

.3 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

.4 the original is a public record in the custody of a public officer or is recorded in a public office

2. CasesPeople v. Tandoy, 192 SCRA 28 (1990) The best evidence rule does not apply to the marked money in a buy bust operation because the inquiry is not on the contents of the marked bill, but merely its existence.

Air France v. Carrascoso, 18 SCRA 155 (1966)

Meyers v. US, 171 F.2d 800 (1948) – BER only applies if the subject of inquiry is the contents of a document; such an inquiry need not be the main issue

People v. Tan, 105 Phil. 1242 (1959)

Seiler v. Lucasfilm, 797 F.2d 1504 (1986) – US BER “or their equivalents” vs. Philippine BER “other modes of written expression;” is a disputed work in an infringement case object or documentary?

US v. Gregorio, 17 Phil. 522 (1910)

Fiscal v. Reyes, 55 Phil 905 (1931)

Sec. 4. Original of document. –

(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. (3a)

Original documents

.1 one the contents of which are the subject of inquiry.

.2 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.

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.3 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

F. Secondary Evidence

1. Rule 130 §5-8

Sec. 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, 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. (4a)

Sec. 6. When original document is in adverse party's custody or control. – If the document is in the custody or under the 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. (5a)

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. (2a)

cf Rule 132 §25-27

Sec. 25. What attestation of copy must state. - Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26 a)

Sec. 26. Irremovability of public record. - Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27 a)

Sec. 27. Public record of a private document. - An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a)

To prove loss, get affidavits of loss from all the people who possibly has a copy of the original, e.g. Notarized Deed of Sale

.1 Vendor

.2 vendee

.3 notary public

.4 clerk of the court which gave the notary public commission

.5 Bureau of Archives

Requisites for admission of secondary evidence, according to grounds

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.1 the original has been lost or destroyed, or cannot be produced in court

.a prove execution or existence

.b prove cause of unavailability without bad faith of the offeror

.c proof of contents in the following order

)1 copy

)2 recital of its contents in

)a some authentic document, or

)b testimony of witnesses

.2 the original is in the custody or under the control of the adverse party

.a adverse party had reasonable notice to produce the original (Subpoena duces tecum)

.b proof of the original’s existence

.c adverse party fails to produce the original

.d proof of contents in the following order

)1 copy

)2 recital of its contents in

)a some authentic document, or

)b testimony of witnesses

.3 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

.4 the original is a public record in the custody of a public officer or is recorded in a public office – contents may be proved by a certified copy issued by the public officer in custody thereof

.a Rule 132 §25: What attestation of copy must state

)1 the copy is a correct copy of the original, or a specific part thereof

)2 under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court

.b Rule 132 §27: Public record of a private document - may be proved by

)1 the original record, or

)2 by a copy thereof

)a attested by the legal custodian of the record

)b with an appropriate certificate that such officer has the custody

2. CasesMunicipality of Victorias v. CA, 149 SCRA 32 (1987)

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Facts: In action to recover land, a party failed to produce the deed of sale, but presented only a Certificate from the Archives Division of the Bureau of Records Management of an entry in a notarial register.

Held: Certificate is admissible. Where the original has been lost or destroyed, the offeror may prove its contents by a recital of its contents in some authentic document or by testimony of witnesses. The Certificate is one such authentic document.

de Vera v Aguilar, 218 SCRA 602 (1983) In case of loss of the original of a document, the order of proof is as follows; 1) existence of the original, 2) its due execution, 3) loss, and 4) its contents. Failure to prove loss of all the originals without fault of the offeror renders secondary evidence inadmissible.

Vda. de Corpus v. Brabangco, (C.A.) 59 O.G. 8262 (1963)– when the existence of a document is proven, the court should allow the lost document to be proven by parole; testimony of a witness need not be verbatim

Compañia Maritima v. Allied Free Workers Union, 77 SCRA 24 (1977) – voluminous character of accounts must be established, and it must be made available to the adverse party before parole; audit made by or testimony of private auditor is inadmissible as proof of original record or books of accounts; auditor’s opinion not admissible; best evidence on cost of equipment are sales invoices not testimony of an auditor

Villa Rey Transit, Inc. v. Ferrer, 25 SCRA 845 (1968) – it is not necessary for a party seeking to introduce copy to prove that original is in actual possession of adverse party as long as it is under his control; adverse party need not admit that it is in his possession before a copy may be introduced

Michael & Co., Inc. v. Enriquez, 33 Phil. 87 (1915) – To prove a lost document, must prove due execution, delivery (if required), and the fact of lost or destruction; it is important to have qualified witnesses

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. (6a)

G.Parol Evidence Rule

1. Rule 130 §9

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:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

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(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

The terms "agreement" includes wills. (7a)

Parol Evidence Rule: 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.

Exceptions: 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

.1 An intrinsic ambiguity, mistake or imperfection in the written agreement

.2 failure of the written agreement to express the true intent and agreement of the parties

.3 validity of the written agreement; or

.4 The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement

If the ground is subsequently-agreed terms, the subsequently-agreed terms must also be put in issue in the pleadings.

The rule applies only to the terms of an agreement. If the evidence sought to be admitted refers to matters other than the terms of the agreement (e.g. statement of facts), then the PER does not apply, such evidence is admissible.

PER applies only to the parties to the agreement. It does not apply where PER is invoked against a litigant who is a stranger to the agreement.

Requisites for mistake as exception to PER

.1 mutual between the parties

.2 of fact, not of law

.3 alleged and put in issue in the pleadings

.4 proved by clear and convincing, not merely preponderance of, evidence

Escolin: Note that the rule on self-defense also requires that the circumstances of self-defense be proven by clear and convincing evidence.

2. Art. 1403 and 1405 Civil Code

Art. 1403. The following contracts are unenforceable, unless they are ratified:

xxx

(2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall

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be unenforceable by action, unless the same, or some note or memorandum, thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents:

(a) An agreement that by its terms is not to be performed within a year from the making thereof;

(b) A special promise to answer for the debt, default, or miscarriage of another;

(c) An agreement made in consideration of marriage, other than a mutual promise to marry;

(d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum;

(e) An agreement of the leasing for a longer period than one year, or for the sale of real property or of an interest therein;

(f) A representation as to the credit of a third person.

Art. 1405. Contracts infringing the Statute of Frauds, referred to in No. 2 of article 1403, are ratified by the failure to object to the presentation of oral evidence to prove the same, or by the acceptance of benefit under them.

Statute of Frauds: If the following agreements are not in writing and subscribed, it is unenforceable and evidence thereof is inadmissible

.1 not to be performed within a year from the making thereof

.2 special promise to answer for the debt, default, or miscarriage of another;

.3 agreement made in consideration of marriage, other than a mutual promise to marry;

.4 agreement for the sale of goods, chattels or things in action, at a price not less than P500, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money;

.5 lease for more than 1 year, or sale of real property or of an interest therein;

.6 representation as to the credit of a 3rd person.

Exceptions

.1 failure to object to the presentation of oral evidence, or

.2 acceptance of benefit under the agreement

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3. Distinguish parole evidence rule from best evidence rule

Parole Evidence Rule Best Evidence Rule

No issue as to the contents of a writing

Issue is contents of a writing

Parol evidence is offered Secondary evidence is offered

Presupposes that original is in court

Applies when the original is not available

Effect is can not add, subtract, or explain the contents

Effect is can not present any evidence on the contents other than the original

Invoked only if the controversy is between parties to the agreement

Invoked by anybody, whether a party to the instrument or not

Applies only to agreements and wills

Applies to all kinds of writing

4. CasesCruz v CA, 192 SCRA 209 (1990) PER does not apply to receipts because it is not an agreement. It is proof only of delivery of money. Furthermore, the parole evidence bars only evidence as to the terms, it does not bar evidence as to statement of facts. The receipt of money is merely a statement of fact. Lastly, failure of the adverse party to object renders parole evidence admissible.

Pioneer Savings & Loan Bank v. CA, 226 SCRA 740 (1993)

Facts: Pioneer execute an DoAS of a car in favor of Michael Santos. Pioneer claims that the car was merely a security for the time deposit placements of Santos’ relatives. Since Santos’ relatives have recovered their placements, Pioneer sued for recovery of the car.

Held: Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid instrument. While parol evidence is admissible in a variety of ways to explain the meaning of written contracts, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing, unless there has been fraud or mistake. Pioneer failed to produce any instrument or written document which would prove that the deed of sale in question was only a security for the time deposit placements of Santos' relatives in Pioneer. The 2 main witnesses for Pioneer, were not mere employees of the bank. They were bank officers; one being a lawyer and supposed to be steeped in legal and banking knowledge and practices. They were expected to know the consequences of their act of signing a document which outrightly transferred ownership over the subject vehicle in favor of Santos. They could have incorporated in the deed of sale (if such was the intention or agreement of the parties) a stipulation that transfer of ownership and registration of the vehicle in

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Santos' name were conditioned on the failure of his relatives to recover their time deposit placements in petitioner bank. No such stipulation was incorporated in the deed of sale which was an outright and unconditional transfer of ownership of the motor vehicle to respondent Santos.

de Leon: Note that the PER exceptions of other term agreed by the parties refer to those agreed after, not before, the execution of the agreement. Pioneer should have invoked the exception that the agreement did not express their true intent and agreement.

Enriquez v. Ramos, 6 SCRA 219 (1962)

Facts: In a foreclosure of REM case, plaintiff invokes the registered mortgage agreement. Defendant answers that the contract did not express the true agreement of the parties because it did not include the undertaking of plaintiff to construct roads on the land. Furthermore, defendant argues that the ordinance that requires the construction of such roads in the subdivision before the lots could be sold is deemed included in the contract.

Held: Since the answer alleged that the contract did not express the true intention of the parties, it has therefore been put in issue in the pleadings. The same may therefore be subject of parole evidence.

Canuto v. Mariano, 37 Phil. 840 (1918) – parol may be introduced to prove subsequent agreement regardless of how soon such agreement was made

Yu Tek & Co. v. Gonzales, 29 Phil. 384 (1915) – Parol evidence inadmissible to incorporate additional contemporaneous conditions which are not mentioned at all in the writing, unless there is fraud or mistake

Land Settlement & Development Corp. v. Garcia Plantation, 7 SCRA 750 (1963) – exception to PER may be put in issue in answer to counterclaim; when operation of contract made to depend upon occurrence of an event, which for that reason is a condition precedent, such may be established by parol evidence, since if it is proven, there will be no contract

Maulini v. Serrano, 28 Phil. 640 (1914) – PER does not apply where the purpose of parol evidence is to show that no written contract ever existed

PNB v. Seeto, 91 Phil. 756 (1952) – assurances made by an indorser that the drawer has funds, which assurances induced bank to cash the check, are admissible in evidence

Woodhouse v. Halili, 93 Phil. 526 (1953) – Inducement by fraud may be proved by parol because it goes into the validity of the agreement

Robles v. Lizarraga, 50 Phil. 387 (1927) – parol may be received regardless of whether the written agreement contains any reference to the collateral agreement and whether the action is at law or in equity even if it deals with related matters

Lechugas v. CA, 143 SCRA 335 (1986) – PER not applicable where suit is between one of the parties to the document and 3rd persons; PER does not apply and may not be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or privy to the written

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agreement and does not base a claim on the instrument; both parties to the agreement must be parties to the suit

Inciong v. CA, 257 SCRA 578 (1996) – PER does not specify that the agreement be a public document; need not be in any particular form or signed by the parties; fraud must be corroborated

Ortañez v. CA – contemporaneous conditions not referred to in the contract can not be proven by parol; merely alleging that the contract is subject to conditions does not “put” the exception “in issue in the pleadings”

H. Interpretation of Documents

1. Rule 130 §10-19

Sec. 10. Interpretation of a writing according to its legal meaning. – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8)

Sec. 11. Instrument construed so as to give effect to all provisions. – In the construction of an instrument where there are several provisions or particulars. such a construction is, if possible, to be adopted as will give effect to all. (9)

Sec. 12. Interpretation according to intention; general and particular provisions. – In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10)

Sec. 13. Interpretation according to circumstances. – For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. (11)

Sec. 14. Peculiar signification of terms. – The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.(12)

Sec. 15. Written words control printed. – When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13)

Sec. 16. Experts and interpreters to be used in explaining certain writings. – When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (14)

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Sec. 17. Of two constructions, which preferred. – When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15)

Sec. 18. Construction in favor of natural right. – When an instrument is equally susceptible of two interpretations, one is favor of natural right and the other against it, the former is to be adopted. (16)

Sec. 19. Interpretation according to usage. – An instrument may be construed according to usage, in order to determine its true character. (17)

Rules of interpretation of documents

.1 Interpretation of a writing according to its legal meaning in the place of execution

.2 Instrument construed so as to give effect to more provisions

.3 Interpretation according to intention of the parties

.4 particular over general

.5 Interpretation according to circumstances of the parties and the subject

.6 Terms presumed to be used in primary and general acceptation, evidence of local, technical, or peculiar signification use admissible

.7 Written words control printed

.8 When the characters are difficult to decipher, or the language is foreign, the evidence of experts and interpreters is admissible

.9 When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it

.10 When different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made

.11 preference for natural right

.12 usage may be considered

2. Arts. 1370-1379 Civil Code

Art. 1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control.

If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former.

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Art. 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered.

Art. 1372. However general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.

Art. 1373. If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual.

Art. 1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly.

Art. 1375. Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract.

Art. 1376. The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established.

Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity.

Art. 1378. When it is absolutely impossible to settle doubts by the rules established in the preceding articles, and the doubts refer to incidental circumstances of a gratuitous contract, the least transmission of rights and interests shall prevail. If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests.

If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void.

Art. 1379. The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts.

Statutory rules of interpretation

.1 If the terms are clear, the literal meaning shall control.

.2 If the words appear to be contrary to the evident intention of the parties, the intention shall prevail

.3 In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered.

.4 terms of a contract shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree

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.5 If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual.

.6 The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly.

.7 Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract.

.8 The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established.

.9 The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity.

.10 When it is absolutely impossible to settle doubts by the rules established in the preceding articles

.a the doubts refer to incidental circumstances of

)1 a gratuitous contract, the least transmission of rights and interests shall prevail

)2 an onerous contract, the doubt shall be settled in favor of the greatest reciprocity of interests

.b If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void.

.11 The principles of interpretation stated in the Rules of Court shall likewise be observed

3. CasesLambert v. Fox, 26 Phil. 588 (1914) – If from the words the meaning is plain, contract should be enforced according to the words

Capital Insurance v. Sadang, 21 SCRA 1183 (1967) – doubt resolved against one who prepared the document

I. Rule 130 §20: Qualifications of Witnesses

Sec. 20. Witnesses; their qualifications. – Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. (18 a)

Qualifications of witnesses

.1 can perceive

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.2 perceiving

.3 can make known their perception to others

NOT ground for disqualification

.1 Religious belief

.2 political belief

.3 interest in the outcome of the case, or

.4 conviction of a crime, unless otherwise provided by law, e.g.

.a A state witness must not have been convicted of any crime involving moral turpitude [Rule 119, Sec. 17 (e)]

.b A person who has been convicted of falsification of a document, perjury or false testimony is disqualified from being a witness to a will (Art. 821 NCC)

1. Mental Incapacity or Immaturity

a. Rule 130 §21

Sec. 21. Disqualification by reason of mental incapacity or immaturity. – The following persons cannot be witnesses:

(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;

(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a)

For a mentally defective person to be a witness, he must be mentally capable at the time of production, even if he was not so at the time of perception. A child must be mentally mature both at the time of perception and at the time of production.

With regards to the subject matter of the testimony, we must make a distinction between absolute disqualifications and relative disqualifications. Objections based on absolute disqualifications may be raised upon the calling of the disqualified witness. Objections based on relative disqualifications may be raised when it becomes apparent that the subject matter of the testimony covers inadmissible matters.

Absolutely disqualified witnesses

.1 can’t perceive

.2 not perceiving

.3 can’t make known their perception to others

.4 whose mental condition, at the time of their production for examination, render them incapable of intelligently making known their perception to others

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.5 whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating them truthfully

.6 marital disqualification

.7 parental and filial privilege

Relative disqualifications

.1 dead man’s statute

.2 marital communication privilege

.3 attorney-client privilege

.4 an attorney's secretary, stenographer, or clerk concerning any fact the knowledge of which has been acquired in such capacity

.5 Physician-Patient Privilege

.6 Priest-Penitent Privilege

.7 State Secrets

b. Cases People v. de Jesus, 129 SCRA 4 (1984) – even though feeble minded, there is no showing that she could not convey her ideas by words or signs ___ competent; even if she had difficulty comprehending the questions

People v. Salomon, 229 SCRA 402 (1993) – being mental retardate is not per se a disqualification; although speech was slurred, testimony was positive, clear, plain and unambiguous

People v. Mendoza, G.R. No. 113791, Feb. 2, 1996 – any child, regardless of age, can be a witness as long as he meets the qualifications for competency: observation, recollection, and communication

2. Marriage

a. Rule 130 §22: Marital Disqualification Rule

Sec. 22. Disqualification by reason of marriage. – During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, 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. (20a)

Requisites for marital disqualification rule

.1 marriage subsists

.2 a spouse is a litigant

.3 no consent from the spouse-litigant

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.4 not a civil case by one against the other, or a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants.

GR: During their marriage, spouses may not testify for or against the other without the consent of the affected spouse

Exceptions:

.1 in a civil case by one against the other, or

.2 in a criminal case for a crime committed by one against

.a the other or

.b the other’s direct descendants or ascendants

The marital disqualification rule refers to all matters, whether or communicated by one spouse to the other. It applies only during the existence of the marriage. It can be invoked only if one spouse is a party to the action. It is an absolute disqualification and can be invoked the moment that one spouse is called to testify.

This is a testimonial disqualification, as opposed to the testimonial privilege of ascendants and descendants (Rule 130 §25). Hence, the witness has no say whether the objection is to be raised or not. The holder of the privilege is the spouse-litigant. When the spouse-litigant consents to the testimony, the spouse-witness must testify whether he wants to or not.

cf Rule 130 §24 (a), Marital Communications

Sec. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases:

(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;

Marital Disqualification Marital Communications

Covers all matters regardless of source

Covers only those communicated by one spouse to another

Applies during the marriage Applies during and after the marriage

A spouse must be a litigant A spouse need not be a litigant

Invoked when a spouse is called to testify

Invoked when the testimony appears to cover privileged matters

Note that the exceptions under the marital disqualification and marital communications rule are the same.

b. CasesOrdoño v. Daquigan, 62 SCRA 270 (1975) The wife can therefore testify against her husband in such a case for rape against her daughter because it is

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considered a crime against the wife. When an offense directly attacks, or directly impairs the conjugal relation, it comes within the exception to the marital disqualification rule.

de Leon: Note that when this case was decided, a crime by a spouse against the other’s descendant was not yet an express exception to the marital disqualification rule.

People v. Castañeda, 88 SCRA 562 (1979) The wife can testify against the husband in a case for falsification of the wife’s signature in public documents to sell share of wife in conjugal property because it is a crime committed by the husband against the wife.

Lezama v Rodriguez, 23 SCRA 1166 (1968) Wife who is a co-defendant of her husband in a case of collusive fraud, where their interests are not separate, can not be examined as a hostile witness by the adverse party

People v. Francisco, 78 Phil. 694 (1947) – when the husband imputes crime against wife, he waives the marital disqualification rule

3. Dead Man’s Statute

a. Rule 130 §23

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. (20a)

Requisites for dead man’s statute

.1 the witness sought to be disqualified is the plaintiff

.2 Executor, administrator or representative of a deceased person, or the person of unsound mind is the defendant

.3 upon claim or demand against the estate of such deceased person or against such person of unsound mind

.4 as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

.5 [no counterclaim is filed]

b. Cases Razon v. IAC, 207 SCRA 234 (1992) The dead man’s statute does not apply where the case is filed by the estate. Besides, cross-examination of the witness is a waiver of the privilege.

Reyes v. Wells, 54 Phil 102 (1929) If the witness sought to be disqualified is not the plaintiff (e.g. disinterested 3rd party), the dead man’s statute is not applicable.

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Guerrero v. St. Clare’s Realty, 124 SCRA 553 (1983) Mere witnesses not parties to the case are not disqualified by the dead man’s statute. Furthermore, the rule requires that the defendant must be the estate. It does not apply where the heirs are being sued in their individual capacities. “Representatives” are only those who, like the executor, one sued in their representative, not personal, capacity

Abraham v. Recto-Kasten, 4 SCRA 298 (1962) A cross-examination of the disqualified witness is a waiver of the dead man’s privilege, even if there was a continuing objection.

Lichauco v. Atlantic Gulf, 84 Phil. 330 (1949) This in effect ruled that the Dead Man’s statute can not be invoked against a plaintiff-corporation. Interest no longer disqualifies a witness. Officers/stockholder of corporation may testify in a case filed against the estate of a deceased by the corporation

Escolin: In an action where the administrator is the plaintiff, the defendant may testify on facts occurring prior to the death of the decedent.

Tongco v. Vianzon, 50 Phil 698 (1927) – action must be brought against the estate, not by the estate, to be covered under the dead man’s statute

Escolin: The dead man’s rule does not apply in cadastral cases.

Escolin: If there is no instrument evidencing the claim, it would be difficult to prove the claim in the estate proceeding because of the dead man’s statute. However, if there is such an instrument, it is not barred by the dead man’s statute (Neibert v. Neibert)

Goñi v. CA, 144 SCRA 222 (1986) – heirs of a deceased are “representatives” within the ambit of the dead man’s statute; waived by defendant if he files counterclaim against plaintiff; adverse party may testify to transactions or communications with deceased which were made with an agent of such person if the agents is still alive and can testify as long as it is confined to the transactions

J. Privileged CommunicationsPrivileged Communications

.1 marital

.2 attorney-client

.3 physician-patient

.4 priest-penitent

.5 state secrets

Sec. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases:

This is a rule of relative disqualification. Each of those enumerated is disqualified to testify as to specific matters only. It does not disqualify them from testifying on matters not privileged. Hence, it is improper to object to their testimony upon mere subpoena. One must wait until it becomes apparent that their testimony covers matters that are privileged (e.g. upon asking of a question that covers

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privileged matters; when the purpose of their testimony as admitted by the offeror covers privileged matters) before one may properly object.

Though a relative disqualification, it is nevertheless a testimonial disqualification, as opposed to the testimonial privilege of ascendants and descendants (Rule 130 §25). [careful not to be confused in the multiple meanings of the word “privilege”] Hence, the witness has no say whether the objection is to be raised or not. When the holder of the privilege (not necessarily the opposing party) consents to the testimony, the witness must testify.

Note that the wording of the law is to the effect that “(someone) may not be examined without the consent of (another).” The law does not say that one can not testify or be examined over the objection of another. The wording of the law is to the effect that an objection of the other party in the privileged communication is not necessary for the privilege to hold. Consent of the other party in the privileged communication is an act that needs to be proved for the testimony to be admitted. This is not to say that failure of a such a party to object will never render such testimony admissible. This is to say that where the other party to the privileged communication is not a litigant in the case, and privileged communication is offered in evidence without the consent of such party, the litigant against whom the testimony is offered may object to its admission on the ground of privileged communication. Where the other party in the privileged communication is a litigant, then his failure to object will be taken as a consent to the testimony or a waiver of a privilege.

The communication that is privileged need not be in any form. It can be oral or written.

The communication ceases to be privileged if knowingly communicated in the presence of 3rd persons. In such a case, the privilege may not be invoked at all. However, if the privileged communication was within the surreptitious observation of a 3rd person, then the communication can be invoked if either the communicator or communicatee called to testify. However, the privilege can not be invoked if the 3rd person is called to testify.

1. Marital Communications

a. Rule 130 §24 (a)

(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;

Requisites for Marital Communications Rule

.1 communication received

.a from the spouse

.b in confidence

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.c during the marriage

.2 without the consent of the spouse

Note that the marital communication rule applies even after the marriage. It applies only to matters communicated by one spouse to another in confidence. It does not cover knowledge of matters that a spouse obtains from a source other than other spouse. It can be invoked even if neither spouse is a party to the action. It is a relative disqualification and can be invoked only when it is apparent that the testimony would cover privileged matters.

The exceptions to the rule are

.1 in a civil case by one against the other, or

.2 in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants

cf Rule 130 §22: Marital Disqualification Rule

Sec. 22. Disqualification by reason of marriage. – During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, 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. (20a)

The marital disqualification rule refers to all matters, whether or communicated by one spouse to the other. It applies only during the existence of the marriage. It can be invoked only if one spouse is a party to the action. It is an absolute disqualification and can be invoked the moment that one spouse is called to testify.

Marital Disqualification (Rule 130, Sec. 22)

Marital Communications (Rule 130,

Sec. 24 [a])

Covers all matters regardless of source

Covers only matters communicated by one spouse to another, during the marriage

Applies during the marriage Applies during and after the marriage

A spouse must be a litigant A spouse need not be a litigant

Invoked when a spouse is called to testify

Invoked when the testimony appears to cover privileged matters

MEMORIZE!

b. Cases People v. Carlos, 47 Phil. 626 (1925) – where the privilege communication from one spouse to the other comes into the hands of a 3rd party, without collusion or voluntary disclosure on the part of either spouse, not privilege; illegality of seizure must be raised by motion before trial for return of letter; unanswered letter inadmissible

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2. Attorney-Client Privilege

a. Rule 130 §24 (b)

(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;

Requisites for attorney-client privilege

.1 existence of an attorney-client relationship

.2 witness is an attorney

.3 as to communication made by the client to him, or his advice given thereon

.4 the communication was made in confidence

.5 communication was made in the course of, or with a view to professional employment

The privilege extends to the attorney's secretary, stenographer, or clerk concerning any fact the knowledge of which has been acquired in such capacity. The difference being consent of only the client is needed for the attorney to testify. However, the consent of both the attorney and the client is necessary for the attorney's secretary, stenographer, or clerk to testify.

The attorney-client privilege does not apply if the attorney was sued by his client.

b. CasesUy Chico v. Union Life, 29 Phil. 163 (1915) – communication made by client to attorney for purpose of being communicated to others not privileged, e.g. compromise agreement

Regala v. Sandiganbayan, 262 SCRA 124 (1996) – prosecution can not use attorneys as leverage to compel them to name their clients; client’s identity is protected when there is a strong probability exists that revealing client’s name would implicate him in the very activity for which he sought advice

Barton v. Leyte Asphalt and Mineral Oil Co., 46 Phil. 938 (1924) – letter from client to attorney obtained by adverse party, admitted authentic in court, not privileged regardless whether legally or illegally obtained (what about constitutional rule of exclusion on evidence obtained in violation of the right to privacy of communication and correspondence?); one who overhears the communication with or without client’s knowledge is not privileged

Orient Insurance v. Revilla, 54 Phil. 919 (1930) – introduction in evidence of a part of a paper by one party waives privilege as to other parts of the same

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writing; when a party invokes BER, it is the party who produces original who is deemed to have introduced it in evidence; contract for attorney’s fees is not privileged; there is no partial waiver of privilege

Hickman v. Taylor, 329 U.S. 495 (1947) – privilege does not extend to information gathered by an attorney from witnesses; WP can not be secured without sufficient justification

Upjohn Company v. US, 449 U.S. 383 (1981) – Privilege extends to information given by employees to corporate not to facts.

In re Grand Jury Investigation, 732 F.2d 447 (1983) – The general rule is the identity of a client is not protected; legal advice exception may be defeated through prima facie showing that the legal representation was secured in furtherance of present or intended continuing illegality, as where the representation itself is part of a larger conspiracy; it is the link between the client and the communication, not the link between client and possibility of potential criminal prosecution which is protected; last link exception is abandoned; disclosure might possibly implicate client in criminal activity not an exception

US v. McPartlin, 595 F.2d 1321 (7th Cir. 1979) – statement made by co-defendant to an investigator acting for defendant’s counsel protected; communication by client to attorney remain privileged when attorney shares them with co-defendant for a common defense

US v. Gordon-Nikkar, 518 F.2d 972 (5th Cir. 1975) – protection does not extend to the communication regarding an intended crime; communication divulged to strangers not protected

US v. Nobles, 422 US 225 (1975) – WPD waived when client presents investigator as witness

People v. Sandiganbayan, 275 SCRA 505 (1997)

3. Physician-Patient Privilege

a. Rule 130 §24 (c)

(c) 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 advice or treatment given by him or 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 reputation of the patient;

Waivers of the physician-patient privilege, cf Rule 28, Sec. 3 and 4

Sec. 3. Report of findings. — If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just,

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and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. (3a)

Sec. 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. (4)

Requisites for physician-client privilege

.1 civil case

.2 witness is a person authorized to practice medicine, surgery or obstetrics

.3 as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity

.4 the information was necessary to enable him to act in that capacity

.5 the information would blacken the reputation of the patient

Escolin: The old rule used the word “character” (what the person actually is). The new rules use the word “reputation” (what people think of the person).

Note that the patient need not be the source of the information.

Only persons authorized to practice medicine, surgery or obstetrics are covered by the privilege. Hence, nurses, midwives and other people who attend to the ill can be called to testify as to any matter.

The privilege does not cover expert opinion as long as the witness does not testify to matters specifically referring to the patient.

There is no physician-patient privilege in criminal cases.

de Leon: What about civil cases impliedly instituted with criminal cases?

1)CasesLim v. CA, 214 SCRA 273 (1992) The physician-patient privilege is not violated by permitting physician to give expert testimony regarding hypothetical facts.

Krohn v. CA, 233 SCRA 146 (1994) Non-physician testimony on a medical psychologist’s report is not covered by the physician patient privilege. This is hearsay but there was no objection.

4. Rule 130 §24(d): Priest-Penitent Privilege

(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;

Requisites for Priest-Penitent Privilege

.1 witness is a minister or priest

.2 as to any confession made to or any advice given by him in his professional character

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.3 in the course of discipline enjoined by the church to which the minister or priest belongs

5. State Secrets

a. Rule 130 §24(e)

(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)

Requisites for the State Secrets rule

.1 witness is a public officer

.2 as to communications made to him in official confidence

.3 the court finds that the public interest would suffer by the disclosure

b. CasesUS v. Nixon, 418 U.S. 683 (1974) – absent a claim of need to protect military, diplomatic or sensitive national security secrets, executive privilege can not prevail over due process

Banco Filipino v. Monetary Board, 142 SCRA 523 (1986) – confidential information is not necessarily privileged; no public interest is prejudiced by disclosure, thus not protected; is there a need for a law to declare it confidential?

6. Newsman’s Privilege

a. RA 53 as amended by RA 1477

Sec. 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of 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.

Requisites of newsman’s privilege

.1 publisher, editor, columnist or duly accredited reporter

.2 of any newspaper, magazine or periodical of general circulation

.3 cannot be compelled to reveal

.4 as to the source of any news report or information appearing in said publication

.5 related in confidence

Exception: Court, a House or committee of Congress finds that such revelation is demanded by the security of the State.

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b. Cases Matter of Farber (A.B.), 394 A. 2d 330 (1978) – Constitution prevails over shield law, but entitled to hearing to prove relevance.

7. Bank Deposits (RA 1405)

Sec. 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.

Note that the privilege applies only to bank deposits. As to other property being held by a bank, bank personnel may be examined upon order of a court (Sec. 55.1 [d], RA 8791, General Banking Act of 2000).

K.Parental and Filial Privilege

1. Rule 130 §25

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)

There is no distinction between legitimate or illegitimate relations.

Note that this is a testimonial privilege, not a testimonial disqualification, found in §22-24 of Rule 130 [careful not to be confused in the multiple use of the word “privilege”]. Here, the witness is the holder of the privilege and has the power to invoke or waive the privilege. The relative against whom he is testifying can not invoke nor waive the privilege. However this must be construed in the light of Art. 215 of the Family Code

Art. 215. 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. (315a)

Hence, a descendant may be compelled to testify in a criminal case where

.1 the descendant-witness himself is the victim, or

.2 the descendant-witness’s parent commits a crime against the descendant-witness’s other parent.

Note that an ascendant may not be compelled to testify even if it is a crime by the descendant against the ascendant-witness. The ascendant-witness may testify voluntarily though.

2. Case

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People v. Publico, 7 CAR (2s) 703 (1972) – information given by child to 3rd

person is protected

L. Admissions Admissions that are admissible against a party

.1 Admissions against interest

.2 Compromises

.3 Exceptions to Res Inter Alios Acta

.a Partner’s/Agent’s admissions

.b Co-conspirator’s statements

.c Admission by Privies

.4 Admissions by silence

1. Admissions against interest

a. Rule 130, §26

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. (22)

The general rule is evidence as to extra-judicial acts, omissions, and declarations (AODs) of a party is admissible. These evidences can either be favorable or unfavorable to a party. Rule 130, §26 expressly allows evidence of AODs prejudicial to the AODer. However, an objection may be raised as to the admissibility of AODs favorable to the AODer on the grounds of that these are self-serving AODs. The argument is “Rule 130 §26 only allows evidence of AODs prejudicial to the AODer.” However, §26 is only a rule of admissibility. It allows evidence of AODs prejudicial to the AODer, but does not prohibit evidence on AODs favorable to AODer. There being no express prohibition, any evidence on AODs favorable to the AODer falls under the general rule that evidence not excluded by law or the Rules is admissible (Rule 128 § 3). Any doubt as to such evidence refers to its weight or probative value and not to its admissibility.

Self-serving statements = hearsay? Declaration against interest is an exception to the hearsay rule only applies if the declarant is deceased or unable to testify. Self-defeating statements can not be excluded by the hearsay rule because it is expressly admissible by the rules.

Is personal knowledge on the part of the AODer required?

b. CasesKeller & Co. v. COB – president’s admission binds corporation

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2. Compromises

a. Rule 130, §27

Sec. 27. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. 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.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a)

Note that the offer of compromise in civil cases is not admissible only as evidence of liability. If the offer of compromise is offered as evidence on other matters (e.g. amount of liability), then the evidence is admissible.

In civil cases, an offer of compromise is inadmissible regardless of the cause of action. In criminal cases, the general rule is an offer of compromise is admissible. However, it is inadmissible under the following cases:

.1 quasi-offenses (criminal negligence)

.2 cases allowed by law to be compromised (e.g. BIR can compromise tax cases)

.3 plea of guilty later withdrawn

.4 unaccepted offer to plead guilty to a lesser offense

.5 offer to pay or payment of expenses occasioned by an injury

.6 [the offer is made only to avoid the consequences of litigation]

Note that the inadmissible offer to pay refers only to expenses occasioned by an injury. It does not include offers to pay other expenses. Ergo, an offer to pay for damages to property is admissible in criminal cases.

Further note that an offer to pay for expenses other than those occasioned by an injury is inadmissible in civil cases. Though the 3rd paragraph of §27 excludes in civil cases offers to pay only for expenses occasioned by an injury, offers to pay for other expenses fall under the general rule that an offer to compromise in civil cases is not admissible. The exclusion in civil cases of offers to pay for expenses occasioned by an injury is merely a superfluity. Even if the exclusion was expressly applied to only criminal cases, an offer to pay for expenses occasioned by an injury is in the nature of an offer to compromise which is undoubtedly admissible in civil cases. The bottomline is: an offer to pay for any expense in civil cases is inadmissible.

b. Cases

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Veradero v. Insular Lumber, 46 Phil. 176 (1924) – evidence on an offer to compromise is admissible even in civil cases if it is to prove amount of a liability and not the liability itself.

US v. Torres, 34 Phil. 994 (1916) – offer of compromise in criminal cases inadmissible when accused shows that it was made not under a consciousness of guilt, but merely to avoid inconvenience of imprisonment or for some other reason; in this case, the law allowed compromise, thus the offer to compromise is not admitted

People v. Godoy, 250 SCRA 676 (1995) – offer to compromise made by a person other than the accused is inadmissible if the accused repudiated the actions of such person by raising the trial court’s admission of evidence of such offer as an error.

People v. de Guzman, 265 SCRA 228 (1996) – the offer to compromise made by a person other than the accused was admitted in evidence because the accused failed to repudiate such acts by raising the trial court’s admission of evidence on such offer as an error.

People v. Yparriguirre, 268 SCRA 35 (1997) – whether a complaint has been filed or not is irrelevant as to the admissibility of an offer to compromise.

People v. Maqui, 27 Phil. 97 (1914)

3. Res Inter Alios Acta

a. Rule 130, §28

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. (25a)

The general rule is extra-judicial acts of a person other than a party are inadmissible against such party. However, the rules also provide for exceptions

.1 Partner’s admissions

.2 agent’s admissions

.3 admissions by a joint owner, joint debtor, or other person jointly interested with the party.

.4 Co-conspirator’s statements

.5 Admission by privies

Is personal knowledge required for these exceptions to apply?

b. CasesPeople v. Tena, 215 SCRA 43 (1992)

Facts: Accused was convicted of robbery with homicide on the basis of an extra-judicial confession of another admitting his participation in the offense.

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Held: This is not a co-conspirator’s statement because there was no evidence of conspiracy independent of the extra-judicial confession. Furthermore, the confession was executed long after the supposed conspiracy had ended.

Escolin: Had the co-conspirator taken the witness stand and pointed to his co-accused, the testimony would have been admissible. In this case, what was presented was a merely his affidavit.

People v. Alegre, 94 SCRA 109 (1979) – absent independent evidence of conspiracy, extra-judicial confession of the accused is not admissible against others

People v. Raquel, 265 SCRA 248 (1996) – extra-judicial confession of accused can not be used to implicate co-accused unless repeated in open court.

c. ExceptionsNote that all the exceptions to res inter alios acta require that the relationship be proven by evidence independent of the act or declaration sought to be admitted.

1)Partner’s/Agent’s admissions

a)Rule 130, §29

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. (26a)

Requisites for admission by co-partner or agent

.1 act or declaration of a partner, agent, or person jointly interested with the party

.2 within the scope of authority

.3 made during the existence of the partnership, agency or joint interest

.4 the partnership, agency, or joint interest is shown by evidence other than such act or declaration

b)Cases Ormachea v. Trillana, 13 Phil 194 (1909) Discharge of a debt given by a managing partner, 2 years after the partnership had been dissolved does not qualify as a partner’s admission and can not prejudice or bind the other partners.

Kiel v. Estate of Sabert, 46 Phil 193 (1924)

Facts: After a partner died, the remaining partner sought to recover his share in the partnership.

Held: The declarations of one partner, not made in the presence of his co-partner, are not competent to prove the existence of a partnership, between

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them as against such other partner. The existence of a partnership cannot be established by general reputation, rumor, or hearsay.

Mahlandt v. Wild Canid Survival, 588 F.2d 626 (8th Cir. 198) – the jurisdiction in which this case is decided has a law which explicitly declared that an act of a party or his agent is not hearsay; agent need not have personal knowledge of his statement as long as it is within the scope of his authority, may be used against him and his principal

2)Co-conspirator’s statements

a)Rule 130, §30

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 of declaration. (27)

Requisites for co-conspirator’s statements

.1 act or declaration of a conspirator

.2 relating to the conspiracy

.3 made during its existence

.4 the conspiracy is shown by evidence other than such act of declaration.

b)Cases People v. Cabrera, 57 SCRA 715 (1974)

Facts: Accused was convicted based on the extra-judicial confession of his co-accused.

Held: The statement was made after, not during, the conspiracy, hence it was inadmissible.

People v. Yatco, 97 Phil. 941 (1955) – confession regarding conspiracy may be used against confessor (multiple admissibility); confession regarding conspiracy should be conditionally admitted until conspiracy is proved; statements must be made during the conpiracy and in furtherance of its object to be admissible

People v. Chaw Yaw Shun, 23 SCRA 127 (1968) – conspiracy must be proved by independent evidence other than the confession; reiterated “in furtherance”

People v. Serrano, 105 Phil. 531 (1959) – requirement that conspiracy must be shown 1st other than confession applies only to extra-judicial confessions not to testimony in open court

3)Admission by Privies

a)Rule 130, §31

Sec. 31. Admission by privies. – Where one derives title to property from another, the act, declaration, or omission of the latter, while

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holding the title, in relation to the property, is evidence against the former. (211)

Requisites for admission by privies

.1 a party derives title to property from another

.2 act, declaration, or omission of the transferor

.3 made while holding the title

.4 in relation to the property

Tequillo: Does this not violate the Property Registration Decree, that says 3rd

parties are not bound unless the encumbrance is registered?

b)Cases Alpuerto v. Pastor, 38 Phil. 785 (1918) – “privies” denotes any act whereby the successor is substituted in the place of the predecessor in interest; purchaser at execution sale is a privy of the execution debtor; “3rd parties” are persons who have not intervened in the execution of the instrument either as principals or witnesses

City of Manila v. Del Rosario, 5 Phil. 227 (1905) – admission must be made while one holds title

4. Admissions by silence

a. Rule 130 §32

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 declaration 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. (23a)

Requisites for admission by silence

.1 The act or declaration is made in the presence and within the hearing or observation of a party

.2 The party does or says nothing

.3 The act or declaration naturally calls for action or comment if not true

.4 Such action or comment is proper and possible on the part of the party.

b. CasesPeople v. Paragsa, 84 SCRA 105 (1978) Failure by a supposed rape victim to rebut sweetheart defense based on testimonial evidence may be taken against her. Requirements for admission by silence: 1) heard and understood, 2) at liberty to deny, 3) affects his rights, 4) within his knowledge, and 5) material to the issue

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People v. Alegre, 94 SCRA 109 (1979) – silence of accused in custody during investigation can not be used as evidence against him

Griffin v. California, 380 U.S. 853 (1965) – court may not comment on accused’s failure to testify regarding facts within his knowledge

M. Confessions

1. Rule 130, §33

Sec. 33. Confession. – 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. (29a)

This rule is applicable only in criminal cases.

A confession need not be in writing in order to be admissible in evidence.

If it is in writing, it is NOT required to be under oath.

Escolin: However, if it is not in writing, the prosecution may find difficulty in proving it.

2. Art. III, §§12 and 17, 1987 Constitution

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(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.

Section 17. No person shall be compelled to be a witness against himself.

3. Rule 115 (e)

Sec. 1. Rights of accused at trial. – xxx

(e) To be exempt from being compelled to be a witness against himself.

4. CasesPeople v. Sarmiento, 147 SCRA 252 (1987) A confession, to be admissible, must have been executed in the presence of counsel. Waiver of right to counsel must be with the assistance of counsel.

People v. Marra, 236 SCRA 565 (1994) Where the confession was made even before the accused was under custodial investigation, it is admissible even if he

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was not assisted by counsel. Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the accused is said to be under custodial investigation.

People v. Sumayo, 70 SCRA 488 (1976) Where the extra-judicial confessions of the accused are consistent in many material details and manifest amazing consistency and accuracy in the narration of events and of facts which could not have been known to the police investigators if the same were not voluntarily given by the accused, such statements are admissible against the accused on the doctrine of interlocking confessions.

de Leon: The value of the doctrine of interlocking confessions is when a confession is inadmissible against one accused (e.g. obtained without counsel), but it is nevertheless admissible against the other co-accused. The confession of one may be used against another to produce evidence of guilt beyond reasonable doubt.

People v. Compil, 244 SCRA 135 (1995)

People v. Wong Chuen Ming, 256 SCRA 182 (1996)

People v. Alegre, 94 SCRA 109 (1979)

People v. Yip Wai Ming, 264 SCRA 224 (1996)

People v. Maqueda, 242 SCRA 565 (1995)

Bruton v. US,

Parker v. Randolph, 442 U.S. 62 (1979)

People v. Encipido, G.R. No. 7009l, Dec. 29, 1986

N.Previous Conduct as Evidence

1. Rule 130, §34-35

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. (48 a)

GR: 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

Exceptions: It may be received to prove a specific

.1 intent

.2 knowledge

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.3 identity

.4 plan

.5 system

.6 scheme

.7 habit

.8 custom or

.9 usage, and

.10 the like.

Sec. 35. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money instrument, or property. (49 a)

2. CasesUS v. Evangelista, 24 Phil 453 (1913) In a trial for arson, the prosecution may prove that the accused had attempted to set fire to the house on the day previous to the burning alleged in the information, for the purpose of showing the intent of the accused in subsequently setting fire to the house. Where a person is charged wit the commission of a specific crime, testimony may be received of the other similar acts committed about the same time, only for the purpose of establishing the criminal intent of the accused.

US v. Pineda, 37 Phil 457 (1918)

Facts: A druggist filled a prescription for protassium chlorate with barium chlorate, a poison, causing the death of two horses. After analyzing the packages, two chemists went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate.

Held: The testimony of the chemist was admissible in order to demonstrate defendant's motive and negligence. It is permissible to ascertain defendant's knowledge and intent and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. There is no better evidence of negligence than the frequency of accidents. Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant.

People v. Irang, 64 Phil 285 (1937)

Facts:

After barging into her home, a man ordered Maximiniana Vicente to bring out her money and jewelry. As she turned over the items, she looked at the man's face and saw that he had pockmarks and a scar on his left eyelid. Irang was identified by Maximiana from a police line-up and was charged. During the trial, Maximiana’s neighbor, Juana de la Cruz, testified that on the night in question,

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her house was assaulted by malefactors. de la Cruz noticed that one of them had pockmarks and a scar on the left eyelid. She identified that man to be Irang.

Held: The testimony of Juana de la Cruz indirectly corroborates Maximiniana’s testimony that the man of the same description was the one who went to her house and demanded delivery of her money and jewelry. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery, it is admissible when it is otherwise relevant, as where it tends to identify defendant as the perpetrator of the robbery charged, or tends to show his presence at the scene or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime.

People v. Soliman, 53 O.G. 8083 (1957)

People v. Babiera, 52 Phil. 97 (1928)

US v. Mercado, 26 Phil. 127 (1913)

O.Hearsay Rule

1. Testimonial Knowledge

a. Rule 130, §36

Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30 a)

b. Cases People v. Damaso, 212 SCRA 547 (1992) Hearsay evidence, whether objected to or not, cannot be given credence. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value.

People v. Brioso, 37 SCRA 336 (1971)

People v. Cusi, 14 SCRA 944 (1965)

People v. Gaddi, 170 SCRA 649 (1989)

Leake v. Hagert, 175 N.W.2d 675 (1970)

U.S. v. Zenni, 492 F. Supp. 464 (1980)

2. Exceptions Exceptions to the hearsay rule

.1 waiver

.2 independently relevant evidence

.3 dying declaration

.4 Declaration against interest

.5 Act or declaration about pedigree

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.6 Family reputation or tradition regarding pedigree

.7 Common reputation

.8 Part of the res gestae

.9 Verbal acts

.10 Entries in the course of business

.11 Entries in official records

.12 Commercial lists and the like

.13 Learned treatises

.14 Testimony or deposition at a former proceeding

a. Dying Declaration

1)Rule 130, §37

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. (31 a)

Requisites for admissibility of a dying declaration

.1 declaration of a dying person

.2 made under the consciousness of an impending death

.3 his death is the subject of inquiry

.4 as evidence of the cause and surrounding circumstances of such death

2)Cases People v. Devaras, 37 SCRA 697 (1971)

Facts: The next morning after being stabbed or 11 hours later, as the victim was about to be taken to the hospital, a patrolman was able to get his statement as to the identity of the perpetrators. The victim was unable to sign the statement and he died the next day.

Held: The statement was not part of the res gestae because of the lapse of considerable time between the commission of the offense and the taking of the statement. However, the statement amounts to a dying declaration, as it is a statement coming from a seriously wounded person even if death occurs hours or days after it was inflicted if there be showing that it was due to the wound whose gravity did not diminish from the time he made his declaration until the end came. There is no need for proof that the declarant state "that he has given up the hope of life.” It is enough if. from the circumstances, it can be inferred with certainty that such must have been his state of mind. It is sufficient that the circumstances are such as to lead inevitably to the conclusion that the time [of such statement] the declarant did not expect to survive the injury from which he actually died. Its admissibility is not affected by death occurring hours or days afterwards.

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People v. Laquinon, 135 SCRA 91 (1985)

Facts: Pablo Remonde was shot. The barrio captain found him lying on the sand at the bank of a river. Pablo’s hands were tied on his back and he was lying face down. The barrio captain took Pablo’s ante-mortem statement and learned that he was Pablo Remonde, he was shot by Gregorio Laquinon, and that Pablo was not sure if he would survive the gunshot wounds he suffered. Pablo died in the hospital 3 days later. Laquinon was charged and convicted of Murder. Laquinon argues that the statement is not a dying declaration because it was not made under the consciousness of an impending death.

Held: The statement of the deceased Pablo Remonde is not admissible as a dying declaration since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the deceased believed himself in extremis, at the point of death when every hope of recovery is extinct, which is the sole basis for admitting this kind of declarations as an exception to the hearsay rule. It may be admitted, however, as part of the res gestae since the statement was made immediately after the incident and the deceased Pablo Remonde had no sufficient time to concoct a charge against the accused.

de Leon: In Devaras, consciousness of impending death was inferred from the extent of the injuries. In Laquinon, the declarant expressly said that he was not sure that we was going to die. The moral of the story is, in taking a dying declaration, don’t ask if the declarant thinks he will die.

People v. Sabio, 102 SCRA 218 (1981)

Facts: Catralino Espina was found by his grandnephew in his house lying and wounded. Espina asked for the police. When police officers arrived, they asked Espina “who slashed and robbed” him. Espina answered that it was Sabio. His declaration was taken down and thumbmarked by him. Sabio was charged and convicted of robbery with homicide. Sabio questions the admissibility of the declaration on the ground that it was not made under the consciousness of an impending death because the victim had hopes of recovery for his first word to his grandnephew was for the latter to fetch the police.

Held: Statement is admissible. The seriousness of the injury on the victim's forehead which had affected the brain and was profusely bleeding; the victim's inability to speak unless his head was raised; the spontaneous answer of the victim that "only Papu Sabio is responsible for my death"; and his subsequent demise from the direct effects of the wound on his forehead, strengthen the conclusion that the victim must have known that his end was inevitable. That death did not ensue till 3 days after the declaration was made will not alter its probative force since it is not indispensable that a declarant expires immediately thereafter. It is the belief in impending death and not the rapid succession of death, that renders the dying declaration admissible. The fact that the victim told his grandnephew to fetch the police, does not negative the victim's feeling of hopelessness of recovery but rather emphasizes the realization that he had so little time to disclose his assailant to the authorities.

However, only homicide was proved. The evidence supportive of the charge of robbery is at best circumstantial and does not establish beyond reasonable doubt

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that the accused had carried away personality belonging to the offended party. There was no eyewitness to the alleged robbery, nor was any part of the alleged missing objects recovered. The consummation of the robbery cannot he inferred nor presumed from the circumstance that the accused was seen running "with his hands inside his shirt", or that the "barro", alleged to have contained cash amounting to about P8, was seen on the floor, open and empty, or that the things and merchandise inside the house were in disarray. Nor can the dying declaration of the victim be admitted to establish the fact of robbery. The admission of dying declarations has always been strictly limited to criminal prosecutions for homicide or murder as evidence of the cause and surrounding circumstances of death.

de Leon: Could not have the statement been admissible as proof of Sabio’s guilt of robbery as a part of the res gestae?

People v. de Joya, 203 SCRA 343 (1991)

Facts: Eulalia Deamse was fatally wounded. Her grandson, Alvin Valencia, came home and found her wounded. He asked his grandmother "Apo, Apo, what happened?" The deceased victim said: "Si Paqui". After uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of Pioquinto de Joya. De Joya was charged and convicted of robbery with homicide.

Held: A dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. The statement as offered must not be merely a part of the whole as it was expressed by the declarant; it must be complete as far it goes. It is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. Since the declarant was prevented from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received.

In this case, the dying declaration of the deceased victim here was incomplete. The words "Si Paqui" do not constitute by themselves a sensible sentence. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you?" The deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court simply assumed that by uttering the words "Si Paqui", the deceased had intended to name her killer. But Eulalia herself did not say so and we cannot speculate what the rest of her

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communication might have been had death not interrupted her. We are unable to regard the dying statement as a dying declaration naming the appellant as the doer of the bloody deed.

Escolin: Justices Relova and Francisco and I disagree with this decision. Under the context, what else could have “Si Paqui” meant other than that he was responsible for the crime?

People v. Salison, G.R. No. L-115690, Feb. 20, 1996

b. Declaration Against Interest

1)Rule 130, §38

Sec. 38. Declaration against interest. – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. (32 a)

Requirements for hearsay testimony on declaration against interest

.1 declaration made by a person deceased, or unable to testify

.2 against the interest of the declarant

.3 the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true

.4 as evidence against himself or his successors in interest and against third persons

cf Rule 130 Sec. 31

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. (211)

Admission by privies Declaration against interest

One of 3 exceptions to res inter alios acta

Exception to hearsay

Evidence against the successor in interest of the admitter

Evidence against even the declarant, his successor in interest, or 3rd persons

Admitter need not be dead or unable to testify

Declarant is dead or unable to testify

Relates to title to property Relates to any interest

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Admission need not be against the admitter’s interest

Declaration must be against the interest of the declarant

2)Cases Viacrusis v. CA, 44 SCRA 176 (1972) Previous recognition of ownership in another by a party in possession of property in dispute is admission against interest which may be received even against 3rd persons.

People v. Toledo, 51 Phil. 825 (1928) Declaration against interest, as an exception to the hearsay rule, covers not only pecuniary interest, but also penal interest.

People v. Majuri, 96 SCRA 472 (1980)

Fuentes v. CA, 253 SCRA 430 (1996)

c. Pedigree

1)Rule 130, §39

Sec. 39. Act or declaration about pedigree. – The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33 a)

Requisites for admissibility of hearsay evidence as to pedigree

.1 act or declaration of a person deceased, or unable to testify

.2 in respect to the pedigree of another person

.3 related to him by birth or marriage

.4 where it occurred before the controversy

.5 the relationship between the 2 persons is shown by evidence other than such act or declaration.

"Pedigree" – includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, the names of the relatives, and facts of family history intimately connected with pedigree.

2)Cases Gravador v. Mamigo, 20 SCRA 742 (1967)

Tison v. CA, 276 SCRA 582 (1997)

d. Family Tradition

1)Rule 130, §40

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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, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34 a)

Requisites for admissibility of hearsay evidence as to family reputation or tradition regarding pedigree

.1 reputation or tradition existing in a family

.2 previous to the controversy

.3 in respect to the pedigree of any one of its members

.4 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, engravings on rings, family portraits and the like, may be received as evidence of pedigree.

de Leon: note that in family tradition, the declarant must be dead or unable to testify. In family reputation or tradition, there is not even a declarant to speak of; just a witness who was aware of an exiting family reputation or tradition.

2)Case People v. Alegado, 201 SCRA 37 (1991) Testimony of a witness and the witness’ grandfather as to the date of birth and age of the witness is evidence on family tradition which is admissible as an exception to hearsay.

Ferrer v. de Inchausti, 38 Phil 905 (1918) Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, to be admissible as an evidence of pedigree, need NOT be proven to have been made at the same time as the occurrence of the events documented.

e. Common Reputation

1)Rule 130, §41

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. (35)

Requisites for admissibility of hearsay evidence as to Common reputation

.1 Common reputation

.2 existing previous to the controversy

.3 respecting either

.a facts of public or general interest more than 30 years old, or

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.b marriage or

.c moral character

Monuments and inscriptions in public places may be received as evidence of common reputation.

2)Cases City of Manila v. Del Rosario, 5 Phil 227 (1905)

f. Res Gestae

1)Rule 130, §42

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. xxx

Requisites for admissibility of hearsay evidence as to res gestae

.1 Statements made by a person either

.a while a startling occurrence is taking place or

.b immediately prior or

.c immediately subsequent thereto

.2 with respect to the circumstances thereof

2)Cases People v. Putian, 74 SCRA 133 (1976) A declaration made by a person immediately after being wounded, pointing out or naming his assailant, may be considered as part of the res gestae and is admissible in evidence. A statement was given sometime after the stabbing while the declarant was undergoing treatment at a medical clinic, where he had no time to concoct a falsehood or to fabricate a malicious charge against the accused and no motive has been shown as to why he would frame-up the accused would render the statement admissible as a part of the res gestae.

People v. Peralta, 237 SCRA 218 (1994)

Facts: Atanacia Ramos had a daughter Rosita. Rosita married Domiciano Peralta. They had a daughter Siony. On morning, Siony came to Atanacia at her house frantically told her that Domiciano was strangling Rosita. They went to the Peralta home and found Rosita dead. Domiciano was not there. They immediately reported the matter to the police, who eventually arrested the Domiciano. At the preliminary investigation, Siony executed a sworn statement implicating her father. Domiciano was charged with Parricide. At the trial Atanacia testified as to Siony’s declaration. However, Siony testified for her father and said that though she saw someone strangling her mother, she did not see who it was. After the defense rested, the prosecution presented the investigating judge who testified as to the regularity of the conduct of the preliminary investigation. TC convicts.

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Held: The statement Siony made to her grandmother when she rushed to inform her of her father's attack on her mother was part of the res gestae. Res gestae means the "thing done." It refers to those exclamations and statements made by either the participants, victims or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. Siony rushed to Atanacia immediately upon seeing her father strangling her mother to death. Her spontaneous declaration to Atanacia was part of the res gestae and is assumed to preclude the probability of premeditation of fabrication. Since the utterance was made under the immediate and uncontrolled domination of the senses rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing Siony's real belief as to the facts just observed by her.

Besides, where a witness executes a statement for the prosecution and retracts his testimony and subsequently testified for the defense, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. Retractions are generally unreliable and are looked upon with considerable disfavor by the courts. Siony testified during the preliminary examination conducted by Judge Paano that the appellant choked her mother to death. Her subsequent retraction was an afterthought and has no probative value at all.

Furthermore, there are certain circumstances that may have persuaded the daughter to change her former declaration and testify in favor of her father. First, the accused was her father after all, and she probably felt that she should not be responsible for his incarceration for the rest of his life. Second, her testimony was given 7 years after the incident and therefore could not be expected to be as accurate as the statement she made in the preliminary investigation only hours after the killing. Third, during all this time, her father had been under detention and she must have believed that this was punishment enough for him. Lastly, she was, at the time she testified in court, living with her father's sister, who may have greatly influenced her testimony and caused her to recant her earlier statement.

g. Verbal acts

1)Rule 130, §42

Sec. 42. Part of the res gestae. – xxx 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 (36 a)

Requisites for admissibility of hearsay evidence as to verbal acts

.1 statements accompanying an equivocal act

.2 material to the issue

.3 giving it a legal significance

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2)Case Dusepec v. Torres, 39 Phil 760 (1919)

Facts: Tan Po Pik died in the Philippines intestate. After he died, Marta Torres, claiming to be his widow, took possession of his estate and partitioned it between herself and her children by the deceased. Plaintiffs claim to be the legal wife and children of the deceased from China. They now sue to recover their supposed share of the estate. The SC found numerous inconsistencies as to the testimonial and documentary evidence of the plaintiffs as to lead to the conclusion that the plaintiffs are not who they claim to be. However, the plaintiff offered in evidence a sworn declaration of the deceased that the plaintiffs were his children. Defendants offered letters between the deceased and his brother showing that deceased’s sworn declaration was to deceive the customs authorities to allow plaintiffs to enter the country. Plaintiffs object to the admissibility of such letters.

Held: The declaration was made in proceedings before customs authorities upon arrival of the plaintiffs from China. The arrival and admission of these plaintiffs and the declaration of Tan Po Pik are isolated parts of an event which is the voyage from China to the Philippines of these supposed children of the deceased. Their preparations for the voyage and the plans conceived by them to obtain their sure entrance into this country are also part of the voyage. In order to consider the declaration made by Tan Po Pik before the customs authorities, the other acts, declarations, and events occurring before the said entrance into the country, which may have an essential bearing or which have led to the realization of their entrance into the country are admissible in evidence in this case on the ground that they constitute parts of the same transaction, or of the res gestae. A word, an expression, or an act of a person, considered apart from the circumstances surrounding them, does not signify anything, and in many cases it signifies the opposite of the true sense of the said word, expression, or act. It is imprudent and illegal to consider the declaration made by Tan Po Pik before the customs authorities separately from the circumstances which prompted him to make such a declaration. We must therefore inquire into circumstances which surrounded the entrance of the plaintiffs and the declaration made by Tan Po Pik on that occasion.

In this case, letters between Tan Po Pik and his brother in China contained an agreement that for plaintiffs to enter the Philippines, Tan Po Pik was to declare before the customs authorities that plaintiffs were his children. The names of the children whom Tan were supposed to declare as his children were the same as the names of the plaintiffs, except that they now bear the surname Tan. The letters even refer to one of the plaintiffs as the deceased’s nephew. If these plaintiffs were really children of Tan Po Pik, there would have been no necessity for the above letters. Thus, Tan Po Pik’s declaration before the customs authorities is for the sole purpose of allowing the children to enter the Philippines, and such a declaration is entirely false. All these letters formed an essential part of the fact of the coming of these plaintiffs to Manila, because if these letters had not been transmitted and received the plaintiffs could not have succeeded in entering the Philippines. Therefore, all the statements and

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declarations-of Tan Po Ho in these documents relative to the prosecution of the object of the conspiracy are admissible in evidence.

People v. Lungayan, 162 SCRA 100 (1988)

People v. Tolentino, 218 SCRA 337 (1993)

h. Entries in the Course of Business

1)Rule 130, §43

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. (37 a)

Requisites for admissibility of hearsay evidence as to Entries in the course of business

.1 Entries made at, or near the time of the transactions to which they refer

.2 by a person deceased, or unable to testify

.3 who was in a position to know the facts therein stated

.4 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.

Note that in business records, the person making the entry must be deceased or unable to testify. In official records, the person making the entry need not be deceased or unable to testify (Rule 130, Sec. 44). Both official and business records are only prima facie evidence.

If the person making the entry is still alive, use the record to refresh his memory. (Rule 132, Sec. 16)

2)Cases Palmer v. Hoffman, 318 U.S. 109 (1943)

Philamlife v. Capital Assurance Corp., (CA) 72 O.G. 3941

i. Official Records

1)Rule 130, §44

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. (38)

Requisites for admissibility of hearsay evidence as to Entries in official records

.1 made in the performance of his duty

.2 by either

.a a public officer of the Philippines, or

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.b by a person in the performance of a duty specially enjoined by law

Note that in official records, the person making the entry need not be deceased or unable to testify, but he must be a public officer or a person in the performance of a duty specially enjoined by law. In business records, the person making the entry must be deceased or unable to testify. Both official and business records are only prima facie evidence.

2)Cases Fortus v. Novero, 23 SCRA 1330 (1968)

Facts: Ciriaca Angelo was the owner of the parcel of land. She had only one child, Crisanta Ilagan. Crisanta predeceased her mother. Crisanta was married to Fermin Fortus. They had an only son, the Victorino Fortus. Ciriaca died intestate. The property therefore passed on to Victorino Fortus. However, Victorino never caused the OCT to be cancelled and to have another issued in his name. Ciriaca’s estate was therefore not yet closed.

Victorino Fortus and Julia Fortus were husband and wife but were childless. Upon Victorino's death, Julia executed an affidavit of extra-judicial summary settlement of Ciriaca’s estate and had it registered. Rosario Novero, claiming to be an illegitimate child of Victorino with Patricia Novero, initiated proceedings for summary settlement of Ciriaca’s estate. Julia opposed, along with the Fortuses, who claim to be Victorino’s half-brother and sisters. They claim to be the legitimate children of Fermin Fortus with Jacoba Aguil.

The Fortuses did not present the marriage contract or certificate of their alleged parents, but sought to present secondary evidence. The SC found the testimonial evidence the Fortuses presented to lay the basis for introduction of secondary evidence were inconsistent, incredible and insufficient to establish than an original marriage contract was indeed executed. However, the Fortuses presented baptismal certificates of some of them to prove the marriage of their parents. Note that they must prove marriage because otherwise, they would be illegitimate relatives of Victorino which would disqualify them from inheriting from him.

Held: The record of baptism attests to the fact of the administration of the sacrament on the date stated therein, but not the truth of the statements therein made as to the parentage of the child baptized. Neither are the baptismal certificates public documents or public writings, because the parochial records of baptisms are not public or official records, as they are not kept by public officers, and are not proof of relationship or filiation of the child baptized.

Furthermore, though the Fortuses invoke that since for the past 30 years their parents had deported themselves in public as husband and wife and had been living under the same roof, the legal presumption is that they had entered into a lawful marriage. This presumption, however, is only applicable where there is no clear and concrete evidence showing otherwise. In this case, however, there is a certificate from the Division of Archives to the effect that 'no copy of the marriage record of spouses Fermin Fortus and Jacoba Aguil supposed to have been solemnized in the year 1902 and 1905 in the Municipality of Rosario,

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Batangas had been received by said office for file', and this certification is further strengthened by the affirmation of Clemente Barbosa, a clerk in the office of the municipal treasurer of Rosario, Batangas, that there was no record of such marriage supposedly contracted between the spouses Fermin Fortus and Jacoba Aguil from 1902 and 1922 of the Municipality of Rosario, Batangas. At most, the baptismal certificates were only a prima facie proof which oppositor Julia Fortus had overcome by satisfactory evidence to the effect that Fermin Fortus and Jacoba Aguil were never married and hence all of their children are not legitimate brothers or half brothers and therefore have no right to inherit from Victorino Fortus.

Escolin: Before, baptismal certificates were competent evidence to establish the parentage of the child. After Act 3753, baptismal certificates were no longer competent.

Johnson v. Lutz, ()

Africa v. Caltex, 16 SCRA 448 (1966)

People v. Leones, 117 SCRA 382 (1982)

Manalo v. Robles Trans. Co., Inc., 99 Phil. 729 (1956)

People v. Cabuang, 217 SCRA 675 (1993)

People v. Gabriel, G.R. No. L-107735, Feb. 1, 1996

j. Commercial Lists

1)Rule 130, §45

Sec. 45. Commercial lists and the like. – Evidence of statements of matters of interest, to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39)

Requisites for admissibility of hearsay evidence as to Commercial lists

.1 statements of matters of interest

.2 to persons engaged in an occupation

.3 contained in a list, register, periodical, or other published compilation

.4 as tending to prove the truth of any relevant matter so stated

.5 the compilation is

.a published for use by persons engaged in that occupation and

.b generally used and relied upon by them therein.

e.g. NEDA reports, part of the newspaper which reports the prices of shares

2)Cases

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State v. Lungsford, 400 A.2d 843 (1979)

Estrada vs. Noble, [C.A,] 49 O.G. 139

k. Learned Treatises

1)Rule 130, §46

Sec. 46. Learned treatises. – A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40 a)

Requisites for admissibility of hearsay evidence as to Learned treatises (used to prove unwritten foreign law)

.1 published treatise, periodical or pamphlet

.2 on a subject of history, law, science or art

.3 Either

.a the court takes judicial notice, or

.b a witness expert in the subject testifies

.4 that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject

2)Cases Yao Kee v. Sy-Gonzales, 167 SCRA 736 (1988) Philippine courts can not take judicial notice of foreign law. Failure to prove foreign law whether unwritten under Rule 130, Sec. 46 or written under Rule 132, Sec. 24, raises the presumption that the law is the same as ours.

Escolin: This provision is useful to prove an unwritten law. E.g. learned treatises on unwritten law which the court has taken judicial notice: Manresa, Sanchez-Roman. E.g. of writers of treatises acknowledged as experts: Corpus juris, Corpus juris secundum, LRA

If it is a written law that is sought to be proven, cf Rule 132, Sec. 19

Sec. 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

xxx

E.g. of written official acts: Judicial decisions, executive orders. Our courts take judicial notice of local laws. However, there are certain instances when an official copy of the written official act is required to be presented. cf Rule 132, Sec. 24

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Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25 a)

Ways to prove written foreign official acts

.1 official publication, or

.2 copy

.a attested by the officer having the legal custody of the record, or by his deputy, and

.b if the record is not kept in the Philippines

)1 accompanied with a certificate that such officer has the custody made by

)a a secretary of the embassy or legation

)b consul general, consul, vice consul, or consular agent or

)c by any Philippine officer in the foreign service stationed in the foreign country in which the record is kept

)2 and, authenticated by the seal of his office.

l. Prior Testimony

1)Rule 130, §47

Sec. 47. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41 a)

cf with the rules on admissions (Rule 130 Secs. 26-33, RoC) and interrogatories (Rule 24, RoC)

Requisites for admissibility of hearsay evidence as to prior testimony

.1 testimony or deposition

.2 of a witness deceased or unable to testify

.3 given in a former case or proceeding

.4 involving the same parties and subject matter

.5 as evidence against the adverse party

.6 adverse party had the opportunity to cross-examine him

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2)Cases Tan v. CA, 20 SCRA 54 (1967) Absent a showing that the witness is dead, outside the Philippines, or unable to testify, their prior testimony is inadmissible. Mere refusal to testify is does not amount to inability to testify. The party could have urged to court to have these witnesses summoned, arrested, and punished for contempt in case of refusal to obey the summons.

People v. Liwanag, 73 SCRA 473 (1976)

Facts: The prosecution moved that the testimony of the witnesses presented during the preliminary investigation of this case be adopted as part of the evidence in chief of the prosecution. The trial court granted the motion subject to the condition that the witnesses be further cross-examined by counsel for the accused. At the trial, the witnesses for the prosecution who testified at the preliminary investigation were recalled and were again cross-examined by counsel for the appellant.

Held: The testimony sought to be made part of the evidence in chief are not ex-parte affidavits, but testimony of witnesses taken down by question and answer during the preliminary investigation in the presence of the accused and his counsel who subjected the said witnesses to a rigid and close cross-examination. The inclusion of said testimony was made subject to the right of the defendant to further cross-examine the witnesses whose testimony are sought to be reproduced and, pursuant to said order, the witnesses were recalled to the stand during the trial and again examined in the presence of the appellant. Upon the facts, there was no curtailment of the constitutional right of the accused to meet the witnesses face to face.

Ohio v. Roberts, 448 U.S. 56 (1980)

P. Opinion Rule

1. Rule 130, §48-50

Sec. 48. General rule. – The opinion of a witness is not admissible, except as indicated in the following sections. (42)

Sec. 49. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. (43 a)

Sec. 50. Opinion of ordinary witnesses. – The opinion of a witness for which proper basis is given, may be received in evidence regarding -

(a) the identity of a person about whom he has adequate knowledge;

(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (44 a)

GR: The opinion of a witness is not admissible.

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Exceptions: Admissible opinion evidence

.1 a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.

.2 the identity of a person about whom he has adequate knowledge;

.3 a handwriting with which he has sufficient familiarity

.4 the mental sanity of a person with whom he is sufficiently acquainted.

.5 his impressions of the

.a emotion

.b behavior

.c condition or

.d appearance of a person

2. Cases Dilag & Co. v. Merced, 45 O.G. 5536 (1949)

U.S. v. Trono, 3 Phil. 213 (1904)

State v. Garver, 225 P.2d 771 (1950)

U.S. v. Stifel, 433 F.2d 431 (6th Cir. 1970)

Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993)

United States v. Bonds, 12 F.3d 540 (1993)

Q.Rule 130, §51: Character Evidence

Sec. 51. Character evidence not generally admissible; exceptions. –

(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 it to the moral trait involved in the offense charged.

Note that in criminal cases, the prosecution goes first. Hence, it can not present evidence on the bad moral character of the accused on its evidence in chief.

(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.

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(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.

This covers either party to the case.

(c) In the case provided for in Rule 132, Section 14. (46 a, 47 a)

cf Rule 132, Sec. 14

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)

GR: Character evidence not generally admissible

Exceptions

.1 In Criminal Cases:

.a accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.

.b In rebuttal, the prosecution may prove the bad moral character of the accused which is pertinent it to the moral trait involved in the offense charged.

.c 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.

.2 In Civil Cases – only when pertinent to the issue of character involved in the case.

.3 good character of an impeached witness

R.Rule 131, §1: Burden of Proof

Sec. 1. Burden of proof. – Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1 a, 2 a)

Burden of proof – the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law

1. Civil Cases

a. Rule 133, Sec. 1

Rule 133, Sec. 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence.

In determining whether a contract is a sale or equitable mortgage, the evidence presented must be clear and convincing, not merely a preponderance of evidence.

b. Cases

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Pornellosa v. LTA, L-14040, 31 January 1986

IFC v. Tobias, 78 SCRA 28 (1977)

2. Criminal Cases

a. Rule 133, Sec. 2

Rule 133, Sec. 2. Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.

For self-defense, the accused must show clear and convincing evidence.

b. CasesPeople v. Pajenado, 31 SCRA 812 (1970) The prosecution has the burden of proving even the negative elements of a crime (e.g. lack of license to possess a firearm).

Escolin: The remedy is to present the certification of the officer, who is in charge of issuing the licenses, that the accused was not issued a license.

People v. Verzola, 80 SCRA 600 (1977) The elements of self-defense must be proven by clear, satisfactory and convincing evidence.

U.S. v. Dube, 520 F.2d 250 (1st Cir. 1975)

Patterson v. New York, 432 U.S. 19 (1977)

3. Administrative Cases

a. Rule 133, Sec. 5

Rule 133, Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n)

substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

b. Cases

S. Presumptions

1. Conclusive presumptions

a. Rule 131, §2

Sec. 2. Conclusive presumptions. – The following are instances of conclusive presumptions:

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(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:

(b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. (3 a)

Instances of conclusive presumptions

.1 a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:

.2 The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

b. Arts. 1431-1439 NCC: Estoppel

Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon.

Art. 1432. The principles of estoppel are hereby adopted insofar as they are not in conflict with the provisions of this Code, the Code of Commerce, the Rules of Court and special laws.

Art. 1433. Estoppel may in pais or by deed.

Art. 1439. Estoppel is effective only as between the parties thereto or their successors in interest.

Art. 1434. When a person who is not the owner of a thing sells or alienates and delivers it, and later the seller or grantor acquires title thereto, such title passes by operation of law to the buyer or grantee.

Art. 1435. If a person in representation of another sells or alienates a thing, the former cannot subsequently set up his own title as against the buyer or grantee.

Art. 1436. A lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor.

Art. 1437. When in a contract between third persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present:

(1) There must be fraudulent representation or wrongful concealment of facts known to the party estopped;

(2) The party precluded must intend that the other should act upon the facts as misrepresented;

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(3) The party misled must have been unaware of the true facts; and

(4) The party defrauded must have acted in accordance with the misrepresentation.

Art. 1438. One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value.

Statutory instances of estoppel

.1 non-owner transferor who later acquires title passes ownership to the transferee by operation of law (Art. 1434 NCC)

.2 agent who alienates can not claim title against the transferee (Art. 1435 NCC)

.3 a lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. (Art. 1436 NCC)

.4 in a contract between 3rd persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present:

.a fraudulent representation or wrongful concealment of facts known to the party estopped;

.b party precluded must intend that the other should act upon the facts as misrepresented;

.c party misled must have been unaware of the true facts; and

.d party defrauded must have acted in accordance with the misrepresentation. (Art. 1437 NCC)

.5 One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value. (Art. 1438 NCC)

c. CasesMolina v. CA, 109 Phil 769 (1960)

Facts: Felix Molina then overseer of Basilisa Manjon, informed her that some guerilla soldiers would arrest her for investigation, because one Conchita Cuba complained to them against her for having illegally encroached on her property. Afraid to be taken to the guerilla camp Manjon asked the Molina what was best for her to do. He suggested that she execute a fictitious deed of sale in his favor for the portion in question which was the one claimed by Conchita Cuba, in order

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that he could defend her rights in his name against the claim of Conchita Cuba. Manjon accepted the suggestion and asked Molina to have the corresponding deed of sale prepared which Manjon signed. However, Manjon made the Molina sign a statement in, which he expressly admitted that the transaction was only a simulated sale. The Molina denied the whole story and asserted that the statement was a forgery. Manjon sues Molina for recovery of possession of land.

TC ruled for the Manjon on the ground that she could not have disposed the land because it was part of the public domain, sales patent having been issued to plaintiff by the government only on 1948. CA affirms.

Held: Under the doctrine of estoppel by deed, when a person who is not the owner of a thing sells or alienates and delivers it and later the seller or grantor acquires title thereto, such title passes by operation of law to the buyer or grantee. Case remanded to determine whether the sale was indeed fictitious.

Fige v. CA, 233 SCRA 586 (1994) The juridical relation between petitioners and private respondents is that of lessee and lessor. Considering this jural relationship, petitioners cannot claim that they purchased the questioned lot from somebody else. A tenant cannot, in an action involving the possession of the leased premises, controvert the title of his landlord. Nor can a tenant set up any inconsistent right to change the relation existing between himself and his landlord, without first delivering up to the landlord the premises acquired by virtue of the agreement between themselves.

2. Disputable presumptions

a. Rule 131, §4

Sec. 3. Disputable presumptions. – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

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

(b) That an unlawful act was done with an unlawful intent;

(c) That a person intends the ordinary consequences of his voluntary act;

(d) That a person takes ordinary care of his concerns;

(e) That evidence willfully suppressed would be adverse if produced;

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

(i) That prior rents or installments had been paid when a receipt for the later ones is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him;

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(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

(1) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed;

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

(t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession.

The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years;

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(4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;

(y) That things have happened according to the ordinary course of nature and the ordinary habits of life;

(z) That persons acting as copartners have entered into a contract of copartnership;

(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

(bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry.

(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.

(dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rides shall govern in the absence of proof to the contrary:

(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;

(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

(ee) That a thing once proved to exist continues as long as is usual with things of that nature;

(ff) That the law has been obeyed;

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(gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published;

(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest;

(jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age of sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (5 a)

b. CasesPeople v. Padiernos, 69 SCRA 484 (1976) Mere non-presentation of a written statement of a witness to the police which she allegedly did not sign, does not give rise to the presumption that it "contained declarations disastrous to the prosecution case". The presumption that suppressed evidence is unfavorable does not apply where the evidence was at the disposal of both the defense and the prosecution through use of compulsory processes, e.g. subpoena duces tecum.

People v. Pablo, 213 SCRA 1 (1992) The presumption that evidence willfully suppressed would be adverse if produced does not apply when the testimony of the witness is merely corroborative. Neither does it apply in cases where the witness, as in this case, is available to the accused because then, the evidence

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would have the same weight against one party as against the other. Mere failure to present the poseur-buyer in a buy-bust operation is not suppression of evidence.

Pascual v. Angeles, 4 Phil. 604 (1905)

Ormachea v. Trillana, 13 Phil. 194 (1909)

Yee Hem v. United States, 268 U.S. 178 (1925)

County Court of Ulster City v. Allen, 442 U.S. 140

Sandstrom v. Montana, 442 U.S. 510 (1979)

3. Rule 131, §4: Legitimacy or Illegitimacy

Sec. 4. No presumption of legitimacy or illegitimacy. – There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)

T. Examination of Witnesses

1. Rule 132 §1-18

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. (1 a)

Examination of witnesses presented in a trial or hearing

.1 done in open court

.2 under oath or affirmation

.3 answers of the witness shall be given orally, unless

.a the witness is incapacitated to speak, or

.b the question calls for a different mode of answer

Sec. 2. Proceedings to be recorded. – The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. (2 a)

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The rules now require even the statements of the judge be recorded.

Requisites for transcript to be deemed prima facie a correct statement of the proceedings

.1 made by the official stenographer, stenotypist or recorder and

.2 certified as correct by him

Sec. 3. Rights and obligations of a witness. – A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

(2) Not to be detained longer than the interests of justice require;

(3) Not to be examined except only as to matters pertinent to the issue;

(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or

(5) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3 a, l9 a)

Obligation of a witness – answer questions, although his answer may tend to establish a claim against him

Rights of a witness

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

.2 Not to be detained longer than the interests of justice require;

.3 Not to be examined except only as to matters pertinent to the issue;

.4 Not to give an answer which will tend to subject him to a penalty for an offense, unless otherwise provided by law; or

.5 Not to give an answer which will tend to degrade his reputation, unless it be to the fact

.a at issue or

.b from which the fact in issue would be presumed

.c of his previous final conviction for an offense.

Sec. 4. Order in the examination of an individual witness. – The order in which an individual witness may be examined is as follows:

(a) Direct examination by the proponent;

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(b) Cross-examination by the opponent;

(c) Re-direct examination by the proponent;

(d) Re-cross-examination by the opponent. (4)

Sec. 5. Direct examination. – Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (3 a)

Direct examination – the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.

Sec. 6. Cross-examination; its purpose and extent. – 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. (8a)

Witness may be cross-examined by the adverse party

.1 as to any matters stated in the direct examination, or connected therewith

.2 with sufficient fullness and freedom

.a to test his

)1 accuracy and

)2 truthfulness and

)3 freedom from interest or bias, or the reverse

.b to elicit all important facts bearing upon the issue

Sec. 7. Re-direct examination; its purpose and extent. – 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. (12)

Re-direct examination

.1 to explain or supplement his answers given during the cross-examination

.2 with leave of court, on matters not dealt with during the cross-examination

Sec. 8. Re-cross-examination. – Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (13)

Re-cross-examination

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.1 on matters stated in his re-direct examination, and

.2 with leave of court, other matters

Sec. 9. Recalling witness. – 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. (14)

A witness can be recalled only with leave of the court.

Sec. 10. Leading and misleading questions. – A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:

(a) On cross examination;

(b) On Preliminary matters;

(c) When there is difficulty in getting direct and intelligible answers 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. (5 a, 6 a, and 8 a)

Leading questions – a question which suggests to the witness the answer which the examining party desires

GR: Leading questions not allowed.

Exceptions

.1 cross examination;

.2 Preliminary matters;

.3 difficulty in getting direct and intelligible answers from a witness who is

.a ignorant, or

.b a child of tender years, or

.c feeble mind, or

.d a deaf-mute;

.4 unwilling or hostile witness (cf Rule 132, Sec. 12); or

Sec. 12. Party may not impeach his own witness. – xxx

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.

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.5 witness 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.

Misleading question – one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.

Misleading questions are never allowed. No exceptions.

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)

Impeachment of adverse party's witness

.1 contradictory evidence

.2 evidence that his general reputation for truth, honesty, or integrity is bad

.3 evidence that he has made at other times statements inconsistent with his present testimony

.4 evidence of conviction of an offense

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. (6 a, 7 a)

GR: The party producing a witness is not allowed to impeach his credibility.

Exceptions: When party may impeach his own witness (except evidence of bad character)

.1 an unwilling or hostile witness; or

.2 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.

Grounds for declaring a witness unwilling or hostile

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.1 adverse interest

.2 unjustified reluctance to testify, or

.3 misled the party into calling him to the witness stand.

Consequences of being an unwilling, hostile, or adverse witness

.1 may be impeached by the proponent, except by evidence of bad character

.2 may also be impeached by the opponent

.3 may be cross-examined by the opponent, only on the subject matter of his direct examination

.4 proponent may ask leading questions

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)

Requisites for impeaching a witness by prior inconsistent statements

.1 If the statements be in writing they must be shown to the witness before any question is put to him concerning them.

.2 the statements must be

.a related to him

.b with the circumstances of the times and places and the persons present

.3 he must be asked whether he made such statements

.4 if so, allowed to explain them

Escolin: if the witness refuses to acknowledge the prior inconsistent statement, present someone who can testify that the recording of the prior statement was accurate (e.g. stenographer, in which case, the statement is prima facie evidence of the fact stated therein).

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)

cf Rule 130, Sec. 51

Sec. 51. Character evidence not generally admissible; exceptions. –

xxx

(c) In the case provided for in Rule 132, Sec(ion 14. (46 a, 47 a)

Evidence of the good character of a witness is not admissible until such character has been impeached.

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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)

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. (10 a)

Requisites for a witness to refer to a memorandum

.1 the memorandum must have been written or recorded by himself or under his direction

.2 either

.a at the time when the fact occurred, or

.b immediately thereafter, or

.c at any other time when the fact was fresh in his memory

.3 he knew that the same was correctly written or recorded

.4 the memorandum 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.

.5 if the witness retains no recollection of the particular facts, he must swear that the writing or record correctly stated the transaction when made

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. (11 a)

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.

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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.

cf Dusepec v. Torres, 39 Phil 760 (1919) under Rule 130 Sec. 42

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. (9 a)

2. Cases

a. Examination in Open CourtPeople v. Estenzo, 72 SCRA 428 (1976)

b. Cross-Examinationde la Paz, Jr. v. IAC, 154 S 65 (1987)Where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. Implied waiver of the right of cross-examine may take various forms, as long as the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it reasons attributable to himself alone. Repeated absences, and/or unjustified motions for postponement of the hearing in which the witness is scheduled to be cross-examined until the witness passed away is a waiver of the right to cross-examine.

Fulgado v. CA, 182 S 81 (1990) The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal, civil, or administrative, is a fundamental right which is part of due process. The right is not to an actual, but a mere opportunity to cross-examine. Failure of the adverse party to move to schedule the hearing for the cross-examination of a witness before he died or migrated abroad (the imminence of which the adverse party was aware) is a waiver of such right. The burden is on the party wishing to exercise the right to cross-examination, not necessarily the plaintiff, to schedule the hearing.

Capital Subdivision v. Negros Occidental, 52 O.G. 4672 (1956)

U.S. v. Mercado, 26 Phil. 127 (1913)

U.S. v. Marshall, 762 F.2d 419 (5th Cir. 1985)

c. Recalling WitnessesPeople v. Rivera, 200 S 786 (1991) The discretion to recall a witness is not properly invoked or exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and questions that should have been asked" in the earlier interrogation. To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of witness no longer discretionary but ministerial. Something more than the bare assertion of the

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need to propound additional questions is essential before the Court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant's part, for instance, that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. Absent such particulars, there would be no foundation for a trial court to authorize the recall of any witness.

Furthermore, failure of the recalled witness to be appear is not ground to strike out his testimony. There should have been a showing of the indispensability of his further examination, what it was that would have been elicited, and that such additional testimony would cause the evidence to become inadmissible. Lastly, striking out of testimony must be upon motion. It can not be ordered motu propio.

People v. Del Castillo, 25 SCRA 716 (1968)

Victorias Milling Co., Inc. v. Ong Su, 79 SCRA 207 (1977)

d. Leading QuestionsPeople v. Salomon, 229 SCRA 403 (1994) A mental retardate is not for this reason alone disqualified from being a witness. As in the case of other witnesses, acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. In the case before us, the trial court noted that although Sylvia's speech was slurred and it was necessary at times to ask her leading questions, "her testimony was positive, clear, plain, coherent and credible." Her mental condition did not vitiate her credibility.

State v. Scott, 149 P2d 152 (1944)

e. Impeaching One's Own WitnessBecker v. Eisenstodt, 158 A.2d 706 (1960)

f. Impeachment By BiasU.S. v. Abel, 469 U.S. 45 (1984)

U.S. v. Harvey, 547 F.2d 720 (2d Cir.1976)

g. Impeachment By Prior Inconsistent StatementVillalon, Jr. v. IAC, 144 S 443 (1986) A party may impeach a witness by introducing into evidence their previous testimony in his disbarment proceedings which are inconsistent with their current testimony. An attorney may waive the confidential nature of his own disbarment proceedings.

People v. Resabal, 50 Phil 780 (1927) To impeach a witness by prior inconsistent statements, he must be given ample opportunity to explain the discrepancies by a reading to him of such prior statement. Mere presentation of the statement,

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without said declaration having been read to the witness while he testified, is no ground for impeaching his testimony.

Escolin: Note that the accused now does not have the right to cross-examine the witness during the preliminary investigation. He can only give questions to the investigating officer to be propounded to the witness.

U.S. v. Webster, 734 F.2d 1191 (7th Cir. 1984)

h. Impeachment By Other MeansU.S. v. Mercado, 20 Phil. 127 (1913)

Mosley v. Commonwealth, 420 SW2d 679 (1967)

Coles v. Harsh, 276 P. 248 (1929)

U.S. v. Medical Therapy Services, 583 F.2d 36 (2d Cir. 1978)

Newton v. State, 127 A. 123 (Md. 1924)

State v. Oswalt, 381 P. 2d 617 (1963)

i. Exclusion of WitnessesPeople v. Sandal, 54 Phil. 883 (1930)

State v. Bishop, 492 P2d 509 (1972)

j. Refreshing RecollectionState v. Peoples, 319 S.E. 2d 177 (1984)

U.Authentication and Proof of Documents

1. Rule 132 §19-33

Sec. 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private. (20a)

Public documents

.1 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;

.2 notarized documents, except last wills and testaments; and

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.3 public records, kept in the Philippines, of private documents required by law to be entered therein.

Public documents Private documents

Genuineness and authenticity presumed

Must prove genuineness and due execution

Binding against the parties and 3rd

personsBinds only parties to the document

Certain transactions are required to be in a public document (e.g. donation of real property)

Sec. 20. Proof of private document. – Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker. (cf with Rule 132, Sec. 22)

Any other private document need only be identified as that which it is claimed to be. (21 a)

Sec. 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (23 a)

Sec. 21. When evidence of authenticity of private document not necessary. – Where a private document is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22 a)

Requisites for admissibility of private document

.1 offered as authentic – due execution and authenticity must be proved

.a either by

)1 anyone who saw the document executed or written; or

)2 evidence of the genuineness of the signature or handwriting of the maker.

)a any witness who believes it to be the handwriting of such person because

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.i he has seen the person write, or

.ii has seen writing purporting to be his

)i upon which the witness has acted or been charged, and

)ii has thus acquired knowledge of the handwriting of such person

)b a comparison, made by the witness or the court, with writings

.i admitted or treated as genuine by the party against whom the evidence is offered, or

.ii proved to be genuine to the satisfaction of the judge

.b Unless it is an ancient document; requisites

)1 more than 30 years old

)2 produced from a custody in which it would naturally be found if genuine, and

)3 unblemished by any alterations or circumstances of suspicion

.2 not offered as authentic – identified as that which it is claimed to be

Sec. 23. Public documents as evidence. – Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (24 a)

Documents consisting of

.1 entries in public records made in the performance of a duty by a public officer – prima facie evidence of the facts therein stated.

.2 all other public documents – evidence, even against a 3rd person, of the fact which gave rise to their execution and of the date of the latter.

Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19 (official acts), when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25 a)

The record of public documents of official acts may be evidenced by

.1 an official publication thereof or

.2 a copy

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.a attested by

)1 the officer having the legal custody of the record, or

)2 his deputy, and

.b if the record is not kept in the Philippines

)1 accompanied by a certificate that such officer has the custody made by

)a secretary of the embassy or legation

)b consul general

)c consul

)d vice consul, or

)e consular agent or

)f any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept

)2 authenticated by the seal of his office.

Procedure in obtaining copy of foreign official acts

.1 get a copy from the legal custodian

.2 have the legal custodian attest that the copy is correct

.3 have the Philippine consul certify that the person in #2 is the legal custodian of a copy of official act

Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26 a)

Attestation of copy must

.1 state the copy is a correct copy of the original, or a specific part thereof, as the case may be

.2 be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court

Sec. 26. Irremovability of public record. – Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27 a)

GR: Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept

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Exception: upon order of a court where the inspection of the record is essential to the just determination of a pending case

Sec. 27. Public record of a private document. – An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a)

Public record of a private document may be proved by

.1 the original record, or

.2 a copy thereof

.a attested by the legal custodian of the record

.b with an appropriate certificate that such officer has the custody

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. (29)

Proof of lack of record

.1 A written statement

.a signed by an officer having the custody of an official record or by his deputy

.b that after diligent search no record or entry of a specified tenor is found to exist in the records of his office,

.2 accompanied by a certificate that such officer is supposed to have custody

If a notarized document is lost, get certifications of loss from

.1 notary public

.2 bureau of archives

.3 clerk of court who commissioned the notary public

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. (30 a)

Any judicial record may be impeached by evidence of

.1 want of jurisdiction in the court or judicial officer

.2 collusion between the parties, or

.3 fraud in the party offering the record, in respect to the proceedings

Sec. 30. Proof of notarial documents. – Every instrument duly acknowledged or proved and certified as provided by law, may be

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presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (31 a)

Every instrument duly acknowledged or proved and certified as provided by law

.1 may be presented in evidence without further proof

.2 the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved

Sec. 31. Alterations in document, how to explain. – The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that the document shall not be admissible in evidence. (32 a)

The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute

.1 must account for the alteration, either as

.a made by another, without his concurrence, or

.b made with the consent of the parties affected by it, or

.c otherwise properly or innocently made, or

.d the alteration did not change the meaning or language of the instrument

.2 If he fails to do that the document shall not be admissible in evidence

Sec. 32. Seal. – There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (33 a)

Sec. 33. Documentary evidence in an unofficial language. – Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (34 a)

Documents written in an unofficial language

.1 shall not be admitted as evidence, unless accompanied with a translation into English or Filipino

.2 parties or their attorneys are directed to have such translation prepared before trial.

2. Cases

a. Proof of private documents

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Buñag v. CA, 158 SCRA 299 (1988) The authenticity and due execution of a private document is not proven by testimony that the party thumbmarked it. The circumstances of the presence of the witness during the execution must be related. There must be proof that the party understood it, considering he was illiterate (implied from the thumbmarking). There must be showing that the document was duly read, explained and translated to the illiterate party.

b. Ancient documentsBartolome v. IAC, 183 SCRA 102 (1990) Where the offeror’s witness testified that the document had a missing 4th page, the document can not qualify as an ancient document because it is blemished by alteration or circmstance of suspicion. An incomplete document is akin to an altered document, more so if the missing page contains the signature of the parties to the document. Proof of the document’s authenticity and due execution is therefore necessary.

Heirs of Lacsa v. CA, 197 SCRA 234 (1991) Lack of signatures on the first pages of a document alone is not a blemish that would disqualify a document from being an ancient document. Allegations that the pages had been substituted should be proven in order to disqualify the document from being an ancient document, more so if the documents were shown to be exact copies of the original on file with the Register of Deeds. Proof of their due execution and authenticity is no longer required.

de Leon: Note that the document was actually a public record because it had been registered with the Registry of Deeds. Therefore, the court did not have to determine whether the document was in fact an ancient document because it was in the first place a public document whose authenticity and due execution need not be proven. The problem with this case is it is now authority to say that private documents whose first pages are not signed by the parties can qualify as ancient documents. Keep in mind that crucial to the ruling in Lacsa was the fact that the document presented matches the one on file in the Registry of Deeds. Had there been no matching copy in the Registry of Deeds, I submit that the document can not qualify as an ancient document.

c. Proof of foreign judgmentsPacific Asia Overseas v. NLRC, 161 SCRA 122 (1988) To be enforceable, the foreign judgment must be proven as a public document of a written official act or record of an act of an official body or tribunal of a foreign country. The offeror must submit an attestation issued by the proper foreign official having legal custody of the original judgment that the copy is a faithful reproduction of the original, which attestation must be authenticated by a Philippine Consular officer having jurisdiction in that country.

Zalamea v. CA, 228 SCRA 23 (1993) Foreign laws do not prove themselves nor can the courts take judicial notice of them. Like any other fact, they must be alleged and proved. Written law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody. The certificate may be made by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the

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foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Mere testimony of a witness is not sufficient to prove foreign law.

d. Documents in unofficial languagePacific Asia Overseas v. NLRC, 161 SCRA 122 (1988) A document written in an unofficial language should be translated into either English or Filipino. The translator should be identified either as an official interpreter of the court, or as a competent translator of both languages. The translation should be either sworn to as an accurate translation of the original, or agreed upon by the parties.

People v. Monleon, 74 SCRA 263 (1976) Affidavits written in an unofficial language and not accompanied with a translation are inadmissible in evidence.

Escolin: The NIRC provides that all notarial documents which don’t have the required documentary stamp tax will not be admitted in evidence.

Salison v. People, 253 SCRA 758 (1996)

IBM Phils., Inc. v. NLRC, G.R. No. 117221, April 13, 1999

V.Offer and Objection

1. Rule 132 §34-40

Sec. 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35)

The court shall consider no evidence which has not been formally offered.

The purpose for which the evidence is offered must be specified.

Sec. 35. When to make offer. – 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.(n)

When to make offer

.1 testimony – the time the witness is called to testify

.2 documentary and object – after the presentation of a party's testimonial evidence

Offer of evidence shall be done orally unless allowed by the court to be done in writing.

Sec. 36. Objection. – Objection to evidence offered orally must be made immediately after the offer is made.

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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.(36 a)

When objection to evidence offered must be made

.1 orally – immediately after the offer is made.

.2 in writing – within 3 days after notice of the offer, unless a different period is allowed by the court.

.3 a question propounded in the course of the oral examination – as soon as the grounds therefor shall become reasonably apparent.

The grounds for the objections should always be specified.

Grounds for objection

.1 Hearsay

.2 argumentative

.3 leading

.4 misleading

.5 incompetent

.6 irrelevant

.7 best evidence rule

.8 parole evidence rule

.9 question has no basis

.10

Sec. 37. When repetition of objection unnecessary. – 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. (37 a)

Requisites for a proper continuing objection

.1 in the course of the examination of a witness

.2 objection has been made

.3 reasonably apparent that the questions being propounded are of the same class as those to which objection has been made

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.4 adverse party records his continuing objection to such class of questions

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. (38 a)

The ruling of the court on an objection

.1 must be given immediately after the objection is made

.2 unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made

.a during the trial and

.b at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling.

GR: The reason for sustaining or overruling an objection need not be stated.

Exception: 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.

Escolin: The parties may ask for the ground for the ruling, even if the rules does not require the judge to so state.

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)

Requisites for Striking out an answer

.1 witness answers the question before the adverse party had the opportunity to voice fully its objection

.2 objection is found to be meritorious

.3 court order that 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.

Sec. 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the court, the offeror may have the same

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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)

If documents or things offered in evidence are excluded by the court, the offeror may

.1 have the same attached to or made part of the record, if the evidence is object or documentary

.2 If the evidence excluded is oral, the offeror may state for the record

.a the name and other personal circumstances of the witness and

.b the substance of the proposed testimony.

2. Cases

a. When evidence considered offeredPeople v. Franco, 269 SCRA 211 (1997) The court shall consider no evidence, even an extra-judicial confession, which has not been formally offered. Mere fact that evidence has been identified and marked in the course of the examination of a witness, without the contents being recited in his testimony, does not mean that it has been formally offered as evidence. Identification of documentary evidence is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the formal offer of documentary evidence is done only when the party rests its case.

Philippine Bank of Commerce v. CA, 195 SCRA 567 (1991) Where the genuineness and due execution of documents of an instrument attached to a complaint are deemed admitted by failure to specifically deny it under oath, such instruments are considered as evidence although they were not formally offered.

Escolin: cf Rule 8, Sec. 8

Sec. 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)

Tabuena v. CA, 196 SCRA 650 (1991) Mere fact that a document is marked as an exhibit does not mean it has been offered as evidence. Marking at the pre-trial was only for the purpose of identifying them at that time. However, if an exhibit has been duly identified by testimony duly recorded and has itself been incorporated into the records (i.e. recital of the contents of the exhibit).

b. When objection makePeople v. Java, 227 SCRA 668 (1993) Objection to testimony on the ground of lack of a formal offer of the testimony should be done when the witness was called to testify.

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Catuira v. CA, 236 SCRA 398 (1994) Failure to object upon the time a witness is called to testify on the ground that there was no formal offer of the testimony is a waiver of the objection. Objection on such ground after the witness has testified is too late.

Interpacific Transit, Inc. v. Aviles, 186 SCRA 385 (1990) Objection to documentary evidence must be made at the time it is formally offered (i.e. when the party rests its case) as an exhibit and not before. Objection prior to that time (e.g. identification of the evidence) is premature. Mere identification and marking is not equivalent to a formal offer of the evidence. A party may decide to not offer evidence already identified and marked.

de Leon: Note that the court also said that there was no continuing objection because continuing objections are applicable when there is a single objection to a class of evidence. This ruling is no longer applicable because the new rules on evidence is now clear that continuing objections are applicable only to testimonial evidence.

de Leon: Does this mean that party may remain silent when inadmissible evidence is being identified and marked, and then object when it is formally offered? Interpacific Transit was explicit when it said “What really matters is the objection to the document at the time it is formally offered as an exhibit.”

de Leon: What if after an exhibit has been identified, marked, and its contents recited, the offeror decides not to formally offer it into evidence. Is the court authorized to consider such exhibit on the strength of the ruling in Tabuena? I would say “yes” because the recital of the contents of the exhibit is now part of the testimony of the witness which has been formally offered.

People v. Cariño, 165 SCRA 664 (1988)

De los Reyes v. IAC, 176 SCRA 394 (1989)

People v. Yatco, 97 Phil. 940 (1955)

PHILAMGEN v. Sweet Lines, Inc., 212 SCRA 194 (1992)

Sheraton Palace v. Quijano, (C.A.) 64 O.G. 9116

Vda. de Oñate v. Court of Appeals, 250 SCRA 283 (1995)

W. Weight & Sufficiency of Evidence

1. Rule 133

Sec. 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far

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as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. (1 a)

MEMORIZE!

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence.

In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider

.1 all the facts and circumstances of the case

.2 the witnesses' manner of testifying

.3 their intelligence

.4 their means and opportunity of knowing the facts to which they are testifying

.5 the nature of the facts to which they testify

.6 the probability or improbability of their testimony

.7 their interest or want of interest

.8 their personal credibility so far as the same may legitimately appear upon the trial.

.9 number of witnesses, though the preponderance is not necessarily with the greater number.

An cause of action on the ground of reformation of instrument must be proven by clear and convincing evidence.

Sec. 2. Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. (2 a)

MEMORIZE!

In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.

Proof beyond reasonable doubt

.1 does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty.

.2 Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

A defense of self-defense must be proven by clear and convincing evidence.

Sec. 3. Extrajudicial confession, not sufficient ground for conviction. – An extrajudicial confession made by an accused, shall not be sufficient

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ground for conviction, unless corroborated by evidence of corpus delicti. (3)

An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti.

Sec. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for conviction if;

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (5)

Circumstantial evidence is sufficient for conviction if

.1 There is more than one circumstance

.2 The facts from which the inferences are derived are proven, and

.3 The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n)

MEMORIZE!

In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence

Substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion

Sec. 6. Power of the court to stop further evidence. – The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (6)

Sec. 7. Evidence on motion. – When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7)

When a motion is based on facts not appearing of record

.1 the court may hear the matter on affidavits or depositions presented by the respective parties

.2 but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

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2. Cases People v. Cruz, 134 SCRA 512 (1985)

Facts: In a prosecution for arson committed in Davao City, there were no eyewitnesses. However, there was evidence as to the presence of the accused at the scene of the crime before and at the time the fire started, that he moved out hurriedly and running away from the burning premises, that he had previously manifested resentment against the owner of the premises and even hinted that he would burn the owner’s house, that he abandoned his job, left Davao City without leaving a word to anyone, and went into hiding in Manila, that he concealed his identity by disguising himself with long hair, long moustache, and colored eyeglasses, that he exhibited indifference and unperturbed attitude towards the fate suffered by the victims, that he did not even condole with the bereaved family and relatives or pay them a visit, that he did not attend the wake or the funeral, and that he had a serious misunderstanding and strained relationship with the owner of the burned premises.

Held: There are enough circumstantial evidence to produce a conviction beyond reasonable doubt.

U.S. v. Lasada, 18 Phil. 90 (1910)

People. v. Abendan, 82 Phil. 711 (1948)

People v. Solayao, 262 SCRA 255 (1996)

People v. Lorenzo, 240 SCRA 624 (1995)

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