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RULES OF COURT

Rules 1 to 71 - 1997 Revised Rules of Civil Procedure

Rules 72 to 109 - Special Proceedings

Rules 110 to 127 - Dec. 1, 2000 Revised Rules of Criminal Proc.

Rules 128 to 134 - Rules of Evidence

Rule 128 – General Considerations in Evidence

Rule 129 – What Need Not Be Proved

Rule 130 – Rules of Admissibility

Rule 131 – Burden of Proof and Presumptions

Rule 132 – Presentation of Evidence

Rule 133 – Weight and Sufficiency of Evidence

Rule 134 – Perpetuation of Testimony

[NOTE: This rule will be transposed to Part 1 of the Rules of Court on

Deposition and Discovery]

Rule 135 - Powers and Duties of Courts and Judicial Officers

Rule 136 - Court Record and Gen. Duties of Clerks and Stenogs.

Rule 137 - Disqualification of Judicial Officers

Rule 138 - Attorneys and Admission to Bar

Rule 138-A - Law Student Practice Rule

Rule 139-A - The Integrated Bar of the Philippines

Rule 139-B - Disbarment and Discipline of Attorneys

Rule 140 - Charges Against Judges of First Instance

Rule 141 - 2004 Revised Legal Fees

Rule 142 - Costs

Rule 143 - Applicability of the Rules

Rule 144 - Effectiveness

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Rules of Evidence in the Philippines

A. Sources of the Rules

1. The Principal Source: Rules 128 to Rule 133 of the

Revised Rules of Court

a) Origin: The rules are patterned and

based on the rules of evidence as developed,

applied and interpreted in the English and American

Courts. Thus the rules on the disqualification of

witnesses are pattered from the rules applied in the

State of California. Our rules concerning confessions

are patterned after American rules

b) Decisions of the English and American

Courts, as well as opinions and works of English and

American jurists, such as Wigmore, Clark, Jones, and

others, are given great weight

2. The Philippine constitution particularly, its

provisions on the Bill of Rights and the Article on the

Supreme Court

3. Special Laws passed by Congress which

either create, amend or supplement existing rules of

evidence. The most recent includes (i) The Electronic

Evidence Act and the (ii) The Child Witness Law

4. Decisions of the Supreme Court

5. Circulars issued by the Supreme Court

B. Power to Prescribe Rules of Evidence

1. The power is essentially legislative in that it

is Congress which can enact laws concerning the

presentation, admissibility, and weight of evidence.

However the Supreme Court is not precluded from

issuing adopting circulars and rules concerning the

rules of evidence

2. New laws maybe issued under the Principle that

―No person has a vested right in the rules of

evidence‖. Parties to a pending case can not

demand that a new rule of evidence should not

apply to them because it will be adverse to their

cause. Rules of evidence may be altered or repelled

at anytime and will apply to pending cases even if

the effect is adverse to a party therein. The

exceptions are rules which partake of the nature of

Ex post facto laws or Bills of Attainder.

C. Stipulation and Waiver of a Rule of Evidence

1. Generally parties cannot, either by agreement or

by contract, stipulate what rules shall be binding

upon the Court. But the parties may however

stipulate on the effects of certain types of evidence

on their contractual rights as long as the jurisdiction

of the court is not affected

2. As to waiver:

a). Rules intended for the protection of the

parties maybe waived Examples: Rules on the

Disqualification of Witnesses, the Privileged

Communication Rule, The Best Evidence Rule

b). Rules grounded on public policy can not

be waived. Examples: The Rule on the Identity of

State Secrets; the rule on the inadmissibility of

Coerced Confessions and evidence resulting from

illegal searches and seizures; the two-witness rule on

treason

D. Classification of the Rules of Evidence

1. Rules of Probative Policy. These are rules the

purposes of which is to improve the probative value

of the evidence offered

a). Exclusionary Rules- those that exclude

certain kinds of evidence on the grounds of policy

and relevancy. Example: the rule that character

evidence is not admissible in civil cases; the rule

disqualifying certain persons from being witnesses.

b). Preferential Rules- those which require

one kind of evidence in preference to any other in

that they are more trustworthy. Example: the rule

which require that the original of a document is

preferred over any other as proof of the contents of

a document

c). Analytical rules- those that subject

certain kinds of evidence to rigid scrutiny, so as to

expose their possible weaknesses and shortcomings.

Examples: the rules which require that testimonial

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evidence be subjected to the opportunity for cross-

examination

d). Prophylactic rules- those that apply

beforehand certain measures to prevent risk, falsity

or mistake. Examples: the rules which require that

witnesses be placed under oath; the rules on the

separation and exclusion of witnesses

e). Quantitative Rules- the rules that require

certain kinds of evidence to be produced in specific

quantity, or that certain evidence be required to be

associated with other evidence when presented.

Examples: the 2-witness rule in the crime of treason;

the rule which require that an extra judicial

confession be corroborated by evidence of corpus

delicti; that the testimony of a state witness be

corroborated in its material points.

2. Rules of Extrinsic Policy- these are rules which seek

to exclude useful evidence for the sake of up holding

other policies considered more paramount. They

may either be absolute or conditional.

Examples: The Exclusionary Provisions of the

Constitution; the Anti Wire Tapping Law.

E. Interpretation: The rules are to be liberally

construed and hair-splitting technicalities are to be

avoided

REVISED RULES OF EVIDENCE

RULES 128 TO 134, RULES OF COURT

AS AMENDED PER RESOLUTION

ADOPTED ON MARCH 14, 1989

RULE 128

General Provisions

SECTION 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)

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)

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)

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 when it tends in any reasonable degree to

establish the probability or improbability of the fact in

issue. (4a)

RULE 128. GENERAL CONSIDERATIONS in EVIDENCE

Section 1: Evidence is the means, sanctioned by

these rules, of ascertaining in a judicial proceeding,

the truth respecting a matter of fact.

I. Dual Concept of Evidence:

1. As the very materials presented in court

consisting of objects, documents or oral narration of

witnesses

2. As a system, process or methodology of

proving a fact. Hence it would refer to providing

answers to such questions as who may and who may

not be witnesses , what may be allowed as proof,

how they are to be presented; what requirements

are to be observed, what weight and importance is

to be given a certain evidence in relation to other

pieces of evidence.

3. Section 1 stresses evidence as a system

or methodology. But the rules often use one or the

other concept. Thus, which concept is followed

depends upon the context in which the word

―evidence‖ is used.

II. Definition explained:

1. ―means sanctioned by these rules‖. The

procedure for determining the truth is as provided for

under Rules 128 to Rule 133, including the

amendments thereto and their interpretation given

by the Courts

2. ―of ascertaining in a judicial

proceeding‖- the rules or procedure is applicable

only to controversies tried by the regular courts of

law; the procedure or rules of evidence doe not

apply in quasi-judicial or administrative tribunals or to

courts martial. The latter may adopt the rules in their

discretion

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3.‘―The truth‖:

a). The ultimate objective of the rules of

evidence is to render justice by arriving at the truth

of a matter in dispute i.e by knowing the facts and

the meaning of these facts .

b). Factual or moral truth- the truth which

the court seeks to know

c). Judicial truth- the truth as found by the

courts based on the evidence presented to it

d) Ideal or perfect justice- when the judicial

truth is likewise the factual truth.

Where the two differ, still there is justice so long as the

court observed both substantive and procedural due

process

4. ―respecting a matter of fact‖… the fact to

be established or the point in controversy must be

capable of being proven or ascertained by the rules

of evidence. The rules do not apply and cannot be

used to answer questions or controversies involving

religion or faith; dogma, philosophy, literature,

fantasy or fiction or those which are purely

speculative.

III. Related Concepts: In the following

instances the term‖ evidence‖ is understood in the

sense of being the ―materials presented in court‖ and

not a methodology or proof.

1. Evidence from Proof = Strictly, evidence is

the medium of proof whereas proof is the result of

evidence. Thus the materials consisting of the

weapon used, the confession of the accused, the

testimony of the complainant and witnesses, the

result of the paraffin test, will constitute the evidence

of guilt. Their combined effect will be Proof of guilt

Beyond Reasonable Doubt. The two terms are often

used interchangeably.

2. ―Factum Probandum and ―Factum

Probans‖. All litigations, whether civil or criminal,

involve the relationship between these two

concepts.

a) Factum Probandum refers to the ultimate

fact to be proven, or the proposition to be

established. That, which a party wants to prove to

the court. E.g.: guilt or innocence; existence of a

breach of contract; existence of an obligation; the

fact of payment; the injury or damage incurred.

b). Factum Probans refers to the evidentiary

facts by which the factum probandum will be

proved. Examples: the written contract; the

promissory note to prove the existence of an unpaid

debt.

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

Factum Probandum- the untimate fact to

be established; proposition to be established,

hypothetical, and that which one party affirms and

the other denies. The fact/s in issue.

Factum Probans- materials evidencing the

proposition, existent, and offered for the

consideration of the tribunal; the evidentiary fact by

which the factum probandum is to be established;

Notes: 1. In both CIVIL and CRIMINAL cases, the

probandum contained in the pleadings could be

changed in the pre-trial order. However, with respect

to CRIMINAL CASES, the pre-trial order SHOULD NOT

substantially change the accusation/indictment

contained in the information, otherwise the case will

be dismissed.

2. A court can validly try a fact in issue not

raised in the pleadings or pre-trial order. Rule 10

provides that a fact in issue may be raised with the

express or implied consent of the parties during the

trial (Amendment to conform to evidence)

3. Ascertainment of probandum does not

apply in special proceedings. (i.e. If there is a petition

for probate of a will, even if there is no opposition the

petitioner is still required by law to prove that the will

has been duly executed in accordance with the Civil

Code)

IV. Classification of Evidence (referring to the

materials presented in court)

A. Direct and Circumstantial

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1. direct- that which proves a fact in issue or

dispute without the aid of any inference or

presumption. It is evidence to the precise point.

Example: The eye witness account; the scar

to show the wound

2. circumstantial- proof of facts or fact from

which taken singly or collectively, the existence of

the particular fact in issue maybe inferred or

presumed as a necessary or probable consequence

3. Important considerations on

circumstantial evidence

a) This applies only in criminal cases and is

governed under Rule 133(4) which for purposes of

supporting a finding of guilt, requires:

i). that there be more than one

circumstance

ii).that the facts from which the inference

are derived are proven

iii). the combination of all the

circumstances is such as to produce a conviction

beyond reasonable doubt

b) Per the Supreme Court: it is essential that

the circumstantial evidence presented must

constitute an unbroken chain which leads one to a

fair and reasonable conclusion pointing to the

accused, to the exclusion of all others, as the guilty

person.

c). Guidelines in the appreciation of the

probative value of circumstantial evidence

i) It should be acted upon with caution

ii). All essential facts must be consistent with

the hypothesis of guilt

iii). The facts must exclude every other

theory but that of guilt

iv). The facts must establishes such a

certainty of guilt as to convince the judgment

beyond reasonable doubt that the accused is the

one who committed the offense

B. Positive vs. Negative Evidence

a). positive-evidence that affirms the

occurrence of an event or existence of a fact, as

when a witness declares that there was no fight

which took place

b). negative when the evidence denies the

occurrence of an event or existence of a fact, as

when the accused presents witnesses who testify

that the accused was at their party when the crime

was committed. Denials and alibi are negative

evidences.

c). The general rule is that positive evidence

prevails over negative evidence, or that a positive

assertion is given more weight over a plain denial.

C. Primary (Best) vs. Secondary Evidence

a). primary- that which the law regards as

affording the greatest certainty of the fact in

question. E.g.: the original of a contract is the best

evidence as to its contents; the marriage contract as

to the fact of marriage; a receipt as to the fact of

payment; the birth certificate as to filiation.

b). secondary- that which is necessarily

inferior and shows on its face that a better evidence

exists. E.g.: Xerox copies of documents; narration of

witnesses as to a written contract.

D. Conclusive vs. Prima facie

a).conclusive – may either be (i) that which

the law does not allow to be contradicted as in

judicial admissions or (b) that the effect of which

overwhelms any evidence to the contrary as the

DNA profile of a person as the natural father over a

denial

b). prima facie- that which, standing alone

and uncontradicted, is sufficient to maintain the

proposition affirmed. In the eyes of the law it is

sufficient to establish a fact until it has been

disproved, rebutted or contradicted or overcome by

contrary proof.

E. Cumulative vs. corroborative

a). cumulative- additional evidence of the

same kind bearing on the same point. E.g.:

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testimonies of several eyewitnesses to the same

incident

b). corroborative-additional evidence

of a different kind or character but tending to prove

the same point. It is evidence which confirms or

supports. Thus: (i) the medico legal certificate

describing the injuries to have been caused by a

sharp pointed instrument corroborates the statement

that the accused used a knife to stab the victim (ii)

the positive results of a paraffin test corroborates the

allegation that the person fired a gun and (iii) the

ballistics examination on the gun of the suspect

corroborates the statement that he fired his gun at

the victim

F. As to form:

a). documentary-

b). object- those consisting of evidence

which are addressed to the senses of the court

c). Testimonial- evidence consisting the

narration made under oath by a witness

G. Relevant, material and competent (refer to

section 3 and 4)

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

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

Secondary evidence – evidence which is

necessarily inferior to primary/best evidence and

shows on its fact that better evidence exists

EVIDENCE vs. PROOF

Proof- is the effect of evidence. It is the probative

effect of evidence and is the conviction or

persuasion of the mind resulting from a consideration

of the latter.

Evidence- is the cause necessary to establish proof.

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

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Irrelevant vs. Incompetent vs. Inadmissible vs.

Immaterial Evidence

Irrelevant- no probative value; No tendency in

reason to establish the probability or improbability of

a fact in issue. It does not directly relate to a fact in

issue.

N.B. All facts and circumstances which

afford reasonable inferences or throw light upon the

probability of matter or matters contested are

admissible in evidence, UNLESS excluded by some

established principle of evidence, such as HEARSAY

EVIDENCE RULE, RULE ON PAROLE EVIDENCE and BEST

EVIDENCE RULE.

Collateral Matters- matters other than the

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. These are not allowed unless satisfy

ALL the requirements of relevancy.

ILLUSTRATIONS:

a. finger marks, foot prints and a bat left by

the accused in the place of the crime

b. The resemblance of a child to his alleged

father to prove paternity of the latter

c. Bloodstains on the clothing of the person

charged with a crime

d. The destruction or fabrication of

evidence

e. Flight of the accused. (N.B. Non-flight is

not conclusive proof of innocence)

f. Delay in the identification of victim‘s

assailant

Incompetent- excluded by the rules or any law

Inadmissible- not competent and irrelevant

Immaterial- the offered evidential fact is directed to

prove some probandum which is not properly in

issue. (N.B.- The rules on substantive law and of

pleading determine immateriality)

Material evidence- proves a main fact

which is the subject of the inquiry or any

circumstance which tends to prove that fact or any

fact or circumstance which tends to corroborate or

strengthen the testimony relative to the subject of

inquiry or which legitimately affects the credibility of

any witness who testifies.

Direct vs. Circumstantial Evidence

Direct- Evidence that directly proves a fact without

need to make inference from another fact

Example: The testimony of the prosecution

witness claiming that he saw that it was actually the

deceased who attacked the accused without the

latter‘s provocation is a direct evidence.

Circumstantial- Indirectly proves a fact in issue

through an inference which the fact finder draws

from the evidence established

Example: The testimony of the victim that he dreads

the mere presence of the accused is direct evidence

that the statement was made.

It is likewise circumstantial evidence to show

that this fear prevented the victim from attacking the

accused without provocation.

IN CRIMINAL CASES, circumstantial

evidence is sufficient for conviction when:

a. There is more than one circumstance

b. The facts from which the inferences are derived

are proven

c. The combination of all the circumstances is such

as to produce a conviction beyond reasonable

doubt (Sec. 4 Rule 133)

Cumulative v. Corroborative

Cumulative- evidence of the same kind that tends to

prove the same fact

Ex. Two or more witnesses testify that they

saw the event which the first witness claimed he saw,

the subsequent testimonies are cumulative

Corroborative- evidence which tends to confirm,

validate or strengthen evidence already presented.

Evidence may be of the same kind or different kind

and tends to prove the same fact.

Ex. A witness claims that he saw Mr. X sign

the document subject of the action. Mr. X denies the

authenticity of his signature. Evidence by a

handwriting expert is corroborative.

Positive v. Negative Evidence

Positive- A witness affirms in the stand that a certain

state of facts do exist or that a certain event

happened

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Negative- A witness states that an event did not

occur or that the facts alleged to exist did not

actually exist. (Denial)

Derivative Evidence- type of evidence that is

inadmissible as proof because of the application of

the fruit of the poisonous tree doctrine, which treats

the original evidence and any evidence derived

from it as tainted because of the illegal way in which

it was obtained by agents of the government.

Rebuttal Evidence- offered to contradict other

evidence or to rebut a resumption of fact.

Admissibility v. Weight

Evidence is ADMISSIBLE when it is relevant

and is not excluded by any rule.

Probative value or WEIGHT is to be

determined by the court when it decides

the case

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

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 when it tends in any reasonable

degree to establish the probability or improbability of

the fact in issue.

Scope of Evidence (Section 2, Rule 128)

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.

I. General Rule- Section 2 provides the Rule on

Uniformity in the Application of the Rules. The same

rules shall govern the trial in the lower courts and

appellate courts, in civil and in criminal cases. The

reason is that the search for truth is subject to the

same rules.

II. Exceptions:

A. As to whether the rules on the presentation of

evidence shall be applied strictly.

1. Cases covered by the Regular Procedure- the

rules apply strictly

2. Cases covered by the Rules on Summary

Procedure- the rules are relaxed and the

procedure is abbreviated.

B. Between civil and criminal proceedings

1. As to the quantum of evidence for the plaintiff

to win: proof of guilt of the accused beyond

reasonable doubt vs. preponderance of

evidence

2. As to the presence of the parties: in civil cases

the attendance of the parties is not required

and they attend on their own volition whereas in

criminal cases, the presence of the accused is

required unless he waived the same

3 As to the effect of the absence of a party: in

civil cases, except during the pre-trial, the

proceedings may proceed even in the absence

of the parties whereas in criminal cases, trial

cannot proceed if the accused was not notified

4. As to the rule on confessions: this applies only

in criminal cases

5. As to the effect of an offer of compromise by

the defendant: in criminal cases the offer is an

implied admission of guilt whereas it does not

simply any liability in civil cases

6. As to the presumption of innocence: this

applies only in criminal cases

Notes: The Rules on Evidence apply only when

there is going to be a trial. Note that there can

be a judgment on pleadings, by confession,

consent and compromise etc. IN CIVIL CASES.

Mere denial in the answer in a CIVIL CASE will

not present a probandum hence no need for

the court to try the case. Such general denial

will be considered as an admission.

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In CRIMINAL CASES, We have to wait until

the accused enters a plea. This time a general denial

is allowed. If the accused enters a plea of guilty

there is no probandum. However in CRIMINAL CASES,

the court could still try the case if the case involves a

heinous crime.

The Rules on evidence are not self-

executing. So the rule is any evidence submitted will

be admitted so long as there is no objection. This

principle is only for the purpose of admissibility. It

does not mean that the court will take these

irrelevant evidence in evaluating on the merits of the

case.

DIFFERENCE IN RULES ON EVIDENCE IN CRIMINAL AND

CIVIL CASES

BASIS Criminal Case Civil Case

Quantum of

Proof

Proof Beyond

Reasonable

Doubt

Preponde-

rance of

evidence

Denial General Denial

Allowed

Must be

Specific

Denial

Withdrawal

Of Plea/

Admission

Withdrawn

plea

inadmissible

Judicial

Admission

withdrawn

becomes an

extrajudicial

admission

Cross

Examination in

Summary

Procedure

Applicable Not

applicable

Equiponde-

rance Rule

Accused is

acquitted

Party who

loses is the

one who has

burden of

proof

Presenceof

Circumstan-tial

Evidence

More than one

is required One suffices

Priviliged

Communicatio

n- Dr.-Patient

Not applicable Applicable

Compulsion as

a witness

Cannot

compel

accused to be

No

prohibition,

rules provides

a witness only

limitations

Section 3, Rule 128: Admissibility of evidence-

Evidence is admissible when it is relevant to the issue

and is not excluded by law or these rules.

A. Admissibility- the character or quality

which any material must necessarily possess for it to

be accepted and allowed to be presented or

introduced as evidence in court. It answers the

question: should the court allow the material to be

used as evidence by the party?

B. Weight- the value given or significance or

impact, or importance given to the material after it

has been admitted; its tendency to convince or

persuade. Hence a particular evidence may be

admissible but it has no weight. Conversely, an

evidence may be of great weight or importance but

it is not admissible.

Conditions for admissibility: Wigmore’s

Axiom of Admissibility

―None but facts having rational probative

value are admissible‖- ILLUSTRATION: In a trial for

homicide, the fact is offered that the accused was

requested, with others, to touch the corpse of the

murdered man to see if blood flowed, but that he

refused to do so; this is admissible, not because the

flowing or retention of the blood at the guilty man’s

touch would be rationally evidential of his guilt, but

because his refusal to do could constitute a link to

the chain of evidence necessary to produce a moral

conviction of guilt.

―Any fact having rational probative value is

admissible, unless some specific rule forbids its

admission‖- ILLUSTRATION: In an issue involving

forgery, the disposition of the person’s character as

to acts of honesty or dishonesty is of some rational

probative value towards showing that he did or did

not do the act; it is therefore admissible, but this can

only be done if the accused steps forward first and

adduces evidence of his good moral character.

A. RELEVANCY (None but facts having rational

probative value are admissible). Per section 4,

Relevance is: The evidence has 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 when it tends in any reasonable degree to

establish the probability or improbability of the fact in

issue. (Rule 128, Secs. 3 and 4.)

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- In conclusion, relevancy is not determined by law

nor the rules of court. It is determined purely by

LOGIC.

1. The material presented as evidence must affect

the issue or question. It must have a bearing on the

outcome of the case. It requires both:

a). rational or logical relevancy in that it has

a connection to the issue and therefore it has a

tendency to establish the fact which it is offered to

prove. The evidence must therefore have probative

value

b). legal relevancy in that the evidence is

offered to prove a matter which has been properly

put in issue as determined by the pleadings in civil

cases, or as fixed by the pre-trial order, or as

determined by substantive law. If so the matter has

materiality.

Illustration: (a). Criminal case: the fact that

the crime was committed at nighttime is rationally or

logically relevant to a killing at 12 midnight but

evidence thereon would not be legally relevant if

nighttime was not alleged in the Information. It would

be immaterial. (b) Civil Case: In an action for sum of

money based on a promissory note, evidence that

the defendant was misled into signing the note

would be rationally relevant but if fraud was never

alleged as a defense, then evidence thereof would

be legally irrelevant or immaterial.

The components of relevancy are therefore

probative value and materiality.

2. Rule as to collateral matters: ―Evidence on

collateral matters shall not be allowed, except when

it tends in any reasonable degree to establish the

probability or improbability of the facts in issue‖

a). collateral matters-facts or matters which

are not in issue. They are not generally allowed to be

proven except when relevant.

b) In criminal cases, the collateral matters

allowed to be proven, being relevant include:

(i).Antecedent Circumstances, or those in

existing even prior to the commission of the crime.

They include such matters as habit, custom, bad

moral character when self defense is invoked; or

plan design, conspiracy, or premeditation,

agreement to a price, promise or reward

(ii)Concomitant circumstances or those

which accompany the commission of the crime such

as opportunity to do the act or incompatibility

(iii).Subsequent circumstances or those

which occur after the commission of the crime, such

as flight, escape, concealment, offer of compromise

c). Example: Motive is generally irrelevant

and proof thereof is not allowed except: when the

evidence is purely circumstantial, when there is

doubt as to the identity of the accused, or when it is

an element of the crime.

B. COMPETENCY (All facts having rational probative

value are admissible unless some specific law or rule

forbids). In short the evidence is not excluded by law

or rules.

B. Competence – The evidence is not excluded by

the law or the rules (Rule 128, Sec. 3.)

Do not confuse COMPETENT WITNESS from

COMPETENT EVIDENCE. The COMPETENCY TEST

of evidence applies to the TESTIMONY of the

qualified witness.

Since admissibility of evidence is

determined by its relevance and competence,

admissibility is therefore an affair of logic and law.

On the other hand, the weight to be given to such

evidence depends on judicial evaluation within the

guidelines provided in Rule 133 and the jurisprudence

laid down by the court. (People vs. Turco, 2000)

Relevant evidence is one that has any

value in reason as tending to prove any matter

probable in an action. Evidence is said to be

material when it is directed to prove a fact in issue as

determined by the rules of substantive law and

pleadings, while competent evidence is one that is

not excluded by law in a particular case. (Bautista vs.

Aparece, 1995)

1. Exclusionary Rules under the 1987 Constitution

1.1 Secs. 2 & 3, Art. III – 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.

The privacy of communication and correspondence

shall be inviolable except upon lawful order of the

court, or when public safety or order requires

Lex Española 11

otherwise as prescribed by law.

Any evidence obtained in violation of this or the

preceding section shall be inadmissible for any

purpose in any proceeding.

1.2 Sec. 12, Art III – 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. 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.

Any confession or admission obtained in violation of

this or Section 17 hereof shall be inadmissible in

evidence against him.

Sec. 17, Art III – No person shall be compelled to be a

witness against himself.

This right is recognized under he Rules on

Evidence, which provides that, it is the right of a

witness not to give an answer which will tend to

subject him to a penalty for an offense unless

otherwise provided by law. [Sec. 3 (4), Rule 132,

ROC)

NOTES AND COMMENTS:

The human body could be used as evidence without

violating the right. Mechanical acts without the use

of intelligence do not fall within the scope of the

protection. Some of the acts which are not covered

by the right of self-incrimination are the following:

a.Fingerprinting, photographing and

paraffin testing, physical examination. (U.S. v. Tang,

23 Phil. 145_)

b. Physical examination of a woman

accused of adultery to determine if she is pregnant.

(U.S. v. On Suy Hon, 36 Phil. 735; Villaflor v. Summers,

41 Phil. 62)

c. Undergoing ultra-violet rays examination

to determine presence of flourescent powder on the

hands. (People v. Tranca, 35 SCRA 455)

d. Subpoena directing government officials

to produce official documents or public records in

their custody.

e. Fitting the accused foot over a foot print,

putting on a pair of trousers, etc.

2. Statutory Rules of Exclusion

2.1. Sec. 201, NIRC – 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.

2.2. R.A. 4200 (Wire-tapping Act) –

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 work by using a device

commonly known as a Dictaphone or dictograph or

detectaphone or walkie-talkie or tape recorder, or

however otherwise described. x x

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 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.

An extension telephone cannot be placed in the

same category as a Dictaphone, dictograph or the

other devices enumerated in Sec. 1 of RA 4200 as the

use thereof cannot be considered as ―tapping‖ the

wire or cable of a telephone line. (Gaanan vs. IAC,

1986)

RA 4200 expressly makes tape recordings of tapped

conversations inadmissible in evidence absent a

clear showing that both parties to the phone

conversations allowed the recording. (Salcedo-

OrtaÒez vs. CA, 1994)

EXCLUSIONARY RULES under the RULES OF COURT

1. Best Evidence Rule

Lex Española 12

2. Parole Evidence

3. Hearsay Rule

III. Principles which exclude relevant or material

evidence:

A. The Exclusionary Rule Principle - the principle

which mandates that evidence obtained from an

illegal arrest, unreasonable search or coercive

investigation, or in violation of a particular law, must

be excluded from the trial and will not be admitted

as evidence.

1. The principle judges the admissibility of

evidence based on HOW the evidence is obtained

or acquired and not WHAT the evidence proves.

2. The principle is to be applied only if it is so

expressly provided for by the constitution or by a

particular law. Even if the manner of obtaining the

evidence is in violation of a certain law but the law

does not declare that the evidence is inadmissible,

then such evidence will be admissible.

Example: The accused claimed that

information about his bank accounts i.e. trust funds,

was obtained in violation of the Secrecy of Bank

Deposits Law ( R.A. 1405) and moved to have them

be excluded as evidence. HELD: R.A. 1405 nowhere

provides that an unlawful examination of bank

accounts shall render the evidence there from

inadmissible in evidence. If Congress has both

established a right and provided exclusive remedies

for its violation, the court would encroaching upon

the prerogatives of congress if it authorizes a remedy

not provided for by statute. Absent a specific

reference to an exclusionary rule, it is not appropriate

for the courts to read such a provision into the act.

(Ejercito vs. Sandiganbayan, 509 SCRA 190, Nov. 30,

2006). The phrase is attributed to Justice Felix

Frankfurter of the U.S. Supreme and has its biblical

reference to Mathew 7: 17-20.

B. The Doctrine of the Fruit of the Poisonous Tree

1. Evidence will be excluded if it was

gained through evidence uncovered in an illegal

arrest, unreasonable search or coercive

interrogation, or violation of a particular exclusionary

law.

2. It is an offshoot of the Exclusionary Rule

which applies to primary evidence. The doctrine

applies only to secondary or derivative evidence.

There must first be a primary evidence which is

determined to have been illegally obtained then

secondary evidence is obtained because of the

primary evidence. Since the primary evidence is

inadmissible, any secondary evidence discovered or

obtained because of it may not also be used.

a. The poisonous tree is the evidence seized

in an illegal arrest, search or interrogation. The fruit of

this poisonous tree is evidence discovered because

of knowledge gained from the first illegal search,

arrest, or interrogation or violation of a law.

b. It is based on the principle that evidence

illegally obtained by the state should not be used to

gain other evidence because the original illegally

obtained evidence taints all those subsequently

obtained.

C Illustrations:

A suspect as forced to make a confession where he

revealed he took shabu from the room of X. Based

on this knowledge the police went to the house of X

and with the consent of X, searched his room and

found the shabu. The confession is inadmissible

because of the exclusionary. It is the poisoned tree.

The shabu is inadmissible because knowledge of its

existence was based on the confession. It is the fruit.

D. Exceptions to the two principles- when evidence is

still admissible despite the commission of an illegal

arrest, search or interrogation, or violation of a

particular exclusionary law.

1. Under the Doctrine of Inevitable

Discovery- Evidence is admissible even if obtained

through an unlawful arrest, search, interrogation, or

violation of an exclusionary law, if it can be

established, to a very high degree of probability, that

normal police investigation would have inevitably led

to the discovery of the evidence

2. Independent Source Doctrine- evidence

is admissible if knowledge of the evidence is gained

from a separate or independent source that is

completely unrelated to the illegal act of the law

enforcers.

3. Attentuation Doctrine: evidence maybe

suppressed only if there is a clear causal connection

between the illegal police action and the evidence.

Or, that the chain of causation between the illegal

action and the tainted evidence is too attenuated

i.e too thin, weak, decreased or fragile. This takes into

consideration the following factors:

a). The time period between the illegal

arrest and the ensuing confession or consented

search

b). The presence of intervening factors or

events

c). The purpose and flagrancy of the official

misconduct

Lex Española 13

E. Remedy: By filing a Motion to Suppress the

Evidence

III. Evidence Excluded by the Constitution

A. Under Article III of the Constitution the following

evidence are inadmissible

1. evidence obtained in violation of the

right against unreasonable search and seizure

2. evidence obtained in violation of the

privacy of communication and correspondence,

except upon lawful order of the court or when public

safety or order requires otherwise

3. evidence consisting of extra-judicial

confessions which are uncounselled, or when the

confessant was not properly informed of his

constitutional rights, or when the confession was

coerced

4. evidence obtained in violation of the

right against self-incrimination

B. Principles:

1. The exclusionary rule in all the foregoing

provisions is TOTAL in that the inadmissibility or

incompetency applies to all cases, whether civil

criminal or administrative, and for all purposes.

2. The incompetency applies only if the

evidence was obtained by law enforcers or other

authorized agencies of the government. It does not

apply if the evidence was obtained by private

persons such as private security personnel or private

detectives even if they perform functions similar to

the police whenever a crime was committed.

a). Thus evidence obtained by the

following are not covered by the constitutional

provisions: (i) the security personnel or house

detectives of hotels or commercial establishments or

schools (ii) private security agencies even if they are

guarding public or government buildings/offices (iii)

employers and their agents.

It will be some other appropriate principle

on the admissibility of evidence which will govern.

b). However, by way of exception, the rule

of incompetency applies if what are involved are the

private correspondence of an individual. In Zulueta

vs. CA ( Feb. 1986) it was held that pictures and love

letters proving the infidelity of the husband, kept by

him in his private clinic, taken by the wife without the

knowledge of the husband, are inadmissible as

evidence for being obtained in violation of the

husband‘s privacy of communication and

correspondence.

―The intimacies between husband and wife do not

justify anyone of them breaking the drawers and

cabinet of the other and ransacking them for any

telltale evidence of marital infidelity. A person, by

contracting marriage, does not shed his or her

integrity or his right to privacy as an individual and

the constitutional protection is available to him or

her‖

3. Secondary evidence resulting from a

violation of the foregoing provisions is inadmissible

under the Fruit of the Poisonous Tree Doctrine.

IV. R.A. 4200 (The Anti Wire Tapping Law) Exclusion

as to evidence obtained through mechanical,

electronic or other surveillance or intercepting

devises. (Intercepted communications)

A. Coverage: R.A 4200 declares that

evidence is inadmissible if obtained through any of

the following ways:

1. By using any device to secretly

eavesdrop, overhear, intercept or record any

communication or spoken word

a. The person who obtained the evidence

may be a third person or a participant in the

conversation or communication.

FACTS: Ramirez and Garcia had a confrontation in

the office of Garcia. Ramirez secretly taped their

verbal confrontation and used it as evidence in her

action for damages against Garcia who in turn filed

a criminal case against Ramirez for violation of R.A.

4200. Ramirez held that the taping by a participant

to a conversation is not covered by the law.

HELD: 1. The law does not make a distinction as to

whether the party sought to be penalized is a party

or not to the private conversation. 2. The nature of

the conversation is immaterial… What is penalized is

the act of secretly overhearing, intercepting, or

recording private communications by the devices

enumerate under Section 1. (Ramirez vs. C.A.,

September 28, 1995)

b. To be admissible the consent of the

person speaking or of all the parties to the

conversation. However consent is not necessary if

the words which were taped or recorded were not

intended to be confidential as when the were

intended to be heard by an audience or when

uttered under circumstances of time, place,

occasion and similar circumstances whereby it may

Lex Española 14

reasonably be inferred that the conversation was

without regard to the presence of third persons.

c. Questions: i). Does this apply if the

recording of the words was unintentional or

inadvertent, such as conversations captured by a

moving video camera?

ii). Are conversations in a police

entrapment included?

iii). Is lip-reading included?

iv). Are conversations captured in

surveillance cameras included?

v). Does this apply to secret taping through

spy cameras purposely made to be aired in television

programs, such as ―Bitag‖, ―XXX‖ and ―Cheaters‖?

vi). Are the gestures, snores, laughs,

weeping, included as communication or spoken

words?

vii). What about satellite discs and similar

facilities? Google earth?

2. By the unauthorized tapping of any wire

or cable as to communications used via

telephone/cable, as opposed to verbal

communications.

a). There must be a physical interruption through a

wiretap or the deliberate installation of a device or

arrangement in order to over hear, intercept, or

record the spoken words.

i). hence over hearing through an extension

telephone wire is not included even if intentional

because ―each party to a telephone conversation

takes the risk that the other party may have an

extension telephone and may allow another to

overhear the conversation ( Ganaan vs. IAC, 1986)

ii). Does the Ganaan ruling apply to

overhearing by telephone operators of hotels,

schools, hospitals and similar establishments?

B. Exceptions: when evidence through

secret recording or tapping is admissible

1. When Judicial Authorization was granted upon a

written petition filed pursuant to the provisions of R.A.

4200 if the crimes involve (a). treason (b) espionage

(c) provoking war and disloyalty ( d). piracy and

mutiny in the high seas (e) sedition, inciting to

sedition (g)kidnapping (h) other offenses against

national security.

The list is exclusive and does not include offenses

which are equally or more serious as those

enumerated, such as drug trafficking, kidnapping,

Trafficking in Persons, Rape, Murder.

2.When Judicial Authorization is granted upon a

written petition under R.A. 9372 ( The Human Security

Act of 2007) in connection with the crimes of

terrorism or conspiracy to commit terrorism. If granted

the authority covers written communications.

VI. Exclusion by Certain Rules of Evidence

1. The rule excluding secondary evidence when the

primary or best evidence is available

2. The rule excluding hearsay evidence

3. The rule excluding privilege communications

VII. Kinds of Admissibility

A. Multiple Admissibility: when a material is asked by

a party to be admitted as evidence, the party

presenting must inform the court of the purpose

which the material is intended to serve and the court

then admits the material as evidence. Evidence is

admissible for two or more purposes. The rule is when

a fact satisfies all rules applicable to it when offered

for that purpose, its failure to satisfy some other rule

which would be applicable to it if offered for another

purpose would not exclude it. ILLUSTRATION: An

extrajudicial confession may be inadmissible as

against a party who did not subscribe to it, yet such

party may use said document as evidence of lack of

guilt.

Multiple admissibility may mean either:

(i) the evidence is admissible for several

purposes, or,

(ii) an evidence is not admissible for one

purpose but may be admitted for a different purpose

if it satisfies all the requirements of the other purpose

1. Examples of the first concept: (a) a knife

may be admitted to prove the accused was armed

with a deadly weapon; to prove the weapon is far

deadlier than the weapon of the victim; to prove it

was the weapon of the accused which cause the

wounds and not some other instrument; to

corroborate the statement of a witness who claims

he saw the accused holding a bladed instrument.

2. Example of the second concept: (a). the

extra judicial confession of one of several accused

Lex Española 15

may not be admitted to prove there was conspiracy

among them or to prove the guilt of the other co-

accused but it maybe admitted to prove the guilt of

the confessant (b) the statement of the victim may

not be admitted as a dying declaration but as part

of the res gestae.

B. Curative admissibility or ―fighting fire with fire‖ or

―Opening the Door‖ . There is curative admissibility

when a party offers an inadmissible fact which is

received because there is no objection by the other

party. The other party does not acquire the right to

introduce in reply to the same kind of evidence,

EXCEPT whenever it is needed for removing an unfair

prejudice which might otherwise have ensued from

the original evidence. ILLUSTRATION: In an action for

damages arising from a car accident, the plaintiff

introduced evidence to show that on several

occasions the defendant in the past had injured

pedestrians because of his negligence. (This is

inadmissible under Sec. 34 Rule 130- Prior acts as

evidence). Under the concept of Curative

admissibility the court must give the party against

whom the evidence was admitted the chance to

contradict or explain the alleged past acts he

committed to counteract the prejudice which the

improperly admitted evidence may have caused.

1. This applies to a situation when improper

evidence was allowed to be presented by one

party, then the other party may be allowed to

introduce or present similar improper evidence but

only to cure or to counter the prejudicial effect of the

opponent‘s inadmissible evidence.

2. The party presenting must have raised an

objection to the improper evidence, for if he did not,

then it is discretionary for the court to allow him to

present curative evidence

3. The evidence sought to be countered

should not refer to those which are incompetent due

to an exclusionary rule

4. Example: P vs. D for sum of money. P was

allowed to introduce evidence that D did not pay his

debt as shown by his refusal to pay his indebtedness

to X, Y and Z. Defendant may introduce evidence

that he paid his debts to A, B and C.

C. Conditional Admissibility: An evidence is allowed

to be presented for the time being or temporarily,

subject to the condition that its relevancy or

connection to other facts will later be proven, or that

the party later submit evidence that it meets certain

requirements of the law or rules. If the conditions are

not later met, the evidence will be stricken from the

record.

General Rule: The time for determining the

admissibility of a particular fact is ordinarily the time

when it is offered to the court.

Exception: When some facts depend on some other

facts needed to be established first in order that said

former evidentiary facts would be admissible.

ILLUSTRATION: Mr. P files an action for recovery of

ownership of a parcel of land against Mr. D. The

complaint alleges that Mr. P is the owner of the

property. During the trial, Mr. P testifies and adduces

evidence that a certain O bought the property from

D. The testimony of O may be allowed if it would be

shown the chain of events that led to the ownership

of P of the land.

1. Example: A Xerox copy of a document

may be allowed to presented subject to the

condition that the original be later presented

2. Example: P vs. D to recover a parcel of

land. P presents a document that the land belonged

to X. If D objects to it as being irrelevant, P can state

that he will later show that X sold the land to Y who in

turn sold it to Z and then to P. The Court may admit

the document conditionally.

VIII. Policy on the Admissibility of Evidence

A. Policy of Liberality: In case a question arises as to

whether or not a particular material should be

admitted as evidence, Courts are given wide

discretion what to admit and to be liberal in

admitting materials offered as evidence, unless the

material is clearly incompetent. The reasons are: (i) so

that it may have a substantial range of facts as basis

for deciding the case and (ii) in case of appeal the

appellate court may have before it all the evidence

to determine whether the decision appealed from is

in accordance with the evidence, (iii) to minimize

any adverse effect of the non-admission upon the

party affected.

B. Limitations:

1. Evidence may be excluded even if

relevant if its probative value is outweighed by the

risk that its admission will cause: a). undue or unfair

prejudice, b). confusion of the issues, c). misleads the

court, d). undue delay or waste of time

2. The court has the power to limit the

presentation of additional evidence which are but

cumulative, or to prove points which a party has

already well presented

RULE 129

What Need Not Be Proved

Lex Española 16

SECTION 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

legislative, executive and judicial departments of the

Philippines, the laws of nature, the measure of time,

and the geographical divisions. (1a)

Sec. 2 . Judicial notice, when discretionary. — A

court may take judicial notice of matters which are

of public knowledge, or are capable to

unquestionable demonstration, or ought to be known

to judges because of their judicial functions. (1a)

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)

Sec. 4 . Judicial admissions. — An admission, verbal

or written, made by the 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)

Principles on the correlation between

allegations, proof, and favorable judgment.

A. Each Party Must Prove His Own Allegation.

Allegations in pleadings do not prove themselves. No

party wins by having the most allegations, or that the

allegation of causes of actions or defenses are

crafted in the strongest and most persuasive

language. All allegations remain but as allegations or

propositions. Hence every party to a case, who

desires that a favorable judgment be rendered in his

favor, must present evidence to support his claim,

cause of action or defense be it in the form of object

evidence, documents, or testimonies of witnesses.

Likewise, the court limits itself to only such

evidence as were properly presented and admitted

during the trial and does not consider matters or

facts outside the court.

B. A Party Can Not Prove What He Did Not Allege

(Non Alegata Non Proba). A party however is not

authorized to introduce evidence on matters which

he never alleged. Hence plaintiff will not be

permitted to prove a cause of action which is not

stated in his complaint, and the defendant will not

be permitted to prove a defense which he never

raised in his Answer. In criminal cases, the Prosecution

is not permitted to prove a crime not described in

the Information or to prove any aggravating

circumstance not alleged in the Information.

C. But a party may be relieved from presenting

evidence on certain matters, such as on the

following:

1. Matters or facts subject of judicial notice

2. Matters or facts subject of judicial

admission

3. Matters or facts which are legally

presumed

4. Matters or facts stipulated upon

5. Matters or facts which are exclusively

within the knowledge of the opposing party

6. Matters or facts which are irrelevant

7. Matters or facts in the nature of negative

allegations subject to certain exceptions

JUDICIAL NOTICE.

I. CONCEPT: Refers to the act of the court in taking

cognizance of matters as true or as existing without

need of the introduction of evidence, or the

authority of the court to accept certain matters as

facts even if no evidence of their existence has been

presented. The action is often expressed thus‖ ―The

court takes judicial notice of…‖

II. Purpose: To save time, labor and expenses. It is

based on expediency and convenience.

III. General Classification of Matters Subject of

Notice

A. Adjudicative Matters- those facts related to the

case under consideration and which may affect the

outcome thereof.

1. In a case where the accused set up

denial and alibi being then in Manila, court may

Lex Española 17

take judicial notice that normal travel time by bus

from Manila to Baguio City is between 6 to 7 hours

2. Where the accused set up accidental

shooting, the court may take notice that a revolver

does not fire accidentally because pressure must be

applied to the trigger

3. Where a witness claimed to have seen a

person by the light of day at around 6:00 PM on

December some 10 meters away, courts may take

notice of the shortened days in December and that

by 6:30 there is no more day light.

B. Legislative Matters- those facts which relate either

to: (i) the existence of a law or legal principle (ii) the

reason, purpose or philosophy behind the law or of a

legal principle as formulated by the legislature or the

court (iii) the law or principle itself.

The following are examples::

1. The need to protect Filipino OFWs as a

primary reason behind the Migrant Workers Act or

the increase in the incidence of drug related crimes

as reason for the increase in the penalty for violation

of the drug law

2. That the passage of the Anti Terrorism

Law and the Anti-Money Laundering Law were

influenced by the demands of the international

community

3. Taking notice of the increase in the age

of criminal liability

4. That documents presented in the Register

of Deeds are recorded according to the date and

time of their presentation

5. The policy of the law as regards bail in

heinous crimes or of the policy of the state against

the use of illegal means to obtain evidence

6. Gun Ban during election period

IV. Limitations. The taking of judicial notice maybe

abused and might unfairly favor a party who is

unable to prove a material point. Conversely the

non-taking notice of a fact might unduly burden a

party where proof is not readily available or

impossible to obtain and proof thereof is

unnecessary, but still the court refuses to take notice

of the fact.

A. As to what may be taken notice of: the matter

must be one covered by section 1 or is authorized

under Section 2 of Rule 129.

B. As to the procedure: there must be a prior hearing

pursuant to Sec. 3.

Section 1. Matters the taking notice of which is

mandatory.

INTRODUCTION: If a fact falls under any of the

matters enumerated, then the court may not compel

a party to present evidence thereon and necessarily,

it may not decide against the party for the latter‘s

failure to present evidence on the matter. The

enumeration is exclusive.

I. As to Foreign States: their existence and territorial

extent; forms of government (monarchial,

presidential, parliamentary, royalty), symbols of

nationality (flag, national costume, anthem).

A. Limitation: However the recognition of a

foreign state or government is subject to the decision

of the political leadership

II. The Law of Nations: the body of principles, usages,

customs and unwritten precepts observed by, and

which governs, the relations between and among

states.

A. Examples: (1). The Principle of Equality of

States (2) Sovereign Immunity of visiting Heads of

States and the protocol observed for said visiting

dignitary such as the 21 gun salute (3) The

Diplomatic Immunity of foreign diplomatic

representatives (4) recognition of piracy as a crime

against humanity

III. The Admiralty and Maritime Jurisdiction of the

World and their Seals

IV. The Philippine as a state

A. Its constitution and political history: the political set

up of the government

1. As a Spanish colony, American colony, as

a commonwealth, as a republic; Martial law years;

the political upheavals such as the assassination of B.

Aquino, EDSA I and II

2. The cabinet system in the Office of the

President

3. Previous Presidents; the trial and

conviction of Erap and his subsequent pardon

4. The administrative division into regions,

provinces, municipalities, cities, barangays and into

sitios or puroks

Lex Española 18

5. Manila as the capital and the capital

towns of the provinces; the location of major rivers,

lakes and mountains

6. Contemporary political developments

such as the ongoing communist rebellion and muslin

secessionist movement

7. Wars in which the Philippines participated

B. The official acts of the legislature, executive and

judicial departments

1. That congress is a bicameral body; the

form of leadership in each house; the process of

legislation; the committee system; laws which were

passed

2. State visits of the presidents; ratification of

treaties; executive orders and decrees; declaration

of state of emergencies

3. Grants of amnesty

4. Holding of peace negotiations with the

rebels

5. Membership in the UN and other regional

organizations as well as the hosting of the ASEAN in

Cebu

6. Decisions of appellate courts

V. The Laws of Nature: Examples:

1. laws relating to science which are so well

known such as that the DNA of each person being

distinct, or blood groupings as proof of filiation; or of

finger prints and dententures being distinct and

dissimilar from one person to another.

2. The law of gravity, mathematical

equations, weights and measurements

3. The solar system, the planets and stars

4. The composition and decay of matter

5. The birth and period of gestation of

human beings

6. The occurrence of natural phenomenon

provided these are constant, immutable and certain,

otherwise these occurrences are ―freaks of nature‖

a). the changing of the season

b). the cycle of day and night

c). the difference in time between places

on earth

d). the variation in vegetation

VI. Measures of Time: into seconds, minutes, days,

weeks months and years.

VII. Geographical Division of the World such as the

number and location of the continents, and the

major oceans, the division into hemispheres;

longitudes and latitudes

Section 2. Matters the taking of which is

discretionary.

I - This section authorizes a court to take judicial

notice of certain matters in its discretion.

The matters fall into three groups: 1) Those which

are of public knowledge, 2) Those which are

capable of unquestionable demonstration and 3)

Matters ought to be known to judges because of

their judicial functions.

1). First Group: Matters of Public Knowledge. These

are matters the truth or existence of which are

accepted by the public without qualification,

condition or contention.

Requirements:

1. Notoriety of the Facts in that the facts are well and

publicly known. The existence should not be known

only to a certain portion of the community

2. The matter must be well and authoritatively settled

and not doubtful or uncertain

3. The matter must be within the limits of the territorial

jurisdiction of the court

Examples:

1. The existence and location of hospitals,

public buildings, plazas and markets, schools and

universities, main thoroughfares, parks, rivers and

lakes

2. Facts of local history and contemporary

developments including political matters. For

example: the creation of the city or town, previous

and present political leaders or officials; the increase

in population; traffic congestion in main streets. The

Lex Española 19

existence and location of the PMA in Baguio City

2). Second Group: Matters Capable of

Unquestionable Demonstration

These are matters which, even if not notorious, can

be immediately shown to exist or be true so as to

justify dispensing with actual proof.

Examples:

1. That poison kills or results to serious injury

2. That boiling water scalds

3. Striking the body with a sharp

instruments results to rupturing the skin and to

bleeding

4. Shooting on the head kills

5. Hunger results to a weakened physical

condition

6. Vehicles running at top speed do not

immediately stop even when the brakes are applied

and will leave skid marks on the road

3. Third Group: Matters Ought To Be Known to Judges

because of their Judicial Functions

These are matters which pertain to the office of the

Judge or known to them based on their experience

as judges

Examples:

1. The behavior of people to being

witnesses such as their reluctance to be involved in

cases thus requiring the issuance of subpoenae to

them; the varied reaction of people to similar events

2. Procedures in the reduction of bail bonds

Principles Involved

A. The matter need not be personally known to the

judge in order to be taken judicial notice of, as in

fact the judge maybe personally ignorant thereof

B. Personal knowledge by the Judge of a fact is not

necessarily knowledge by the Court as to be the

basis of a judicial notice

C. As to whether a party can introduce contrary

proof: (1). If the matter is one subject of mandatory

judicial notice, contrary proof is not allowed (2). If the

matter is one which the court is allowed to take

notice in its discretion, the prohibition applies to civil

cases only, but in criminal cases, the accused may

still introduce contrary proof as part of his right to

defend himself.

II - Judicial Notice of Certain Specific Matters

A. As To Foreign Laws.

1. As a general rule, Philippine Courts cannot take

judicial notice of the existence and

provisions/contents of a foreign law, which matters

must be alleged and proven as a fact. If the

existence and provisions/contents were not properly

pleaded and proven, the Principle of Processual

Presumption applies i.e. the foreign law will be

presumed to be the same as Philippine Laws and it

will be Philippine Laws which will be applied to the

case.

2. Exceptions or when Court may take judicial notice

of a foreign law

a. When there is no controversy among the

parties as to the existence and provision of the

foreign law

b. When the foreign law has been

previously ruled upon the court as to have acquired

actual knowledge of it. For example: Knowledge of

the Texan law on succession based on the

Christiansen cases; notice of the existence of the

Nevada Divorce Law

c. The foreign law has been previously

applied in the Philippines e.g. the Spanish Codigo

Penal

d. The foreign law is the source of the

Philippine Law e.g. the California Law on Insurance,

the Spanish Civil Code

e. When the foreign law is a treaty in which

the Philippines is a signatory it being part of the

Public International Law

B. Domestic Laws, Administrative Rules and

Regulations

1. As to laws, rules and regulations of

national applications, their passage and effectivity

and provisions are governmental matters which must

be noticed mandatorily

2. As to laws of local application:

Lex Española 20

a. For lower Courts: they may take notice of

ordinances, resolutions and executive or

administrative orders enforced within the town nor

city where they sit

b. For the RTCs: they may do so only when a

case has been appealed to them and the lower

court has taken notice thereof

c. For appellate courts: on appeal and all

those enforced within any town or city in the

Philippines

C. Decisions of Courts

1. Decisions of appellate courts must be

taken notice of mandatorily by trial courts

2. As to the records of cases pending or

decided by other courts: these may not be taken

judicial notice of

3. As to Records of Other Cases Pending

Before the Same Court

a) As a general rule, courts are not

authorized to take judicial notice of the contents of

records of other cases tried or pending in the same

court, even when these cases were heard or actually

pending before the same judge.

b). However, this rule admits of exceptions,

(1). as when reference to such records is sufficiently

made without objection from the opposing parties

Reference is by name and number or in some other

manner by which it is sufficiently designated or (2)

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 part of the

records of the case then pending (Calamba Steel

Center Inc. vs. Commissioner of Internal Revenue.

April 28, 2005)

D. Commercial Usages and Practices: those

pertaining to business, occupation or profession.

Notice may be taken only of those which are well

known and established. Examples:

1. The closure of banks on Saturdays and

Sundays and of the banking hours being until 3:00

P.M.

2. Practice of considering checks as sale if

not presented within 6 months

3. The establishment of ATM machines to

facilitate the opening of accounts and withdrawal of

money

4. The practice of requiring tickets for

persons to enter theaters and movie houses or to ride

in public transports

5. The holding of graduation exercises by

schools and universities every end of the semester

6. The public auction of unredeemed

articles by pawn shops

7. Courts take judicial notice that before a

bank grants a loan secured by a land, it first

undertakes a careful examination of the title, as well

as a physical and on-the-spot investigation of the

land offered as security. Hence it cannot claim to be

a mortgagee in good faith as against the actual

possessor of the land ( Erasustada vs. C.A., 495 SCRA

319)

8. That no official receipts are issued by

sidewalk or market vendors

E. Customs, Habits and Practices of People:

Notice may be taken only of those which are

generally known and established and uniformly

acted upon. Particular customs, and those peculiar

only to certain people must be established as a fact.

Examples:

1. Variations in handwriting

2. The instinct of self preservation

3. Sleeping habits of people in the barrios

4. Rituals digging and cleansing of bones of

buried loved ones among certain tribes and other

tribal practices, must be proved as a fact

5. What about the natural shyness of the

Filipina woman?

F. As to religious matters: Courts may take notice of

the general tenets or beliefs of a particular group

including their organizational structures, but not as to

specific practices, tenets and dogmas.

Examples:

1.Thus notice maybe taken of the belief Catholics

consider Jesus as God, whereas the INC do not but

as a man, and the Muslims regard Him merely as a

prophet lesser in stature to Mohammed

Lex Española 21

2. That the Pope is the titular head of the Catholic

Church while the Dalai Llama is head of the Tibetan

Monks; Mecca is the Holiest City of the Muslims; the

Muslim belief in Ramadan; the belief in reincarnation

among the Hindus and Buddhists while the Christians

believe in resurrection after death; whereas

Christians believe in heaven the Buddhist have their

Nirvana. Notice is proper of the Christian Bible and

the Muslim Koran as their respective Holy Books.

Section 3. When Hearing Is Necessary

I. When and How Notice is taken.

A. By the Trial Court: either Motu Proprio or upon

motion by a party .Generally this is during the trial or

presentation of evidence, but it maybe made

thereafter but before judgment and only upon a

matter which is decisive of the issue. So, during trial:

on any matter – allow the parties to be heard

thereon

B. By the appellate court or before judgment: So,

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

II. Need for Hearing

A. If motu proprio, the Court must announce its

intention and give the parties the opportunity to give

their view on whether or not the matter is a proper

subject of judicial notice.

B. If on motion of a party, the opposing party must

likewise be given the opportunity to comment

thereon.

Hence, hearing is necessary when

During the trial, the court

1. motu propio, on request of a partyannounces 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

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.

Section 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 maybe contradicted only by a

showing that it was made through palpable mistake

or that no such admission was made.

I. CONCEPT- The act or declaration of a party in

voluntary acknowledging or accepting the truth or

existence of a certain fact. The admission maybe

Judicial or Extra Judicial and in either case, they may

be oral or written.

A. Judicial- those made in the course of the

proceedings of the case in which they are to be

used as evidence. This is governed by section 4.

B. Extra-Judicial- those made elsewhere but not in

the course of the proceedings where they are to be

used as evidence.

II. Effect of Judicial Admissions:

A. Upon the party making the admission:

The party making the admission is bound by it. The

admission is conclusive as to him. He will not be

permitted to introduce evidence which will vary,

contradict or deny the fact he has admitted.

1.―The exception is found only in those rare

instances when the trial court, in the exercise of its

discretion and because of strong reasons to support

its stand, may relieve a party from the consequences

of his admission‖

2. All such evidence to the contrary are to

be disregarded by the court even in the absence of

an objection by the adverse party.

3. Examples:

a). ― The rule on judicial admissions found

its way into black-letter law only in 1964 but its

content is supplied by case law much older and in

many instances more explicit than the present codal

provision. In the early case of Irlanda vs. Pitarque

(1918) this court laid down the doctrine that acts or

facts admitted does not require proof and cannot

be contradicted unless it can be shown that the

admission was made through palpable mistake. The

rule was more forcibly stated …in the 1918 decision in

Ramirez vs. Orientalist Co. ― an admission made in a

pleading cannot be controverted by the party

making such admission, and all proof submitted by

him contrary thereto or inconsistent therewith should

simply be ignored by the court, whether objection

was interposed by the opposite party or not‖ (Heirs of

Clemenia vs. Heirs of Bien, 501 SCRA 405)

Lex Española 22

b). Joshua Alfelor vs. Hosefina Halasan

(March 31, 2006) The spouses Telesforo and Cecilia

Alfelor died leaving behind several heirs. One of the

children was Jose who himself died leaving behind

children and a wife named Teresita . In1998 the heirs

filed a complaint for partition of the estate of their

deceased parents. A certain Hosefina Halaan filed a

Motion for Intervention claiming she is the legal wife

of Jose. Teresita and the other petitioners filed a

Reply in Intervention where Teresita stated she knew

of the previous marriage of Jose; that Hosefina left

Jose in 1959 and there had been no news of her

since then; that Jose revealed he did not annul his

marriage to Hosefina because he believed in good

faith to Hosefina. During the hearing of the Motion for

Intervention, Teresita admitted several times she

knew of the previous marriage of Jose to Hosefina.

Since Hosefina did not appear during the hearing to

support her claim, of being the first wife her motion

was denied.

Issue: Was there need to prove the existence of the

first marriage?

Held: No. The admission in the Reply in Intervention

and the testimony of Teresita as to the previous

marriage qualifies as a Judicial Admission.

A party who judicially admits a fact cannot

later challenge that fact as judicial admissions are

waiver of proof; production of evidence is dispensed

with. A judicial admission also removes an admitted

fact from the field of controversy. Consequently, an

admission made in the pleading cannot be

controverted by the party making such admissions

and are conclusive as to that party, and all proof to

the contrary or inconsistent therewith should be

ignored, whether objection is interposed by the party

or not. The allegation statements or admissions are

conclusive against the pleader. A party cannot

subsequently take a position contrary to or

inconsistent with what was pleaded.

B. Upon the opposite party: He need not

introduce any evidence on the matter which was

admitted.

III. Sources of Judicial Admissions:

A. Voluntary Admissions

1. Admissions contained in the allegations in the

pleadings

a. In a civil case: The plaintiff is bound by the

statement of causes of actions in his Complaint

including the number, nature and circumstances

thereof, as well as the statement of facts in support

thereof. The defendant is bound by the facts alleged

in the Complaint which he expressly admits in his

Answer; by his own statement of facts; by the nature,

number and circumstances of the defenses

contained in his Answer. They are similar bound by

the allegations of facts in their Reply, Comment or

Rejoinder to each other‘s pleadings.

b. As to amended pleadings: one view holds that the

original pleadings ceased to be part of the records

and cease to be judicial admissions. If at all they may

constitute extra-judicial admissions which will have to

be formally offered in evidence. Another view, as

that of Justice F. Regallado says amended pleadings

are still covered by section 4.

c. In a criminal case, the narration of facts in the

body of the Information are deemed admissions by

the Prosecution

2. Admissions and Stipulations made during the

Preliminary Conference and/or Pre-Trial which are

reduced into writing and signed by the party and his

counsel.

a). But in criminal cases, there can be no stipulation

as to circumstances which qualifies a crime or

increase the penalty to death.

b). Example: In criminal cases of theft or robbery

there can be stipulation as to the ownership or

possessor of the property, the value thereof; the

arrest or surrender of the accused; identity of the

accused

3. Admissions and stipulations made during the

course of the trial itself, which need not be reduced

in writing

4. Compromise agreements, which thus can be the

basis of a judgment which is immediately executory.

5. Admissions by way of responses or answers to

requests for admissions or interrogatories pursuant to

Rule 26 (Modes of Discovery)

B. Involuntary Admissions:: those where it is the law

which declares that a party is deemed to have

admitted a fact.

1. Section 8 of Rule 8 directs that (a) failure to

specifically under oath an actionable document is

an admission of its genuiness and due execution (b)

failure to deny the material averments of the

Complaint is an admission of the truth thereof

C. Effect of a Withdrawn Plea of Guilt: A plea of guilty

is an admission of the factual allegations of the

Information but not conclusions of law. The former

plea is not an admission because the accused has

the right to change his plea of guilty to not guilty

Lex Española 23

III. By Whom Made:

A. By the parties themselves

B. By the counsel under the principle of agency:

exceptions:

In civil cases

(i) when the admission amounts to a surrender,

waiver, or destruction of the client‘s cause (ii) if the

compromise is for an amount less than that

demanded by the client (iii) those which are due to

the gross and inexcusable ignorance or negligence

of counsel

In criminal cases:

Example: PP. vs. Hermones (March 6, 2002). FACTS: In

a prosecution for rape the counsel for the accused

filed a manifestation stating that the accused is

remorseful and was intoxicated when he raped his

foster daughter and he will present evidence of

intoxication, plea of guilt and lack of intent. Are

these conclusive upon the accused?

HELD: No. The authority of an

attorney to bind his client as to any admissibility of

fact is limited to matters of judicial procedure but not

to admissions which operate as a waiver, surrender

or destruction of the client‘s cause.

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)

TO SUMMARIZE:

What Need Not be Proved (Rule 129)

a. Facts which a court shall or may take

judicial notice. (Secs. 1 and 2, Rule 129, ROC)

b. Judicial admissions. (Sec. 4, Rule 129,

ROC)

c. Conclusive presumptions

d. Disputable presumptions not disputed

Distinguish mandatory judicial notice from

discretionary judicial notice.

a. For mandatory judicial notice the court is

compelled to take judicial notice because of the use

of the word "shall" in Sec. 1, Rule 129, ROC; while, for

discretionary judicial notice the court is not

compelled because of the use of the word "may" in

Sec. 2, Rule 129, ROC.

b. Mandatory judicial notice takes place at the

court's own initiative; while, discretionary judicial

notice may take place at the court's initiative, or on

request of a party.

c. Discretionary judicial notice requires a hearing

and presentation of evidence; while, mandatory

judicial notice does not require hearing and

presentation of evidence.

A. Judicial Notice – Rule 129, Secs 1-3; Rule 10, Sec. 8

1. When Mandatory – [EPF-SLAP-OL-MG]

- Existence and territorial extent of states

- Their political history

- Forms of government

- Symbols of nationality

- Law of nations

- Admiralty and maritime courts of the world and

their seals

- Political constitution and history of the Philippines

- Official acts of the legislative, executive, and

judicial

departments of

the Philippines

- Laws of nature

- Measure of time

- Geographical divisions

Lex Española 24

2. When Discretionary

- Matters of public knowledge

- Matters capable of unquestionable

demonstration

- Matters which ought to be known to judges

because of their

judicial functions.

3. When Hearing is 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.

MUNICIPAL ORDINANCES

Courts are not mandated to take judicial notice of

municipal ordinances unless the charter of the

concerned city provides for such judicial notice. (City

of Manila vs. Garcia, 1967). But INFERIOR COURTS

sitting in the respective municipalities or cities are

MANDATED to take judicial notice. The reason is that

violations of the ordinances are usually vested to the

inferior court EXCLUSIVELY in the exercise of their

original jurisdiction.

IF inferior court took judicial notice and there was an

appeal, such court taking the appeal should likewise

take judicial notice. (U.S. v. Blanco, 37 Phil. 126)

COURT RECORDS:

Courts may take judicial notice of its own records of

cases pending before it. Ex. Pleadings; period of

perfecting appeals.)

-Records of preliminary investigation shall

not form part of the record, however the court on

its own initiative or that of any party may order

the production of the record or any part thereof

whenever the same shall be necessary in the

resolution of the case or any incident therein or

shall be introduced as evidence by the party

requesting for its production.

-Courts are not authorized to take judicial

notice of the contents of the record of other

cases pending or heard before them

notwithstanding they are pending before the

same judge.

Exceptions: 1. In the absence of objection

from the adverse party, with the knowledge of

the adverse party; or at the request or with the

consent of the parties, the case is clearly referred

to or the original or part of the records of the

case are actually withdrawn from the archives

and admitted as part of the record of the case

then pending. (Tabuena vs. CA, 1991)

2. The other case is so closely connected or

interdependent

3. When interests of the public in

ascertaining the truth is of paramount

importance

4. In cases seeking to determine what is

reasonable exercise of discretion

5. The finality of judgment in a case

FOREIGN LAWS

In general, courts may not take judicial

notice of foreign laws, EXCEPT in a few

instances where, in the exercise of sound

discretion, they may take judicial notice of

such foreign laws of which they are

evidently familiar. (Delgado v. Republic, L-

2546, January 28, 1950; Pardo v. Republic,

85 Phil. 323)

When foreign laws may be the subject of judicial

notice.

a. When the local court is evidently familiar with the

foreign law.

b. When the foreign law refers to the law of nations.

(Sec. 1, Rule 129, ROC)

c. When the court takes judicial notice of a

published treatise, periodical or pamphlet on a

subject of law as a learned treartise. (Sec. 46, Rule

130, Ibid.)

d. When the foreign statute is acepted by the

Philippine government. (Republic v. Guanzon, 61

SCRA 360)

Lex Española 25

e. When a foreign judgmen containing foreign law is

recognized for enforcement. (Sec. 48, Rule 39, ROC)

f. If the foreign law refers to common law doctrines

and rules from which many of our laws were derived.

(Alzua v. Johnson, 21 Phil. 308)

Doctrine of Processual Presumption: Foreign

law is the same as the law of the forum. It arises if the

foreign law, though properly applicable is either not

alleged or if alleged is not duly proved before a

competent court.

B. Judicial Admissions – Rule 129, Sec. 4

Definition: admissions, verbal or written,

made by the party in the course of the proceedings

in the same case

-Proof is not required.

-How contradicted: ONLY by showing

= That it was made through palpable

mistake or

= That no such admission was made

Having been amended, the original complaint lost its

character as a judicial admission, which would have

required no proof and became merely any

extrajudicial admission requiring a formal offer in

order to be admissible. (Torres vs. CA, 1984)

FORMS OF ADMISSIONS:

1. Implied admissions of allegations of usury and in

actionable documents if not specifically denied

under oath (Sec. 11 & 8, Rule 8)

2. Admissions in pre-trial of civil cases and criminal

cases (In criminal cases the admission must be

reduced in writing and signed by accused and

counsel- Sec. 4 Rule 118)

3. Implied admissions in the modes of discovery

(Depositions; Interrogatories- Rule 23; Failure to

specifically deny under oath w/in 15 days a

Request for Admission in a pending case- Rule

26; )

4. Admissions in amended pleadings (Sec. 8 Rule

10) [N.B. Admissions in superseded pleadings are

extra-judicial admissions which must be proven.

Dismissed pleadings are likewise extrajudicial

admissions]

5. Plea of guilt in criminal case (N.B. A withdrawn

plea of guilt is inadmissible, unlike in civil cases

where a withdrawn judicial admission is

considered an extrajudicial admission)

6. Admissions by counsel are generally conclusive

upon a client absent any gross negligence

which deprives counsel of due process of law or

there is outright deprivation of property or liberty.

Note: Admissions in pleadings may not always

be considered as judicial admissions because

there are hypothetical admissions in civil cases.

(i.e. Affirmative defenses in an answer; Motion to

dismiss, where defendant admits allegations but

sets up grounds such as lack of jurisdiction etc.)

Notes: 1. It is not essential that an

admission is contrary to the

interest of party at the time it is

made. It is enough that it be

INCONSISTENT with the position a

party takes in his pleadings or at

trial.

2. Averments in

pleadings not deemed admissions

even if there is failure to make a

specific denial: a) Immaterial

allegations; b) Conclusions and

non-unltimate facts; c) Amount of

unliquidated damages.

Adoptive Admissions

A party‘s reaction to a statement or action by

another person when it is reasonable to treat the

party‘s reaction as an admission of something stated

or implied by the other person.

Adopted Confessions

A co-accused impliedly acquiesced in or adopted

the other‘s confession by not questioning its

truthfulness, as where it was made in his presence

and he did not demonstrate against his being

implicated therein

RULE 130

Rules of Admissibility

A. OBJECT (REAL) EVIDENCE

SECTION 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)

ADMISSIBILITY OF EVIDENCE

Lex Española 26

A. While Rule 128 declared the two general

requirements for admissibility of evidence. Rule 130

spells out the particular requirements in order that

certain kinds of materials be admitted as evidence.

B. Sources of Knowledge or Evidence

1. Those derived from the testimony of people

whether oral or written

2. Those obtained from circumstances

3. Those obtained through the use of the senses

a). these are the coverage of Section 1 and

are presently referred to as ―Object Evidence ‖ .

Formerly they were referred to as ―autoptic or

demonstrative evidence‖

b). They occupy the highest level because

nothing is more certain than the evidence of our

sense. ―Physical evidence is a mute but eloquent

manifestation of truth and rates highly in the

hierarchy of trustworthy evidence‖

OBJECTS AS EVIDENCE

Section 1. Object as evidence. Object 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.

Rules of Admissibility

A. Object (Real) Evidence –Rule 130, Sec. 1.

- Evidence 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.

AUTOPTIC PROFERENCE (VIEW OF AN OBJECT)

Where the object in question cannot be

produced in court because it is immovable or

inconvenient to remove, the natural recourse is for

the court to order an ocular inspection and go to the

object in its place and observe it there.

Is there an exclusionary rule when it comes to object

evidence?

There is none. However, the court is given

enough discretion to determine which object

evidence should be presented, upon determination

whether or not it will result to scandal or it does not

work any additional benefit to the plaintiff or that it

will give undue prejudice to the defendant.

ILLUSTRATIONS:

Footprints

A bloody foot print was found upon a floor

near the dead body of a person. Upon being

arrested, the accused was taken to the house where

the incident happen. Upon placing his foot over the

foot print it was found that his foot corresponded

exactly to said footprint. HELD: Proof of this

circumstance is admissible, notwithstanding that no

photograph of the footprint was submitted in

evidence and that the board itself upon which the

footprint was made was not produced in court. (US v.

Zara, 43 Phil. 308)

Resemblance, Race, Age or Parentage

-To determine whether a person is alien or

not, his personal appearance, ethnological and

racial characteristic, language, customs, dress and

manners may be taken into consideration.

-In determining the age of the accused

who had no positive information on the subject, the

court took into account his appearance and judged

that he was a youth of 18 or 19 years of age.

-A physical comparison may be made

between a minor Chinese applying for admission into

the country with his alleged father.

Photographs

- Where deposition of subscribing witnesses

to a will are taken, a photographic copy of the will

may be presented to the witnesses on their

examination and they may be asked the same

question with respect to said copy as if it were the

original will and testimony as to the identity of the

photographic copy shown to the witnesses is

admissible in evidence.

-Photographs may be admissible upon

proof of their exactness and accuracy by the

photographer himself who can testify of his personal

knowledge of the correctness of the representation.

(Tan It v. Sun Insurance Office, 51 Phil. 212)

NOTES:

The photographer is not the only witness

who can identify the pictures. The faithful

representation of the photograph may be proved

Lex Española 27

prima facie by the testimony of those who were

present at the time it was taken, or by any other

competent witness who can testify as to its exactness

and accuracy. Once proved, the court may admit it

subject to impeachment as to its accuracy.

The value of a photograph lies in its being a

correct representation or reproduction of the

original, and its admissibility is determined by its

accuracy in portraying the scene at the time the

picture was taken. (Sison v. People, 250 SCRA 58, 75-

76)

Photocopies or xerox copies of signed

documents are not duplicate originals because they

are not signed. (Mahilum v. Court of Appeals, 17

SCRA 482)

Computer printouts.

If the data are stored in a computer or

similar device, any printout or other output readable

by sight, shown to reflect the data accurately, is an

original. (Evidence Code of California, Added by

Stats. 1977, Sec. 1)

In a labor case, IBM Philippines, Inc., et al.,

v. NLRC, et al., G.R. No. 117221, prom. April 13, 1999,

the Supreme Court held that computer printouts

which were not signed because they are unsigned.

The Court went on further to say that its decisions,

while adhering to a liberal view in the conduct of

proceedings before administrative agencies, have

nonetheless consistently required some proof of

authenticity or reliability as condition for the

admission of documents.

Not one of the 18 print-out copies

submitted by IBM was ever signed, either by the

sender or the receiver. There is thus no guarantee

that the message sent was the same message

received. Neither were the print-outs certified or

authenticated by any company official who could

properly attest that these came from IBM‘s computer

system or that the data stored in the system were not

and/or could not haved been tampered with before

the same were printed out.

Ballots

- Every ballot needs to be presented in a case of

election protest. Every ballot constitutes the will of

every voter.

DEMONSTRATIVE EVIDENCE - one which or represents

demonstrates the real thing. (ex. Map, diagram,

photograph, or a model)

Photographs: Must faithfully represent what

it depicts (Same rules apply to motion pictures and

recordings)

X-Rays: Must show location and extent of

injury

Scientific tests, demonstrations by physical

act and experiments: This is a matter of judicial

discretion.

I. COVERAGE: The definition covers any material that

may be seen, heard, smelled, felt, or touched. They

are the ―sensual evidence‖ and are grouped into:

A. Those exhibited to the Court or observed

by it during the trial

1. The weapons used, the articles recovered or

seized as subjects of an offense, the effects of the

crime, clothing apparels

2. The wound or scars in the body in physical injury

cases

3. Inspection of the body of the accused and his

personal appearance to determine his body built,

physique, height, racial characteristics, and

similarities with another, in paternity suits

4. Observations as to the demeanor of witnesses

5. Re-enactment or demonstrations of actions

B. Those which consists of the results of

inspections of things or places conducted by the

court ( ocular inspections) outside the court

1. The observations made by the parties are duly

recorded, pictures and other representations may be

made such as sketches and measurements

2. Examples: inspection of the crime scene; disputed

boundaries; objects which cannot be brought to

court

C. Those which consists of the results of

experiments, tests or demonstrations, which may be

scientific tests/experiments, or practical

tests/demonstrations provided the conduct of

experiments/tests is subject to the discretion of the

court.

1. Forensics or Microanalysis: the application of

scientific principles to answer questions of interest in

the legal system. Applied most often in the

examination of Trace Evidence to solve crimes based

on the Principle of Contact

Lex Española 28

a). Trace Evidence- evidence found at a

crime scene in small but measurable amounts such

as hairs, fibers, soils, botanical materials, explosive

residue

b) Principle of Contact: every person who is

physically involved in a crime leaves some minute

trace of his/her presence in the crime scene or in the

victim and often takes something away from the

crime scene and/or victim

II. REQUIREMENTS FOR ADMISSIBILITY

A. Inherent Requirements: Proof of 1. Relevancy,

and 2. Competency

B. Procedural Requirement: Proof of Authentication

1. The process of proving that the object

being presented in court is the very object involved

in the event

2. The purpose is two fold: (a) to /ensure

preserve the Identity of the Object which is to

prevent the introduction of a different object and (b)

to ensure/preserve the Integrity of the Object which

is to ensure that there are no significant changes or

alterations in the condition of the object or that the

object has not been contaminated

3. Important component elements of the

process of Authentication:

a). Proof of Identity: Through the testimony of a

witness as to objects which are readily identifiable by

sight provided there is a basis for the identification

by the witness which may either be:

(i) the markings placed by the witness upon

the object, such as his initials, his pictures in the digital

camera, or

(ii) by the peculiar characteristics of the

object i.e. by certain physical features which sets it

apart from others of the same kind or class by which

it is readily identified. Examples: a hole caused by

burning in a sweater; the broken hilt of a knife

b). Proof of Identity and Integrity: By proving that

there was no break in the Chain-of-Custody in the

event the object passed into the possession of

different persons. This means proving the

chronological sequence through which the object

was handled only by persons who, by reason of their

function or office, can reasonably be expected to

have the right or duty to possess or handle the

object. This is done by calling each of these persons

to explain how and why he came into the possession

of the object and what he did with the object.

(i) When the object passed into the

possession of a stranger, then there is doubt as to the

integrity, if not identity of the object.

c). Proof of Integrity: By proving the Proper

Preservation of the object which consist of showing

that the object was kept in a secure place as to

make contamination or alteration difficult, and it has

not been brought out until its presentment in court.

4. Effect if there was improper

authentication: The object maybe excluded upon

proper objection, or that it may not be given any

evidentiary value. Thus in a criminal case, reliance

thereon may be a ground for acquittal. Example:

there was conflicting testimony by the policemen as

to the description of the bag allegedly containing

the drug. The conviction was reversed.

5. Authentication as applied to certain

evidences:

a). As to pictures and photographs, maps,

diagrams, the authenticity refers to proving the

accuracy of the things, persons, things or places

depicted in the photographs which may through the

testimony of : (i) the photographer or (ii) any one

who is familiar with the persons, things, places shown

therein

b). As to tape recordings: (Torralba vs. Pp.,

Aug. 22, 2005)

FACTS: The accused was convicted of libel.

One of the evidence was a tape recording of the

radio broadcast which recording was made by the

daughter of the complainant, but the daughter was

not however presented as a witness. Question: Was

the tape recoding properly admitted?

HELD: The person who actually recorded

should be presented in order to lay the foundation

for the admission of the tape recording. Before a

tape recording is admissible in evidence and given

probative value, the following requisites must first be

established:

(i). a showing that the recording

devise was capable of taking testimony

(ii). a showing that the operator of the

device was competent

(iii). establishment of the authenticity and

correctness of the recording

(iv). a showing that changes, alterations, or

deletions have not been made

Lex Española 29

(v). a showing of the manner of the

preservation of the recording

(vi). identification of the speakers

(vii). a showing that the testimony elicited

was voluntarily made without any kind of

inducement

C. As to X-rays and cardiograms, motion pictures:

same requirement as to tape recordings.

III. LIMITATIONS to the admission of Objects as

evidence in addition to the inherent limitations of

relevancy and competency.

A. The admission must not cause undue prejudice to

the court, such as those intended

B. The admission is subject to the demands of

decency and propriety, unless the admission is

extremely necessary.

1. Exhibition of the private parts in sex cases

2. Presentation of the corpse or body parts

3. Re-enactment of violent or offensive acts

4. Examples:

a) The case of the old man accused of

rape who had to show his private parts to prove he is

incapable of committing the crime

b). Case of William Alford charged of

shooting a lawyer. He claimed self defense in that he

shot the victim who was beating him with a cane

while the accused was lying down on the ground.

Prosecution witness claimed the bullet had driven

downward. Earl Rogers demanded that the intestine

of the victim be brought to court and by the

testimony of an expert, showed that the bullet

traveled upward while the victim was bending over,

thereby confirming the claim of the accused.

C. Exclusion of objects which are offensive to man‘s

sensibilities or repulsive objects

1. Waste matters, human excreta

2. Carcasses of dead animals

3. Killing of an animal to prove a substance

is poison

D. The procurement, presentation or inspection must

not cause inconvenience or unnecessary expenses

out of proportion to the evidentiary value of the

object evidence

E. The admission must not violate the right against

self-incrimination

1. Handwritings: the general rule is that a

person may not be compelled to produce a sample

of his handwriting as basis for determining his criminal

liability as the author of a certain written document.

This is because writing is not a mere mechanical act

but involves the application of the intellect. However,

if the accused testifies in his own behalf and denies

authorship, he maybe compelled to give a sample

of his handwriting.

F. In cases of ocular inspections: (i) the condition of

the thing or place must not have been altered (ii)

there be prior notice of the date, time and place

given to the parties because the inspection is still part

of the trial.

IV. NECESSITY OF PRESENTATION OF OBJECTS IN

COURT

A. The best proof that an object exists is to present it

to the court

B. The presentation is not necessary:

1. Where the existence of the object is not

the very fact in issue, but is merely a collateral fact,

of are merely used as reference. Thus: (i) when a

witness testifies that the accused was drinking a

bottle of gin when he threatened to shoot the

witness, it is not necessary to produce the bottle. (ii)

the witness claims the accused threw a stone at his

car, the presentation of the stone is not necessary.

2. Where the article has not been

recovered or is outside the jurisdiction of the court.

Examples: stolen articles which are not recovered or

brought elsewhere; unrecovered weapons used in

crimes.

C. In crimes the gist of which is the illegal possession

of an article, a distinction has to be made:

1. Where the article is common or familiar

article such that it can readily be identified by sight,

its presentation is not necessary, its existence may be

shown by testimony of witnesses.

Example: In a Prosecution for Illegal

Possession of Firearms, the accused may still be

Lex Española 30

convicted even without the presentation of the gun

in court.

a). PP. vs. Taguba (342 SCRA 199): In cases

involving illegal possession of firearms the prosecution

has the burden of proving (a) the existence of the

subject firearm and (b) the fact that the accused

does not have the corresponding permit to possess.

As to the first requisite, the existence can best be

established by the presentation of the firearm …

(but) there is no requirement that the actual FA itself

must be presented in court… Its existence can be

established by testimony… thus the non presentation

is not fatal to the prosecution of an illegal possession

case.

b). PP. vs. Taan, (506 SCRA 219, Oct. 30,

2006) ―The non-presentation of the subject firearm is

not fatal for the prosecution as long as the existence

of the firearm can be established by testimony‖

2. Where the articles however are not

common or familiar to ordinary persons and cannot

be identified by sight, they must be presented in

court. Example: drugs and contraband items

V. RESULTS OF SCIENTIFIC TESTS AS OBJECT EVIDENCE

A. Forensics: application of scientific principles to

answer questions of interest in the legal system. This is

applied most often in the examination of Trace

Evidence to solve crimes based on the Principle of

Contact

a). Trace Evidence- evidence found at a

crime scene in small but measurable amounts such

as hairs, fibers, soils, botanical materials, explosive

residue

b) Principle of Contact: every person who is

physically involved in a crime leaves some minute

trace of his/her presence in the crime scene or in the

victim and often takes something away from the

crime scene and/or victim

B. Requirements for Admissibility:

1. The Daubert Test: The U.S. Supreme Court, in the

case of Daubert vs. Menell Dow Pharmaceuticals

(1993) came up with a test of reliability and directed

that trial judges are to consider four factors when

determining the admissibility of scientific evidence, to

wit:

a). whether the theory or technique can be

tested

b). whether the proffered work has been

subjected to peer review

c). whether the rate of error is acceptable

d). whether the method at issue enjoys

widespread acceptance.

2. This Daubert Test was adopted by the Philippine

Supreme Court when it finally accepted the result of

DNA testing as admissible evidence.

C. Scientific Tests Judicially Accepted:

1. Paraffin Tests although they are not conclusive that

a person did or did not fire a gun

2. Lie Detection Test: The result is not admissible as

evidence in the Philippines

3. Firearms Identification Evidence or Ballistic Test to

determine whether a bullet was fired from a

particular gun

4. Questioned Document Test and Handwriting

Analysis

5. Drug Tests on a Person

6. Toxicology or Test of Poison

7. Psychiatric examination

8. Voice Identification Test

9. Finger Printing

10. Identification through Dentures

11. Genetic Science such as DNA or Blood Test

VI. ILLUSTRATION OF SCIENTIFIC EVIDENCE: DNA

EXAMINATION

A. Important terms involved in DNA Testing (or

protocol) (PP vs. Vallejo, May 9, 2002; PP. vs. Yatar,

428 SCRA 504)

1. DNA (Deoxyribonucleic acid) is a molecule found

inside all living cells which carries the genetic

information that is responsible for all cellular

processes. Except for identical twins, each person‘s

DNA profile is distinct and unique.

2. DNA TYPING- the process of extracting and

analyzing the DNA of a biological sample taken from

an individual or found in a crime scene.

Lex Española 31

a) Evidence Sample- material collected

from the scene of the crime, from the victim‘s body

or that of the suspect/subject

b) Reference Sample- material taken from

the victim or subject

3. DNA PROFILE: the result of the process which is

unique in every individual except as to identical

twins

4. DNA MATCHING- the process of matching or

comparing the DNA profiles of the Evidence Sample

and the Reference Sample. The purpose is to

ascertain whether an association exists between the

two samples.

5. DNA TEST RESULTS:

a). Exclusion: the samples are different and

must have originated from different sources. This

conclusion is absolute and requires no further analysis

or discussion.

b). Inconlusive: it is not possible to be sure,

whether the samples have similar DNA types. This

might be due to various reasons including

degradation, contamination or failure of some

aspect of the protocol. Various parts of the analysis

might then be repeated with the same or different

samples to attain a more conclusive result.

c). Inclusion: the samples are similar and

could have originated from the same source. In such

case the analyst proceeds to determine the

statistical significance of the similarity.

B. Admissibility and Weight of DNA Profile

1. PP vs. VALLEJO ( May 2002) and PP vs. YATAR ( 428

SCRA 504), adopting the Dauber Test settled the

admissibility of DNA tests as object evidence this

wise:

―Applying the Dauber Test… the DNA

evidence appreciated by the court a quo is relevant

and reliable since it is reasonably based on

scientifically valid principles of human genetics and

molecular biology‖.

This was reiterated in HERRERA vs. ALBA on

June 11, 2005.

2. As to the weight and probative value, it depends

on the observance of certain requirements known as

the Vallejo Guidelines. To wit:

a). How the samples ( both evidence and

reference) were collected

b). How they were handled

c). The possibility of contamination of the

samples

d). The procedure followed in analyzing the

samples

e). Whether the proper standards and

procedures were followed in conducting the test

f). The qualification of the analyst who

conducted the test

3. There is no violation of the right against

self-incrimination

a). ―The kernel of the right is not against all

compulsion but against testimonial compulsion. The

right against self-incrimination is simply against the

legal processes of extracting from the lips of the

accused an admission of guilt. It does not apply

where the evidence sought to be excluded is not an

incrimination but as part of object evidence. As for

instance: hair samples taken from an accused.

Hence a person may be compelled to submit to

finger printing, photographing, paraffin, blood and

DNA as there is no compulsion involved (PP. vs.

Yatar):

b). The right is directed against evidence

which is communicative in character which is taken

under duress (Herrera vs. Alba)

C. Where Used:

1. To identify potential suspects or exclude persons

wrongfully accused

a) DNA Typing may either result in

―Exclusion‖ or ―Inclusion‖

2. To identify victims of crimes or catastrophes

3. To establish paternity and family relations and

genealogy

VII. Demonstrative Evidence: Tangible evidence i.e

physical objects, which are illustrate a matter of

importance to the case but are not the very objects

involved in the case. They merely illustrate or

represent or emphasize, visualize or make more vivid

what a party desires to emphasize. ( visual aids)

Lex Española 32

1. Examples: movies, sound recordings,

forensic animation, maps, drawings, sketches,

graphs, simulations, models or modules of the human

body.

2. Importance: their use is very helpful as

they provide a stronger impact and lasting effect on

the court.

B. DOCUMENTARY EVIDENCE

Sec. 2 . Documentary evidence. — Documents as

evidence consist of writing or any material

containing letters, words, numbers, figures, symbols

or other modes of written expression offered as proof

of their contents. (n)

I. Kinds of Documentary Evidence

A. Writings or Paper Based Documents

B. ―Or Any other material‖ refers to any other solid

surface but not paper such as blackboard, walls,

shirts, tables, floor.

1). As in a contract painted on the wall

2). They include pictures, x-rays, videos or movies.

Note: Both kinds maybe handwritten, typewritten,

printed, sketched or drawings or other modes of

recording any form of communication or

representation. Example: The Rebus, Secret Codes.

C. Electronic Evidence pursuant to the Rules of

Electronic Evidence effective August 01, 2001. which

provides :

1) Rule 3 section 1: ―Electronic evidence as

functional equivalent of paper-based documents-

Whenever a rule of evidence refers to the term

writing, document, records, instrument,

memorandum or any other form of writing, such term

shall be deemed to include an electronic

document‖.

2) ―Electronic document‖ refers to

information or to the presentation of information,

data, figures or symbols or other modes of written

expression, described or however represented, by

which a sight is established or an obligation

extinguished, or by which a fact maybe proved and

affirmed, which is received, recorded, transmitted,

stored, processed, retrieved or produced

electronically.

3) It includes digitally signed documents

and any printout or output, readable by sight or

other means which accurately reflects the electric

data message or electronic document. For purposes

of these rules the term electronic document maybe

used interchangeably with ‖electronic data

message‖

4). Rule 3 section 2: An electronic

document is admissible in evidence if it complies with

the Rules of Admissibility prescribed by the Rules of

Court and related laws and is authenticated in the

manner prescribed by these rules.

a) There are three requirements for

admissibility: relevancy, competency and proper

authentication.

D. Text messages are electronic evidence being

ephemeral electric communications. They maybe

proven by the testimony of a person who was a party

to the same or who has personal knowledge thereof

such as the recipient of the messages (Nunez vs. Cruz

Apao 455 SCRA 288)

1. BEST EVIDENCE RULE

Sec. 3 . Original document must be produced;

exceptions. — When the subject of inquiry is the

contents of a document, no evidence shall be

admissible other than the original document itself,

except in the following cases:

(a)When the original has been lost or destroyed, or

cannot be produced in court, without bad faith on

the part of the offeror;

(b)When the original is in the custody 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)

Sec. 4 . Original of document. —

(a)The original of the 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

Lex Española 33

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)

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;

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

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.

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

Rules governing the admissibility of documents

include the Best Evidence Rule and the Parole

Evidence Rule.

The General Rule:

‗‗If the subject of inquiry is the contents of a

document there can be no evidence of the

contents other than the original of the document.‖

I - Section 3 states the general rule when the original

of a document is to be presented and the four

exceptions to the rule. Hence the best evidence rule

is often referred to loosely as the ―the Original

Document rule‖. It is thus a rule of preference in that

it excludes secondary evidence once the original is

available.

II. When the Original Is to Be Presented:

A. ―If the subject of inquiry is the contents of the

document‖. This means the cause of action or

defense is based on what are contained in the

document i.e. the terms and conditions, the entries,

data or information written on the document. This

means the plaintiff is either enforcing a right based

on, or created, by a document or a party is seeking

non-liability by virtue of the contents of a document.

Examples:

1. Enforcement of a contract, collection of money

based on a promissory note, damages for failure to

comply with the terms of a written agreement

2. Defense of release, payment, novation,

condonation, as embodied in a written document

3. In criminal cases: where the act complained of is

made upon or contained or evidenced by a

document such as in falsification, perjury, bigamy,

malversation, estafa, issuance of a watered check

B. When the rule does not apply even if an existing

and available original document is involved:

1. Generally if the contents were never disputed as in

the following:

a). when the question refers to the external

facts about the document such as whether it exists or

not, whether it was executed, sent, delivered or

received

b). when the writing is merely a collateral

fact, as when a witness refers to a writing of a

conversation which he heard and then jotted down

or when the writing is used merely as a point of

reference

c). when the contents were admitted

d). the writing is treated as an object

2. when there was failure to deny specifically under

oath the due execution and genuiness of the

document (Consolidated Bank vs. Del Monte Motors,

July 29, 2005)

III. Justifications for the rule.

1. To ensure accuracy and to avoid the risk

of mistransmission of the contents of a writing arising

from (i) the need of precision in presenting to the

court the exact words of a writing specially in

Lex Española 34

operatative or dispositive instruments such as deeds,

will and contracts, since a slight variation in words

may mean a great difference in rights (ii) substantial

danger of inaccuracy in the human process of

making a copy and (iii) as respect oral testimony

purporting to give from memory the terms of a

writing, there is special risk of error.

2. To prevent the possibility of the

commission of fraud or perjury, or substitution

Illustrations

1. The Marriage Contract as to the date,

place, the parties and solemnizing officer

2. The Insurance Contract/Policy as to the

coverage of the insurance

3. The deed of sale as to the consideration,

terms and conditions of the sale

4. The lease contract as to the terms thereof

5. The sworn statement as to perjury

6. In case of libel based on a published

article, the newspaper containing the article

7. The certified copy of the original

judgment of conviction to prove the prior conviction

to constitute recidivism or habitual delinquency

IV. The Gregorio Doctrine: In criminal cases of

falsification, it is indispensable that the judge have

before him the document alleged to have been

simulated, counterfeited or falsified unless:

1. The original is in the possession of the

adverse party/accused who refused to deliver or

present the same despite demand

2. The original is outside of the Philippines

and which, for official reasons, cannot be brought to

the Philippines. Example: The originals are US Treasury

Warrants which are with the US Treasury Department

in which case photostat copies are admitted

V. The Rule may be waived expressly or by failure to

object

VI - Rules on Electronic Evidence (Rule 4) –

Sec. 1. Original of an Electronic

Document – An electronic document shall

be regarded as the equivalent of an

original document under the Best Evidence

Rule if it is a printout or output readable by

sight or other means, shown to reflect the

data accurately.

Sec. 2. Copies as equivalent of

the originals – When a document is in two or

more copies executed at or about the

same time with identical contents, or is a

counterpart produced by the same

impression as the original, or from the same

matrix, or by mechanical or electronic re-

recording, or by chemical reproduction, or

by other equivalent techniques which

accurately reproduces the original.

Notwithstanding the foregoing, copies or

duplicates shall not be admissible to the

same extent as the original if: a genuine

question is raised as to the authenticity of

the original; or in the circumstances it would

be unjust or inequitable to admit the copy

in lieu of the original.

Carbon copies are deemed duplicate

originals. They may be introduced as evidence

without accounting for the non-production of the

original.

The Best Evidence Rule applies only when

the contents of the document are the subject of

inquiry. It does not apply when the issue is only as to

whether or not such document was actually

executed or in the circumstances relevant to its

execution.

SOME EXAMPLES:

1. Baptismal and Marriage Certificate

They are only evidence to prove the

administration of the sacraments on the

dates therein specified

- Baptismal certificate is not conclusive

proof of filiation being hearsay

2. Medical Certificate

- To prove torture inflicted by the police, the

medical certificate alone without the

testimony of the examining physician is

inadmissible (People v. Villagracia, 226

SCRA 398)

3. Residence Certificate

- The place of obtaining a residence

certificate and the date contained are not

conclusive as to the real residence or

domicile of a person owning said

certificate. (Zuellig v. Republic, 83 Phil. 768)

4. Tax declaration

Lex Española 35

- It can be used as evidence that a portion

of land had been sold. (Gacos v. CA, 212

SCRA 8)

5. Accounts and Account Books

- Where the custom broker‘s authorized

representative accepted the cargo ―OK

and complete‖ as shown in the surveyor‘s

report countersigned by him and it was

obviously his assigned task to note defects

in the cargo, said acceptance—if not

being outright upon the custom‘s broker—is

at least evidence of the condition of the

goods when thus received. (Insurance

Company of North America vs. C.F. Sharp &

Co., Inc. 18 SCRA 462)

- An audit made by or the testimony of a

private auditor is inadmissible in evidence

as proof of the original records, books of

accounts, reports or the like. (Compania

Maritima vs. Allied Free Workers Union, 77

SCRA 24)

After complying with the BEST EVIDENCE RULE, will the

court necessarily admit the original writing?

No. 1) The requirements of authentication of

documents must be met. There must be proof of

authentication. However this applies only when the

writing is a private document. 2) After

authentication, the proponent has to comply with

the rule that if the original writing is not in an official

language (English or Filipino), it is his duty to give to

the court a translation thereof. 3) If there is an

alteration, he must explain such alteration. He may

show that the alteration was made:

a) by another,

b) without his concurrence, or

c) made with the consent of the parties affected

by it, or

d) was otherwise properly or innocent made, or

e) The alteration did not change the meaning or

language of the instrument.

2. SECONDARY EVIDENCE

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 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 document

is in the custody of 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)

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)

EXCEPTIONS:

WHEN SECONDARY EVIDENCE MAY BE PRESENTED

I. Secondary Evidence: refers to any evidence to

prove the contents of a document other than the

original of the said writing. It maybe oral or written.

II. First Exception: ―When the original has been lost,

destroyed, or cannot be produced in court without

bad faith on the part of the offeror.

1. ― Lost/destroyed‖: the original is no longer

in existence

2. ―cannot be produced in court‖- the

original exist but either (i) it is of a nature that it is

physically impossible to bring it in court as in the

cases of a painting on a wall or tombstone or it

consists of the data stored in a computer (ii) would

entail great inconvenience, expense or loss of time if

brought to court, as in the case of a writing on a rock

(iii) it is outside the Philippine territory

3. ―without bad faith on the part of the

offeror‖- the lost or unavailability was not due to the

act or negligence of the party presenting secondary

evidence, or if due to the act or fault of a third

person, then the offeror had no part therein.

4. Procedural requirement: Foundation or

Order of Proof is:

(i) existence (ii) execution (iii) loss and (iv).

contents. Thus:

(i). Proof of the existence and the due

execution of the original through the testimonies of

Lex Española 36

the persons who executed the document; the

instrumental witnesses; by an eyewitness thereof;

who saw it after its execution and recognized the

signatures therein; by the person before whom it was

acknowledged, or to whom its existence was

narrated

Exception: Ancient documents.

(ii). Proof of the fact of loss or destruction of

the original through the testimonies of (a) anyone

who knew of the fact of the loss as in the case of an

eyewitness to the loss or testimony of the last

custodian (b) any who made a diligent search in the

places where the original was expected to be in

custody and who failed to locate it (c) one specially

tasked to locate but was unable to find the original,

as in the case of a detective.

If the original consists of several copies, all must be

accounted for and proven to be lost.

(iii). Proof of lack of bad faith on the part of

the offeror

(iv). Proof of the contents by secondary

evidence according to the Order of Reliability i.e.:

a). By a copy whether machine made or

handmade so long as it is an exact copy. It need not

be a certified copy

(b). By its Recital of the Contents in some

Authentic Document_ a document whether public or

private, which is shown to be genuine and not

manufactured or spurious, and which narrates,

summarizes or makes reference to the contents of

the original document.

Examples: personal diaries; letters;

annotation of encumbrances at the back of the title;

drafts or working papers; minutes and recordings by

secretaries; memoranda by an employer to a

secretary or employee; the baptismal records as to

the age of a person.

© Recollection or testimony of a witness

such as the parties, instrumental witnesses and

signatories thereto; one who read the original; one

present when the terms were discussed or to whom

the contents were related.

The testimony need not accurate as long as the

substance is narrated.

5. If the offeror failed to lay the proper

foundation but the opposing party did not make any

objection, the secondary evidence may be treated

as if it were on the same level as the original and

given the same weight as an original.

Illustration: PP. vs. Cayabayab (Aug. 03,

2005). In a rape case the prosecution presented a

photocopy of the birth certificate of the victim to

prove her age and which was not objected to. The

admissibility and weight were later questioned in the

Supreme Court.

1. The best evidence to prove a person‘s

age is the original birth certificate or certified copy

thereof; in their absence, similar authentic

documents maybe presented such as baptismal

certificates and school records. If the original or

certified true copy of the birth certificate is not

available credible testimony of the mother or a

member of the family maybe sufficient under the

circumstances. In the event that both the birth

certificate or authentic documents and the

testimonies of the victim‘s mother or other qualified

relatives are unavailable, the testimony of the victim

( a minor 6 years of age) maybe admitted in

evidence provided it is expressly and clearly

admitted by the accused.

2. Having failed to raise a valid and timely

objection against the presentation of this secondary

evidence the same became a primary evidence

and deemed admitted and the other party is bound

thereby.

III. Second Exception: When the original is in the

adverse party‘s custody and control.

A. The Foundation consists of the following:

1. Proof of the Existence and Due Execution of the

Original

2. Proof that the original is in the (a) actual physical

possession/custody or (b) control i.e. possession or

custody by a third person for and in behalf of the

adverse party, as that of a lawyer, agent or the

bank.

Maybe by the testimony of he who delivered the

document; registry return receipt by the Post Office

or some other commercial establishments engaged

in the delivery of articles and the receipt thereof, or

by one who witnessed the original being in the

possession of the adverse party.

3. Proof that reasonable notice was given to the

adverse party to produce the original: the notice

must specify the document to be produced.

a) If the documents are self incriminatory,

notice must still be sent as the adverse party may

waive the right

Lex Española 37

b) The notice may be a formal notice or an-

on-the-spot oral demand in court if the documents

are in the actual physical possession of the adverse

party.

4. Proof of failure or refusal to produce.

B. Effects of refusal or failure to produce:

1. The adverse party will not be permitted

later to produce the original in order to contradict

the other party‘s evidence

2. The refusing party maybe deemed to

have admitted in advance the accuracy of the

other party‘s evidence

3. The admission of secondary evidence

and its evidentiary value is not affected by the

subsequent presentation of the original.

4. Example: In G&M Phil. Inc. vs. Cuambot it

was held: ― the failure (of the employer) to submit the

original copies of the pay slips and resignation letter

raises doubts s to the veracity of its claim that they

were signed by the employee. The failure of a party

to produce the original of a document which is in

issue has been taken against such party, and has

been considered as a mere bargaining chip, a

dilatory tactic so that such party would be granted

the opportunity to adduce controverting evidence

C. Proof of the contents is by the same secondary

evidence as in the case of loss.

IV. Third Exception: When the original consists of

numerous accounts or other documents which

cannot be produced in court without great loss of

time and the fact sought to be established there from

is only the general result of the whole.

A. This is based on practical convenience

B. The Foundation includes:

1. Proof of the voluminous character of the

original documents

2. Proof the general result sought is capable

of ascertainment by calculation or by a certain

process, procedure or system

3. Availability of the original documents for

inspection by the adverse party so that he can

inquire into the correctness of the summary

C. How the general result is introduced: (a) by the

testimony of an expert who examined the whole

account or records (b) by the introduction of

authenticated abstracts, summaries or schedules

D. Illustrations:

1. The income of a business entity for a period of time

maybe known through the income tax return field by

it, or by the result of the examination of an

accountant

2. A general summary of expenses incurred maybe

embodied in a summary to which are attached the

necessary supporting receipts witness

3. The state of health of an individual maybe

established through the testimony of the physician

4. The published financial statement of SLU as

appearing in the White and Blue

V. Fourth Exception: When the original is a public

record in the custody of a public official or is

recorded in a public office

A.. The documents involved: (a) a strictly public

document such as the record of birth, the decision of

a court and (b) a private document which was

made part of the public record, such as a document

of mortgagee involving a registered land and

submitted of the Office of the Register of Deeds

B. Reason: The Principle of Irremovability of Public

Records i.e. public records cannot be removed or

brought out from where they are officially kept.

Reasons: (i) the records should be made accessible

to the public at all times (ii) the great in convenience

caused to the official custodian if he were called to

present the records to the court every now and then

and (iii) to guard against the possibility of

loss/destruction of the documents while in transit.

C. Exception or when the original has to be

presented. Only upon prior Order from the court as

when an actual inspection is necessary for the

proper determination of the case, as in cases of

falsification pursuant to the Gregorio Doctrine. In the

absence of a court order, the official may be liable

for infidelity in the custody of documents.

D. Secondary evidence allowed:

1. A certified copy issued by the official

custodian bearing the signature and the official seal

of his office. When presented the document must

bear the documentary and science stamp and the

accompanied by the official receipt of payment of

the copy

2. An official publication thereof

Lex Española 38

Section 4. Meaning of the term ‗Original‘

A. One the contents of which, is the subject of inquiry

as determined by the issues involved: Which

document is it that the contents of which is in

question?

Thus in case of libel and the issue is who be

the author of the libel as published? Then the original

is the letter sent to the media. But if the question is

whether the letter is libelous, then the original is the

letter.

If X xeroxed a letter by Ana to Juan and X

changed the contents by inserting libelous matters

against Juan, then the original would be the xeroxed

letter.

B. Duplicate Originals. Two or more copies executed

at or about the same time with identical contents.

1. Examples: carbon originals, blue prints,

tracing cloths. Copies mass produced from the

printing press or from the printer of computers.

C. Entries repeated in the regular course of business

one copied from the other at or near the time of the

transaction to which they relate, all are considered

as original.

1. Examples are entries in the Books of

Account which are copied from one book/ledger

and transferred to another

2. Entries in receipts for the sales for the day

which at night are recorded in a ledger and which in

turn are recorded in the sales for the week and then

entered in the ledger for the sales of the month.

3. Scores in the examination booklets which

are recorded in the teachers record which then are

recorded in the official grade sheet submitted to the

dean‘s office.

Requisites for admission of secondary evidence,

according to grounds

1. the original has been lost or destroyed, or

cannot be produced in court

1. prove execution or existence

2. prove cause of unavailability without

bad faith of the offeror

3. proof of contents in the following order

a. copy

b. recital of its contents in

i. some authentic

document, or

ii. testimony of witnesses

1. 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

i. copy

ii. recital of its contents in

some authentic

document, or

testimony of witnesses

1. 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

2. 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

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

1. 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

Lex Española 39

Secondary Evidence – Rule 130, Secs. 5-8

Instances when secondary evidence may be

introduced:

when original document is unavailable (lost,

destroyed or cannot be produced in court)

- The offeror, upon proof of (1) its execution or

existence and (2) cause of its unavailability, without

bad faith on his part may prove its contents by:

A copy

A recital of its contents in some authentic

document

The testimony of witnesses.

The order stated must be followed.

When original document is in adverse party‘s custody

or control.

- If after reasonable notice is given to the adverse

party to produce the document and after

satisfactory proof of the existence of the document is

made, he fails to produce the document, secondary

evidence may be presented.

when original document is a public record.

- Its contents may be proved by a certified copy

issued by the public officer in custody thereof.

A party who calls for the production of a document

and inspects it is not obliged to offer it as evidence.

The voluminous character of the document must be

established before evidence other than the original

may be introduced. (Compania Maritima vs. Allied

Free Workers, 1977)

In the case where the original is in the custody of the

adverse party, it is not necessary that it be in the

actual possession of the adverse party. It is enough

that the circumstances show that the writing is in his

possession or under his control. Secondary evidence

is admissible where the adverse party denies having

it in his possession. (Villa Rey Transit vs. Ferrer, 1968)

All duplicates or counterparts must be accounted for

before using copies as evidence. (De Vera vs.

Aguilar, 1983)

3. PAROL EVIDENCE RULE

Sec. 9 .Evidence of written agreements. — When the

terms of an agreement have been reduced to

writing, it is considered as containing all the terms

agreed upon and there can be, between the parties

and their successors in interest, no evidence of such

terms other than the contents of the written

agreement.

However, a party may present evidence to modify,

explain or add to the terms of written agreement if he

puts in issue in his pleading:

(a)An intrinsic ambiguity, mistake or imperfection in

the written agreement;

(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 term "agreement" includes wills. (7a)

THE PAROLE EVIDENCE RULE (Rule 130 (9)

Parol Evidence Rule (PER): 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.

Lex Española 40

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

mutual between the parties

1. of fact, not of law

2. alleged and put in issue in the pleadings

3. proved by clear and convincing, not

merely preponderance of, evidence

Parol 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

Nature of parol evidence rule:

It is not a rule of evidence but of substantive law.

It is part of the law of contracts, the law of

negotiable instruments, and the law of wills. It is

founded upon the substantive rights of the parties. It

was made part of the rules of evidence in order that

it may be considered in all its phases in one place.

Reasons for the parol evidence rule:

1) When the parties have reduced their agreement

in writing,

2) it is presumed that they have made the writing

3) the only repository and memorial of the truth, and

4) whatever is not found in the writing must be

understood to have been

waived or abandoned.

General Rule: When the terms of an

AGREEMENT (including WILLS) 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

(testimonial or documentary) of such terms other

than the contents of the written agreement.

Exceptions: A party may present evidence

to –

a. Modify,

b. Explain or

c. Add to the terms of written agreement if he puts in

issue in his pleading:

(a) An intrinsic ambiguity, mistake or

imperfection in the written agreement;

(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.

ILLUSTRATION: The vendee can validly tell the court

that the deed of sale is not really one of sale but one

or mortgage as long as he puts in issue in the

pleadings, any of the matters enumerated above.

[N.B. Art. 1602, NCC presumes that a deed of sale is

an equitable mortgage when: 1] price of sale with

right to purchase is unusually inadequate; 2) Vendor

remains in possession as lessee or otherwise; 3) When

another instrument extending period of redemption is

executed; 4) When purchaser retains for himself a

part of purchase price; 5) Vendor assumes tax; 6)

Other circumstances]

ILLUSTRATION: There is a sale of a piece of land in

favor of Juan dela Cruz. If you read the document

there is really nothing wrong because there is a

vendor, there is a vendee and there is an object and

consideration. But it turns out that there are two

persons who carry the name Juan de la Cruz. That

document is intrinsically ambiguous because we do

not know who the vendee in that sale. The defect

can be remedied by the introduction of testimonial

Lex Española 41

evidence or other documentary evidence to show to

the court who is the Juan dela Cruz mentioned in the

deed of sale as the vendee.

But if in that deed of sale where Juan dela

Cruz is the vendee, and there is only one Juan dela

Cruz, but the property sold is simply a piece of land.

There is an ambiguity what particular land is sold as

there is no description. The ambiguity is extrinsic. It

arises from the face of the document itself. Here we

cannot introduce evidence aliunde. The contract is

void, which under the Rules cannot allow be

corrected and converted into a valid contract.

US cases and some Philippine cases recognized

intermediate ambiguity, and evidence aliunde

may be admitted by the court to explain or add

to its meaning. This arises by the use of equivocal

word/s which is susceptible of more than one

interpretation.

Example: Defendant sold to plaintiff a

distilling apparatus of guaranteed capacity of

6,000 liters daily. Defendant claimed that the

phrase referred to ―receiving‖ capacity. Here

the word ―capacity‖ was susceptible of two

interpretations. SC held that parol evidence is

admissible to show which of the two

interpretations meant by the parties. (Palanca v.

Fred Wilson & Co., 37 Phil. 506)

What is the coverage of the parol evidence rule and

what are the exceptions to the parol evidence rule?

a. Covered. Only prior and contemporaneous

agreements which are deemed to have been

merged in the writing conformably to the "integration

of the agreement rule." (Woodhouse v. Halili, 93 Phil.

526)

b. Not covered.

1) Subsequent agreements,

notwithstanding that such agreements may have the

effect of adding to, changing, modifying, or even

altogether abrogating the contract of the parties as

evidenced by the writing.

2) Collateral agreements which although

oral and contemporaneous with the writing are

separate and distinct agreements. (PNB v. Seeto, 91

Phil. 756)

3) It also does not apply if the issue revolves

around fraud and false representation since they are

incidental to the execution and not to the

integration. (Woodhouse vs. Halili, 1953)

4) It does not apply either when third parties

are involved. (Lechugas vs. CA, 1986)

NOTES:

a.Contemporaneous agreement. A

contemporaneous agreement is one entered into at

the same time as the agreement which has been

reduced to writing.

b. Tests to determine whether a contemporaneous

oral agreement is separate and distinct from the

written agreement and therefore provable by parol

evidence:

1) The first test is the subject-matter of the

two agreements. If the subject-matter of the written

agreement is different from that of the

contemporaneous oral agreement, then the latter is

a separate and distinct agreement and, therefore,

provable by parol evidence.

2)If the two agreements refer to the same

subject-matter, the test is to determine whether or

not the contemporaneous oral agreement is

separable, then the contemporaneous oral

agreement is separate and distinct and, therefore,

probable by parol evidence. (Lese v. Lamprecht,

196 N.Y. 32)

c. Example of agreement which CANNOT be proven

by parol evidence: Express trusts concerning real

property cannot be proven by parol evidence

because title and possession cannot be defeated by

oral evidence which can easily be fabricated and

contradicted. (Sinaon, et al., v. Sorongon, et al., 136

SCRA 410)

d. Examples of collateral agreements which CAN be

proved by parol evidence:

1) An agreement of reconveyance is a

distinct agreement, separate from the sale itself,

although the two agreements are usually contained

in one and the same document. (Laureano v.

Kilayco, 34 Phil. 148; Yacapin v. Neri, 40 Phil. 61)

2) Inducements and representations which

led to the execution of an agreement may be

proven by parol evidence because they do not vary

the terms of the agreement. (Woodhouse v. Halili, 93

Phil. 526; Bough v. Cantiveros, 40 Phil. 209)

3) Parol evidence is admissible to prove an

independent and collateral agreement which

constitutes an inducement to the making of the sale

Lex Española 42

or part of the consideration thereof. (Robles v.

Lizarraga Hnos., 50 Phil. 387)

4) A condition precedent not stipulated in

writing is provable by oral evidence. REASON:

Before the happening of the condition, there is no

written agreement yet to which the parol evidence

may apply.

5) Verbal assurances given by the indorser

of an out-of-town check to the employees of the

bank where it was presented for encashment that he

would refund the amount if the check should be

dishonored by the drawee bank is a collateral

agreement separate and distinct from the

indorsement, by virtue of which the first bank was

induced to cash the same, and therefore, provable

by parol evidence. (PNB v. Seeto, 91 Phil. 756)

6) Any prior or contemporaneous

conversaion in connection with a note or its

indorsement may be proved by parol evidence.

(PNB v. Seeto, 91 Phil. 756; Philips v. Preston, 5 How.

[U.S.] 278)

7) An extrinsic agreement between

indorser and indorsee which cannot be embodied in

the instrument without impairing its credit may be

proved by parol evidence. (PNB v. Seeto, 91 Phil.

756; 9 Wigmore 148)

8.) The fact that parties who appear to

have signed as principals did so as merely sureties is

provable by parol evidence. (Tan Machan v. De la

Trinidad, 3 Phil. 684)

FALSA DEMONSTRATION NON NOCET

―False description will not invalidate an instrument‖

The erroneous description will be considered as a

surplusage.

ILLUSTRATION: In a deed of sale of a parcel of land

covered by: TCT 12345, located in City of Muntinlupa.

There is really a land covered by TCT 12345 with same

technical description however it is not located in

Muntinlupa, but in Laguna. The erroneous description

will not invalidate the contract.

Best evidence rule distinguished from parol evidence

rule:

1) Under the best evidence rule, the issue is contents

of a writing (Sec. 3, Rule 130, ROC) WHILE under the

parol evidence rule, there is no issue as to contents

of a writing (Sec. 9, Rule 130, ROC);

2) Under the best evidence rule, secondary

evidence is offered to prove the contents of a

writing, which is not allowed unless the case falls

under any of the exceptions (Sec. 3, Rule 130, ROC)

WHILE under the parol evidence rule, the purpose of

the offer of parol evidence is to change, vary,

modify, qualify, or contradict the terms of a

complete written agreement, which is not allowed

unless the case falls under any of the exceptions.

(Sec. 9, Rule 130, ROC)

Only the parties and their successors in interest, and

not strangers may invoke the protection of the parol

evidence rule. (Sec. 9, Rule 130, ROC)

PAROLE EVIDENCE DISTINGUISHED FROM STATUTE OF

FRAUDS

The Statute of Frauds requires that certain

agreements be proved by writing or by some note or

memorandum thereof in order to be enforceable.

On the other hand, the Parole Evidence Rule has

nothing to do with the manner of proving

agreements. Its object is to prohibit alteration,

change, modification, variation or contradiction of

the terms of a written agreement by ―parol

evidence‖.

Section 9. Evidence of Written Agreements.

―When the terms of an agreement had been

reduced into writing, it is considered as containing all

the terms and conditions 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.

I. Essence of the Rule: It forbids or prohibits any

attempt to vary, contradict, or modify the terms of a

written agreement by the use of testimonial/oral

evidence.

II. Basis and Reason: The Principle of Integration of

Jural Acts. The written agreement is the final

culmination of the negotiation and discussion of the

parties as to their respective proposals and counter-

proposals and is the final and sole repository,

memorial and evidence of what was finally agreed

upon. Therefore, whatever is not found in the written

agreement is deemed to have been abandoned,

disregarded, or waived by them. Only those

contained in the written agreement are considered

the only ones finally agreed upon and no other. Thus

oral testimony will not be permitted to show there

were other agreements or terms between the

parties.

III. Purposes: (i) to give stability and permanence to

written agreements otherwise they can be changed

anytime by mere testimony, then written agreements

Lex Española 43

would serve no useful purpose (ii) to remove the

temptation and possibility of perjury which would be

rampant if oral/parole evidence were allowed as a

party may resort to such testimony in order to either

escape compliance with his obligation, or to create

fictitious terms favorable to him.

IV. Distinguished from the Best Evidence Rule. Both

refer to a written document but they differ in the

following aspects:

1. As to what is prohibited: the BER prohibits

the introduction of inferior evidence when the best

evidence is available whereas the PER prohibits the

introduction of oral testimony to vary the terms of a

written agreement.

2. As to scope: the BER applies to all kinds of

written documents while the PER is limited to

contracts and wills

3. As to the substance of the evidence: the

BER goes to the form of the evidence while the PER

goes to the very substance of the evidence

4. As to who may invoke: the BER may be

invoked by any party to a case while the PER may be

invoked only by a party to the written agreement

and his successor in interest, or by one given right or

imposed an obligation by a written agreement.

5. As to the issue: BER is to the contents

V. Requirements for the Application of the Rule

1. That there be a valid written contract or a written

document which is contractual in nature in that it

involves the disposition of properties, creation or

rights and imposition of obligations

a). Void contracts do not create any right

and produces no legal effects

b). The contract maybe in any written form

whether in the standard form or as worded by the

parties themselves

c). The document may be signed or not as

in the case of way bills, tickets

d). The rule does not cover mere receipts of

money or property since these are incomplete and

are not considered to be the exclusive memorial of

the agreement and are inconclusive

e). However a ―Statement of a Fact‖, as

distinguished from statements which constitute

―Terms of the Contractual Agreement‖ maybe

varied, such as statements as to the personal

qualifications of the parties.

2. That there is a dispute as to the terms of

the agreement

3. That the dispute is between the parties to

the contract or their successors or that the rule is

invoked by one who is given a right or imposed an

obligation by the contract. This is because the

binding effect of a contract is only upon the parties

thereto or their successors.

VI. When Contemporaneous/prior agreements

maybe proved without violating the Principle of

Integration of Jural Acts: These refer to

Contemporaneous or prior agreements which, even

if they affect or relate to the contract, may still be

proven by the parties by oral testimony.

1. Those which refer to separate and distinct

subject matters and which do not vary or contradict

the written agreement.

Example: The buyer of a land in a written contract

may prove by oral testimony that the seller agreed to

give him the right of first refusal of the seller‘s

adjoining lot. Similarly the promise of first refusal by

the lessor in favor of the lessee may be proven by

oral testimony.

2. Those which constitute ―Conditions

Precedent‖ if the written contract specifically stated

that it shall be complete and effective upon the

performance of certain conditions.

Example: that the contract be first referred to a third

person who must give his approval thereto or that a

third person should also sign as a witness thereto.

3. Those which are the moving and

inducing cause, or that they form part of the

consideration and the contract was executed on the

faith of such oral agreement in that : (i) the party

would not have executed the contract were it not

for the oral agreement and ii) they do not vary or

contradict the written agreement.

a). The promise by a vendor to give a road

right of way to the vendee over the latter‘s

remaining property

b). An agreement to allow the son of the

vendor to occupy a room free of charge in the

apartment sold, for a certain period of time

Lex Española 44

c). An agreement that the vendor shall

harvest the standing crops over the land sold

d). An agreement that the vendor shall

cause the eviction of squatters from the land sold

e) That the party was to pay off the

indebtedness of the other; or to give or deliver a

thing to a third person.

VII. Statutory Exceptions to the Rule

CONCEPT: When oral testimony is allowed even if

they pertain to the contents, terms or agreements of

the document, provided they were specifically

alleged in the pleadings by the party concerned.

A. That there is an intrinsic ambiguity

1. Ambiguity refers to an uncertainty or

doubt in the document or something in its provisions

is not clear, or of being susceptible to various

interpretations or meanings. They are either (a) latent

or intrinsic (b) patent or extrinsic and (c) intermediate

ambiguity

2.Latent or Intrinsic- The

instrument/document itself is clear and certain on its

face but the ambiguity arises from some extrinsic,

collateral or outside factor, thus there is an

uncertainty as to how the terms are to be enforced.

a). It is of two kinds: (i) when the description

of the person or property is clear but it turns out the

description fits two or more persons or things and (ii)

where the description of the person or object is

imperfect or erroneous so as to leave doubt what

person or object is referred to.

b). Examples: (i) the donee is described as

―My uncle Tom‖ but the donor has several uncles

named Tom (ii) the thing sold is ―my house and lot in

Baguio City‖ but the vendor has three houses and

lots in Baguio City (iii) the money shall be for the

tuition fee of my son ―who is enrolled in SLU‖ but it is

the daughter who is enrolled in SLU while the son is

enrolled in UB (iv) the subject of the sale is the

vendor‘s ―two storey house in Bakakeng‖ but what

he has in Bakakeng is a grocery store and it is his

house in Aurora Hill which is two stories.

c). Reason for the exception: the

introduction of oral testimony does not vary or

contradict the document but it aids the court in

ascertaining and interpreting the document thereby

enabling it to give effect and life to the document.

3. Patent or Extrinsic (Ambiguitas patens) –

the uncertainty is very clear and apparent on the

face of the document and can easily be seen by

simply reading the terms/contents of the document.

a). Aside from being clear and apparent,

the ambiguity is permanent and incurable. It cannot

be removed or explained even with the use of

extrinsic aids or construction or interpretation.

b). Examples: (i) A promissory note or

memorandum of indebtedness which does not

specify the amount of the obligation (ii) sale of

property without the property being described or (iii)

where the description is ―one of several properties‖

or one of several persons is mentioned but he is not

specifically identified e.g. ― I leave my cash to my

favorite son‖.

4. Intermediate Ambiguity – where the

ambiguity consists in the use of equivocal

words/terms/phrases or descriptions of persons or

property. Parole evidenced is admissible to ascertain

which sense or meaning or interpretation was

intended by the parties.

a). Examples: (i). the use of the word

―dollar‖ (ii) the use of the term sugar (iii) where in a

deed of mortgage it was uncertain which amount of

loan was being secured

B. There was a Mistake or Imperfection

1. Imperfection includes situations of

inaccurate descriptions

2. Mistake- when a person did or omitted to

do an act by reason of an erroneous belief or

interpretation of a law or assessment of a fact, or

due to ignorance, forgetfulness, unconsciousness, or

misplaced confidence.

a). Must be of a fact and is mutual to both

the parties

b). Examples: (i) both were in error as to the

property sold and described in the deed of sale i.e.

another property as the one involved and not that

described in the document (ii). two persons were

supposed to be witness but were named instead as

parties (iii) the writing was incomplete when it

mentioned only some but not all the terms agreed

upon.

C. The Failure of the Written Agreement to Express the

True Intent and Agreement of the Parties

1. The deed maybe ambiguous or vague

either through ignorance, lack of skill or negligence

of the party/person who drafted the deed, or

through the use of imprecise words.

Lex Española 45

2. Maybe cured through the remedy of

reformation of instrument

3. Example: (i) The deed turned out to be a

sale when the intention was as a security or (ii) the

deed was a sale and not an SPA

D. The Validity of the Agreement is Put In Issue

1. One or both parties assert the agreement

or document is null and void or unenforceable for

lack of the essential elements of a valid contract.

E. In case of Subsequent Agreements- the terms and

conditions being testified on were agreed upon after

the execution of the document

1. As in the case of novation of the

document, in whole or in part

2. Parties are free to change or modify or

abandon their written agreement in which case it is

the latter which should be given force and effect

4. INTERPRETATION OF DOCUMENTS

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 who 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)

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 in 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)

C. TESTIMONIAL EVIDENCE

1. QUALIFICATION OF WITNESSES

Sec. 20 . Witnesses; their qualifications. — Except as

provided in the next succeeding section, all persons

who can perceive, and perceiving, can make their

known 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 ground for

disqualification. (18a)

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

Lex Española 46

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)

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)

Sec. 23 . Disqualification by reason of death or

insanity of adverse party. — Parties or assignor 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)

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;

(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;

(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 capacity, and

which would blacken the reputation of the patient;

(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;

(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)

TESTIMONIAL EVIDENCE

I. CONCEPT: This is the third kind of evidence as to

form. It is evidence consisting of the narration of a

person, known as a witness, made under oath and in

the course of the judicial proceedings in which the

evidence is offered.

II. WITNESS: A witness is a natural person who testifies

in a case or one who gives oral evidence under oath

before a judicial tribunal. Evidence obtained through

the presentation of animals is treated as object

evidence.

A. Necessity of Witnesses: Objects and

documents do not explain themselves. Their

relevance, meaning and significance, can only be

known through the testimony of a witness. Likewise,

events, as well as persons involved in an event, can

only be known through the narration of a witness.

B. Duty to Testify is a Legal Duty and not just

a matter of civic consciousness. This may be

enforced by the imposition of sanctions by the court,

such as a citation for contempt and consequent

payment of a fine or imprisonment.

C. The following may not compelled to

testify as witnesses:

1. The President while in Office

2. Justices of the Supreme Court

3. Members of Congress while Congress is in Session

4. Foreign Ambassadors to the Philippines

5. Consuls and other foreign diplomatic officials if

exempted by a treaty

6. The accused in a criminal case

III. QUALIFICATION OF WITNESSES. Section 20

provides. ―All persons who can perceive and

Lex Española 47

perceiving can make known their perception to

others, may be witnesses‖.

GR: A disinterested person could be compelled to

give his testimony through subpoena

Exceptions: Persons who are immune from the

process of subpoena by tradition, convention or law:

a. Ambassadors of foreign countries by

virtue of treaty obligations

b. President of the Philippines or other

country

A. Four Qualities of a Witness

1. Testimonial Quality of Perception

a). Capacity to perceive means to be able

to observe by the use of the senses including the

ability to receive impressions from the outside world

and to grasp or understand these impressions.

b). This must exist at the time of the

occurrence of the event to which the witness is

testifying even if it is lost at the time of testifying.

2. Testimonial Quality of Memory

a). the ability to retain the impressions

received or observations made and to recollect

them in court

b). this must exist at the time of testifying

c). selective memory or lapses in memory

affect merely credibility

3. Testimonial Quality of Narration or Communication

a). The ability to interpret, explain, relate or

communicate in a manner which can be

understood by the court, either through spoken

words, writings, or sign language.

b). It must exist at the time of testifying

4. Testimonial Quality of Sincerity

a). The awareness of both a duty to tell the

truth and to be liable in case of intentional lies, or the

recognition of the obligation of an oath

b). The willingness to be placed under oath

or affirmation

B. Additional Requirement in cases under the Rules

on Summary Procedure : The intended witness must

have (a) executed a sworn statement (b) submitted

before hand to the court and (c) is present in court

and is available for cross-examination by the adverse

party.

C. COMPETENCY of a witness

1. Distinguished from credibility: Competency is the

legal fitness or legal capacity of a person to testify as

a witness. Competency involves a determination of

whether the person offered as a witness has all the

qualifications prescribed by law and is not among

those disqualified by law or by the rules of evidence.

( Note: One who is not qualified is loosely termed as

―incompetent‖ which is not the accurate term)

Credibility goes to the character of the

witness to be believable or not. This goes to the truth

of the testimony. It includes the ability of the witness

to inspire belief or not.

Hence a witness maybe competent but is

not credible.

2. Presumption of Competency: When a person is

offered as a witness, he is presumed to be

competent. He who claims otherwise has the

burden of proving the existence of a ground for

disqualification.

a). The Method of questioning the

competency is by raising an objection to the

presentation of the witness or to his continued

testimony.

b). The time to raise an objection is as soon

as the ground becomes apparent which may either

be: (i) at the time the person is offered and

presented to be a witness and before he actually

testifies or (ii). At the time he is actually testifying.

IV. DISQUALIFICATION of a witness

A. Who Are Disqualified: General Rule: Only those

expressly covered under the enumerations by law

maybe disqualified from testifying

B. Exclusivity of The Grounds for Disqualification: The

grounds are limited exclusively and restrictively to

those enumerated by the law. The following are not

grounds: (i) interest in the outcome of a case (ii)

relationship to a party, as both affect merely

credibility (iii). Sex (iv). race (v). creed (vi). property or

(vii). prior conviction of a crime.

Lex Española 48

C. Kinds of Disqualification

1. Total or absolute - the person is

disqualified from being a witness due to a physical or

mental cause

2. Partial or relative- the witness is

disqualified from testifying only on certain matters but

not as to others facts

D. Voir Dire Examination: the examination

conducted by the court on the competency of a

witness whenever there is an objection to the

competency of the witness and is usually made

before the witness starts with his testimony. The party

objecting maybe allowed to present evidence on his

objection or the court itself may conduct the

questioning on the witness.

Disqualifications of witnesses:

a). Mental incapacity or immaturity (Sec. 21, Rule

130, ROC);

A. By reason of mental incapacity or

immaturity – Rule 30, Sec. 21

- 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;

- 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.

A mental retardate is not for this reason

alone disqualified from being a witness. (People vs.

Salomon, 1993)

Requisites of competency of a child as

witness: capacity of observation; capacity of

recollection; and capacity of communication.

(People vs. Mendoza, 1996)

Section 21. Disqualification by reason of Mental

Incapacity or immaturity.

I. There are the two grounds for absolute incapacity.

II. Mental Incapacity: 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.

A. They include the following:

1. Medically Insane persons unless they are

testifying during their lucid intervals.

a). Sanity is presumed, it is the opponent

who must prove this ground.

b). However, the party presenting the

witness must prove sanity in these two instances: (i) if

the witness has been recently declared as of

unsound mind by the court or by a competent

physician (ii. is an inmate in an asylum or mental

institution.

2. Persons medically sane may be

considered as legally insane if at the time they are to

be presented as witness, they are incapable of

testifying truthfully or of being aware of the obligation

to testify. Included here are drunks, those under the

influence of drugs or alcohol, or suffering from some

temporary mental disability.

3. Mental defectives such as idiots,

imbeciles or morons and other mental retardates are

not disqualified by this reason alone although this

may affect their credibility

4. Deaf mutes are not disqualified so long as

they are able to communicate in some manner

which can be understood and, in case of the use of

sign-language, the interpretation thereof can be

verified.

III. Mental Immaturity: these refer to children of

tender age whose mental maturity is such as to

render them incapable of perceiving the facts

respecting which they are examined and of relating

them truthfully.

A. Age is not the criterion but the

intelligence and possession of the qualities of a

witness

B. The credibility of Children as witness take

into account two possibilities: (i) children are prone to

exaggerate and influenced by suggestions from

adults and (ii) lack of motive to testify falsely

C. Under the Rule On Examination of a

Child Witness, it is provided that:

a). Every child is presumed to be qualified

to be a witness

b) The court may however conduct a

competency examination (voir dire examination)

motu proprio or on motion of a party, when it finds

that substantial doubt exists regarding the ability of

Lex Española 49

the child to perceive, remember, communicate,

distinguish truth from falsehood, or appreciate the

duty to tell the truth in court.

b). Marriage (Sec. 22, Ibid);

B. Marital Disqualification – Rule 130,

Sec. 22

General Rule: During their marriage, neither the

husband nor the wife may testify for or against the

other without the consent of the affected spouse.

Exceptions:

- 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.

The right to invoke this disqualification belongs to the

spouse-party (Ortiz v. Arambulo, 8 Phil. 98) against or

for whom the testimony is being proferred. It may be

waived

1) By a failure to interpose timely objection, or

2) By calling the other spouse as witness (Ibid.,

People v. Francisco, 78 Phil. 694)

The privilege could be invoked even if the spouse is

testifying in favor of the spouse-party because

damaging testimony may be elicited during the

cross-examination.

DIFFERENCE between PRIVILEGE AND MARITAL

DISQUALIFICATION

a. Privilege is applicable regardless of whether the

spouses are parties or not

- Marital disqualification is applicable only when one

or both spouses are parties

b. The privilege applies to testimonies on confidential

communication only

-Marital disqualification applies to testimony on any

fact

c. Marital disqualification ceases after dissolution of

marriage

-Privileged communication lasts even after the death

of either spouse

d. Even if the communication is not confidential, the

marital disqualification may still be invoked

e. Marital disqualification is more concerned with the

consequences. If the rule is not there, perjury and

domestic disunity may result.

- Privilege protects the hallowed confidences

inherent in marriage b/w husband and wife and

therefore guarantees the preservation of the

marriage and further the relationship between the

spouses as it encourages the disclosure of

confidential matters without fear of revelation.

‗Marrying the Witness‘

An accused can effectively ―seal the lips‖ of a

witness by marrying the witness. As long as a valid

marriage is in existence at the time of the trial, the

witness-spouse cannot be compelled to testify—

even where the crime charged is against the witness‘

person, and even though the marriage was entered

into for the express purpose of suppressing the

testimony. (Marriage for convenience)

CASE: A filed a complaint against husband and

wife for annulment of a contract by reason of fraud.

(H&W both defendants). A subpoenaed the wife to

be his hostile witness which is allowed in civil cases.

When the wife received the subpoena, the husband

filed a motion in court for the quashing of the

subpoeana, on the ground that there is a violation of

the rule on marital disqualification/spousal immunity.

A told the court that this is not a case where the wife

will be giving testimony as an adverse witness in favor

of the plaintiff. So the rule on spousal immunity does

not apply.

Ruling of the Court: Spousal immunity applies. If the

wife was allowed to testify as an adverse witness for

the plaintiff, she might give testimony that he will

harm her interest and that of her husband. So that

there will be a violation of the spousal immunity.

A conceded. A told the court now that if he

cannot compel the wife to be an adverse witness,

then he should be allowed to get the deposition of

the wife, because under the Rules of Court when the

deposition of a person is taken, it does not

necessarily mean that the deponent will be used as

a witness in court, since it is only a mode of discovery.

Ruling of the Court: Even if the purpose is just to get

the deposition of the wife the rule on spousal

immunity applies.

CASE: A son filed a complaint against his own

father for recovery of property or some assets. The

son asked her mother to testify in his favor. SC held

Lex Española 50

that there will be a violation of the spousal immunity

rule.

Note: As long as there is a case INVOLVING the

husband OR wife, the disqualification is absolute.

Section 22. Disqualification by reason of marriage or

the Martial Disqualification Rule.

I. Statement of the Rule:

During the marriage neither spouse ( i.e. the witness

spouse) may testify for or against the other (i.e. the

Party spouse) without the consent of the affected

spouse ( i.e. the party spouse).

II. Reason for the Rule

A. Identity of Interest: hence compelling a person to

testify against the spouse is tantamount to

compelling the witness to testify against himself.

B. To avoid the danger of admitting perjured

testimony and to prevent the witness spouse from

being liable for perjury.

C. As a matter of public policy of preserving the

marital relationship, family unity, solidarity and

harmony.

D. To prevent the danger of punishing the party

spouse through hostile testimony, especially in cases

of domestic troubles between the spouses.

III. Requisites for Applicability

A. One Spouse is a party to a case, whether civil or

criminal, singly or with other third persons

B. The spouses are validly married. These include

voidable marriages as well as those where there is a

presumption of a valid marriage in the absence of a

marriage contract.

1. Bigamous marriages and common-law

relationships are excluded.

2. The reason behind or purpose behind the

marriage is immaterial, as when the marriage was

intended precisely to prevent one from testifying

C. The marriage is subsisting at the time one is called

to testify against the other in that it has not been

dissolved by death or by law. Thus the prohibition is

not perpetual.

D. The case is not one against the other

E. The consent of the party spouse has not been

obtained nor has he waived the rule in any other

way.

IV. Form of Prohibited Testimony or When a Violation

Exists

A. When the spouse is actually called in court to

testify as a witness to facts

B. When the witness is asked to submit objects, or

documents or other evidence in court even if not

actually called to testify

C. When a third person is presented as a witness and

is asked to divulge declarations or information

revealed to the third person by the spouses, which

declarations or information affect the liability of the

party spouse.

1. The revelation must be in confidence

2. If the declaration was made in the

presence or hearing of another person, then there is

no violation of the rule.

V. Waiver of the Rule

A. Expressly, or when the party spouse give consents

B. Impliedly: (i) as when the party spouses interposes

no objection to the presentation of the witness

spouse (ii) when the party-spouse presents his/her

spouses as his/her own witness (iii) When the party-

spouse imputes the wrong doing to the other

spouse, the latter may testify to rebut the

imputation.

VI. EXCEPTIONS: WHEN SPOUSES MAY TESTIFY AGAINST

EACH OTHER

A. In a civil case filed by one against the other.

Examples: cases of annulment, legal separation,

support, declaration of mental incompetency,

separation of property.

B. In a criminal case for a crime (i) committed by

one against the other such as those involving

physical assault and violence; Violation of RA 9262;

economic abuse or (ii) against the direct ascendant

or descendant of the other

C. When the reason for the law has ceased.

Where the marital and domestic relations are so

strained that there is no more harmony to be

preserved, nor peace and tranquility which maybe

disturbed, the reasons based on such harmony and

tranquility no longer apply. In such cases, the identity

Lex Española 51

of interest disappears and the consequent danger of

perjury based on identity of interest disappears. (The

law ceases when the reason for the law ceases)

c). Death or insanity of adverse party (Sec. 23, Ibid.)

C. Dead Man‘s Statute – Rule 130, Sec. 23

- Sometime called the ―Survivor‘s disqualification

rule‖

Parties or assignor 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.

Exceptions to the survivor‘s disqualification rule:

1) Ordinary witnesses, who are not the plaintiff,

assignor of plaintiff, or person in whose behalf the

case is prosecuted may testify. (Francia v. Hipolito,

93 Phil. 968)

2) When the plaintiff is a corporation, the officers or

stockholders thereof are not disqualified. (Lichauco

v. Atlantic Gulf, et c., 84 Phil. 330)

3) When there is an imputation of fraud against the

deceased, the plaintiff is not barred from testifying to

such fraud. (Go Chi Gun v. Co Cho, 96 Phil. 622)

4) When the plaintiff is the executor, administrator or

legal representative of the deceased, or the person

of unsound mind, the defendant or defendants are

free to testify against the plaintiff. (Tongco v.

Vianzon, 50 Phil. 698)

5) When the defendant or defendants, though heirs

of the deceased, are sued in their personal and

individual capacities, the plaintiff may testify against

them. (Go Chi Gun v. Co Cho, 96 Phil. 622)

6) When the survivor's testimony refers to a negative

fact. (Mendezona v. vda. de Goitia, 54 Phil. 557)

7) When the survivor's testimony is favorable to the

deceased. (Icard v. Marasigan, 71 Phil. 419)

8) The adverse party is competent to testify to

transactions or communications with the deceased

or incompetent person which were made with an

agent of such person in cases in which the agent is

still alive and competent to testify. But the testimony

of the adverse party must be confined o those

transactions or communications which were had with

the agent. (Goni, et al., v. Court of Appeals, et al.,

144 SCRA 231)

How protection of the dead man‘s statute is waived:

1) By not objecting to plaintiff's testimony on

prohibited matters. (Marella v.

Reyes, 12 Phil. 1)

2) By cross-examining the plaintiff on prohibited

matters. (Tongco v. Vianzon, 50

Phil. 698)

3) By calling witnesses to testify on prohibited

matters. (Arroyo v. Azur, 76 Phil.

493)

4) When the plaintiff's deposition is taken by the

representative of the estate or when counsel for the

representative cross-examined the plaintiff as to

matters occurring during the deceased's lifetime.

(Goni, et al., v. Court of Appeals, et al., 144 SCRA

231)

CASE: Mr. D approaches Mr. C to borrow P100,000 to

be paid next year. Mr. C gives Mr. D the amount. Mr.

C did not require Mr. D to execute a promissory note.

A day before the agreed date of payment, Mr. D

died. Mr. C went to the executor of the estate of Mr.

D and claims the payment of the debt.

In this case, Mr. C is incompetent to testify as to

the transaction he had with Mr. D.

SEC. 23. DISQUALIFICATION BY REASON OF THE DEATH

OR INSANITY OF THE ADVERSE PARTY.

―Parties, or assignors of parties to a case, or persons

in whose behalf a case is prosecuted against an

executor, administrator or representative of a

deceased person, or against a person of unsound

mind, upon a claim or demand… cannot testify as to

any matter of fact occurring before the death of the

deceased person or before such person became of

unsound mind.‖

Lex Española 52

I. CONCEPT. This is also known as the Dead Man‘s

Statute or Suvivorship Disqualification Rule.

A. The disqualification is merely relative as it is based

on what the witness is to testify on.

B. The purposes are (i) to put the parties on equal

footing or equal terms as to the opportunity to give

testimony. ‖If death has closed the lips of the

defendant, then the law closes the lips of the

plaintiff‖. (ii) to guard against the giving of false

testimony.

II. APPLICABILITY

A. The case must be a civil case where the

defendant is the executor, administrator or

representative of the deceased person of person of

unsound mind. But the rule will not apply to a

counter-claim against the plaintiff.

B. The subject is a claim or demand i.e. one that

affects the real or personal properties:

1. The case must be a personal action for

the enforcement of a debt or demand involving

money judgment, or where the defendant is

demanded to deliver personal property to plaintiff

2. The evidence of this claim is purely

testimonial and allegedly incurred prior to the death

or insanity. They are therefore fictitious claims.

C. The subject of the testimony is as to a matter of

fact occurring before the death or insanity. The

testimony is the only evidence of the claim or

demand.

1. The death/insanity maybe before or

during the pendency of the case so long as it was

before the death/insanity.

2. The matters prohibited are those made in

the presence and hearing of the decedent which he

might testify to if alive or sane, i.e. adverse to him,

and not to those which maybe known from other

sources.

D. The rule does not apply to the following

1. To claims or demands which are not

fictitious or those supported by evidence such as

promissory notes, contracts, or undertakings,

including the testimony of disinterested witnesses.

2. Fraudulent transactions of the deceased

or insane person, as when the deceased was an

illegal recruiter or that he absconded with money

entrusted to him

3. To mere witnesses

4. Stockholders/members of a juridical

entity testifying in cases filed by the juridical entity

5. Claims favorable to the estate.

III. The rule maybe waived expressly or by

failure to object or byintroducing evidence

on the prohibited matter

Privileged communication (Sec. 24)

[Applies to Rules on Electronic Evidence]

1) Marital privileged communication rule

(Sec. 24 [a], Ibid.);

2) Lawyer-client privileged communication

rule (Sec. 24 [b], Ibid.);

3) Doctor-patient privileged

communication rule (Sec. 24 [c], Ibid.)-

(N/A in criminal cases)

4) Priest-penitent privileged

communication rule (Sec. 24 [d], Ibid.); and

5) Public officer privileged communication

rule (Sec. 24 [e], Ibid.)

Disqualification by reason of privileged

communications.

I. INTRODUCTION. Claim of Privilege. Witnesses may

refuse to testimony on certain matters under the

principle that the facts are not to be divulged or that

they are privileged communications. These are facts

which are supposed to be known only between the

communicant and the recipient.

A. Distinguished from incompetency.

1. A privilege is a rule of law which excuses

a witness from testifying on a particular matter which

he would otherwise be compelled to reveal and

testify on. It is a legal excuse to prevent the witness

Lex Española 53

from revealing certain data. The witness may claim

this excuse.

2. An incompetency is a ground for

disqualification which may be invoked by the

opposing party to prevent a person from being

presented as a witness.

3. Thus a person maybe competent as a

witness but he may invoke a privilege and refuse to

testify on a certain fact.

B. Purpose of a Privilege: to protect the

confidentiality or privacy of certain relationships.

They are usually based on public policy which

recognizes that the protection of certain relationship

is more paramount than the testimony of the witness.

C. Privileges are to be strictly construed.

D. Who may claim the privilege: it may be asserted

by the person for whose benefit the privilege was

granted personally, or through a representative, or it

may be claimed for him by the court.

II. SOURCES OF PRIVILEGED COMMUNICATIONS

1. Those enumerated under Section 24 of Rule 130 of

the Revised Rules of Court.

2. Those declared as privileged by specific provision

of a law (Statutory Privileged Communications).

3. Those declared as such by Privilege

Communications by Jurisprudence.

Marital Disqualification

(Sec. 22)

Marital Communications

(Sec. 24)

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

Requisites for dead man’s statute (Sec. 23)

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]

Privileged Communication (Sec. 24)

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;

SECTION 24: DISQUALIFICATION BY REASON OF

PRIVILEGED COMMUNICATIONS

INTRODUCTION: The communications are

privileged provided they took place within

the context of the relationship protected by

the rule and the person for whose benefit

the rule may be invoked, has not revealed

the communication to a third person.

1. Marital Privilege – Rule 130, Sec. 24 (a)

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;

CASE: If the communication is made in front of the

children of the husband and wife. Can the privilege

be invoked? YES, if the children are still minors.

Lex Española 54

Note: The assumption is any communication given by

one spouse to the other is presumably confidential

because there is no standard given in the Rules.

Applications of the marital privileged communciation

rule:

1) Every communication between spouses is

presumed to be confidential. (Sexton v. Sexton, 129

Ia. 487; Wigmore, Sec. 2336)

2) Communications made in the presence of third

parties are not confidential, unless the third person

may be considered as an agent of the spouses.

(Floyd v. Miller, 61 Ind. 224)

3) Communications overheard by third persons

remain confidential as between the spouses, but the

third person who overheard may be called upon to

testify. (People v. Carlos, 47 Phil. 626)

4) Communications coming into the hands of third

persons, whether legally or illegally, remain

confidential as between the spouses, but the third

person may be called upon to testify. (People, and

Hammons, supra)

But if the third person acquired knowledge of the

communication by collusion and voluntary disclosure

on the part of either of the spouses, he thereby

becomes an agent of such spouses so that the

privilege is claimable against him. (Ibid.)

5) Communications intended for transmission to third

persons are not confidential. (U.S. v. Antipolo, 37 Phil.

726)

Waiver of the marital privileged communication rule:

The privilege is claimable by the spouse not called as

witness, so that it its waivable only by him or her; and

it is waivable by any act of such spouse which might

be considered as an express or implied consent to

the disclosure of the communication. (People v.

Hayes, 140 N.Y. 484)

1. THE MARITAL PRIVILEGED COMMUNICATION

DISQUALIFICATION RULE (SPOUSAL PRIVILEGE)

I. RULE: The husband or 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.

II. PURPOSE: same as the Marital Disqualification Rule

as well as to encourage honesty and confidentiality

betweens spouses.

III. REQUISITES:

1. The witness is a lawfully married person, or is a

party to voidable marriage or one which enjoys the

presumption of validity.

2. The case is not between the witness and the

latter‘s spouse

3. The subject of the testimony is a communication

made by and between the witness and the latter‘s

spouse

4. The communication was made during the

marriage

5. The communication is confidential in that it was

intended to be known or heard only by the other

spouse and it was made precisely because of the

marriage.

a). If the receiving spouses revealed to a

third person, the communication ceases to be

privileged

b).If the communication was heard by a

third person, the rules are as follows:

i). If the spouses were aware of the

presence of the third person, the communication is

not confidential except if the third person: (i). is a

minor child (ii). Or stands in special confidence to the

spouses such as their agent

ii). If the spouses are not aware, the

communication remains confidential, but the third

person may testify to what was heard.

IV. FORMS OF COMMUNICATION: To ―communicate‖

is to make known, to convey an idea or to inform of

a message. The privilege is thus extends to all modes

of communications whether oral, written or through

conduct, which were intended by a spouse to

convey a message. They include the following:

1. Those which are in the form oral

expressions made directly and personally, or through

some mechanical device such as through the

phone; or written as in conventional letters or through

the use of secret codes or through the internet or text

messages.

Lex Española 55

2. The sending of packages, or things of

items symbolic of a meaning or intended to send a

message, such as sending of b-day greeting cards,

or of flowers.

3. Passive or silent acts or conduct intended

to convey a message such as a nod or shake of the

head, a finger put to the lips.

4. Silent or passive communications referring

to facts or information which came to the

knowledge of the witness-spouse by reason of the

confidentiality of the marriage. Example: (i). a spouse

cannot be made to divulge that in his presence and

observation the husband cleaned a gun, or washed

bloody clothes or counted wads of money, even if

the husband did not explain his actions (ii). a married

person cannot be made to divulge tattoos on the

body of the spouse or of his mannerism or habits.

However, acts not intended to be

confidentially, such as acts within public view, or

tattoos displayed publicly, are not confidential.

Likewise, acts done in secret and hidden from the

witness are not confidential.

V. MISCELLANEOUS

1. The privilege may be claimed by either spouses,

i.e. the communicating or recipient spouse (some

opine it is only the receiving spouse who can claim)

2. The exceptions are the same as in the Marital

Disqualification Rule.

3. The duration is perpetual

4. Distinctions from the Marital Disqualification Rule:

a.) As to whether or not a spouse is a party

to the case

b). As to the scope of the prohibition

c) As to the duration

d) As to who can claim the protection of

the rule

5. The waiver of the Marital Disqualification Rule does

not include a waiver of the Marital Privilege

Communication Rule.

2. Attorney-Client Privilege – Rule 30, Sec. 24

(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;

- Privilege is owned by the client. It is he who can

invoke the privilege. If the client waives the privilege,

no one else including the attorney can invoke it.

Hence it the client is asked on cross-examination of

his communications to his lawyer and reveals the

same there would be a waiver. There is also a waiver

if the client does not object to the attorney’s

testimony.

The attorney-client privilege may not be

invoked to refuse to divulge the identity of the client,

EXCEPT: (1) When a strong probability exists that

revealing the name would implicate that person in

the very same activity for which he sought the

lawyer’s advice; (2) When disclosure would open the

client to liability; (3) When the name would furnish the

only link that would form the chain of testimony

necessary to convict. (Regala vs. Sandiganbayan,

1996)

LAST LINK DOCTRINE: Non-privileged

information, such as identity of the client is protected

if the revelation of such information would necessarily

reveal the privileged information.

It is enough that the client reasonably

believed that the person consulted is a

lawyer.

Communications may refer to anticipated

litigations or may not refer to any litigation

at all.

Privilege does not extend to

communications where the client’s purpose

is the furtherance of a future intended

crime or fraud

2. BETWEEN LAWYER AND CLIENT

I. RULE: ―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,

Lex Española 56

without the consent of the client and his employer,

concerning any fact the knowledge of which has

been acquired in such capacity‖

II. REASON: The rule is grounded on public policy and

the proper administration of justice. It is to encourage

clients to make a full disclosure of all facts relative to

a problem for which he sought the professional

services of a lawyer, without fear or reservation that

these facts will later be revealed especially if the

nature of the facts are such that they might

adversely affect his rights, property or reputation. This

is to inspire confidence and thus it is also to enable

the lawyer to give the appropriate advice or to

undertake such action that will best serve the interest

of the client.

III. REQUIREMENTS

A. There must be a lawyer-client relationship

1. The term ―lawyer‖ refers to:

(a). a member of the Philippine Bar in good

standing acting in such a capacity, whether in active

practice or not

(b). non-lawyers allowed by law to appear

as counsel pursuant to section 7 of Rule 118. ( But in

localities where such members of the bar are not

available, the court may appoint any person,

resident of the province and of good repute for

probity and ability, to defend the accused.)

(c). Non-lawyers who misrepresent

themselves as members of the bar in order to obtain

the confidence of a person and believed as such by

the latter.

2. Government prosecutors are not included but

they are prohibited from making disclosures under

penal laws, such as The Revised Penal Code under its

provisions on Revelation of Private Secrets.

3. Lawyers of government agencies created to

render legal assistance to the public are included,

such as lawyers from the PAO and the CHR

4. The relationship maybe created by mutual

consent at the initiative of the client, or is created by

Order of the Court as in the case of a counsel de

officio.

a). the relationship exists whenever the

client consults with a lawyer in relation to a matter

which needs the professional services of the lawyer

be it for advice or representation in a future or

present legal action.

b). it does not matter that no fee was paid,

or that the lawyer later refused to represent the client

or that he withdrew from the action.

c). however the rule does not cover

situations where the lawyer was consulted merely as

a notary

B. There must be a communication by the client to

the lawyer or advice given thereon by the lawyer.

1. The communication must be for the

purpose of creating a lawyer-client relationship or

was given in the course of such relationship.

2. The term communication includes the

following:

a). Any data or information supplied by the

client personally or through confidential agents,

either to the lawyer or to the lawyer‘s employees. This

may have been supplied through any form of oral or

written communication.

b). All documents, objects or thing

delivered to the lawyer except those the existence

and/or contents of which are or maybe known.

Thus, titles to land, contracts, reply-

communications, bank pass books, dishonored

checks, cannot be considered as confidential.

c). Acts or conduct by the client, such as

physical demonstration of actions or events, or giving

a sample of his handwriting to show he is not the

falsifier.

d). The advice given by the lawyer to the

client orally or though any mode of written

communication.

e). The identity of the client. As a matter of

public policy a lawyer may not invoke the privilege

and refuse to divulge the name or identity of the

client except in the situation when the client‘s name

has an independent significance such that disclosure

would reveal the client‘s confidences.

The identity may not be disclosed in the following

situations:

where a strong probability exists that revealing

the client‘s name would implicate the client in

the very activity for which he sought the lawyer‘s

advise

Where the disclosure would open the client to

civil liability

(iii). Where the government prosecutors have no

case against the client and compelling the

Lex Española 57

lawyer to reveal his client‘s name would furnish

the only link that would form a chain of

testimony necessary to convict the client of a

crime.

(iv). Where it is the identity of the client which is

sought to be confidential ( Regala vs.

Sandiganbayan: 262 SCRA 122)

(e). Those covered by the ―Doctrine of Work

Product‖. The pleadings prepared by the lawyer or

his private files containing either facts and data

obtained by him or resulting from his own

investigation or by any investigator hired by him;

and/or his impressions or conclusions whether

reduced in writing or not, about the client or the

clients cause.

A lawyer may not therefore testify that his

client, charged with theft of silver coins, paid him

with silver coins.

3. The following communications are not covered

and the lawyer may reveal them:

a). those intended to be made public

b). or intended to be communicated to a third

person

c). intended for an unlawful purpose or for a future

crime or act

d). received from a third person not acting in behalf

or as agent of the client

e). those made in the presence of third persons

f). those which are irrelevant

g). the effects of a crime as well as weapons or

instruments of a crime.

h). opinions on abstract questions or hypothetical

questions of law

C. The communication was confidential

D. The consent of the client to the disclosure was not

obtained

IV. Duration and Waiver

A. The duration is perpetual even after the lawyer-

client relationship has already ceased.

B. The rule maybe waived by the client alone, or by

his representatives in case of his death, expressly or

by implication.

1. If he is a party to a case and his lawyer

was called as a witness by his opponent: (a) by

failure of the client to object to the questions

concerning the privileged communications or (b)

having objected on direct, the client cross-examines

on the privileged communications.

2. When the client presents evidence on the

privileged communication, the opposing party may

call on the lawyer to rebut the evidence.

3. When the client calls on the lawyer to

testify on the privileged communication

4. In case of a suit by and between the

lawyer and the client, the rule does not apply

5. When the lawyer is accused of a crime in

relation to the act of the client which was the subject

of their professional relationship, he may reveal the

privileged communications to prove he had nothing

to do with the crime.

C. If the lawyer, as witness to a case which does not

involve the client, divulges confidential

communication without the prior consent of the

client, he may be liable criminally, civilly and

administratively.

3. Physician-Patient Privilege – Rule 30,

Sec. 24 (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

capacity, and which would blacken the

reputation of the patient;

This privilege belongs to the patient, so that

it is only he that can claim or waive it. It is

waivable expressly or impliedly. It is

impliedly waived like any other privilege

rule. (Penn. Mutual Life Ins. Co. v. Wiler, 100

Ind. 92)

The waiver may be by a contract as in

Lex Española 58

medical or life insurance

When the patient answers questions on

cross examination, there is waiver

Under Rule 28 ROC, the court may order a

party to submit to a physical or mental

examination, so long as the mental or

physical condition is in dispute. The party

examined may request a report of the

examination. By doing so, he waives any

privilege he may have in that action

regarding the testimony of every

other person who has examined him in

respect of the same examination.

This privilege does not apply when the

doctor is presented as an expert witness and only

hypothetical problems were presented to him. (Lim

vs. CA, 1992)

PHYSICIAN-PATIENT

I. RULE: 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.

II. PURPOSES: (a). To inspire confidence in patients

and encourage them to make a full disclosure of all

facts, circumstances or symptoms of their sickness,

without fear of their future disclosure, so that a

physician can form an opinion and be enabled to

safely and effectively treat the patient. (b).To protect

the patient‘s reputation.

III. REQUIREMENT

A. The case is a civil case

1. Public policy looks to the maintenance of

peace and order, upholding the law, the acquittal of

the innocent and punishment of the guilty, as more

important than the purposes of the privilege.

2. It is not required that the patient is a party

to this case.

B. The witness presented is a person authorized to

practice medicine, surgery or obstetrics.

1. The witness maybe a general practitioner

or a specialist in any of the fields of medicine.

2. Included are psychoanalysts,

psychologist, psychotherapists. Dentists and mid-

wives are not included, so also with nurses unless they

acted as agents or assistants of the physician.

3. Where the person is not authorized but

represented himself to be so and which was believed

by the witness, it is believed that the privileged may

also be claimed.

4. The relationship of physician-patient may

have been created by mutual consent between him

and the patient or with any person acting in behalf

of the patient, or was created by exigent

emergencies as when services were rendered to a

patient in extremis.

C. The physician-witness is asked to divulge a

communication by and between him and the

patient.

1. The communication was made while the

witness was acting in his professional capacity i.e he

was attending to a person as a patient and to whom

the physician-witness rendered curative, palliative or

preventive treatment.

2. The privileged communication include:

a). all information divulged by the patient

or by one acting for the patient, if these were

essential for the physician to act in a professional

capacity, but matters which are not essential but

believed in good faith by the patient to be essential

and divulged in good faith are covered.

b). all facts learned by the physician from

his own interviews, observations, diagnosis,

examinations or operation conducted upon the

patient.

c). the nature of the treatment given, his

opinion or advice given to the patient, including oral

prescriptions (written prescriptions for medicines are

intended to be read by pharmacist and third persons

and are not confidential)

d). the clinical records, x-ray plates,

radiographs, and other documents pertaining to the

treatment, diagnosis, illness or process of ascertaining

the illness of the patient.

D. The communication is confidential and was not

intended to be known by third persons except to

agents of the physician.

Lex Española 59

QUESTIONS: 1. Are communications confidential if

these were heard by third persons by reason of lack

of privacy of the clinic or hospital facilities? 2. Is the

fact still confidential if a patient‘s body part or blood

was sent by the physician for examination and study

by a specialist/technician in a laboratory? ( I submit

that that the specialist acts as agent of the physician

and he may not also be compelled to disclose his

findings).

E. If disclosed the information would blacken the

reputation of the patient. It causes disgrace or

embarrassment or puts him in a bad light. Example:

disclosure that the patient is a sexual pervert, or

suffers from delusions or from a disease.

IV. NON-APPLICABILITY OF THE RULE

A. Criminal cases

B. When the person testifying is not the physician.

However the patient himself can not be compelled

to testify on the privileged communications.

C. Where the physician is presented merely as an

expert and is testifying upon hypothetical questions.

D. Autopsies conducted to ascertain the cause of

death of a person

E. Court ordered examinations

F. When the patient, as party to a case, testifies as to

his own illness or condition, he opens the door for the

opposing party to rebut the testimony by calling on

the physician.

G. When the patient, as party to a case, calls on the

physician as his own witness.

H. In a malpractice suit against the physician by the

patient.

I. Where there is a Contractual Waiver in that the

patient agreed to undergo an examination and

make known the result thereof as a condition to the

grant or enjoyment of a privilege, benefit or

employment. Examples are the medical

examinations required to enter the AFP or to obtain

an insurance policy.

J. Communications made in the presence of third

persons.

K. Communications to commit or to conceal a crime

as when a patient undergoes a face lift to mislead

the police or the victim in identifying him.

4. Priest- Penitent Privilege – Rule 30,

Sec. 24 (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

PRIEST/MINISTER- PENITENT

I. RULE. 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.

II. CONCEPT and PURPOSE : This is often referred to as

the ―Seal of the Confessional‖. A priest or minister or

similar religious person cannot be compelled to

testify and divulge matters which were revealed to

him by way of a confession. The purpose is in

recognition of religious freedom and to protect the

practice of making confessions.

III. REQUIREMENTS:

A. The witness is a priest or minister or similar religious

personality.

1. The term ―priest or minister‖ should not be

given a restrictive meaning but should include any

religious personality of the same or similar stature as a

priest or minister.

2. Question: As worded the rule applies only

to religious personalities of the Christian religion.

Should the rule be interpreted to include non-

Christians? Thus in Buddhism, confessing one‘ sins to a

superior is part of the Buddhist practice.

B. The witness received the confession of a

penitent

1. A confession is the revelation of acts or

omissions considered as sins or violations of religious

laws/ belief or teachings, and which may at the

same time be considered as violation of laws of the

state, which may subject the confessant to criminal

or civil liability or both.

2. The revelation of wrong doings must

therefore be penitential in that the purpose is to seek

Lex Española 60

spiritual absolution, spiritual assistance, or healing of

the soul. If the purpose is otherwise, then it is not

privileged, as when all that the person was to

unburden himself from guilty feelings.

3. The confession was made in obedience

to some supposed duty or obligation.

4. The court may inquire preliminarily from

the priest /minister as to the state of mind of the

confessant i.e whether it is penitential or not.

5. The confession is one given directly and

personally to the priest/ minister and in secrecy.

Public avowals are not included.

C. The confession must have been made to the

priest/minister in his professional character in the

course of the discipline of the church to which the

priest/minister belongs.

1. The church or denomination must

recognize the practice of making ―confessions‖ and

authorizes said priest/minister to receive and hear

confessions.

III. Observations:

1. Must the confessant belong to the same

church as the priest/minister?

2. If the penitent consents, may his

confession be divulged?

5. Public Officer Privilege – Rule 30, Sec.

24 (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.

PUBLIC OFFICER.

I. RULE: 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.

II. PURPOSES:

To encourage citizens to reveal their knowledge

about the commission of crimes

To protect legitimate police operations against

criminals

To protect the safety of the informant and his family

III. REQUIREMENTS

A. There must be a confidential official

communication, which includes:

1. all information concerning the

circumstances of the commission of a crime such as

the identity of the criminals, their whereabouts, their

accomplices, the date, time and place of

commission, their modus operandi

2. the identity of the recipient of the

communication e.g the undercover agent or

handler

3. the identity of the informant

4. It has been held that official documents

of diplomatic officials, ambassadors and consuls are

included.

B. The communication must have been made to a

public officer.

1. The public officer refers to those whose

duty involves the investigation or prosecution of

public wrongs or violations of laws. They pertain

mostly to law enforcement agents and prosecutors,

as well as those in charge of the enforcement of the

law violated.

C. The disclosure would affect public interest.

IV. RULE ON THE INFORMER‘S IDENTITY

A. Concept of the ―Informant‘s Privilege‖- a

privilege granted to the government to withhold

from disclosure, the identity of confidential

informants. The purpose is to protect the

government‘s sources of information and in this way

facilitate law enforcement by preserving the

anonymity of individuals willing to furnish information.

B. Informant‘s covered (informers are also

called coordinating individuals (or CIs), citizens, or

assets; in American police parlance they are called

nose, snitch, or stool pigeons)

1. Walk-in or phone-in informants e.g.

those who report crimes in person or by calling police

hot lines or individual police officers

Lex Española 61

2. Deep Penetration Agents or those

―embedded‖ who actually join criminal

organizations/gangs by pretending to be one of

them but are secretly gathering information which

they secretly relay to the law enforcement agents

3. Stool pigeons or snitches among

prisoners

4. Regular informants or those who

regularly report on suspected criminals and their

activities. They may be acquaintances, neighbors or

friends of the criminals themselves. They are known

only to their agent handler.

C. When the informant may be compelled

to be presented in court or when his identity maybe

revealed

1. Per the American case of Roviero vs. U.S

(353 U.S. 53) in 1957 which ruled thus:‖ when it

appears from the evidence that the informer is also a

material witness, is present with the accused at the

occurrence of the alleged crime, and might also be

a material witness as to whether the accused

knowingly and intentionally delivered drugs as

charged, his identity is relevant and maybe helpful to

the defendant‖, it may said that disclosure is proper

in the following situations:

a). when his identity is known to the

accused not necessarily by name but by face and

other physical features, unless he is being also used in

another operations

b). when it is relevant and helpful to the

defense and is essential to a proper disposition of the

case

c) when it is claimed that there was an

entrapment where he participated as a ―decoy‖ or

―agent provocateur‖ and the said entrapment can

not be established without his testimony

2. If the informant disclosed his identity to

persons other than the law enforcement agents, this

maybe basis for the accused to demand disclosure.

STATUTORY PRIVILEGED COMMUNICATIONS

1. Contents of a Ballot under the Election

Code

2. The identity and personal

circumstances of

3. Minors who are victims of crimes under

the Child Abuse Law

4. The records of cases involving Children

in Conflict with the Law under the Juvenile Justice

Law if (i) the case against them has been dismissed

(ii) they were acquitted or (iii) having been

convicted and having undergone rehabilitation,

they were eventually discharged

5. Trade secrets under the Intellectual

Property Law

6. Identities and whereabouts of witnesses

under the Witness Protection Program

7. Identity of News Informants under R.A.

1477 (The Shield Law)

8. Bank Deposits under the Secrecy of

Bank Deposits law except under the following:

a). Upon the prior written permission of the

depositor

b). In case of impeachment of

constitutional officers

c). When the deposit is the subject of the

case

d). Upon Order of the Court

e). In cases involving public officers for

offenses in relation to their office or for violation of

the Anti Graft and Corrupt Practices Act

f). When the amount exceeds the limit set

under the Anti Money Laundering Law

g). Compromise of taxes

h). Under the Anti-Terrorism Law/Human

Security Law

9. Offers and admissions during Court

Annexed Mediation proceedings under RA 9295.

10. DNA Profiles and all the results or other

information obtained from DNA testing which testing

was court- approved / ordered, subject to certain

exceptions (Sec. 11 of the Rule on DNA Evidence

promulgated by the Supreme Court and effective on

October 15, 2007)

PRIVILEGED COMMUNICATIONS UNDER

JURISPRUDENCE

1. EXECUTIVE PRIVILEGE.

Lex Española 62

A. This is of American Origin but was adopted by the

Supreme Court when it decided the case of Senate

of the Philippines vs. Eduardo Ermita ( April 20, 2006)

B. Concept: It is a power or right that the president

or other officers of the executive branch assert when

they refuse to give congress, the courts, or private

parties, information or records which have been

requested or subpoenaed, or when they order

government witnesses not to testify before congress.

It is essentially the exemption enjoyed by the

President from disclosing information to congressional

inquiries or the judiciary.

C. Purpose and basis. It is based on the principle of

separation of powers. It is recognized with respect to

certain information the confidential nature of which

is crucial to the fulfillment of the unique role and

responsibilities of the executive or those instances

where exemption from disclosure is necessary to the

discharge of highly important executive

responsibilities. It is premised on the fact that certain

information must, as a matter of necessity, be held

confidential in pursuit of public interest.

D. Matters Covered: As a rule, information must be

of such high degree as to outweigh public interest.

Based on Philippine Jurisprudence ( Almonte vs.

Vasquez (1995), Chavez vs. PCGG (1995), Chavez vs.

Public Estates Authority (2002) and Senate vs. Ermita

(2006), the following are covered:

1. State secrets regarding military,

diplomatic and other national security matters.

2.Closed Door cabinet meetings;

presidential conversations, correspondence and

discussions with the cabinet and presidential advisers

under the principle of Confidentiality of Executive

Deliberations

3. Information in the investigation of crimes

by law enforcement agencies before prosecution of

the accused.

E. Limitations to the Claim ( Per Senate of the Pres. Vs.

Ermita)

1. It is not absolute. The privilege is

recognized only in relation to certain types of

information of a sensitive character. A claim is valid

or not depending on the ground invoked to justify it

and the context in which it is made.

2. A claim of privilege, being a claim of

exemption from an obligation to disclose information,

must be clearly asserted.

3. Only the President may personally assert it

or claim it through the Executive Secretary.

Evidentiary Privilege- entitles the privilege

holder to withhold competent evidence and, in

some circumstances, to prevent others from

revealing such evidence. The privilege is granted

when the protected interest is considered important

enough to outweigh the concern with determining

the truth. The privilege holder need not be a party to

the proceeding in question. Unlike a disqualification,

a privilege can be waived. Privileges are often

intended to preserve confidential relationships.

Executive Privilege- members of the executive

branch of government cannot legally be forced to

disclose their confidential communications when

such disclosure would adversely affect the

operations or procedures of the executive branch.

II. CONFIDENTIALITY OF JUDICIAL DELIBERATIONS

1. The working papers of a judge, such his

personal notes and researches on cases heard by

him, his written instructions to the staff, are

considered his personal or private property and may

not be compelled to be disclosed.

2. Discussions among members of a

collegial court are likewise confidential.

6) Parental and filial testimonial

privilege rule (Sec. 25, Rule 130(f)

Note: Conviction of a crime does not disqualify a

person from testifying but may disqualify him from

being discharged as a state witness. (Sec. 9 [e], Rule

119, ROC)

Note: This is not an exclusive enumeration of the

Rules on privilege communication. Other examples

are:

a. Under Rules on Alternative dispute

Resolution, information or communication given by

parties who participate in ADR is confidential

b. Information derived by editors, reporters and

publishers

c. The negotiations under the Witness

Protection Program (Accused discharged as state

witness)

A person cannot be compelled to testify against

Lex Española 63

his parents, other direct ascendants, children or other

direct descendants.

N.B. There is an inconsistency between the ROC and

Family Code with respect to this privilege. ROC

prevails since it took effect in 1989 and is made by

the SC. While the Family Code took effect in 1989,

and though substantive is procedural in character.

Who are not covered and may be compelled to

testify:

1) Relatives by affinity.

2) Brothers and sisters.

3) Aunts, uncles, nephews, nieces.

4) Cousins of whatever degree.

5) Other collateral relatives.

Note: Parental and filial testimony dies not

prohibit voluntary testimony or compelled testimony

against relatives by affinity or collateral relatives.

Note: It is believed that adopted and

adopter are covered by the parental and filial

testimonial privilege rule but only insofar as the

parent and child is concerned. It does not extend to

the direct ascendants of the adopter because the

adoptive relation is between the adopter and the

adopted only. The reason for this opinion is the

rationale behind the privilege, which is to preserve

harmonious relations between parent and child

which could be ruptured through testifying in court.

Furthermore, perjury may result because the parent

or the child may give false testimony to protect the

other.

2. TESTIMONIAL PRIVILEGE

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)

TESTIMONIAL PRIVILEGE

I. RULE: Sec. 25. Parental and Filial privilege.-

No persons may be compelled to testify against his

parents, other direct descendant, children or other

direct descendants.

A.. The privilege maybe claimed only by the

witness in any case whether civil or criminal but it

may be waived as when he volunteers to be a

witness. B. However, by way of an exception, Article

215of the Family Code provides that a descendant

may be compelled to testify against his parents and

grandparents, if such testimony is indispensable In

prosecuting a crime against the descendant or by

one parent against the other.

SOURCES OF A PARTY‘S EVIDENCE

Generally the evidence of a party are those

obtained and/or supplied from his own side.

However evidence may be taken from the opposite

party especially those which the latter does not

voluntarily present because they are adverse to him.

They are in the form of (i) Admissions (ii) Confessions

and (iii) Declarations against Interest.

3. ADMISSIONS AND CONFESSIONS

Sec. 26 . Admission of a party. — The act, declaration

or omission of a party as to a relevant fact may be

given in evidence against him. (22)

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 compromised 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 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)

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)

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)

Lex Española 64

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)

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. (28)

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)

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)

3. ADMISSIONS and CONFESSIONS

ADMISSIONS:

Section 26. The act, declaration, or omission of a

party as to a relevant fact maybe given in evidence

against him.

I. Concept of Admissions. The voluntary

acknowledgement made expressly or impliedly by a

party to a case or by another by whose statement

the party is bound, against his interest, of the

existence or truth of such fact in dispute, material to

the issue. By this meant that a party to a case

performed an act, made a declaration/statement

whether oral or written, or omitted to do something,

which is contrary to his cause of action or to his

defense, and which may therefore be used as

evidence against him.

II. Kinds

A. As to where it is made: (i). Judicial ( if made in the

proceedings of the case where it is to be used as

evidence) or (ii). extra judicial (if made outside the

proceedings of the case)

B. As to how made: (i) Express or (ii) Implied

C. As who made the admission: (i) By the party to the

case either as the offended party or accused; or as

the plaintiff or defendant (ii) Third person due to the

principle of Vicarious Admissions or Adoptive

Admissions.

D. As to form: (i) By an act or conduct (ii) Declaration

either oral or written or (iii) through an omission

E. As to their effect: (i) Against Interest or (ii) Self

serving admissions

III. Reason for the Rule: Presumption of truth in the

admission in that no person would do an act or

declare something which is contrary to his own

interest unless such act or declaration is true.

IV. Requirements for Admission

1. It must be relevant to the issues in the

case

2. It must be express, certain, definite and

unequivocal. A declaration which goes: ― I am not

sure if I still owe money to X‖ or ― I do not recall

having uttered those words or did the act‖, ― Maybe

I was in error‖, are not admissions.

3. Must be an admission of a fact, not an

expression of an opinion

4. Must not be self-serving (Self serving

admissions are those made to favor a declarant)

because:

(a). they are hearsay i.e. they are testified

to by person who have no personal knowledge of

the truth of the declarations

(b) they are inherently untrustworthy

Examples are those where a person disclaims liability

or creates a right or a defense in his own favor.

© it would open the door to fraud,

fabrication of testimony and commission of perjury.

Examples: Affidavits; entries in diaries; self-

praises

5. It must have been made freely and

voluntarily

V. Evidentiary Value:

1. Either as independent evidence to prove

a fact or

2.For purposes of impeachment

Lex Española 65

Example: Defendant files an Answer

claiming he has fully paid his obligation. Plaintiff

presents W to testify that Defendant borrowed

money from him to purposely pay off defendant‘s

debt to plaintiff, such testimony by W is either to

prove: (i) the existence of an unpaid money to

plaintiff and/or (ii) to destroy defendant‘s credibility

as to his defense.

VI. How to prove. An admission may be proved by

the testimonies of those who heard the oral

statement or to whom it was given, or who saw the

act, and by presenting the written declaration itself.

VII. Examples of Admission By Conduct:

An employee‘s act of tendering her

resignation immediately after the discovery of the

anomalous transaction is indicative of her guilt as

flight in criminal cases. Resignation is not a way out to

evade administrative liability.

Flight is indicative of guilt: ―The guilty fleeth

while no man pursueth but the innocent is as bold as

a lion ( Proverbs)‖ but the reverse is not true: i.e. that

non-flight is indicative of innocence.

Disguise or sudden unexpected change of

address, are admissible to prove guilt.

Unexplained delay is an admission of lack

of merit as in: (a) claim of self defense (b) of a cause

of action or defense

Sending/giving an apology (gift-offerings),

asking for forgiveness, are admissible as proof of guilt

or fault

But repair of vehicles involved in a collision is

an exercise of a right and not an admission of fault.

The act of a lessor in repairing the leased

tenement is an implied admission that he is the party

with the obligation to make repairs and not the

lessee.

OFFER OF COMPROMISE

I. CONCEPT: It is in the nature of a proposal to give or

make concessions to another in exchange for the

withdrawal or dismissal of a pending case, or to

prevent a litigation from arising. It is most often called

‖Areglo‖ or‖ Out of court settlement‖.

II. RULE IN CIVIL CASES per Section 27. ―An offer of

compromise is not an admission of liability or that

anything is due and is not admissible in evidence‖.

A. Reason: It is the policy of the law to encourage

the parties to settle their differences peacefully

without need of going to the courts and in keeping

with the trend to settle disputes through ―alternative

dispute resolutions‖, as well as to unclog the docket

of the courts.

B. The following embody this policy.

1. Under the Local Government Code

which established the Barangay Courts and requires

that cases be referred first to it for possible settlement

before they are elevated in court.

2. The Pre-Trial where one of the subject

matter is the possibility of the parties arriving at a an

amicable settlement

3. The provisions allowing for a ―cooling-off‖

period between members of the family who are the

parties involved

4. R.A. 9295 on Compulsory referral of cases

for Mediation

a). This is called Court-Annexed-Mediation:

which is a process of settling disputes with the

assistance of an acceptable, impartial and neutral

third party called a mediator. The mediator helps

parties identify issues and develop proposals to

resolve their dispute. Once the parties have arrived

at a mutually acceptable arrangement, the

agreement becomes the basis for the court‘s

decision on the case.

C. Exceptions: When the offer is admissible in

evidence

1. When the offer contains an admission of

an independent fact.

Examples:

a). X writes Y demanding payment of a

debt. Y answers and offers to pay half and the other

half within an extended period plus an additional

interest, if X foregoes suing him because he also has

to pay off his debt to Z. In a suit by Z against Y, such

offer of Y to X may be used in favor of Z if Y denies

liability.

b). X sues Y for failure of Y to deliver the

jewelry subject of a sale. Y offers during the Pre-Trial

that he will deliver the jewelry in two months after he

has redeemed them from Z and if the case is

withdrawn, he will pay additional damages to X. If Y

later files a theft case against Z over the jewelry, his

offer in the civil case is admissible.

Lex Española 66

2. When the offer contains an admission of

liability, such as the existence and correctness of the

amount.

Examples:

a). P demands of D to return money

received by D as consideration for goods which D

did not deliver. D offers to deliver within a certain

period of time provided P foregoes with the

damages. D claims he has not intention of fooling P

as he suffered temporary business reveres. The offer is

admissible against D.

b). P demands P to leave the house for

unpaid rentals. P asks he be given 3 months

extension to pay as his money has not yet arrived. He

later denies having unpaid rentals.

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.

III. RULE IN CRIMINAL CASES: ―An Offer maybe

received in evidence as an implied admission of

guilt.‖

A. Offers contemplated: are those which are made

out of consciousness of guilt, where the accused

acknowledges doing the act or incurring the

omission and desires to escape punishment by

offering to buy off the complainant. Those made to

avoid embarrassment, or inconveniences, or to buy

peace of mind, are not implied admissions of guilt.

B. Reason for the Rule

1. As a matter of public policy, it is to

discourage the accused from preventing the

prosecution of crimes and punishment of the guilty.

The object of criminal prosecutions is to uphold the

law and discourage people from violation of the law

which objectives may not be realized if the parties

are permitted to decide when to pursue or not to

pursue a criminal case. This refers to the penal liability

of the accused.

2. But as to his civil liability, the parties may

enter into a compromise.

C. Exceptions: where an offer of compromise is not

an implied admission of guilt

1. Where the law allows a compromise:

a). Those cases covered by the Court-

Annexed Mediation under R.A. 9295 (Embodies the

policy to encourage Alternative Dispute Resolution).

There are certain criminal cases which must undergo

the process of compulsory mediation wherein the

parties are encouraged to find mutually satisfactory

terms and conditions to put an end to their

difference. A compromise is therefore allowed and

maybe the basis for a dismissal of the criminal case.

These criminal cases include:

(i) The civil aspect of a prosecution for B.P.

22

(ii) The civil aspect of quasi-offenses

(iii). Estafa, physical injuries, theft, crimes

covered by the Rules on Summary Procedure and all

others which are not expressly declared by law as

not subject of compromise such as any act

constituting violence against women and their

children.

b). Prosecutions under the NIRC where

payment of the compromise penalty will be a

ground for the non filing of a criminal case.

c). Genuine Offers to Marry by the accused

in crimes against chastity.

Lex Española 67

2. Quasi-offenses which do not involve any criminal

intent

3. Under the ―Good Samaritan law‖ an offer to pay

for the medical and hospital bills and similar

expenses occasioned by an injury. This is to

encourage people to help those who need

immediate medical attention and because of the

possibility that the offer to help arose from

humanitarian concerns and not from guilty

conscience.

4. Those made pursuant to tribal customs and

traditions

5. Those which were not authorized by the party or

made in his behalf but without his consent and/or

knowledge.

6. Those where the party was induced by fraud or

force or intimidation

7. Those which did not arise from a guilty

conscience

D. A withdrawn plea of guilty is not an implied

admission of guilt. An offer to plead guilty to a lesser

offense, if rejected, is not also to be considered as an

admission. Both actions are rights provided by law

and no unfavorable inference is allowed to be made

there from.

ADMISSIONS BY THIRD PERSONS

RULE: Section 28. Admissions by a third party. ―The

rights of a party may not be prejudiced by the act,

declaration or omission of another‖.

I. INTRODUCTION. ―RES INTER ALIOS ACTA RULE‖

A. Meaning: Every act or omission results to

corresponding consequences which may be

beneficial or harmful. The rule answers the question:

Who are bound by an admission and who must bear

the adverse consequences? It embodies the first part

of the so called Res Inter Alios Acta Alteri Nocere

Non Debet Rule (Things done between strangers

ought not to injure those who are not parties to it, or

transactions between two persons ought not to

operate to the prejudice of third persons). The effects

and consequences of an act or omission should be

the sole responsibility of the actor himself and should

not affect third persons who did not participate in

the act or omission. A man‘s life, rights, fortune and

property should not be affected by what other

people‘s conduct.

B. Reason: (i) Fairness and (ii) Acts of third persons

are irrelevant to the case involving the act of a party

which is the subject of the case.

C. Exceptions: when the conduct of a third person is

admissible as evidence against a party to a case

1. In case of vicarious admissions

2. Under the Principle of Admission by Adoption

FIRST EXCEPTION: VICARIOUS ADMISSIONS

1. CONCEPT: These are admissions by one who, by

virtue of a legal relationship with another, maybe

considered as acting for and in behalf of the latter.

These are acts, omissions or declarations by a person

who is not a party to a pending case, but are

however admissible as evidence against one of the

parties. Their admissibility as evidence is based on

the identity of interest between the stranger and the

party concerned.

II. KINDS: They are enumerated under Section 29 to

31.

A. Admission by a co-partner, an agent, joint owner,

joint debtor or one jointly interested. (Rule 29)

1. The rule as to co-partners is based on the identity

of interest among the partners such that each

partner is an agent of the other partners. The

requirements are:

a). The existence of the partnership must

first be established by evidence other than the act or

declaration. Proof includes formal documents such

as: (i) the Articles of Partnership or registration papers

filed with the appropriate government agency such

as the SEC or DTI, (ii) by the contract of partnership,

or (iii) by the acts of the partners, (iv). by the principle

of estoppel.

b). The act or declaration must refer to a

matter within the scope of the authority of the

partners, or that it relates to the partnership. Such as:

obtaining a credit or loan or incurring of a

liability for the partnership, such as borrowing

money to add to the capital

execution of a promissory note or execution of a

similar contracts

statements as to the financial condition of the

partnership

declarations as to the ownership of partnership

properties

Lex Española 68

c). It was made during the existence of the

partnership.

2. Rule as to Agent-Principal. The agent is deemed

an extension of the principal such that the act of the

agent is the act of the principal.

a). The requirements are similar to that

among partners

b). The relationship include:

(i). Those expressly created by virtue of a

grant of a General or Special Power of Attorney, or

Letters of Administration and similar formal

documents, or when professional services have been

retained as in the case of a lawyer-client.

(ii). Agency by Estoppel

(iii). ―Agency By Referral‖: when one party

expressly refers another to a specific third person in

regard to a matter in dispute, the declaration of the

third person binds the party who made the referral. In

effect he made the third person his agent.

Example: When the seller referred the buyer

to a real estate agent/realtor/appraiser concerning

the value of the property to be sold, then he is

bound to sell at the price quoted by the

agent/realtor/appraiser.

3. As to Joint Owners, they need not be equal

owners. Joint debtors refer to solidary debtors. The

requirements are similar to that among partners,

agent-principal.

B. Admission by a Co-conspirator. ― The act or

declaration of a conspirator relating to the

conspiracy, and during its existence, maybe given in

evidence against the conspirators after the

conspiracy is shown by evidence other than such act

or declaration‖ (Section 30).

1. The conspiracy has reference to conspiracy as a

mode or manner of committing a crime which

presupposes that a crime has actually been

committed by two or more persons and the issue is

whether these two or more persons maybe held

equally liable. It therefore becomes relevant to

determine whether the act or declaration by one

can be used as evidence against a co-accused. The

conspiracy includes both the anterior conspiracy

and spontaneous /instantaneous conspiracy.

2. The act or declaration refer to those made extra-

judicially and not to acts or declarations by a

conspirator during the trial

3. Requirements:

a). The existence of the conspiracy among the

accused must first be established.

(i). May be by direct proof or circumstantial

evidence showing Unity of Intention or Purpose and

Unity of Action.

(ii). The act or declaration may be

presented first subject to the rule on conditional

admissibility i.e. proof of the conspiracy be presented

latter, or the act or declaration may be admitted to

prove the guilt of the declarant and not to prove the

conspiracy.

b). The act or declaration must relate to the

conspiracy or common objective, such as:

(i). the participation of each in the

commission of the crime

(ii). The manner of achieving the objective

(iii). Defenses to be made or relating to the

escape

(iv). Ensuing the successful execution of the

plan.

Ex: The killing of an approaching policeman

by the look-out in a robbery, even if not agreed

upon, but was necessary to prevent the discovery, is

the liability of all the robbers.

c). The act or declaration was made while the

declarant was engaged in carrying out the

conspiracy in that the conspiracy must still be in

existence, and not when the conspiracy has ceased.

A conspiracy ceases: (i) when the crime agreed

upon has already been committed (ii) the accused

were apprehended (iii) as to one who left the

conspiracy and did not participate in its execution

(iv) when the plan was abandoned.

Thus: statements by one of the accused

while in custody; acts done upon the arrest of the

several accused, do not anymore bind the other.

Examples: Statements given to the media after arrest

binds only the declarant. The act of one in killing an

arresting officer in order to escape binds him alone.

4. The rule applies to a ―Conspiracy By

Adoption‖: When one joins a conspiracy after its

Lex Española 69

formation and he actively participates in it, he

adopts the previous acts and declarations of his

fellow conspirators which are admissible against him.

C. Admission by Privies: ― When one derives property

from another, the act declaration, or omission of the

latter, while holding title, in relation to the property is

evidence against the former‖ ( Section 31).

1. Privies are those who have mutual or succession of

relationship to a property either by: (a) law, such as

heirship or hereditary succession, or purchase in a

public sale, or (b). by the act of the former owner,

such as instituting an heir, legatee, or devisee, or

naming a donee; or by (c). mutual consent between

the former and present owner, such as by deed of

sale.

2. Concept of the Rule: The present owner of a

property acquires the property subject to the same

burdens, obligations, liabilities or conditions which

could have been enforced against the previous

owner.

3. Illustrations of acts of the prior owner

which bind the present owner:

a). The previous acts of the owner

alienating a portion of the property, or creating a

lien in favor of a third person

b). Contracts of Lease, mortgages

c). Statements by the prior owner that he

obtained the property by fraud, or that he has only a

limited interest in the property

SECOND EXCEPTION: ADOPTIVE ADMISSIONS

I. CONCEPT: This refers to a party‘s reaction to a

statement or action by another person when it is

reasonable to treat the party‘s reaction as an

admission of something stated or implied by the

other person. The adoption may either be by positive

conduct or by silence/ inaction.

A. Effect: By adoptive admission, a third person‘s

statement becomes the admission of a party

embracing or espousing it. The statement or conduct

by the third person is evidence against the party

concerned.

II. Adoption by Positive Conduct arises when a party

either:

a). Expressly agrees to or concurs in an oral

statement by another

b). Hears a statement and latter essentially

repeats it

c). Utters an acceptance or builds upon the

assertion by another

d). Replies by way of rebuttal to some

specific points raised by another but ignores further

points to which he or she has heard the other make

e). Reads and signs a written statement

made by another ( Republic vs. Kendrick

Development Co., 498 SCRA 220)

Example: Estrada vs. Arroyo 356 SCRA 108;

353 SCRA 452: In said case Estrada‘s lack of

objection or comment to the statements, proposals

by Sen. Angara concerning Erap‘s leaving

Malacanang, ( as narrated in the so called Angara

Diaries serialized in the Phil Inquirer) such as the

negotiations with the Arroyo camp, the

points/conditions of his leaving the palace, were

considered as evidence admissible against Erap to

prove he acquiesced to his removal and that he

voluntarily relinquished the presidency. The court

further expounded on admission by adoption as

being:

(a) By conduct manifesting a party‘s belief

in the truthfulness of the statement of a third person

by expressly or implicitly concurring with it; or

responding in such a way that manifests a the

adoption of the statement

(b) By a party‘s refusal to refute an

accusatory statement that a reasonable person

would refute under the same or similar

circumstances

III. Adoption by Silence/Inaction

A. Rule: An act or declaration made in the presence

or 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.‖ ( Section 32)

B. REASON: This is based on the human and natural

instinct to resist, rebut, deny or object to untrue

statements about one‘s life, family, rights, property or

interests. The failure to do so is an implied admission

of the truth of the statement. ―QUI TACET

CONSENTIRE VIDDETUR‖.

Hence, he who remains silent when he

ought to speak can not be heard to speak when he

should be silent.

Lex Española 70

C. REQUISITES for the application of the Rule.

1. That the party heard and understood the

statement.

a). The party must be at the place where

the statement or act was made and must be within

hearing distance or proximate to where the act was

done, such that, in the event the party claims

otherwise, it may reasonably be said that the party

must have heard the statement, or that he saw the

act.

b). Hence if the party was intoxicated, or in

a state of shock, or a deaf mute, or if the statement is

muted by noise, or inaudible, or in a language not

understood, or when the party was distracted, or his

view was obstructed, then the rule will not apply.

2. The party was at liberty to interpose an

objection. There was no duress or intimidation or fear

of immediate harm arising from his objection.

3. The statement was in respect to a matter affecting

his rights or in which he is interested and calling

naturally for a comment.

a). The statements or acts impute some

wrongdoing or creates a liability against him, or

subjects him to suspicion, or it would result to a

diminution or injury to his rights or property, or

reputation, or to his person or that of his family.

b). Example: A party is caught in a very

compromising situation or flagranti delicto with a

person not his spouse, and is asked; ―what is the

meaning of this?‖, but he makes no reply, then his

silence will be evidence of wrong doing.

4. The facts are within his knowledge as a person is

not expected to comment or react to matters about

which he is ignorant.

5. The fact admitted or the inference drawn from the

silence is material to the issue.

a). Thus the silence of a man caught in

possession of stolen articles is not admissible in a

prosecution for physical injuries.

D. Instances when silence is not an admission

1. Silence by a suspect who is under custody of law

enforcement agents

2. Upon advice of counsel

3. When to comment would disturb a solemn

proceeding such as a mass, a meeting, or court trial

4. When the circumstances of time, place, and

occasion does not make it proper and appropriate

for a party to comment.

5. When the matter is privileged.

6. There is no good reason to comment.

7. When the party is in a state of shock or in some

similar mental state

8. The comment is made by strangers.

E. Other Examples of Admissions by silence

1. Failure to reply to letters of Account is an admission

of (a) the existence of the account and (b) the

correctness of the account.

2. Failure to call an important witness is an admission

that his testimony would be adverse.

3. But the failure of a witness to report immediately

and to describe the malefactor at the earliest

opportunity merely affects the accuracy but not the

veracity of a witness

CONFESSIONS

I - CONCEPT/RULE: The voluntary acknowledgement

by a person of his guilt of the offense charged or of

any offense included therein, may be given in

evidence against him. (Section 33)

A. CONFESSION Compared with Admissions.

1. As to concept and coverage: An

admission is broader as it covers any fact so long as

its adverse to the interest of the party. A confession is

limited to the act of an accused acknowledging that

he committed or participated in the commission of a

crime. A confession is a specie of admissions.

2. As to form: An admission may be in the

form of an act, declaration or omission, expressed or

implied. A confession is always in the form of written

or oral declaration, and is always expressed.

3. As to where admissible. An admission is

admissible in evidence in both civil and criminal

cases whereas a confession is admissible only in

criminal cases.

Lex Española 71

4. As to the author: an admission may be

made by a party or by third persons. A confession is

made only by the accused personally

B. Evidentiary value:

1. Confessions are admissible against the

confessant. They are evidence of a high order for the

reason that no person in his right senses would admit

his guilt or participation in the commission of a crime,

knowing that it would subject him to punishment. He

must be prompted by truth.

2. But for purposes of conviction, the confession must

be corroborated by evidence of corpus delicti (body

of the crime) pursuant to Section 3 of Rule 133.

a). Corpus delicti, or the fact that a crime

was committed, has two elements:

(i) an injury or harm which was suffered by a

person and

(ii) the cause or origin thereof must be

criminal in nature

3. As to oral extra-judicial confessions, they

afford no conclusive proof of that which they state

but merely present a prima facie case. It may still be

proved they were uttered/made in ignorance, or

levity or mistake.

II. CLASSIFICATION OF CONFESSIONS

A. Judicial: when the accused pleads guilty during

the arraignment, or when the accused testifies and

admits the offense.

B. Extra Judicial which may either be custodial or

non-custodial, written or oral.

1. Custodial: includes all situations where a person is

under the custody of, or deprived of personal liberty

by, public officials whose functions include the

apprehension of criminals and/or investigation of

crimes, who are often the law enforcement agents,

as well as those tasked to enforce the law violated.

a). The person may have been lawfully

arrested by virtue of a warrant of arrest

b). The person was arrested lawfully without

a warrant

c). The arrest is illegal

d). The person voluntarily surrendered

e). The rule applies whether or not a formal

charge has already been filed in court, or a crime is

still being investigated and the person is merely a

suspect.

2. Non-custodial: either the confessant is not in the

custody of any person or is custody but the

custodians are private persons, private security

agencies, or of their employers, or even of public

officials but who are not law enforcement agents,

such as the Mayor or the Barangay Captain.

III. REQUIREMENTS FOR ADMISSIBILITY

A. That the confession must be voluntary i.e it was

given freely, knowingly and intelligently.

1. This requirement applies to all kinds of confessions

2. The accused gave the confession of his own free

will, with full understanding and knowledge of its

consequences and that he was not coerced,

pressured, forced, intimidated or improperly

influenced, or subjected to third degree.

a). The force or intimidation need not be

applied personally to the confessant but to a third

person so long as the purpose is to affect the will of

the confessant and the giving of the confession is the

condition for the force to stop.

3. The Test of Voluntariness involve two aspects:

a). The susceptibility of the suspect to be

influenced by fear or force considering his: (i)

background (ii) intelligence (iii) education (iv) prior

experience with the system (v) physical condition (vi)

mental condition and (vii) coping skills

b). Environment and Method of

Investigation used which include considering (i) the

location of the setting (ii) length of the questioning

(iii) intensity (iv) frequency of the questioning (v) food

and sleep deprivation and (vi) intimidating presence

of officers

4. In the event the confession was due to an

inducement, consideration, promise or exhortation,

the following rules govern:

a). The confession is voluntary if due to

religious exhortation

b). Voluntary if due to given due to material

considerations or promise or reward of material or

financial or any form of gain

Lex Española 72

c). In case of a promise of immunity, it is

involuntary if the promise was made by one who is in

a position to fulfill the promise, such as the

investigating officer or the complainant. But a

promise by the police that he will get a lower penalty

does not make the confession involuntary.

d). But if the accused gave a confession as

a condition for being discharged as a state witness

but he later refused to testify, his confession is

voluntary

e) Involuntary if due to a promise or offer of

a pardon by one who is in a position to work for it.

5. Admissibility of Confession obtained by Trickery or

Deceit

a. The general rule is that the use of artifice, trickery

or fraud in inducing a confession will not alone

render the confession inadmissible as evidence. For

examples: those obtained by detective posing as

prisoners or obtained by promise of secrecy and help

to escape or by conversations between suspects

and undercover agents are admissible.

b. The Miranda rule does not apply because when a

suspect considers himself in the company of cell

mates and not officers, the coercive atmosphere is

lacking. Miranda forbids coercion, not mere strategic

deception by taking advantage of a suspect‘s

misplaced trust in one he supposes to be a fellow

prisoner.

c. But the rule is different when the suspect has

already been indicted or arraigned.

A. The Massiah rule based in the case of Massiah

vs. U.S. states that once adversary proceedings have

been commenced against an individual, he is

entitled to counsel and the government may not

deliberately ―elicit‖ incriminating statements from

him, neither openly by uniformed officers or by secret

agents.

i). The Massiah rule includes ―stimulated‖

conversions to ―elicit‖ incriminating evidence or any

form of ―INDIRECT SURREPTITIOUS INTERROGATION‖

ii). However, Massiah does not apply when

a cellmate, who agreed to be an informer, merely

listened to the suspect and did not initiate any

conversation purposely to lead the suspect to ―talk‖.

B. Additional Requirement for Custodial Confession to

be admissible

1. The confession must be in writing

2. In a language known or understood by the

confessant

3. It was given with the assistance of counsel, or that

the right to counsel was properly waived ( in writing

and with the assistance of counsel) and the

confessant was properly Mirandized.

a) The giving of the constitutional warnings

must appear in the confession and in fact must

preface the questioning

b) The giving must be in a manner which

communicates meaningful information to the

confessant

c) Counsel refers to a competent, able and

independent counsel; one who is vigilant and aware

of his responsibility as assisting counsel. He was either

chosen by the accused or provided him by friends or

relatives, or one appointed by the court upon

Petition by the confessant or by one acting in his

behalf

d). If counsel as provided by the

investigating officer, the counsel shall be deemed

engaged by the confessant if he never raised any

objection against the former‘s appointment during

the course of the investigation and thereafter

subscribed to the veracity of his statement before

the administering officer.

4. It must be signed or thumb marked by him

IV. RULE As to Self Incriminatory Statements or ―Non

Confessional Acts‖ by persons in custody.

1. Signed Receipts of Property Seized are in

admissible unless the accused was Mirandized. Under

the 2002 Dangerous Drugs Law, the signing of the

Inventory of Seized Articles by the accused is

expressly declared to be not admissible as evidence

against him.

2. Evidence based on re-enactments are also

inadmissible unless the re-enactment was with

counsel or the right to counsel was properly waived.

3. Facts voluntarily divulged to the media are

admissible as admissions unless the media was in

collusion with the police to elicit

inculpatory/incriminatory statements, in which case

the constitutional warning should first be given

before any interview; or if the media was instructed

to extract information as to the details of the crime.

Lex Española 73

See as Examples: PP s. Endeno (Feb. 20, 2001) and PP

v.s Taboga (Feb. 6, 2002) involving a taped

confession sent to the media.

4. After the accused was properly informed of his

rights, facts voluntarily divulged by him without being

asked, are admissible, unless these statements were

the result of some ploy or stratagem by the police, as

in the case of the ―good cop-bad cop‖ approach.

5. However, even if the confession is inadmissible, still

the evidence may be admitted under other

principles, notably: the doctrines of Inevitable

Discovery; Independent Source, and Attentuation.

V. PRESENTATION OF CONFESSION.

1. Through the officer who took the confession who

shall identify the confession, the signature of the

accused therein and his counsel if with the

assistance of counsel, and who shall testify as to the

giving of the constitutional warnings, and that the

giving of the confession as voluntary.

a) The presumption of regularity in the

performance of duty cannot be availed of to

assume the constitutional warnings were properly

given.

2. Through the testimony of the person to whom the

confession was handed, if it was not taken b the

police, or to whom the oral confession was made.

VI. PROOF OF VOLUNTARINESS

A. The voluntariness of a confession is not to be

presumed but must be proven by the prosecution.

B. When the accused claims the confession was

coerced or involuntary, the following may be

considered as evidence of voluntariness:

a). Failure of the accused to present

convincing proof of duress other than the self-serving

declarations

b). Failure to complain to the administering

officer

c). Failure to show marks or physical

evidence of force

d). Failure to undergo medical examination

for alleged injuries

e). Failure to institute action against the

erring officer

f). The confession is replete with details

known only to the confessant

g). Confessions contains exculpatory

statements

VII. INADMISSIBLE CONFESSIONS: EFFECT THEREOF

1. A confession is inadmissible if in any of the

following cases: (a) involuntary or coerced (b) there

was failure to give the constitutional warning properly

as to custodial confessions or if the latter was (c)

uncounseled and right to counsel was not properly

waived.

2. The inadmissibility is total even if the contents are

absolutely true and in case of custodial confessions,

the inadmissibility extends to all evidence derived

there from under the Fruit of the Poisonous Tree

Doctrine.

VII. PERSONS BOUND BY A VALID CONFESSION

A. As a rule the confession binds only the confessant

following the Res Inter Alios Acta Rule .

B. Exceptions: when a confession is evidence against

third persons

1. When it was confirmed or ratified by the

co-accused

2. When the extra-judicial confession is

judicially confirmed

3. In case of interlocking confessions i.e.

confessions made by two or more accused

independently of each other and without collusion

which are identical in their essential details. The

effects are as follows:

a). they are circumstantial evidence

against the persons implicated therein, of his

participation in the crime . Thus the identical

confessions of 3 accused are admissible against X

who was mentioned by all 3 as the master mind.

b). circumstance or factor in gauging the

credibility of the testimony of another accused and

of witnesses

c). Each confession is evidence against all

confessants.

4. If it is a non-custodial confession given by

a co-conspirator it may be admissible as an

admission by a co-conspirator if it meets all the

requirements therefore.

Lex Española 74

Admissions and Confessions

Admissions – Rule 130, Sec. 26

- Any act, declaration or omission of a party as

to a relevant fact may be given in evidence against

him.

Such admission may be received in

evidence not only against the party who made it or

his successors-in-interest but also against third

persons. (Viacrucis vs. CA, 1986)

The silence of an accused under custody or his

failure to deny statements by another implicating

him in a crime cannot be considered as a tacit

confession of his participation in the commission of

the crime. (People vs. Alegre, 1979)

Self-serving evidence

An admission favorable to the party making it.

(Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342)

a)Self-serving or favorable admissions made out of

court not admissible: REASONS:

1) A man may be safely believed if he declares

against his own interest, but not if he advocates his

interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84

Phil. 342)

2) It is excluded on the same ground as any hearsay

evidence, that, the lack of opportunity for cross-

examination by the adverse party. (National

Development Co., v. Workmen's Compensation

Commission, 19 SCRA 865)

b. When self-serving or favorable

admissions are admissible:

If made in open court

giving full opportunity to the adverse

party

to exercise his right of cross-

examination.

Rule 129 Sec. 4 vs. Rule 130 Sec. 26

First is a JUDICIAL ADMISSION, which is conclusive

upon the admitter whether in writing or oral. This

applies to civil, criminal cases and even special

proceedings.

Second is an EXTRAJUDICIAL ADMISSION. Under this

rule, the admission is admissible only if it is against the

interest of the admitter. (otherwise it is a self-serving

statement)

Example: Flight is considered a disserving

act, since it is prejudicial to the interest of the

accused. Flight is considered as circumstantial

evidence of the guilt of the accused. BUT non-flight

cannot be used as evidence to prove his innocence,

because that will be considered as an act that is

favorable to the interest of the accused.

Extra-judicial Confession vs. Admission

A confession, as distinguished from admission, is a

declaration made at any time by a person,

voluntarily and without compulsion or inducement,

stating or acknowledging that he had committed or

participated in the commission of a crime.

The term, admission, on the other hand, is usually

applied in criminal cases to statements of fact by the

accused which do not directly involve an

acknowledgment of the guilt of the accused or of

criminal intent to commit the offense with which he is

charged. (U.S. v. Corrales, 28 Phil. 365)

Admission by silence.

a. An act or declaration made

1) in the presence and

2) within the hearing or

3) observation

b. of a party who does or says nothing

c. when the act or declaration

1) is such as naturally to call for action or

comment if not true,

2) when proper and possible for him to do

so,

d. may be given in evidence against him. (Sec. 32,

Rule 130, ROC arrangement and numbering

supplied)

Exceptions to the rule on admission by silence or

instances where there is no admission by silence:

1) Where no good reason exists for the

party to comment on the act or declaration (Veil v.

Strong, 10 Vt. 455), as when the act or declaration

was not specifically directed to the party who

remained silent. (80 A.L.R., Anno., 1272)

Lex Española 75

2) When the party had no opportunity to

comment on the act or declaration. (People v.

Ranario, 49 Phil. 220)

3) Where the act or declaration was made

in the course of an official investigation. (People v.

Tia Fong, 98 Phil. 609)

4) When silence is upon advice of counsel.

(People v. Kozlowski, 115 A.L.R. 1505)

Res inter alios acta alteri nocere non debet or res

inter alios acta Rule

(First Part of Rule) Statements made or matters

accomplished between two parties cannot

prejudice a third party. (Blanza v. Arcangel, 21 SCRA

4)

The rights of a party cannot be prejudiced by an

act, declaration, or omission of another, except as

hereinafter provided. (Sec. 28, Rule 130, ROC)

Exceptions to res inter alios acta:

1) When there is a rational similarity or resemblance

between the conditions giving rise to he fact offered

and the circumstances surrounding the issue or fact

to be proved. (Cruz, et al., v. Court of Appeals, et

al., G.R. No. 126713, prom. July 27, 1998)

2) In actions based on fraud and deceit, because it

sheds light on the state of mind or knowledge of a

person; it provides insight into such person's motive or

intent; it uncovers a scheme, design or plan; or it

reveals a mistake. (Cruz, supra)

3) (Vicarious Admissions)- The rights of a party may

be prejudiced by the act, declaration or omission of

another when between the party making the

admission and against whom it is offered there exists

a relation of:

a) partnership;

b) agency;

c) joint interest;

d) conspiracy; or

e) privity.

Exceptions to the rule that extrajudicial statements of

an accused implicating a co-accused may not be

utilized against the latter:

(1) the co-accused impliedly acquiesced in

or adopted the confession by not questioning its

truthfulness;

(2) the accused persons voluntarily and

independently executed identical confessions

without collusion and without contradiction by the

others present;

(3) the accused admitted the facts after

being apprised of the confession;

(4) if they are charged as co-conspirators of

the crime which was confessed by 1 of the accused

and the confession is used only as a corroborating

evidence;

(5) the confession is used as circumstantial

evidence to show the probability of participation by

the co-conspirator;

(6) the confessant testified for his co-

defendant;

(7) the co-conspirator‘s extrajudicial

confession is corroborated by other evidence on

record. (People vs. Raquel, 1996)

Rule on admission by co-partner or agent:

1) The act or declaration of a partner or

2) agent within the scope of his authority and during

the existence of the partnership or agency,

3) may be given in evidence against such party

4) after the partnership or agency

a) is shown by evidence [(testimonial or

documentary, which may be secondary

evidence)]

b) other than such act or declaration.

5) The same rule applies to the act or declaration of

a joint owner, joint debtor, or other person jointly

interested with the party. (Sec. 29, Rule 130, ROC

arrangement and numbering supplied)

Rule on admission by conspirator:

1) The act or declaration of a conspirator

2) relating to the conspiracy and during its

existence,

Lex Española 76

3) may be given in evidence against the co-

conspirator

4) after the conspiracy

a) is shown by evidence (Circumstantial

Evidence- cannot be proven by documentary

evidence, since conspirators do not normally reduce

their agreement in writing)

b) other than such act or declaration.

(Sec. 30, Rule 130)

*This refers to extrajudicial acts and declarations of a

conspirator and not to his testimony as a witness in

the trial. (People v. Atencio, L-222518, Jan. 17, 1968)

Rule on Admission by Privies – Rule 130, Sec. 31

- 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

Example: X, father of Z, while the former was

alive, openly told his acquaintances, that the land

where his house stood had already been sold to Y.

Here, the declaration by X is not admissible against Z,

the sole heir of Y, because the statement was made

after X held title to the land.

Second Part of Inter alios acta Rule (Similar Acts as

Evidence)

Rule 130, Secs. 34

- 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 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.

Confessions – Rule 130, Sec. 133; Rule 115 (e); Art. III,

Sec. 17, 1987 Constitution

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.

Confession is evidence of high order:

1) There is no evidence of a higher quality than a

confession, It represents the outward manifestation

of a man. Unless, therefore, the confession is nullified

by evidence of duress, the same is admissible as an

evidence of guilt of a high quality. (People v.

Garcia, 54 Phil. 329, 358)

2) If a confession be true and voluntary, the

deliberate act of the accused with a full

comprehension of its significance, there is no

impediment to its admission as evidence and it then

becomes evidence of a high order, since it is

supported by the presumption, a very strong one,

that no person of normal mind will deliberately and

knowingly confess himself to be the perpetrator of a

crime, especially if it be a serious crime, unless

prompted by truth and conscience. (People v. Zea,

et al., 130 SCRA 87, 88)

Probative value of recantations: They are looked

upon with disfavor as recantations are usually

secured through intimidation or for a monetary

consideration. (Molina v. People, 259 SCRA 138)

General rule on admissibility of confession: A

confession is admissible only against the accused

who made it and not against his co-accused, for as

against the latter, the confession would be hearsay

and res inter alios acta. (People v. Talledo, 85 Phil.

533)

Exceptions: when a confession is admissible

against co-accused:

1) When the confession of an accused implicating

his co-accused is made judicially at a joint trial (U.S.

v. Macamay, 36 Phil. 893) or when the extrajudicial

statements implicating a co-accused are repeated

in open court (People v. Ola, G.R. No. L-47147, July 3,

1987), because the co-accused as a chance to

cross-examine.

2) When the offer in evidence of an extrajudicial

confession against a co-accused is not objected to.

(People v. Atienza, 86 Phil. 576)

3) When the co-accused against whom an

extrajudicial confession is offered had, by his acts,

conducts and declarations adopted he confession

as his own. (People v. Atienza, supra; People v.

Orencia, 47 Phil. 970)

4) Where several accused, without collusion, made

extrajduicial confessions which are identical in

essential details and corroborated by other

evidence, such confession is admissible against the

others. (People v. Pelonia, L-14624, July 24, 1960)

5) The confession of a conspirator is admissible

against his co-conspirator provided it was made

during the existence of the conspiracy. (Sec. 30, Rule

Lex Española 77

130, ROC; People v. Ramirez, L-5875, May 15, 1953)

6) When the recitals in the extrajudicial confession of

an accused is corroborated in its important details by

other proofs in the record, it may be admitted

against the other accused. (People v. Villanueva, L-

12687, July 31, 1962)

Extrajudicial confessions identical in material

respects (also known as interlocking confessions)

admissible against all declarants:

1) As circumstantial evidence. Extrajudicial

confessions independently made without collusion

and are identical with each other in their material

respects and confirmatory of the other are

admissible as circumstantial evidence against co-

accused implicated therein to show the probability

of the latter's actual participation in the commission

of the crime. (People v. Encipido, et al., 146 SCRA

492)

2) As corroborative evidence. They are admissible

as corroborative evidence against the other

accused, if it is clear from other facts and

circumstances presented that persons other than the

declarants themselves participated in the

commission of the crime charged and proved. (Ibid.)

They are what is commonly known as

interlocking confession and constitute an exception

to the general rule that extrajudicial

confessions/admissions are admissible in evidence

only against the declarants thereof. (Ibid.)

The invocation of amnesty is in the nature of

a plea of confession and avoidance, which means

that the pleader admits the allegations against him,

but disclaims liability therefor on account of

intervening facts which, if proved, would bring the

crime charged within the scope of the amnesty

proclamation. (People v. Salig, et al., 133 SCRA 69

citing Vera v. People, 7 SCRA 153)

What is meant by corpus delicti ?

a. It refers to a particular crime and signifies that the

specific offense had been actually committed by

someone, being composed of two elements:

1) certain results were produced, and

2) someone is criminally responsible.

(People v. Marquez, 77 Phil. 83)

b. It also means actual commission of the crime

charged. (People v. Madrid, 88 Phil. 1; People v.

Sanchez, 89 Phil. 423), or the specific fact of loss or

injury. (People v. Garcia, 99 Phil. 381)

Examples of corpus delicti:

a. In murder or homicide, the corpus delicti is the

fact of death (People v. Garcia, 99 Phil. 381), which

may be proved even circumstantially. (People v.

Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil.

44).

b. In robbery or theft, the fact of loss. (People v.

Niem, 75 Phil. 668)

c. In arson, the fact of burning, (People v. Marquez,

77 Phil. 83; People v. Mones, 58 Phil. 46)

d. In an affray, the fact that pistol shots were heard

and a bystander was killed by one of the shots

constitute evidence of corpus delicti, which is the

violent death of a person, whether feloniously

caused or not. (People v. Nocum, 77 Phil. 1018)

Conviction for murder proper even if

victim‘s body is not produced: In all crimes against

persons in which the death of the victim is an

essential element of the offense, there must be

satisfactory evidence of the fact of death and the

identity of the victim that a crime has been

committed which is what corpus delicti really means.

The failure of the prosecution to produce

the body of the victim does not imply the absence of

corpus delicti for the term does not refer to the body

of the murdered person. (People v. Centeno, et al.,

130 SCRA 209)

- Sec. 17, Art III – No person shall be compelled to be

a witness against himself.

The operative act in determining whether

the right against self-incrimination has been violated

is when the police investigation is no longer a

general inquiry into an unsolved crime but has begun

to focus on a particular suspect who has been taken

into custody by the police to carry out a process of

interrogation that lends itself to eliciting incriminatory

statements and not the signing by the suspect of his

supposed extrajudicial confession. (People vs.

Compil, 1995)

By affixing their signatures on the boxes,

accused in effect made a tacit admission of the

crime charged. These signatures are tantamount to

an extrajudicial confession made without the

assistance of counsel, which is not sanctioned by the

Bill of Rights. (People vs. Wong Chuen Ming, 1996)

Lex Española 78

Any confession, including a re-enactment

without admonition of the right to silence and to

counsel, and without counsel chosen by the

accused is inadmissible in evidence. (People vs. Yip

Wai Ming, 1996)

The declaration of an accused expressly

acknowledging his guilt of the offense may be given

in evidence against him and any person, otherwise

competent to testify as a witness who heard the

confession is competent to testify as to the substance

of what he heard if he heard and understood it.

(People vs. Maqueda, 1995)

Compromises – Rule 130, Sec. 27

1.Civil Cases – An offer of compromise is not

an admission of any liability, and is not admissible

against the offeror.

2. Criminal Cases – An offer of compromise

by the accused may be received in evidence as an

implied admission of guilt EXCEPT in cases involving

quasi-offenses (criminal negligence) or those allowed

by law to be compromised.

- A plea of guilty later withdrawn, or an

unaccepted offer of a plea of guilty to lesser offense,

is not admissible in evidence against the accused

who made the plea or offer.

The Good Samaritan Rule: 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.

It has long been held that in cases of public

crimes, the accused is permitted to show that the

offer was not made under a consciousness of guilt

but merely to avoid the inconvenience of

imprisonment of for some other reason which would

justify a claim by the accused that the offer was not

in truth an admission of his guilt or an attempt to

avoid the legal consequences which would

ordinarily ensue therefrom. (People vs. Godoy, 1995)

A plea of forgiveness may be considered as

analogous to an attempt to compromise. (People

vs. De Guzman, 1996)

An offer to compromise does not require

that a criminal complaint be first filed before the

offer can be received as evidence against the

offeror. (People vs. Yparriguirre, 1997)

4. PREVIOUS CONDUCT AS EVIDENCE

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 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. (48a)

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. (49a)

PREVIOUS CONDUCT AS EVIDENCE

Section 34. Similar conduct 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 thing or similar thing at another time, but it

may be received to prove a specific intent, or

knowledge, identity, plan, scheme, system, usage

and the like.

I. This is the second part of the Res Inter Alios Acta

Rule. The REASONS for the rule are as follows:

1. Past acts do not afford a logical

guarantee that a person will or will not commit an

act in question due to changes in a man‘s lifestyle,

habit, views, or in the circumstances or conditions of

his life.

2. Past acts are irrelevant as they merely

confuse the issue and violate the right of a person to

be informed of what he is being charged of or made

liable for.

3. There is the danger that a man may be

convicted or declared liable by reason of his dark or

questionable past and not because he committed

the present act.

4. There maybe a denial of due process.

II. EXCEPTIONS

A. To prove specific intent or knowledge:

this applies to cases where guilty knowledge or intent

is an essential element or where the defense raised is

good faith, mistake of fact, or accident. There must

however be a rational similarity between the

condition which gave rise to the past and present

conditions.

1. In a case of forgery or falsification past

acts involving similar forgeries are admissible to prove

intent to falsify and not to make corrections. Ex: The

Lex Española 79

accused was previously caught changing the

amount in the check issued to him If later he tried

encashing a check with the amount altered, and

this time claims lack of knowledge or ignorance, the

previous act will be admissible to show he really

intended to commit falsification.

2. In a murder case or death by secret

mode, the fact that other mysterious deaths involving

previous wives of the accused who were all insured

with the husband as the beneficiary, is admissible, in

the death of the present wife, also heavily insured

and where the husband is a suspect, to prove motive

and intent to kill.

3. The previous act of feeding the

substance to animals is admissible to prove the

accused knew the substance is poison and disprove

his pretense of good faith. .

4. In an arson case, the previous acts of

trying to burn the place, about which the accused

was sternly reprimanded, shows that this time, when

the accused was found placing, clothes soaked in

gasoline near the house, his intent was really to burn.

5. In a case for estafa for issuing a watered

check, the prior acts of the accused in requesting

other persons to who checks against the same

account were issued, that cases be not filed, show

knowledge that the check he issued to the present

complainant was stale.

6. In an action based on negligence, the

act of asking for a spare tire previously is proof of

knowledge of mechanical defects of the vehicle.

7. Note: under the Traffic Code, a previous

violation for three times is evidence of negligence.

B. To prove identity i.e where there is doubt as to a

person‘s identity or where identity in issue .

1. Note: in solving a crime where there are

no eye witness, the fact that a person was found to

be the author of previous crimes committed in the

same manner as the present, is admissible to prove

he is the author of the present crime. Example: Serial

Killers, Akyat Bahay, the Ativan Gang

C. To prove a plan, system, design, Modus Operandi.

1. In estafa cases of illegal recruitment, the

prior acts of advertising the opening of an office to

assist in visa applications, and thereafter absconding,

is evidence of a modus operandi or system of

deceiving the unwary public.

2. Prior acts of using different names to

different people from whom money is borrowed and

then unpaid, is admissible to prove a plan or design

to of deception.

3. The prior acts of claiming to be a

member of the staff of a certain politician and asking

for donation else the business papers will not be

processed, shows a plan of extortion.

D. To prove habit, custom, usage or practice.

1. These can only be established by

showing a repetition of similar acts on various

occasions.

2. Thus wife battery requires a cycle and

previous acts have to be proven.

3. To prove negligence, the fact that a

driver almost always tries to beat the red light is

relevant.

4. To prove habituality or recidivism or

habitual delinquency, previous acts are required.

5. The habit of a businessman to always pay

in check is proof he did not make a purchase as no

check was drawn or made in favor of the seller-

complainant.

6. The custom of the operator of vans for

hire to test the brakes before renting the van is

admissible to show the brakes were in facts tested

and the van involve in the accident was not suffering

from any mechanical defect.

7. The habit of a passenger of clinging to

the back (or top load) of a running jeepney is

admissible to show he was not the passenger/robber

seated beside the victim at the driver‘s side.

8. The habit of a woman to sit at the lap of

customers is admissible to prove the absence of

force in a charge of acts of lasciviousness.

9. However, under the Rape Shield Law, the

fact that the victim has had previous sexual

encounters is not admissible in a present charge for

rape.

UNACCEPTED OFFER

Section 35. 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 a valid cause

equivalent to the actual production and tender of

Lex Española 80

the money, instrument or property

1. This may be availed as a defense where

defendant is alleged to have failed to tender

payment or delivery. It may also be a basis for the

remedy of consignation.

2. The tender of money must be

unconditional and for the whole amount otherwise

this is a valid ground to reject the tender.

5. TESTIMONIAL KNOWLEDGE

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. (30a) (Hearsay Rule – Sec. 36)

6. EXCEPTIONS TO THE HEARSAY RULE

Sec. 37 . Dying declaration. — The declaration of a

dying person, made under the consciousness of an

impending death, may be received in any case

wherein his death is the subject of inquiry, as

evidence of the cause and surrounding

circumstances of such death. (31a)

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 is 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.

(32a)

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

fast occurred, and the names of the relatives. It

embraces also facts of family history intimately

connected with pedigree. (33a)

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. (34a)

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)

Sec. 42 . Part of res gestae. — Statements made by a

person while a starting occurrence is taking place or

immediately prior or subsequent thereto with respect

to the circumstances thereof, may be given in

evidence as part of res gestae. So, also, statements

accompanying an equivocal act material to the

issue, and giving it a legal significance, may be

received as part of the res gestae. (36a)

Sec. 43 . Entries in the course of business. — Entries

made at, or near the time of 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. (37a)

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)

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)

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. (40a)

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,

Lex Española 81

involving the same parties and subject matter, may

be given in evidence against the adverse party who

had the opportunity to cross-examine him. (41a)

Hearsay evidence Rule: Section 36 – Testimonial

Knowledge

Exceptions to the Hearsay Rule (Secs. 37-47)

1. 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.

2. 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.

3. Act or declaration against 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.

4. 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.

5. 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.

6. Parts of the res gestae – Statements made by a

person while a startling occurrence is taking place or

immediately prior or subsequent thereto with respect

to the circumstances thereof, may be given in

evidence as part of the res gestae. So, also,

statements accompanying an equivocal act

material to the issue, and giving it a legal

significance, may be received as part of the res

gestae.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

Lex Española 82

opportunity to cross-examine him.

TESTIMONIAL KNOWLEDGE: THE HEARSAY RULE

I. INTRODUCTION

A. Sources of What a Witness Testifies On. When a

person testifies that a certain event occurred or that

a person did or did not do an act, his reasons or basis

may either be:

1. Facts based on his own personal knowledge or

direct knowledge, such as when he testifies to facts

or events which he personally saw or in which he

participated, or to statements he personally heard.

2. Opinions, conclusions or estimations which the

witness himself arrived at or formed.

3. Matters relayed to him, or learned by him from

third persons or acquired by from sources outside of

his own personal knowledge.

Testimony based on the first source is

admissible so long as it is relevant and they are what

the rules desire to be testified upon. Testimony based

on the second is generally not admissible. Testimony

based on the third source is generally inadmissible

and considered as hearsay.

II. CONCEPT OF HEARSAY EVIDENCE

A. In general, the term embraces all assertions of

facts, whether in the form of oral or written

statements or conduct, the source of which cannot

be subjected to the opportunity for cross-

examination by the adverse party at the trial in which

the statements are being offered against him.

1. The essence and test of what is hearsay is

the fact that the source i.e. the person who made

the statement, can not be subjected to the

opportunity for cross-examination. These two

concepts can not be separated from one another.

2. The emphasis is on the opportunity to

cross examine and not actual cross-examination

because if there was opportunity to cross examine

but it was not actually exercised due to the fault or

negligence of the adverse party, the evidence is

admissible.

B. The rule on hearsay is intended to satisfy the

requirement of due process which is that the adverse

party has the right to confront the witnesses against

him, to test their credibility, the truth of their

statements, their accuracy, or the reliability of the

evidence against him. This is through the process

known as cross-examination. This is why the rule on

hearsay evidence can not be separated from the

requirement of due process.

III. KINDS OF STATEMENTS USED AS PROOF OF FACTS

A. ―In-Court-Hearsay Statements‖. These are

assertions of facts by a witness based on his own

personal perception but the witness was not

subjected to the opportunity for cross examination.

1. This usually occurs after a witness has

testified during the direct examination but the

testimony becomes hearsay because the witness

refused to go back to court to be cross-examined; or

he dies, becomes incapacitated mentally or

physically, goes abroad, or where for any cause not

attributable to the adverse party, he was prevented

from cross-examining the witness.

2. The remedy of the adverse party is to

Move To Strike From the Records the Direct Testimony

on the ground that it is hearsay. If granted, the legal

effect would be that the direct testimony would be

erased/stricken from the records such that it was as if

the witness never testified at all.

3. The testimony is not hearsay if the right to

cross examine was expressly waived, or if it was lost

by failure of the adverse party to claim or exercise it

despite the opportunity given him.

B. ―Out-of-Court-Statements‖. These refer to

statements or declarations by third persons which are

being used or referred to by a witness in order to

prove a fact. The phrase aptly describes statements

or declarations or conduct which were made

elsewhere than in the trial of the case where they are

being used as evidence.

They are of three kinds:

1. The Non-Hearsay Statements also referred to as the

Independently relevant statements and therefore

admissible.

a). Statements the making of which are the

very fact in issue.

b). Statements which are circumstantial

evidence of the fact in issue

2. The Hearsay Statements which are inadmissible

under Section 36.

3. The Hearsay Statements but admissible as an

exception under Sections 37 to 47.

Lex Española 83

IV. NON- HEARSAY OR INDEPENDENTLY RELEVANT

STATEMENTS

A. The purpose of introducing the statement or

declaration of another is not to prove the truth of a

fact but either: (i) to prove the statement was indeed

made, uttered, or written, or (ii) to prove the tenor of

the declaration i.e why it was made, or that it was

part of a conversation or exchange of

communications or part of a transaction or

occurrence.

B. The first kind: Statements the Making of Which is

the Very Fact in Issue. The question before the court

is: ―Was there such an oral or written

declaration/statement which was made? Was there

such a conduct which was done‖? or ―What was the

statement or conduct made? What were the words

uttered or written?

1. It therefore becomes necessary for a

witness to quote or refer to the statements or

declarations or conduct of a third person in order to

answer the issue.

2. Examples are: (a). statements as

constituting libel or oral defamation; (b) actions

based on a breach of a promise or warranty (b).

statements which are offered as an admission by the

adverse party (c). statements quoted to destroy the

credibility of a witness or party.

C. Second Kind: Statements Which Are

Circumstantial Evidence of the Facts In Issue

1. To show the state of mind, mental condition, belief,

ill will or criminal intent of the utterer/declarant

a). To prove insanity- ―I am God‖

b). Discernment on the part of a minor: ―he

said‖ Takbo na‖, Tago tayo‖

c). Evident Premeditation: ― May araw ka

rin‖

d). Guilty knowledge: Don‘t tell anyone this

money is fake, or it was stolen‖

e). Bias: I will stand by him no matter what.

―May pinagsamahan kami kasi‖

f). Ill-Will: ―I hope he dies‖. ―Ma fail ka sana‖

g). Anger, excitement, joy, elation,

gratitude:

h). That Erap was resigned to giving up the

presidency: ―Masakit, Ayoko na, ‖

i).He was intoxicated

2. To prove the statement of mind of the

hearer or third person or of the witness, such that :

a). He was not attentive

b). He is bias

c). He did not understand or that he was

mistaken

d). He was intoxicated

3. To show the physical condition of the

utterer

a). Illness: I have a headache

b). Pain: Aray: Tama na ( to substantiate a

claim of self defense)

c). Tired: Let‘s rest. My feet are killing me.

4. To fix or identify date, time, place or

person in question

a). Place: Quoting statements in the local

dialect by unknown people

b). Time: ―Good evening‖, ―Gabi na, tulog

na kayo.‖, ―Gising na, umaga na‖, Kain na, Boom

Tarantara

c). Identity: Kuya Pedro, My younger

brother, My seatmate, My crush, ―Itay‖, ――Baket‖

d). Sex of a Person: words such as Manong,

ate, kuya, Sexy, Pogi

5. To show the lack of credibility of the witness

V. PURE HEARSAY AND INADMISSIBLE

A. This is what is covered by section 36 : A witness

can testify only to those facts which he knows of his

own personal knowledge, that is, which are derived

from his own perception, except as otherwise

provided in these rules.

B. Concept: A witness asserts something as true but

his reason is the statement, declaration or conduct of

another. The witness merely repeats the declarations

Lex Española 84

of others, he ―heard (it) said‖, or his testimony is to a

second hand information.

C. Illustrations:

1. Oral declarations or statements such as

relying on news broadcasts, popular opinions, what

people think or believe.

2. Written statements such as Affidavits of

third persons, news paper reports, entries in the

police blotter, medical reports, and any written

account, report or statement , which even if true, but

the maker/author is not the witness testifying on it.

3. Non-verbal statements or conduct. which

are offered as assertion or proof of a fact. Example:

On the question of who killed Z, the witness was

asked: Why do you say it was X who killed Z? and he

answered: ―I inquired from those present who did the

stabbing and one lifted his finger and pointed to X ‖.

The act of pointing is non verbal hearsay conduct.

4. However, the testimony of a witness as to

a non-human statement is not subject to the

Hearsay Rule, such as those of machines and

animals because: (a). the lack of motive to lie on the

part of animals and machines and to (b). the

workings of a machine can be explained by human

beings who then are subjected to cross-examination.

Examples:

i). to prove a party is not the owner of the

dog, a witness testified that he saw the accused

approached the dog and he heard the dog let out

a grrrrrr

ii). to prove the accused was carrying a

prohibited article, the witness testified that when the

accused passed through the detector/machine, the

machine emitted a whirring sound.

D. Evidentiary Value of Hearsay Evidence. Hearsay

evidence has no evidentiary value whatsoever even

if it was admitted without objection from the other

party. This is because this would violate the

requirements of due process and because the

source of the information was not subjected to the

personal observation of the Court as his demeanor.

VI. HEARSAY STATEMENTS BUT ADMISSIBLE.

A. CONCEPT: These are the statements, oral or

written, presented as evidence in court without the

author of the statement having been presented to

testify on them. A witness offers these statements by

third persons to prove a fact.

B. BASIS. These statements are essentially hearsay

because the makers or authors of these statements

are not presented in court and are not subjected to

the opportunity for cross examination. They are

however are admissible because of two reasons: (1).

The guarantee of trustworthiness or that they are

presumed more likely to be true than not and (2.

Necessity in that the court has no option but to

accept them due to circumstances which exempt

the authors from being personally presented in court

as witnesses.

C. KINDS: They are those enumerated from section

37 to 47. The enumeration is exclusive.

Sec. 37. DYING DECLARATIONS

I. RULE: The declaration of a dying person, made

under consciousness of an impending death, may be

received in any case where in his death is the subject

of inquiry, as evidence of the cause and surrounding

circumstances of such death.

II. CONCEPT: Often referred to as antemortem

statements or statements in articulo mortis, they are

statements or utterances whether oral, written, or

conduct, made by a victim of violence, after

sustaining a mortal wound, under the belief that

death is imminent, stating the facts concerning the

cause and circumstances of his mortal wound.

III. REASONS FOR ADMISSIBILITY.

A. Necessity. What the victim declared is material to

the case. But the victim/declarant is already dead

hence the only available remedy is to rely on the

testimony of a witness who heard, read or saw the

dying declaration. This also to prevent an injustice if

the only evidence of the crime is the dying

declaration and yet it is excluded.

B. Guarantee of Trustworthiness in that what the

victim declared is presumed to be true in that:

1. There is no more motive for a dying

person to fabricate a falsehood, or in the words of

Lord Baron Eyre:

―The general principle on which this species

of evidence is admitted is that they are declarations

made in extremis, when the party is at the point of

death and when every hope of this world is gone,

when every motive to falsehood is silenced, and the

mind is induced by the most powerful consideration

to speak the truth; a situation so solemn and so awful

is considered by law as creating an obligation equal

to that which is created by a positive oath

administered in a court of justice.‖

Lex Española 85

2. Another basis for the presumed

truthfulness is the fear if punishment in the after life

which may induce a person to speak the truth during

his last moments. But the fat that the declarant does

not believe in an after-life of rewards and

punishment does not make his declarations less true.

IV. REQUIREMENTS FOR ADMISSION

A. THE STATEMENT MUST BE MADE UNDER

CONSCIOUSNESS OF IMPENDING DEATH

1. The declarant is aware that his death is

imminent or that his death is certain to follow by

reason of his wound. He knows, is aware and

accepts that he may die at any moment.

2. But it is not required that death should

immediately follow for it may happen that the victim

dies after the lapse of hours or days. It may happen

that his condition improved but nevertheless he died

after an interval of time. It is enough that when he

made the statement he believed he was about to

die.

3. If he entertained some hope of

recovering or of surviving his injury, his statement will

not constitute a dying declaration, but if later when

his condition worsened, he ratified his statement and

thereafter died, then the statement ill be considered

as a dying declaration.

4. This requirement is present:

a). From the express declarations of the victim

b). Inferred or implied from his utterances or conduct,

such as when he begged forgiveness, asked for a

priest to give him the last rites, asked a friend to

watch over his family.

c). Inferred from his conduct or reaction of

acquiescence when it was communicated to him

that his condition is hopeless and he cried or his

countenance changed.

d). Inferred from the actual character and

seriousness of his wounds, which may justify and

acceptance of mortal danger. Example: when the

victim pointed out his assailant, he was in agony due

to a mortal wound or was gasping for breath.

B. THE DECLARATION MUST CONCERN THE

CAUSE AND SURROUNDING CIRCUMSTANCES OF THE

DECLARANT‘S OWN DEATH/INJURY.

1. The declaration must relate to the why,

who, how, where and what, about his own mortal

wound. If it concerns the wound of another, it might

be admissible under the Res Gestae Rule, or if the

declaration is something contrary to the declarant‘s

interest, it might be admissible as a declaration

against interest.

2. Thus if before dying, the victim of a

shooting incident told these statements to his friend:.

―Pedro shot me and (b) he also shot Peter. (c). Tell

my children that the son of Maria is their half

brother‖. Statement (a) is a dying declaration

whereas statement (b) would be admissible as part

of the Res Gestae in the prosecution of Pedro for

shooting Peter. Statement (c) would be a

declaration against interest in an action against the

estate of the victim by the illegitimate son.

3. There are two kinds of declarations

which, even if they refer to the cause and

circumstances, are not admissible as dying

declarations: (a) Those which are in the nature of

opinions or conclusions. Example: ― I believe Pedro

was the one who shot me. He is the only who wanted

me killed‖, and (b) those which contain hearsay

information. Example: ―People say it was Pedro who

shot me‖

C. THE DECLARATION IS OFFERED IN A CASE WHERE

THE SUBJECT OF INQUIRY IS THE DEATH OF THE

DECLARANT

1. The case may either be criminal or civil so

long as the issue involves the death of the declarant.

If a criminal case, it may be for consummated

Homicide, Murder or Parricide, and it may be a

simple or complex crime as for example Robbery

with Homicide, Rape with Homicide, Direct Assault

with Homicide, or Multiple Homicide.

2. The civil cases include action for

damages arising from the death of the declarant, or

claims for insurance.

D. THE DECLARANT MUST HAVE BEEN

COMPETENT AS A WITNESS HAD HE BEEN CALLED

UPON TO TESTIFY IN COURT.

1. Dying declarations stand in the same

footing as testimony given in open court by a

witness. At the time of the dying declaration, the

declarant has all the qualifications as a witness and is

not suffering from any physical or mental ground for

disqualification.

2. Thus if the declarant was at that time too

drunk, under the influence of drug, mentally insane,

or an infant, his statements would not qualify as a

dying declaration.

Lex Española 86

E. THAT THE DECLARATION WAS MADE FREELY

AND VOLUNTARILY AND WITHOUT COERCION OR

SUGGESTION OF IMPROPER INFLUENCE.

V. FORM AND MANNER OF INTRODUCING DYING

DECLARATIONS

A. They may be oral which maybe in the

form of answers to questions asked, or voluntary

statements or utterances at the instance of the

declarant. These may be introduced through the

testimony of the person to whom the oral

declarations were given or by one who heard them

B. They may be written either in a paper or

other solid surface with the use of pen, pencils or

conventional writing materials, or with the use of any

material by which letters or written symbols are

formed, such as blood, lipstick or sharp instrument.

The written declaration need not be signed by the

declarant. These are introduced by presenting the

written declaration if physically possible, else

reproductions thereof may be used in substitution or

their existence and contents maybe testified to by

witnesses

C. It may be in the form of bodily

movements such as by pointing or hand, gestures,

swinging or nodding of the head, eye movements, or

any physical form of communication. These is

introduced by the testimony of the persons to who

received them as answers to his inquiries, or by those

who saw or observed the gestures

D. Where the declarations are in the form of

answers to inquiries, there must be observance of the

Rule of Completeness: the declarations /statements

or answers, must be responsive to the question

asked, is not vague or equivocal, such that it

provides a complete information to what is asked

concerning the injuries of the declarant.

VI. WEIGHT OF DYING DECLARATIONS

A. Dying Declarations do not enjoy any advantage

nor do they deserve higher consideration over other

evidence. They are not superior evidence. They are

in the same level as all other evidence hence:

1. They are subject to the same tests of

credibility applied to all types of evidence.

2. The court has the discretion whether to

accept or reject a dying declaration or to give it

value or not, and how much weight it will accord it.

3. Dying declarations do not automatically

result in conviction. They must be corroborated.

B. Dying declarations may be impeached or shown

to be unreliable through the following modes:

1. By showing that the witness testifying

thereon is not credible or that he is untrustworthy.

Example: he has a motive against the accused, he is

not fluent with the dialect in which the declaration

was made, the possibility of having misheard the

declaration, that his attention as focused elsewhere

than to listening to the statements.

2. By showing that the declarant is not

himself credible. Such as: his having given

contradictory or conflicting declarations; ill-will or

revenge against the accused or possibility of

improper motives, or that his condition is too far gone

as to have affected his consciousness or ability to

give an accurate description of the incident.

3. By showing the lack of credibility of the

declaration itself. Such as: it is hearsay, an opinion, or

is not in accordance with the evidence.

C. Dying declarations may be used by either party,

though generally it is the prosecution or plaintiff who

is expected to use them. However there is no law

which denies the accused or defendant the use of a

dying declaration as their own evidence, if they

believe it is to their advantage, as when it points to

other perpetrators, or negate an aggravating

circumstance.

Sec. 38. DECLARATIONS AGAINST INTEREST

I. CONCEPT: These refer to any oral or written

declaration or conduct by a person which is against

his interest provided the person is already dead or

unable to testify. The declarant is not however a

party to a case. The declaration maybe used against

his successors in interest or against third persons. A

party to a case may also use it as his own evidence.

II. DISTINGUISHED FROM AN ADMISSION

1. An admission is not necessarily against

the interest of the declarant while a declaration

against interest is always against the interest of the

declarant.

2. In admissions the admitter may be alive

while the declarant must be dead or unable to testify

3. The admitter is a party to a case while the

declarant is not.

4. An admission is evidence only against the

admitter save in case of vicarious admissions and

admissions by adoption whereas a declaration may

be used as evidence against strangers

Lex Española 87

5. An admission may be made at any time

even during trial, while a declaration must be made

before the controversy arose.

III. INTEREST AFFECTED MUST BE REAL AND ACTUAL

A. Civil, Pecuniary or Proprietary.

1. Pecuniary: The declarations may defeat in whole

or in part a money claim he has against a person.

Example: the heirs of a deceased sued X to collect

from him the supposed unpaid consideration of a lot

sold by the deceased. X presents the best friend of

the deceased who testified that the deceased

confided to him that although no receipt was issued,

X actually had already over paid.

2. Proprietary: The declarations may affect his

property rights. Examples: ― I am a mere administrator

of this property‖, or ―The money is my collection as a

salesman only‖.

Example: Creditor Z attached the land of a

deceased creditor which is actually occupied by X

to answer for the debtor‘s unpaid debt. X presents a

letter written by the debtor prior to borrowing money

from Z, which letter advised the family that he is

actually a mere administrator of the land which in

truth belonged to X.

B. Criminal: The statements may subject him to a

possible criminal prosecution.

a). In an arson case the accused presents a letter of

X to his girl friend stating that he has to leave the

country because he accidentally burned the store of

their neighbor.

b). Statements by persons owning up a crime for

which another was charged.

c). Statement by the driver of a jeepney that he was

very sleepy while driving, is admissible in an action

for damages against the operator arising from a

collision involving the said driver.

C. Moral:

a). The act of a one man showing he is the natural

father of a child, is admissible in a paternity suit

against another man.

IV. REASONS FOR ADMISSIBILITY

1. Necessity: Since the declarant is dead, there is no

other source from which the court may know what

the declarant said, other than the testimony of a

witness.

2. Guarantee of Trustworthiness: No person would

declare or do something against his own interest

unless it si true. People are cautious about making

statements adverse to themselves and ever they do,

it is presumed that the statements are true.

V. REQUIREMENTS FOR ADMISSION

1. The declarant is dead or unable to testify. Inability

to testify includes situations where the declarant can

no longer be presented in court due old age,

physical disabilities insanity and similar mental illness,

or he cannot be located despite diligent efforts to

locate him.

a). If he is alive or present and can be

presented in court, then the testimony of the witness

would be inadmissible as hearsay.

2. The declarant must have competent knowledge

about the matter subject of his declaration.

a). A person is presumed to know certain

matters about himself such as financial status,

condition of his business affairs, his interest in certain

properties, his participation in an act, or in a crime.

b) Thus, in an action for money for services

rendered, plaintiff presented a letter written by the

defendant‘s son to the plaintiff stating that he knew

his father owed plaintiff for services rendered. It was

shown that the son did not know the true nature of

the transaction between the plaintiff and his father-

the defendant.

3. There is absent a motive to falsify.

PEDIGREE

I. CONCEPT: It covers all matters or information

relating to a person‘s:

1. Descent: his paternity, or genealogy or

family tree. Example: who were the ancestors: the

circumstances of their birth, marriage, death, who

were legitimate and who were not.

2. The circumstances of a person‘s own

birth, marriage, death, legitimacy.

3. Descendants or issues if he has any

including the circumstances of their birth, marriage,

death

4. Sibling, i.e. brothers or sisters, whether by

blood or b affinity, whether full or half blood,

legitimate or illegitimate or by informal adoption, as

Lex Española 88

well as circumstances of their birth, marriage, death,

families.

5. All facts concerning family history

intimately connected with pedigree e.g. the story

that a brother was lost and presumed dead when in

truth he was sent to an institution due to his

abnormality)

However, pedigree does not extend to the question

of citizenship or to legal adoption.

II. PROOF OF PEDIGREE

A. The best proof of a person‘s pedigree would be

1).The records kept in the Office of the

Local Civil Registry

2). As provided by Article 172 of the Civil

Code as to filiations &

3) By DNA examinations.

B. However if the foregoing are not available, proof

consists of the presentation of a witness who testifies

to:

1. The declaration or admission of a relative by birth

or by marriage in accordance with Section 39.

2. The Family Tradition or reputation provided the

witness testifying is a member of the family either by

consanguinity or affinity pursuant to section 40.

3. Entries in Family Bibles, Family Books, Charts,

Engraving, Rings, and the like, pursuant to section 40.

III. PROOF BY DECLARATION OF A RELATIVE (Sec. 39)

A. Reason for admissibility: ( Note that a witness is

testifying to the statements of a third person - the

relative- who is not available for cross-examination).

1. Necessity-to prevent a failure of justice

since matters involving the descent or relationship of

a person occurred long before the case was filed

and only a few might still be available to testify

thereon.

2. Guaranty of Trustworthiness- members of

a family are supposed to know those matters

affecting their own family

B. Requirements for Admissibility

1. The pedigree of a person is in issue or is relevant to

the main issue

a). Example: Cases involving inheritance,

support, filiation, use of surnames, parricide, incest

rape/acts of lasciviousness or recognition.

2. The declarant is dead or unable to testify. If he is

available to testify then the testimony of the witness

quoting the declarant is inadmissible.

3. The declarant and the person whose pedigree is in

question are related to one another.

a). The relationship may be by blood or by

affinity and need not be close in degree.

b). The relationship must be legitimate

unless the issue is the legitimacy itself. (Personal

opinion: this is based on bias against illegitimates.

Suppose the illegitimate relative has been accepted

by the family?)

c). Non-relatives, no matter how close or

intimate they may be, such as close friends, house

helps, nannies, are not included and any statement

they make upon a person‘s pedigree are

inadmissible.

4. The declaration must have been ante litem

motam ( before the controversy arose) in order to

ensure the declaration was not the result of bias or

improper motive.

5. The relationship between the declarant and the

subject person must be established by independent

evidence independent of the declaration.

C. Examples

1. In the case of FPJ whose citizenship hinged on

whether he was acknowledged by the father, the

court admitted an Affidavit of a sister leaving in

California the contents of which declared that FPJ

was recognized by their father.

2. Maria wants to inherit as full heir from Pedro. X

testifies that Maria is the sister of Ellen who is married

to Juan, now dead. X presents a letter from Juan

stating that Maria and Ellen are half-sisters because

the father of Maria is not Pedro but another man.

3. AB is charged with parricide for killing X. A witness

testifies that X is the illegitimate child of AB per

information coming from the deceased son of AB.

IV. PROOF BY FAMILY REPUTATION OR TRADITION (Sec.

40)

Lex Española 89

A. Concept: This refers to the knowledge or beliefs of

a certain family handed from one generation to

another, or to practices or customs which are

consistently observed or engaged in by said family. A

member of said family is the one testifying to these

matters.

B. Examples:

1. The practice of making offerings to a

deceased person, burning of incense, making of

libations, visiting the grave, or including the name of

a person in the family prayers, are evidence the

dead is related to the family.

2. The family belief by a family in Bontoc,

Mt. Province, that their surname ANDAYA was

adopted by their grandfather in honor of a teacher

from Tagudin, Ilocos Sur, who took care of said

grandfather.

3. Stories of a grandfather that he was born

on the day Bataan fell to the Japanese, or an uncle

who, during the earthquake, went to the mountains

and was probably buried in a landslide.

4. Practice of a family of inviting an

individual to clan/family reunions.

5. Belief of a family in Aringay, La Union that

the grandfather of Noli de Castro left that town in a

particular year and migrated to Visayas

V. PROOF BY ENTRIES IN FAMILY BIBLES, BOOK CHARTS,

ENGRAVINGS, RINGS AND THE LIKE. (Sec. 40).

A. Entries may include the names, and date and

place of births, marriages, death, and other relevant

data, about a relative, as well other important family

occasions.

B. Other examples: pictures, portraits, baptismal

certificates, the name and date appearing in

wedding rings, family tree charts

C. Names of relatives in published ―thank you

messages‖ in obituaries as well as in wedding

invitations.

COMMON REPUTATION (Sec. 41)

I. RULE: Common reputation existing previous to the

controversy respecting facts of public interest more

than 30 years old, or respecting marriage, or moral

character, may be given in evidence. Monuments

and inscriptions may be received as evidence of

common reputation.

A. CONCEPT: Common reputation refers to the

prevailing belief in the community as to the existence

of certain facts or aggregates of facts arrived at from

the people‘s observations, discussions, and

consensus. There is absent serious opposition,

adverse or contrary opinion. They are not just rumors

or unverified reports or say-so.

B. What common reputation may prove

1. Matters of public interests more than 30 years old

or those affecting the people as a whole and

matters of general interest or those affecting the

inhabitants of a town, province, or barangay.

(Localized matters)

a). They must affect the community as a

whole and not just certain groups

b). Examples: boundaries of lands,

existence of a road, a waterway or irrigation canals;

that a private right exists in a public land, the

reputation of a certain area as the :red district‖; the

birth of a town or barangay, how a town or city got

its name, that a land has long been regarded as a

communal land.

c). It can not be used however to establish

ownership over private lands.

d). Proof of common reputation:

Through the testimony of persons who are in a

position to know the public or general interest.

He may testify thus: ―The old folks told us the

land has always been regarded as communal‖

By monuments, and inscriptions such as old

road/streets signs; old maps and old surveys

2. Moral character or opinion of people concerning

the moral character of a person provided the

opinion is formed among the people in the place

where a person is known, such as in his work place,

residence, school. Examples:

a). The reputation of one as an honest,

diligent and industrious laborer, or a fair and kind

employer, among their co-workers; or as lazy

b). As a trouble maker in the barangay

c). As a conscientious teacher

d). As a person with a hostile attitude or as

a belligerent and easily provoked person

e). As a girl with loose morals

Lex Española 90

3. The marriage between two persons

a). The reputation need not be from family

members. Thus H and W are known as husband and

wife and are addressed or that the community

regard W as the wife of H and vice versa

b). But where there is a formal marriage or

documentary proof thereof, reputation of non-

marriage is not admissible.

PART OF THE RES GESTAE

I. RULE: Section 42: Part of the res gestae- Statements

made while a startling occurrence is taking place or

immediately thereafter, or subsequent thereto, with

respect to the circumstances thereof, may be given

in evidence as part of the res gestae. So also,

statements accompanying an equivocal act and

material to the issue, and giving it legal significance,

may be received as part of the res getae.

II. CONCEPT.

1. Res gestae literally means ―things done‖.

It refers to an event, an occurrence, a transaction,

whether due to the intentional or negligent acts of a

person, or an accident, or due to the action of

nature. All these events are set in a frame of

surrounding circumstances which serve to emphasize

the event or to make it standout and appear clear

and strong.

2. These surrounding circumstances may

consist of statements, utterances, exclamations or

declarations either by the participants to the events,

or by the victims, or by mere spectators. These

persons may not be known or are unavailable for

cross-examination and what they declared, uttered

or stated, or exclaimed are repeated by the

witnesses who heard them.

3. They are the events speaking for

themselves thought the instinctive and spontaneous

words or acts of the persons involved or present

thereat.

III. CLASSIFICATION.

A. Spontaneous Statements. Those made by

a person-whether a participant, victim or spectator-

while a startling occurrence is taking place, or made

immediately prior, during or subsequent thereto.

B. Verbal Acts or Contemporaneous Acts.

These are utterances or statements, which

accompany some act or conduct which explains or

gives legal significance to the act.

IV. SPONTANEOUS STATEMENTS.

A. Requirements for admissibility

1. There must be a startling occurrence or a

happening which was sudden or unexpected- not

anticipated- which is capable of producing nervous

excitement such that it may induce or incite a

person to make an utterance representing the

person‘s actual impression about the event.

a). Examples of a startling occurrence:

sudden death, collision between vehicles and other

vehicular accidents, a fight in progress, a snatching

or robbery, a fire breaking out, a suicide, an act of

lasciviousness, panic breaking out.

2. The statement must relate to the circumstances of

the startling occurrence or to the what, why, who,

where and how of an event.

a). Examples: statements describing what is

happening or referring to the persons involved such

as ― Si Pedro sinasaksak‖, ‗Tama na, patay na yan‖,

―yong mama, mabubondol‖. ―Mamang driver,

dahan dahan, mabangga tayo‖. ―Snatcher, help‖.

B). They include screams and cries of alarm, cries of

pain by victims, or words by a participant such as ―

Matapang ka ha? OOm‖.

b) Exited words heard over the phone by a

policeman are also included.

3. The statement must be spontaneous.

a) The utterances or declarations were

instantaneous, and instinctive. They were reflex words

and not conclusions or products of a person‘s

conclusion, impression or opinion about the event.

The person had no time to make a reflection about

the event. Thus it is said that they are the events

speaking through the person.

B. Factors to determine spontaneity especially to

statements made after an occurrence.

1. The time which elapsed between the occurrence

and the making of the statement. The declaration

should not have been made after a period of time

where it is possible for a person to reflect, analyze,

and reason out. There is no yardstick to measure the

time which elapsed although the time must not of

such length so that the declarant can be said to be

still under nervous excitement.

a). The utterance by a rape victim soon

after being rescued is spontaneous

Lex Española 91

2. The place where the statement was made in that

whether it was within the immediate vicinity or situs of

the event or some distance away.

3. The condition of the declarant at the time he

made the statement- whether he was in a cool

demeanor so that he could have carefully chosen his

words, or he is still in a state of nervous excitement. If

as a victim, his groans are indicative he is still under

the influence of the event.

4. The presence or absence of any intervening

circumstance between the event and the making of

the statements such as those which may have

diverted a person‘s mind and restored his mental

balance, or which in any manner might have

affected his statement.

Examples:

a). In a collision, a driver notices that several

passengers are mortally injured, whereupon he

exclaims: ― That bus was too fast‖.

b). The arrival of the friends of the victim

prompted him to shout, ― he, he is the one who

mauled us for no reason‖.

c). A person lost consciousness and then

recovers whereupon he shouts: Juan, have mercy‖

5. The nature and circumstances of the occurrence

itself in that it must really be serious and capable of

producing lasting effect.

C. Relation to a Dying Declaration.

1. When a statement does not qualify as a dying

declaration for failure to comply with the

requirement‘s the latter, it may however be admitted

as part of the res getae. This is under the principle of

multiple admissibility. This occurs:

a) when the victim survives

b).

there was no consciousness of impending death

c). when the

statement relates to the injury of another and not the

declarant.

2. Example: The victim said: ― Pedro shot me. He also

shot Juan‖. The first is a dying declaration if the victim

dies, otherwise as part of the res gestae. The second

is admissible as part of the res gestae in a case

involving Pedro for shooting Juan.

D. Illustrations

1. A Policeman testifies that he saw a

commotion and while proceeding thereto, he heard

several screams such as ― Awatin nyo si Pedro‖,

―Pedro maawa ka‖. Such screams made by

unidentified persons are part of the res gestae.

2. A security guard testified that he saw two

persons entered the building and after some minutes

they came out running. He asked what was the

matter and one of the two answered: ―napatay

naming si Juan‖.

V. VERBAL ACTS OR CONTEMPORANEOUS

STATEMENTS.

A. CONCEPT: These are utterances, declarations or

oral statements which accompany some act or

conduct which explains or gives legal significance to

the act.

B. REQUIREMENTS:

1. There must be an act:

a). which is equivocal or one susceptible to

different meanings such as : (i) the act of handing

money to another (ii) the act of chopping down a

tree on a piece of land (iii) the act of building a

fence.

b). The act may be a continuing act or that

which takes place within a span of time such as the

regular deposit of money in the account of another

for a year

c). There are however certain acts which

the law considers as self-explanatory (res ipsa

loquitor) such as criminal acts of lasciviousness,

injuring or killing another.

2. The oral statement must explain the act. Thus the

act of handing over money to another was

accompanied by the statements: ―here is payment

of my debt‖, ―go buy yourself lunch‖. The man

chopping a tree exclaimed; ―This land is mine‖,

indicating an assertion of ownership.

3. The act is relevant to the issue. Example: In a

prosecution for violation of the Anti Fencing Law,

where the accused was seen receiving the

cellphone, this statement of the giver is admissible:

―Itago mo yan at huwag na huwag mong ipakita

kahit kanino‖

4. The statement is contemporaneous with the act in

that it was made at the time and place of the act

and not afterwards.

Lex Española 92

(NOTE: THE FOLLOWING EXCEPTIONS ARE IN

THE FORM OF WRITTEN STATEMENTS).

ENTRIES MADE IN THE COURSE OF BUSINESS

I. RULE: Sec. 43. Entries made at, or near the

transaction to which they refer, by a person

deceased, outside of the Philippines, 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 regular course of business or duty

II. CONCEPT: These refer to written accounts or

recording of transactions or events, whether

pertaining to commercial activities or not, so long as

they were made by a private person

ENTRIES IN OFFICIAL RECORDS.

I. RULE: Sec. 44. 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.

II. Concept: Official records refer to official

documents containing data about persons, places,

conditions or properties, state of things or

transactions, prepared or made by a public officer,

or by another especially enjoined by law

The situation concerns facts about which a

public officer has to testify on, but in lieu of his

personal testimony, the official document prepared

or kept by him are instead presented to the court.

III. Reasons for admissibility:

1. Necessity: difficulty of bringing the officer

to court as when he has been separated from the

service, or assigned to a place outside the court‘s

jurisdiction, as well as the great inconvenience

caused to the officer, and the disruption of public

service during his absence from his office. Thus the

court has to rely on the official records prepared by

him.

2. Guaranty of trustworthiness: The entries

are presumed to be true and accurate due to:

a). The sense of official duty which led to

the making of the statement

b). Fear of penalty in the event of an error

or omission

c). In the routine (mechanical) and

disinterested ( lack of personal involvement or

interest) origin of most of the statements

d). In the publicity of the record, which

makes more likely the prior exposure of errors and

their consequent correction

IV. Requirements for admissibility:

A. The person who made the entry must be a public

officer, or by another especially enjoined by law

B. The making must be in the performance of the

officer‘s duty or in the performance of a duty

especially enjoined by law

1. The keeping of the record must be due to any of

the following reasons:

a). It is required by law. Examples:

(i). records of birth, marriage, adoption an

death kept by the Local Civil Registrar

(ii) List of voters and results of elections by

the COMELEC Registrar

(iii) List of Eligibles by the CSC

(iv) List of Professionals by the PRC Record

(v) The Day Book of the Register of Deeds

(vi) List of marriages by religious persons

licensed to solemnize marriages

(vii) Sheriff‘s Return on a writ of execution

(viii) Court docket officer

(ix) The Notarial Registry of a Notary Public

(x) Ship Log Book

b). The nature of his work requires the

keeping of records i.e the records are convenient

and very appropriate modes of discharging the

officer‘s duty. Examples: (i).The List of those applying

for a Prosecutor‘s Clearance (ii).The Visitor‘s Log Book

of the Jail Warden (iii).Record of Cases heard by the

Barangay Police Blotter

Lex Española 93

c). The record is required by a superior.

Example: The record of the whereabouts of

employees

C. The officer must have sufficient

knowledge of the facts recorded by him acquired

personally or through official information (Personal or

official knowledge)

1. Official knowledge: the facts were

supplied by subordinates who have personal

knowledge of the facts and whose duty involves

ascertainment of such facts

2. Examples:

(i). Tax Declarations signed by the Assessor

(ii) Building Permit by the City Engineer

(iii) Birth/Death Certificate issued by the

Local Civil Registrar

IV. Probative Value: The entries are merely

prima facie evidence of the facts stated and may

be rebutted or nullified but if the entry is of a fact, but

not to those made in excess of official duty, or those

not required to be recorded.

SEC. 45. Commercial List and the Like refers to

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 as stated if that

compilation is published for use by persons engaged

in that occupation and is generally used and relied

upon by them therein.

Concept: This refers to journals, list, magazines, and

other publications and similar written or published

works carefully researched an investigated and

especially prepared for sue in certain trades, industry

or profession, or even by the public, which rely on

them.

The authors or publishers are private persons

or entities

Reason for admissibility

1. Necessity in that the authors, compilers, or

publishers may not be available to testify such as

when they are foreigners, or already dead

2. Trustworthiness in that these works were the

product of research as to assure their correctness or

accuracy

Examples:

Legal Profession: the SCRA though published by a

private entity for profit i.e the Central Lawbook

Publishing Co.

Banks and financial institutions rely on the FOREX

Insurance Companies rely on the Actuarial and

Mortality Tables

The public on Business Phone Directories

Result of Stock Transactions/Exchanges

Census Reports

Price Index of minerals, metals

But not tourist guide brochures

Calendars

Learned Treatises under Section 46.

I. CONCEPT: These are published treatises, books,

journals on a subject of history, sciences, law and

arts, which were carefully researched or subjected to

scrutiny and investigation. The authors are scholars or

experts on the subject or it is a group of researchers.

II. REASON FOR ADMISIBILITY:

1. Necessity: the inaccessibility or, or inconvenience

to, the authors or researchers.

2. Trustworthiness in that the authors have no motive

to misrepresent and awareness that the work will be

subjected to inspection, scrutiny and refutation, and

criticism; the works were carefully researched before

being published and were purposely geared towards

the truth.

III. Examples:

1. Textbooks in history such as Gibbons The

Rise and Fall of the Roman Empire, books on

Philippine History by Agoncillo and Constantino

2. Text and reference books/materials in

medicine and its branches

Lex Española 94

3. Books, periodicals and writings in the

exact sciences such as algebra, mathematics, the

logarithmic tables, table on weight and

measurements

4. Law books quoted as references by the

Supreme Court such as Evidence by Francisco ( but

not anymore Legal Medicine by Solis as it is obsolete)

5. Commentaries on law subjects by

recognized legal luminaries such as those by

Wigmore, Clark and Jones on Evidence; Manresa,

Sanchez Roman and Scaevola on Civil Law

6. Reference Books and Books on

Knowledge such as dictionaries and thesaurus,

encyclopedias, yearbooks

7. But not Publications on theology and

religion, literature such as novels and other works of

fiction even if the background or setting is a historical

fact; philosophy.

IV. How introduced as evidence:

1. The court takes judicial knowledge of such

publications as learned treatises

2. An expert witness testifies that the writer or author is

a recognized authority in the subject

Testimony or Deposition in a former Proceeding,

Section 47

I. Concept: A witness is sought to be presented in a

present case but he is dead, unable to testify such

that in lieu of his personal testimony, what is

presented is his testimony in a prior proceeding.

II. Requirements

A. The witness is dead or unable to testify. The witness

may be suffering from illness or from a mental

disqualification such as having become insane or loss

of memory due to age. His whereabouts is unknown

despite diligent efforts to locate him or he was

prevented by a party from appearing as witness,

either by force or by deceit or by persuasion. It does

not cover a situation where the witness refuses to

come to court.

B. Identity of the parties. This may refer to identical

parties or the parties are their successor in interest or

representatives

C. Identity of issues. The issue or matter, in which the

testimony of the witness is sought is common to both

cases, even if there are other issues involved or that

the form of action is different

Examples of cases where there is a

common issue: (i) ejectment and recovery of right of

ownership as both would involve the question of who

has physical possession (ii) an action for damages

based on an act or omission which was the subject

of a prior criminal case such as killing, slander or libel

or estafa.

D. Opportunity for cross examination by the

opponent in the first proceeding

1. If the opponent, through his act or

negligence, did not cross examine, or lost the right,

the rule still applies. Example: the defendant was

declared in default and plaintiff then presented

evidence ex parte

2. Thus if the proceedings in the prior

administrative cases was summary and not

adversarial/confrontational but was decided based

on affidavits and position papers, the rule does not

apply

III. How to present: Present the Transcript of Testimony

which the parties may stipulate on.

THE Hearsay Rule

1. Testimonial Knowledge – Rule 130, Sec. 36

1. What can a witness testify to?

- A witness can testify only to those facts which

he knows of his personal knowledge = those which

are derived from his own perception, except as

otherwise provided in these rules.

The hearsay evidence rule applies also to

affidavits when the supposed affiant never identified

the affidavit and there was no opportunity for the

prosecution to cross-examine him/her.

The testimony of a witness regarding a

statement made by another person, if intended to

establish the truth of the facts asserted in the

statement is clearly hearsay evidence. It is otherwise

if the purpose is merely to establish the fact that the

statement was made, or the tenor of such statement.

The testimony of a witness on the confession

made to him by the accused is not hearsay. He is

testifying to a fact which he knows of his personal

knowledge (was testifying to the fact that the

accused told him that he stabbed the victim) and

not to the truth of the statement of the accused

Lex Española 95

Examples of hearsay evidence:

1) The testimony of a witness as to what he has

heard another person say about the facts in dispute.

(People v. Reyes, 76 Phil. 354; Aldecoa & Co., v.

WArner Barnes & Co., 30 Phil. 153) NOTE: See

concept of independent relevant statement.

2) Affidavits. (Marisfosque v. Luna, L-9095, May 25,

1957; People v. Pagkaliwagan, 76 Phil. 457)

General rule: Affidavits without presenting

affiant in court is mere hearsay: The constitutional

right to confrontation precludes reliance on

affidavits. Such a constitutional safeguard cannot

be satisfied unless the opportunity is given to the

accused to test the credibility of any person, who, by

affidavit or deposition would impute the commission

of an offense to him. It would be to disregard one of

the most valuable guarantees of a person accused if

solely on the affidavits presented, his guilt could be

predicated. (People v. Santos, et al., 139 SCRA 586-

587 citing People v. Lavarez, 23 SCRA 1301)

Exceptions: when affidavits are given

weight:

a. Where said affidavits are overwhelming,

uncontroverted by competent evidence and

not inherently improbable. (Top-Weld

Manufacturing, Inc. v. ECED, S.A., et al., 138

SCRA 132)

b. Under the Rule on Summary Procedure for civil

cases;

c. 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 hat

the matter be heard wholly or partly on oral

testimony or depositions. (Sec. 7, Rule 133, ROC)

3) A letter offered in evidence to establish the facts

in issue. (Pastor v. Gaspar, 2 Phil. 592; People v.

Carlos, 47 Phil. 626)

4) A medical certificate to the extent of the injuries

found by the doctor on the offended party's body.

(De Guia v. Meralco, 40 Phil. 706)

5) A resolution of the municipal council of a certain

municipality as to the character of an accused in a

criminal case. (U.S. v. Tanjuatco, 1 Phil. 374)

6) Newspaper Articles- (Double deck hearsay or

Double hearsay)

Theory of the hearsay rule: When a human

utterance is offered as evidence of the truth of the

fact asserted in it, the credit of the assertor becomes

the basis of inference, and therefore the assertion

can be received as evidence only when made on

the witness stand, subject to the test of cross-

examination.

TWO CONCEPTS OF HEARSAY EVIDENCE:

1. Second hand information (not derived from

personal knowledge of witness)

2. Testimony by a witness derived from his personal

knowledge BUT the adverse party is not given

opportunity to cross-examine

Example (No. 2): Plaintiff presents witness A. A

testifies in court on matters personally known to

him. After direct examination, court tells that

defendant can cross examine on next

scheduled hearing. On the next scheduled

hearing witness A no longer appears and could

no longer be located. [The remedy here now is

to ask that the testimony of witness A be stricken

out since it now becomes hearsay]

Rationale behind the non-admissibility of hearsay

evidence:

1) A witness can testify only to those facts which he

knows of his own knowledge; and

2) To preserve the right of parties to cross-examine

the original witness or person claiming to have

knowledge of the transaction or occurrence.

(People v. Pagkaliwagan, 76 Phil. 457)

The right to cross-examine the adverse party's

witnesses is essential in the administration of justice for

it is the only means of testing the credibility of

witnesses and their testimony, and this right is not

available in respect of hearsay evidence since he

declarant is not in court.(Donnelly v. U.S,228 U.S. 243)

Principle of Independently Relevant Statements

- Under this principle regardless of the truth or falsity

of a statement, the fact that such statements have

been made is relevant. The hearsay rule does not

apply, and the statements are admissible as

evidence. Evidence as to the making of such

statement is not secondary but primary, for the

statement itself may constitute a fact in issue or be

circumstantially relevant as to the existence of such

a fact.

- Independent relevant statements are hearsay in

character but not legal hearsay, hence they are not

Lex Española 96

considered as exceptions to the hearsay rule.

Illustration: A was drinking with his buddies. A told

them that: ―My neighbor is a thief‖. Later on A‘s

neighbor was charged with theft. Prosecution calls as

his witness one of the drinking buddies. The drinking

buddy testifies in court saying: ―The accused is a thief

because I heard A says so.‖ [THIS IS HEARSAY

EVIDENCE]

Now, supposing the neighbor filed a libel

case against A. The drinking buddy serves as a

witness for the plaintiff, and says: ―I heard A said that

the plaintiff is a thief.‖. [Now this time this is not

hearsay, because the FACT IN ISSUE is whether or not

the utterances were made by a particular person,

regardless of the truth or falsity of the statement]

CASE: ESTRADA v. DESIERTO, APRIL 3, 2001

Issue: Whether or not the use of the Angara diary to

determine the state of mind of President Estrada

violates the rule against the admission of hearsay

evidence

Held: 1) Angara diary is not an OUT-OF-COURT

STATEMENT, since it is part of the pleadings in the

case.

2) Angara diary is not covered by the

hearsay rule. Evidence is called hearsay when its

probative force depends in whole or in part, on the

competency and credibility of some persons other

than the witness by whom it is sought to produce it.

3) Admission are not excluded by hearsay

evidence. The Angara diary contains direct

statements of petitioner which can be categorized

as admissions of a party. And though the diary is not

Estrada’s hence non-binding on him, SC held that

the doctrine of adoptive admission applies.

4) res inter alios acta rule- exception:

admissions by a co-partner or agent. Executive

Secretary Angara was the little president, an alter

ego of the president. Indeed, he was authorized by

the petitioner to act for him in the critical hours and

days before he abandoned Malacanan.

5) Independently Relevant Statement- there are two

classes:

(1) Statements which are the very facts in issue;

(2) Statements which are circumstantial evidence.

The second class includes:

a. Statement of a person knowing his state

of mind, that is his mental condition, knowledge,

belief, intention, ill will and other emotions

b. Statements of a person which show his

physical condition as illnesses and the like

c. Statements of a person which an

inference may be made as to the state of mind of

another, that is the knowledge, belief, motive, good

or bad faith of the latter

d. Statements which may identify the date,

place and persons in questions

e. Statements showing the lack of credibility

of a witness

The Angara diary contains statements of the

petitioner which reflect his state of mind and are

circumstantial evidence of his intent to resign.

2. Exceptions

a) Dying Declaration – Rule 130, Sec. 37

Declaration was made under the consciousness

of an impending death

Declaration refers to cause and surrounding

circumstances of the death of the declarant

Declaration may be received in any case

wherein declarant‘s death is the subject of

inquiry (In one case. The husband was shot and

wife was stabbed. The wife died instantly. The

husband was brought to the hospital and made

a statement that it was X who stab her wife. The

husband then died. The statement is not a dying

declaration because it pertains to the wife)

The declarant must be competent as a witness

(What if declarant is proved to be a congenital

liar? Still this exception may apply, because he is

not disqualified from testifying in court if he were

alive)

The declarant actually died, otherwise, the

declaration may be admitted as part of the res

gestae and not as a dying declaration

APPLICABILITY: Both Civil and Criminal. [Criminal: Only

those which involve death, homicide, murder,

parricide, robbery with homicide, rape with

homicide]

Victim need not state that he has lost all hope of

Lex Española 97

recovery. It is sufficient that circumstances are such

as to inevitably lead to the conclusion that at the

time the declaration was made, the declarant would

not expect to survive the injury from which he

actually died.

The degree and seriousness of the wounds

and the fact that death supervened thereafter

constitute substantial evidence of the victim's

consciousness of his impending death. (People v.

Tanaman, et al., G.R. No. 71768, July 28, 1987)

Dying declaration has weight even if declarant did

not die immediately after his declaration: The fact

that the declarant died four (4) hours after his

statement does not diminish the probative value of

the dying declaration since it is not indispensable

that the a declarant expires immediately thereafter.

It is the belief of impending death and not the rapid

succession of death that renders the dying

declaration admissible. (People v. Bautista, G.R. No.

111149, prom. September 5, 1997)

Mere gesture of dying victim inconclusive: The

gesture of a dying woman in pointing to a direction,

when asked for the identity of her assailant, is too

vague to be given such probative value in

determining the culpability of the accused.

REASON: Unlike an oral or a written declaration, a

simple gesture of the hand unaccompanied by

words, is open to various interpretations by the

witness who testifies to its existence. Thus, the

evidence comes to the court couched in the witness'

second hand perception and possibly, imbued with

his personal meanings and biases. This is what makes

hearsay evidence objectionable. The second hand

evidence is placed before the court without the

benefit of cross-examination by the party against

whom it is brought, nor of any other means of

assessing the competence and credibility of the

source. (People v. Ola, G.R. No. L-47147, July 3, 1987)

CASE: The crime charged is rape with homicide. The

victim before death tells to the police

investigator/doctor: ―I was raped.‖ [This is not a dying

declaration, because the statement has nothing to

do with the cause and circumstances surrounding

the death. But this may be admitted as part of res

gestae]

b) Res Gestae – Rule 130, Sec. 42

What are admissible as part of the res gestae:

Statements made by a person while a starting

occurrence is taking place or immediately prior

or subsequent thereto with respect to the

circumstances thereof

Statements accompanying an equivocal act

material to the issue and giving it legal

significance

TWO CONCEPTS:

A. Spontaneous Statements

B. Statements accompanying Equivocal Acts-

Equivocal means ambiguous; capable of

different interpretations.

EXAMPLE:

a) SPONTANEOUS STATEMENT: X barged into the

house of Y, tied her to a chair and robbed her. X

brought Y‘s maid to a bedroom and raped her.

Y could hear the maid crying: ―Huwag! Maawa

ka sa akin!‖. When X fled, Y with the maid rushed

to the police station and told the police what

happened. The maid told the police that

despite her pleas X still raped her. The police

noticed that the maid was hysterical and on the

verge of collapse. X was charged with robbery

with rape. During the trial the maid could no

longer be located. The prosecution presents the

policeman to testify on what the maid told him.

[The testimony would be hearsay but as an

exception to the hearsay rule. The statements

made by the maid fall within the res gestae rule]

b) EQUIVOCAL/VERBAL ACTS: A witness testifies

on the stand for the plaintiff in a collection case

where the defendant denies having borrowed

P10,000 from the plaintiff. The debt is not

evidenced by a promissory note because

plaintiff claims that defendant had orally

borrowed money from him in the past and had

always paid. This time he refuses to pay. The

witness testifies that one year ago he saw the

plaintiff give money to the defendant. And that

he heart the plaintiff said that: ―Here‘s the

money you are borrowing from me.‖ Further, he

said that he heard the defendant say: ―Thank

you, I will pay one year after.‖ [Here the

equivocal act of handing the money was given

significance by the statement of the plaintiff]

DYING DECLARATION versus RES GESTAE

a) Time when statements made:

DYING DECLARATION- statements must be made

Lex Española 98

after the injury has been inflicted upon the applicant.

RES GESTAE- in so far as startling occurrence is

concerned, the statements could be made prior or

simultaneous with or after the startling occurrence.

b) Death of declarant:

DYING DECLARATION- declarant must die

RES GESTAE- no need for declarant to die

c) Declarant:

DYING DECLARATION- must be the victim

RES GESTAE- anybody

PEOPLE vs. CLOUD (265 SCRA 472) Concept of

independently relevant statements and res gestae

applied simultaneously. [N.B. dying declaration may

likewise be applied simultaneously with

independently relevant statement]

Josephine Aguilar was at the emergency

room of a hospital to have some stitches removed

from her daughter’s head when she saw a boy being

carried by a man, followed by an old woman who

was shouting hysterically. The boy’s face was swollen

and bruised and his body covered with dry blood.

The old woman, apparently the boy’s grandmother,

cried and repeatedly screamed. ―Pinatay siya ng

sariling ama!‖. The old woman told the people inside

the emergency room that the boy’s father had

beaten him up, tied his hands, and stabbed him.

Ruling of SC: Insofar as the statements of

Rufina Alconyes(old woman) are concerned, they

are admissible as part of the res gestae, they having

been caused by and did result from the startling, if

not gruesome, occurrence that she witnessed; and

these were shortly thereafter uttered by her with

spontaneity, without prior opportunity to contrive the

same.

The report made thereof by Josephine

Aguilar is not hearsay since she was actually there

and personally heard the statements of Alconyes

which she recounted in court. Her account of said

statements of Alconyes are admissible under the

doctrine of independently relevant statements, with

respect to the tenor and not the truth thereof, since

independent of the truth or falsity of the same they

are relevant to the issue on the cause of the death of

the victim.

c) Declaration Against Interest – Rule 130, Sec. 38

By whom made: a person deceased, or unable to

testify, against the interest of the declarant

Subject of declaration/act: 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

Against whom received: such may be received in

evidence against himself or his successors in interest

and against third persons.

REQUISITES:

a. The declaration is made by

a person deceased, or

unable to testify [i.e. in foreign country or

physical/mental impairments]

b. against the interest of the declarant, [declarant

MUST KNOW that it is against his interest]

c. if the fact asserted in the declaration

1) was at the time it was made

2) so far contrary to declarant's own

interest,

3) that a reasonable man in his position:

would not have made the declaration

unless he believed it to be true. (Sec. 38,

Rule 130,RC)

Declaration against interest distinguished from

admission:

1) An admission is not necessarily against

the interest of the admitter WHILE the declaration

must be against the declarant's own interest(penal,

proprietary, financial)

2) An admission may be received even if

the admitter is alive WHILE the declarant must be

dead or is unable to testify;

3) An admission may be received in

evidence only against the admitter and those

identified with him in legal interest WHILE the

declaration may be received even against third

persons. (Smith v. Moore, 142 N.C. 277)

Inability to testify = either dead, mentally

Lex Española 99

incapacitated or physically incompetent. Mere

absence from the jurisdiction does not make him ipso

facto unavailable.

CASE: People v. Holgado

Jose was killed. Pedro admitted that he was the one

who killed Jose. Unfortunately, Pedro also died. The

prosecutor filed an information charging Juan with

homicide of Jose. The defense presented a witness

who heard Pedro say that he was the one who killed

Jose. SC held that Pedro‘s declaration is a

declaration against interest. It is therefore admissible

to show that the accused did not commit the crime

charged.

d) Pedigree – Rule 130, Sec. 39

By whom made: person deceased, or unable to

testify

Subject of declaration/act: pedigree of another

person related to him by birth or marriage

When admissible: occurred before the controversy,

and the relationship between the two 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 fast occurred, and the names of

the relatives. It embraces also facts of family history

intimately connected with pedigree.

e) Family Tradition – Rule 130, Sec. 40

Subject of exception: 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.

f) Common Reputation – Rule 130, Sec. 41

What are admissible?

Common reputation existing previous to the

controversy, respecting facts of public or

general interest > 30 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

Note: When it comes to presentation of evidence

concerning the good or bad moral character, the

only evidence admissible is evidence of COMMON

REPUTATION. So if character evidence is allowed a

litigant cannot present proof that he is of good moral

character.

Example: A parish priest of the community where the

accused belongs is presented as witness. And the

parish priest testifies that the accused goes to mass

everyday and receives holy communion. [The

testimony is not admissible to show the accused‘s

good moral character; Moral character for purposes

of evidence can be demonstrated ONLY by

evidence of REPUTATION]. So the parish priest should

tell the court what is the reputation of the accused in

the community.

Principle of NEGATIVE REPUTE

If in a community nothing good or bad is heard

about a particular person, the presumption is that he

is really a good person, because that flows from the

established principle in substantive law that everyone

is acting in good faith.

g) Entries in the Course of Business – Rule 130, Sec.42;

Rule 8, REE

When made: Entries made at, or near the time of

transactions to which they refer

By whom made: by a person deceased, or unable to

testify, who was in a position to know the facts

therein stated,

Treatment of such evidence: 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.

Rule 8, Section 1. Hearsay rule exception: A

memorandum, report, record or data compilation of

acts, events, conditions, opinions, or diagnoses,

made by electronic, optical or other similar means at

or near the time of or from transmission or supply of

information by a person with knowledge thereof, and

kept in the regular course or conduct of a business

activity, and such was the regular practice to make

the memorandum, report, record, or data

compilation by electronic, optical or similar means,

all of which are shown by the testimony of the

custodian or other qualified witnesses.

Lex Española 100

Rule 8, Section 2. This presumption may be

overcome by evidence of the untrustworthiness of

the source of information or the method or

circumstances of the preparation, transmission or

storage thereof.

h) Official Records – Rule 130, Sec. 44

When made: Entries made at, or near the time of

transactions to which they refer.

By whom made: by a person deceased, or unable to

testify, who was in a position to know the facts

therein stated,

Treatment of such evidence: prima facie evidence, if

such person made the entries in his professional

capacity or in the performance of duty and in the

ordinary or regular course of business or duty.

The report submitted by a police officer in

the performance of his duties on the basis of his own

personal observation of the facts reported, may

properly be constituted as an exception.

Entries in a police blotter are not conclusive

proof of the truth of such entries.

i) Commercial Lists – Rule 130, Sec. 45

Evidence of statements of matters of interest to

persons engaged in an occupation contained in a

list, register, periodical, or other published

compilation is admissible as tending to prove the

truth of any relevant matter so stated if that

compilation is published for use by persons engaged

in that occupation and is generally used and relied

upon by them therein.

j) Learned Treatises – Rule 130, Sec. 46

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.

k) Prior Testimony – Rule 130, Sec. 47

By whom made: a witness deceased or unable to

testify,

When given: in a former case or proceeding, judicial

or administrative, involving the same parties and

subject matter,

When admissible: may be given in evidence against

the adverse party who had the opportunity to cross-

examine him.

―Unable to testify‖ refers to an inability proceeding

from a grave cause almost amounting to death as

when the witness is old and has lost the power of

speech.

7. OPINION RULE

Sec. 48 . General rule. — The opinion of 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 shown to posses,

may be received in evidence. (43a)

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. (44a)

OPINION EVIDENCE

I - GENERAL RULE (GR): The opinion of a witness is not

admissible (Sec. 48) except indicated in the rules.

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 emotion, behavior,

condition or the appearance of a person

Or, Except:

Lex Española 101

1. Expert witness: opinion of a witness on a

matter requiring special knowledge, skill, experience

or training which he shown to possess (R130, ß49)

2. Ordinary witness: 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.

(d) The witness may also testify on his

impressions of the emotion, behavior,

condition or appearance of a person.

(R130, ß50)

There is no precise requirement as to the

mode in which skill or experience shall have been

acquired. Scientific study and training are not

always essential to the competency of a witness as

an expert. Knowledge acquired by doing is no less

valuable than that acquired by study.

Polygraph test has not as yet attained

scientific acceptance as a reliable and accurate

means of ascertaining truth or deception.

Expert opinions are not ordinarily conclusive

in the sense that they must be accepted as true on

the subject of their testimony, but are generally

regarded as purely advisory; the courts may place

whatever weight they choose upon such testimony

and may reject it, if they find that it is inconsistent

with the facts in the case or otherwise unreasonable.

Testimony of handwriting expert not

indispensable to COMELEC. Handwriting experts,

while probably useful, are not indispensable in

examining or comparing handwriting; this can be

done by the COMELEC itself. It was ruled by the

Supreme Court that evidence aliunde is not allowed

to prove that a ballot is marked, an inspection of the

ballot itself being sufficient.

II. Concept of an opinion as evidence. This consists of

the conclusion or inference of a witness on the

existence or non-existence of a face in issue. The

opinion maybe based on facts personally known to

him or as relayed to him by others.

III. Evidentiary Value. Generally opinions are not

admissible because:

A. The making of an opinion is the [proper function of

the court. The witness is supply the facts and for the

court to form an opinion based on these facts.

B. Opinions are not reliable because they are often

influenced by his own personal bias, ignorance,

disregard of truth, socio-cultural background, or

religion, and similar personal factors. Thus there

maybe as many diverse opinions as there are

witnesses.

C. The admission of opinions as evidence would

open the floodgate to the presentation of witnesses

testifying on their opinion and not on facts.

IV. Examples of matters on which opinions are

irrelevant

1. The final outcome of a case such as whether an

accused should be acquitted or not, or who should

win a case, the amount of damages to be awarded

to the winner

2. The question of care or negligence

3. Motives or reasons behind the action of a person,

unless these were relayed to the witness

4. Valuation of properties

5. Cause of an event as being due to an accident,

mechanical defect or human error or action of

nature

V. Exceptions or when an opinion is admissible as

evidence

1. In case of expert opinions given by an expert

pursuant to Section 49

2. In case of lay opinions on certain specific

matters pursuant to section

EXPERT OPINION

Sec. 49. Opinion of an expert- The opinion of a

witness on a matter requiring special knowledge, skill,

experience or training, which he is shown to possess,

maybe received in evidence.

I. Who is an expert- A person possessing knowledge

or skill not usually acquired or possessed by other

persons, in regard to a particular subject or aspect of

human activity. Expertise is acquired through any of

the following manners:

Lex Española 102

1. By formal education such as in the case of lawyers,

physicians, engineers, dentists, metallurgists, chemists

2. Through special training or seminars as in the case

of ballisticians, weapons experts, finger print experts,

questioned-documents expert, masseurs, pilots

3. Through experience based on the exercise of a

profession, trade, occupation, industry such as

carpenters, wielders, machinists or mechanics, deep-

well diggers

4. Through hobbies as in the case of stamp

collectors, coin collectors, gun collectors,

ornithologists, photographers, animal breeders,

5. Through careful study and research as in the case

of those who study old civilizations, or various aspects

of medicine

II. Requirements for the Admissibility of Expert

Opinion.

A. The subject of inquiry requires the opinion of an

expert, or that the fact in issue requires the opinion of

an expert.

1. The use of an expert is becoming more

frequent in order to explain how and why things

happened the way they did or didn‘t happen the

way they were supposed to, as in the following

cases:

a). In personal injury cases where physicians

or surgeons are needed to prove the cause and

effect of certain injuries, so also economist as to the

amount of income which was lost

b). Products liability cases where there is

need for reconstruction experts to prove the defects

in a certain products. Such as a car accident being

due to factory defects in the wheel, or a mechanical

defect attributable to the manufacturer

c). Actions relating to constructions where

there is need for engineers and architects as injury to

a bridge which collapsed, or breach of contract in

that the building was constructed poorly

2. The traditional areas where expert

opinion is used:

(i). Questions involving handwriting

(ii). Questioned documents

(iii). Fingerprints

(iv). Ballistics

(v). Criminal cases involving injuries and

death

(vi). Drug cases

(vii). Value of properties

(viii). Blood groupings

(ix). DNA Profiling

(x) Forensics

B. The witness is shown to be an expert. It

must be shown that the witness possesses certain skills

or knowledge and is therefore in a position to assist

the court based on these skills or knowledge

III. Manner of showing the witness is an expert

1. By asking the adverse party to admit and stipulate

that the witness is an expert. This is where the witness

regularly appears in court as an expert and is familiar

to the court, or where the witness occupies a position

requiring certain knowledge or skill, as a medico

legal officer.

2. Through the process known as ―Qualifying the

Expert‖- propounding questions to the witness

concerning his background and eliciting answers

from the witness showing he possesses special

knowledge or skill on the matter on which he is to

testify

3. If the expertise is not admitted and the witness is

not properly qualified, he is to be regarded as an

ordinary witness and may be objected in giving an

opinion

IV. Components of Qualifying the Witness

1. Show the general professional background.

Questions propounded are directed to bring about

the facts concerning his (a) education (b) degrees

obtained (c) academic honors or scholarships

granted or earned (d) licenses obtained (e)

employment history, positions held, number of years

in his position , promotions earned

2. Show the specific professional background.

Questions asked are directed to bring out answers to

the specific facts or skills such as (a) special trainings

undergone (b) publications authored (c)

membership in professional associations (d) as

lecturer or speaker or resource person (e) how often

he was called as a witness and (f) particular work

Lex Española 103

experience which bear directly on the situation

about which he is testifying

V. Basis of Opinion or How to elicit the Expert‘s

opinion

A. Kind of Facts as Basis for the Opinion:

1. Facts personally known to the expert or about

which he has first hand knowledge.

2. Opinion maybe based on facts about which he

has no personal knowledge or first hand knowledge,

but are based either (i) on the report or facts as

found by another expert who had first hand

knowledge, provided the report is not hearsay or that

the other expert had testified and subjected to the

opportunity for cross-examination or (ii) on facts

already testified to by witnesses and established by

the records of the case

B. Manner of Questioning

1. Where the basis are facts personally known to the

expert, these facts must first be elicited from the

witness after he may be asked directly whether he

has any opinion about them and to state what his

opinion is.

Example: The medico legal officer who conducted

the autopsy will first be asked to state his findings as

to the nature, number, location, description, depth,

trajectory, etc, of the wounds of the victim after

which he is asked to state his opinion as to the cause,

weapon used, position of the victim and assailant,

cause of the death, etc..

2. By the use of ―Hypothetical Questions‖ when the

opinion is based on facts not personally known to the

witness.

a). It is a question which, for purposes of the

answer, assumes certain facts which have counter

parts in the evidence, and asks the witness to give an

opinion as to certain matters based on these facts.

Since the witness has no personal knowledge of

these facts, he is told these facts and then is asked to

assume the facts to be true, and finally to give an

opinion.

b). The question must incorporate or refer

accurately to all the relevant facts- as proven- as

basis for asking the opinion

c). In case of physicians, the phraseology is

usually thus: ―Assuming all these facts to be true…

within a reasonable degree of medical certainty,

what might have caused the injuries…?

3. The expert may asked to state that his opinion is

supported by learned treaties or shared by others in

his class

VI. Weight of Expert Opinion

1. Courts are not bound as the opinions do not

produce conclusive effect but are regarded as

persuasive and advisory which the court may or may

not consider.

2. Opinions are to be treated on the same level as

any other evidence.

3. Factors to be considered in giving weight, or points

to show the opinion is of no weight

a). The qualification of witness :

The degree of learning and academic

background

The experience, professional standing and

training, or his being abreast with the latest

developments

b). The reliability of the opinion:

1) The relative objectivity of the witness such

as the presence or absence of personal or

professional bias or motive and

2) the degree of concordance of his

opinion with the facts proven or the basis and logic

of his conclusions

SUGGESTED CHECKLIST FOR QUALIFYING AN EXPERT

(Taken from: Fundamentals of Trial Techniques by

Thomas Mauet, Professor of the University of Arizona)

1. Name, address and personal circumstances

2. Business or occupation: what is it-length of time-

description of field company or organization joined-

capacity and length of time –where located-prior

position-description of positions

3. Education: (a) undergraduate-degree, year of

graduation-honors obtained (b) graduate

school- degree- when, area of study

4. Training: formal course-what-when-where-under

whom-length of time

5. Licenses: what-when-reviewed-specialty- when-

requirements

Lex Española 104

6. Professional associations:

7. Other background: teaching positions-

publications-lectures-consultancy work

8. Expert witness at trials: how many- which side

9. Experiences in Specialty: (a) type of examination

commonly done- how many

Example: Private Physician who treated a patient

A. Qualifications:

Licensed: where and when

Education and training: college/medical school-

when-degree-internship-residency

Specialty training-specialty boards-requirements

Hospital staff membership

Teaching positions

Publications and lectures

Medical Society memberships

Other honors

Previously testified as an expert

B. Experience

Description of practice

Number of patients

Examination of similar types

Experience with x-rays, lab test, etc

C. Examination of Patient

1. Description of office records

2. History of the patient

3. Examination conducted

a). complaint (symptoms)

b). positive findings or negative findings

c). x-ray findings

d). lab test findings

D. Diagnosis: tentative and definite

E. Treatment (chronological) hospitalization-

operation-drug-casts

F. Subsequent examinations

G. Patient‘s Present Condition based on last

examination

H. Opinion on causation

I. Prognosis: opinion on prospects for complete

recovery

J. Amount of present and future medical service

LAY OPINION

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

(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, conditions or

appearance of a person.

Opinion on the identity of a person. Where the issue is

whether a particular person is involved in an event.

As for example: 1). the accused sets up alibi or

defense of mistaken identity; 2). in claims for

insurance, determining whether a body is that of the

insured 3). determining who be the victims

A. General Method of Identification

1. Identification by scientific methods: by the teeth;

fingerprints, foot prints and by DNA analysis

Lex Española 105

2. By Lay Opinion: by face, physical appearance,

height, body built, sex, color of hair, racial features,

mannerisms, gait, clothing speech , defects, tattoos

or marks or scars and other marks on the body, or by

any factor which distinguishes him from another. .

a). Identification of a person is not solely

through knowledge of his name. In fact, familiarity

with physical features, particularly of the face, is the

best way to identify a person. One maybe familiar

with the face but not necessarily with the name of a

person. It does not follow therefore that to be able

to identify a person, one must necessarily know his

name. Example: precisely because of the unusual

bestiality committed before their eyes, eyewitnesses,

especially victims of a crime, can remember with

high degree of reliability the identity of criminals.

b) The witness must however be able to

explain his basis of identification

3. By the style of writing

B. In-court and Out-of-Court Identification in

criminal cases. In-court identification maybe

influenced by the reliability of the out-of-court-

identification. The latter consists of either:

1. By the police Methods of Identification of

suspects a) Show-ups-where the

suspect alone is brought face to face with the

witness for identification

b). Mug file shots or based on the ―Rouge‘s

Gallery‖

c). Line-ups where a witness identifies the

suspect form a group of persons lined up for the

purpose

2. By circumstances: Totality of

Circumstances Test. Several factors are to be

considered, to wit:

a). Witness‘ opportunity to view the criminal

at the time of the crime. These include matters such

as presence of light, distance of viewing, length of

time of the event; presence of obstructions to line of

visions, the position of the witness in relation to the

suspect

b). The witness‘ degree of attention at that

time: to what or who was he focused on, as well as

the presence of distractions

c). The accuracy and consistency of any

prior descriptions by the witness

d). The level of certainty demonstrated by

the witness at the time of the identification. Example:

the reaction of a victim upon seeing the suspect

e). The length of time between the time of

the occurrence and the time of the identification

f). The suggestiveness of the identification

process.

C. Concept and Types of Positive

Identification

1. Positive identification pertains essentially to proof

of identity and not per se to that of being an

eyewitness to the very act of commission of the

crime.

2. First Type: As direct evidence: where a witness, as

an eyewitness, may identify a suspect or accused to

the very act of the commission of the crime

3. Second Type: As part of circumstantial evidence:

where a witness may not have actually witnessed the

very act of the commission of the crime but is still

able to positively identify a suspect or accused as

the perpetrator of a crime as when, for instance, the

suspect/accused is the person last seen with the

victim before or right after the commission of the

crime ( Baleros vs. People, 483 SCRA 10, Feb. 22,

2006)

I. Opinion on Handwriting.

A handwriting maybe proved to be that of

a particular person by any of the following:

1. By the opinion of an expert

―the opinions of handwriting experts, although

helpful in the examination of forged documents

because of technical procedure involved in the

analysis, are not binding upon the courts. As such,

resorts to these experts is not mandatory or

indispensable to thee examination or the

comparison of handwriting. A finding of forgery does

not depend entirely on the testimonies of

handwriting experts, because the judge must

conduct an independent examination of the

questioned signature in order to arrive at a

reasonable conclusion as to its authenticity ( G& M

Phil. Inc. vs. Cuambot 507 SCRA 552)

2. By the admission of the author/owner of the

handwriting

3. By the testimony of witnesses or those who actually

saw the person write, they maybe subscribing

witnesses or eye witnesses

Lex Española 106

4. By the testimony of those who have gained

sufficiently familiarity with the handwriting of the

person, under section 50.

a) By the fact that he has seen writing

purporting to be that of the other person upon which

he has acted or been charged. Example: persons in

receipt of demand letters, notices, purchase orders,

letters of inquiry, directive, memorandum, letters of

authority

b) Familiarity has been acquired due to

close personal, business, social or professional

relations which include the regular receipt, sending

and reading of mutual written hand-written

communications between the witness and the other

person. Examples are (i) Personal or social relations

such as pen-pals, spouses, lovers, classmates (ii)

Business such as between the employee such as

secretary and employer, teacher and student

5. By the testimony of those who are in receipt of

reply letters (Identification by subject matter)

6. Identification by the court based on a comparison

between the genuine handwriting and the one in

issue

7. Identification by the style of writing

Note: Familiarity with signature is not

necessarily familiarity with handwriting and vice-

versa. (The application of section 50 may be

lessened due to increasing frequency of

communications by e-mail, or machine

prepared communications, and other modern

gadgets.)

1. An allegation of forgery and a

perfunctory comparison of the

signature/handwritings by themselves cannot

support a claim of forgery, as forgery cannot be

presumed and must be proved by clear, positive and

convincing evidence and the burden of proof lies on

the party alleging forgery.

Criteria to determine forgery or falsification:

per Ladignon vs. CA ( 390 Phil. 1161 as reiterated in

Rivera vs. Turiano ( March 7, 2007):

The process of identification must include

not only the material differences between or among

the signatures/handwritings but a showing of the

following:

(i) the determination of the extent, kind and

significance of the resemblance and variation ( of

the handwriting or signature)

(ii) that the variation is due to the operation of a

different personality and not merely an expected

and inevitable variation found in the genuine writing

of the same writer

(iii) that the resemblance is a result more or less of a

skillful imitation and not merely a habitual and

characteristic resemblance which normally appears

in genuine handwriting

III. Opinion on the sanity of a person.

There are two instances when an ordinary person

may testify on the mental sanity or state of mind of a

person:

1. Under the Civil Code it permits the opinion of a

subscribing witness to a writing the validity of which is

in dispute in that the sanity or state of mind of a party

thereto is put in issue.

Examples:

(a). An attesting witness to a will may give

his opinion on whether the testator was of sound and

disposing mind (b) A subscribing witness to a

contract may give his opinion that the party was fully

conscious and aware of the nature of his acts

2. Under section 50 of Rule 130 in that it allows the

opinion of an intimate acquaintance who may give

his opinion based on the external conduct of a

person. Examples are family members, immediate

neighbors, house hold helps, office and business

acquaintances. Thus where the accused puts up

insanity as a defense, his friends, relatives and family

members are competent to testify on his mental

sanity. But not strangers or casual acquaintances

IV. Opinions on the emotions, behavior, conduct or

appearance of a person.

1. Examples:

(a) emotions: that a person is angry, agitated, exited,

tense, nervous, hesitant. Happy, elated, grateful,

afraid

(b) condition or appearance- as unkempt, dirty, well

groomed, drunk, tired, sleepy, haggard, sickly

2. But a witness may not give his opinion on the

motive, reason or purpose why a person did or did

not do an act unless these were communicated to

the witness, such as jealousy or revenge, or financial

reward.

Lex Española 107

V. Instantaneous impressions of the mind.

1. These include opinions on the conditions or state of

things, or of persons or things in motion such as on

the weather, speed of vehicles, distance, value of his

personal things or property, or value of services.

VI. Opinion on the age of a person.

As a general rule, the age of person maybe

established by:

(a) the record of birth

b) Opinion of an expert

(c) Opinion of an ordinary witness who is acquainted

with the person whose age is in question, such as a

relative, a contemporary, persons in the know in the

community where he lives, as well as

(d) Family tradition, entries in family records

8. 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 to the

moral trait involved in the offense charged.

(3)The good or bad moral character of the offended

party may be proved if it tends to establish in any

reasonable degree the probability or improbability of

the offense charged.

(b)In Civil Cases:

Evidence of the moral character of a party in civil

case is admissible only when pertinent to the issue of

character involved in the case.

(c)In the case provided for in Rule 132, Section 14,

(46a, 47a)

Conduct and Character as Evidence

Conduct – Rule 130, Secs. 34-35

- 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 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.

- 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.

Character – Rule 130, Sec. 51; Rule 132, Sec. 14

General Rule: Character evidence is not admissible,

[because it is purely circumstantial] exceptions-

1. In criminal cases –

- Accused = may prove his good moral character

which is pertinent to the moral trait involved in the

offense charged.

- Prosecution = may not prove his bad moral

character unless in rebuttal.

- Offended Party = his/her good or bad moral

character may be proved if it tends to establish in

any reasonable degree the probability or

improbability of the offense charged.

2. 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.

- Witness = Evidence of his/her good character is not

admissible until such character has been

impeached.

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 when it

tends to identify defendant as the perpetrator and

tends to show is presence at the scene of the crime

or in the vicinity of the crime at the time charged, or

when it is evidence of a circumstance connected

with the crime. (People vs. Irang, 1937)

Good or bad moral character of the victim

is not necessary in a crime of murder where the killing

is committed through treachery or premeditation.

(People vs. Soliman, 1957)

CHARACTER EVIDENCE

Lex Española 108

I. INTRODUCTION. Section 51 provides the general

rule that character evidence is generally not

admissible as evidence except in the cases specified

therein.

General Rule: Character evidence not generally

admissible (Sec. 51)

Exceptions

1. In Criminal Cases: accused may prove his

good moral character which is pertinent to the moral

trait involved in the offense charged.

a. 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.

b. 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.

c. In Civil Cases – only when pertinent to the issue

of character involved in the case, good

character of an impeached witness

II. Concept of Character As Evidence

1. Character is the sum total of all the traits of a

person which distinguishes the person from others.

They include the physical, mental, emotional and

psychological attributes of a person. These maybe

genetically acquired, or inherited or in-born, such as

a person‘s sex, height, physical appearance. Or they

may be acquired and developed such as personality

and behavioral characteristics due to virtues or vices,

such as being bad, immoral, honest, lazy, anti-social

or friendly.

Character is what a person truly is.

2. Reputation on the other hand is the estimation of a

person by other people, or what people think a

person is. Character is not always one‘s reputation as

people may pretend and present a public face or

image different from what they are in private. One

may have a good reputation but a bad character

and vice-versa.

3. What a person thinks of himself is either his illusion

or delusion

III. Proof of Character

1. By personal opinions- this is not allowed

2. By specific conduct- this is also not allowed

3. The only method allowed is proof of reputation in

the community or place where a person is known by

persons acquainted with him. Although it may

happen that the reputation is not always the

character.

IV. Coverage of the Rule. Where the rule allows the

introduction of character evidence, it is understood

to be limited to MORAL CHARACTER, the possession

by a person of the qualities of mind and morals

distinguishing him from others. This is limited to:

1. Good Moral Character which includes all the

elements necessary to make up such a character as

honesty, veracity in all professional, business,

commercial intercourse or dealings of a person; the

virtue of chastity, or those character which measures

up as good among people, or that which makes a

person look upon as being up to the standards of

good behavior and upright conduct.

2. Bad Moral Character or those which defines a

person‘s tendency to be of loose morals, evil, to be

violent, dishonest, to disregard law and authority and

the welfare of the community

V. Reason for the General Rule on Inadmissibility

Character is highly irrelevant in determining a

controversy. If the issues were allowed to be

influenced by evidence of the character or

reputation of a party, the trial would have the aspect

of a popularity contest rather than a factual inquiry

into the merits of the case. After all the business of

the court is to try the case and not to try the man for

a very bad man may have a very good case, in

much the same manner that a very good man may

have a very bad case.

VI. Rule in Criminal Cases

1. Moral Character of the Accused.

a). The accused enjoys the presumption of

good moral character but he is given the privilege of

proving a particular moral character if it is ―pertinent

to the moral trait involved in the offense‖ i.e. the

character evidence must be relevant and germane

to the kind of act or omission charged.

(i). In estafa or embezzlement or

malversation the moral trait is that of dishonesty and

deceit. Hence the accused may introduce evidence

of his honesty, fairness and openness in his personal

and business deals or transactions

(ii). In physical assault cases the moral trait

is violence hence the accused may introduce

evidence of his peaceable nature, his being friendly

or of his passivity

Lex Española 109

(iii). In rape, he may prove his chaste

character

b) The moral character must be one in

existence at the time of the commission of the crime

c). evidentiary value. Evidence of good

moral character is not a basis for acquittal.

(i) It serves only as a positive defense

because I affords a presumption against the

commission of a crime in that, it is improbable that a

person who has uniformly pursued an honest and

upright course of conduct will depart from it.

(ii) It is to be regarded only as circumstantial

evidence of innocence as its role is to provide a basis

for the court to doubt his guilt.

d). Where the crime is one of great or

atrocious nature or criminality, or the so called

heinous crimes, evidence of good moral character is

of little weight, as for instance in multiple murder

e). The Prosecution may not immediately

introduce evidence of the bad moral character

because: (i) it is to avoid undue prejudice on the part

of the judge due to the deep tendency to punish not

because the accused is guilty but because of his

bad character and (ii) to avoid confusing the issues

f) WHEN MAY THE PROSECUTION INTRODUCE

EVIDENCE OF THE BAD MORAL CHARACTER OF THE

ACCUSED?

(Ans). 1. Pursuant to section 51, only in rebuttal

provided the accused introduced evidence of his

own good moral character during the presentation

of his evidence-in-chief. This is to prevent the

accused from having a free hand and fabricating

evidenced of his good moral character without fear

of contradiction.

2. Pursuant to the Rule on Cross-Examination, if the

accused testifies in his own behalf, the prosecution

may prove his band character as a witness i.e. his

veracity for truth is bad

2. The Moral Character of the Victim may be proved

― if it tends to establish in any reasonable degree the

probability or improbability of the offense charged‖

a). The Prosecution may immediately

introduce evidence of the good moral character of

the victim if:

(i). If it is an element of the offense

charged, such as good reputation in case of

seduction, or in libel and oral defamation

(ii) It proves the probability of the offense

charged as in sex crimes such that the victim could

not have given consent due to her good moral

character

b). The accused may prove the bad moral

character of the victim in the following cases

(i). In assault or homicide cases where he

sets self-defense, or in cases of the Battered Wife

Syndrome defense, the accused may prove the

victim is of a violent character, quarrelsome, trouble

seeker or pugnacious.

This is to prove it was the victim who was the

aggressor. Likewise to show the state of mind of the

accused in that bad character of the victim

produced a reasonable belief of imminent danger

on the mind of the accused and a justifiable

conviction that a prompt action was necessary.

(ii) In sex crimes involving unchaste acts of

the accused, where the willingness of the woman is

material, her character as to her chastity is

admissible to show whether or not she consented to

the man‘s acts

(iii) In murder an in other heinous crimes,

evidence of the bad moral character of the victim is

irrelevant

VII. Rule in Civil Cases

1. Evidence of the character of the parties is not

admissible unless the issue involved is character i.e.

character is of particular importance in the case, or

that the good or bad moral character of a party will

affect the outcome of the case.

2. Examples of the exception

a). Action for damages for injury to

plaintiff‘s reputation as in libel cases

b). Actions which impute moral turpitude

such as the employment of deceit, misrepresentation

or fraud

c). Actions for damages due to seduction

d). Legal separation or annulment of

marriage based on reasons grounded on the

character of the spouses, such as psychological

incapacity

e). Action for damages for breach of

promise to marry where the bad character of plaintiff

maybe used as a defense

Lex Española 110

f). As a defense in actions for Alienation of

Affection

g). In actions involving custody of children

h). Opposition to the appointment of a

guardian, or administrator of the property of another

VIII. Rule as to Witnesses

1. The witness enjoys the presumption of good moral

character hence it is not necessary to introduce

evidence thereof

2. However, evidence thereof is necessary in order to

rehabilitate the character of the witness if the same

had been impugned by the adverse party

3. The bad moral character as witness, his tendency

to lie or improper motives may be shown by the

adverse party

IX. Rule as to Third Parties

1. Generally evidence thereof is inadmissible being

irrelevant as they are neither parties nor witnesses

2. However if relevant in that they may affect

the issues of the case, then evidence thereof maybe

admitted. Thus in an action for legal separation

based on adultery by the wife with a man, evidence

that the man is a person of good moral character

may be introduced as proof that the man could not

have entered into the adulterous relationship

RULE 131

Burden of Proof and Presumptions

SECTION 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. (1a, 2a)

Sec. 2 . Conclusive presumptions. — The following are

instances of conclusive presumptions:

(a)Whenever a party has, by his own declaration,

act, or omission, intentionally and deliberately led to

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 commencement of the

relation of landlord and tenant between them. (3a)

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 one 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 possess, or exercises acts of

ownership over, are owned by him;

(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;

(l)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;

Lex Española 111

(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 endorsement of 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 with 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;

(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 well-founded belief that the

absent spouse is already death. In case of

disappearance, where there is a danger of

death 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 proceedings as provided in the

Family Code and in the rules for 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 ordinary nature habits

of life;

(z)That persons acting as copartners have entered

into a contract of copartneship;

(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 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 acquire

properly 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

rules 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 such marriage,

even though it be born within the three

hundred days after the termination of the

former marriage.

(2)A child born after one hundred eighty

days following the celebration of the

Lex Española 112

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

the nature;

(ff)That the law has been obeyed;

(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 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 the 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 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. (5a)

Sec. 4 . No presumption of legitimacy or illegitimacy.

— There is no presumption of legitimacy of a child

born after three hundred days following the

dissolution of the marriage or the separation of the

spouses. Whoever alleges the legitimacy or

illegitimacy of such child must prove his allegation.

(6)

BURDEN OF PROOF

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

Burden of Proof – Rule 131, Sec. 1

Burden of proof (Risk of non-persuasion): duty of a

party to present evidence on the facts in issue

necessary to establish his claim or defense by the

amount required by law.

Criminal Cases: The burden of proof is on the

prosecution, because under Rule 133 the accused is

entitled to acquittal unless his guilt is demonstrated

by proof beyond reasonable doubt

Civil Cases: The usual principle is that whoever

makes an affirmative allegation has the burden of

proof

Infringement cases: The burden of proof to

substantiate a charge of infringement is with the

plaintiff. But where he plaintiff introduces the patent

in evidence, and the same is in due form, there is

created a prima facie presumption of its correctness

and validity. The decision of the Commissioner of

Patent (now the Director of the Intellectual Property

Office), in granting the patent is presumed to be

correct.

The burden of going forward with the evidence

(burden of evidence) then shifts to the defendant to

overcome by competent evidence this legal

presumption. (Maguan v. Court of Appeals, et al.,

146 SCRA 116, 117)

Lex Española 113

Two separate burdens in Burden of Proof:

1. Burden of going forward- that of producing

evidence

2. Burden of persuasion- burden of persuading the

trier of fact that the burdened party is entitled to

prevail

Illustration of going forward with the evidence: For

example after the existence of a debt has been

proven by the creditor the burden of proving

payment devolves upon the debtor. Where the

debtor introduces evidence of payment, the burden

of going forward with the evidence - as distinct from

the general burden of proof- shifts to the creditor

who is then under the duty of producing evidence to

show non-payment. (Jimenez, et al, v. NLRC, et al.,

G.R. No,. 116960, prom. April 2, 1996)

In short, the burden of going forward is the

burden of producing evidence.

EFFECT OF ABSENCE OF EVIDENCE or no evidence is

presented

CRIMINAL CASE: Accused is acquitted

CIVIL CASE:

a. When defendant does not file an answer-

Plaintiff wins

b. When defendant files an answer and sets up

purely negative defenses and no evidence is

presented by both sides- Defendant wins

because plaintiff has not carried his burden

c. When defendant files an answer and sets up

affirmative defenses and no evidence is

presented by both sides- Plaintiff wins

Example: The defendant filed an answer: ―I admit

that I borrowed money from the plaintiff, but the

plaintiff has no reason to run after me because I

have paid that account long time ago.‖ [If no

evidence is presented by both sides then plaintiff

wins because the defendant admitted the existence

of loan. And it is the defendant’s burden to prove his

affirmative defense.]

BURDEN OF EVIDENCE- the duty resting upon a party,

by means of evidence, to create or meet a prima

facie case.

BURDEN OF PROOF vs. BURDEN OF EVIDENCE

Burden of Proof NEVER SHIFTS, while Burden of

Evidence is TRANSFERRED from one litigant to another

depending on the progress of trial.

Illustration: Plaintiff files a complaint for recovery of a

defaulted loan. Defendant files an answer with a

negative defense, denying the existence of the loan.

[ At the start, the plaintiff has the burden of proof

and also burden of evidence, he should go to trial

and present evidence to show that he has a cause

of action. If he has introduced enough proof that he

has a cause of action, the burden of evidence will

now be shifted to the defendant. If defendant

presents enough evidence to prove his negative

defense then the burden of evidence is shifted again

to the plaintiff on rebuttal evidence.]

Can the accused in a criminal/civil case before

presenting his own evidence ascertain conditionally

or provisionally whether the evidence presented by

the prosecution is enough to convict him?

Yes. In a criminal/civil case, the

accused(defendant/plaintiff) can easily

determine the sentiment of the court

concerning the quantum of evidence presented

by the prosecution(defendant/plaintiff) by

simply filing a demurrer to evidence with leave

of court.

PRINCIPLE OF NEGATIVING AVERMENT

A negative averment do not have to be

proven UNLESS the negative averment is an essential

part of the cause of action or defense.

Example: In an information for illegal possession

of firearms, the information will contain an

averment that the accused does not have a

license to possess the firearm[negative

averment].

In this case, the negative averment is an

essential part of the commission of the crime,

hence this must be proven.

Doctrine of Equipoise or Equiponderance Rule

Where the evidence on an issue of fact is in

equipoise or there is doubt on which side the

evidence preponderates, the party having the

burden of proof fails upon that issue. (Rivera v. Court

of Appeals, et al., G.R. No. 115625, prom. January 23,

1998)

Therefore, as neither party was able to make out

a case, neither side could establish its cause of

action and prevail with the evidence it had. They

are thus no better off than before they proceeded to

litigate, and, as a consequence thereof, the courts

can only leave them as they are. (Rivera, supra

Lex Española 114

citing Municipality of Candijay, Bohol v. Court of

Appeals, 251 SCRA 530)

Presumptions – Rule 131, Secs. 2-4

Presumption- an inference as to the existence or non-

existence of a fact which courts are permitted to

draw from the proof of other facts.

CLASSIFICATIONS

1. PRESUMPTION JURIS OR OF LAW- a deduction

which the law expressly directs to be made from

particular facts

-Must be made whenever the facts appear

which furnish the basis for the inference

-Reduced to fixed rules and form part of the

system of jurisprudence

2. PRESUMPTION HOMINIS OR OF FACT- a deduction

which reason draws from facts proved without an

express direction from the law to that effect

-Discretionary on the court

-Derived from circumstances of a particular

case through common experience of mankind

CLASSIFICATIONS OF PRESUMPTIONS OF LAW

1. Conclusive- not permitted to be overcome by any

proof to the contrary

2. Disputable- law permits to be overcome or

contradicted

1. Conclusive

Whenever a party by his own declaration,

act, omission, has led another –

1 to believe a particular thing to be true AND

2 to act upon such belief,

he cannot in any litigation arising out of such

declaration, act or omission be permitted to falsify it.

(Estoppel)

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.

Note: There is also a conclusive presumption

under the Rule 39, which is a public policy

principle of res judicata (a judgment is

conclusive upon the title to the thing or upon

the political or legal condition of a person,

{judgment in rem or in personam})

2. Disputable

CLASSIFICATIONS:

1. Presumption of innocence (Presumption of good

faith)

2. Presumption of regularity of official and judicial

acts

3. Presumption of regularity of private transactions

Evidence willfully suppressed would be adverse if

produced

ELEMENTS:

a. The suppression is wilful. (Sec. 3-e, Rule 131, ROC)

continue

b. The suppression is not in the exercise of a privilege.

c. The evidence suppressed is not merely

corroborative.

d. The evidence is at the disposal only of the

suppressing party.

NOTES: Instances where adverse presumption from

suppression of evidence does not apply:

a. If the evidence is at the disposal of both parties.

(People v. Ducay, 225 SCRA 1)

b. The suppression was not willful.

c. The suppressed evidence is merely corroborative

or cumulative.

d. The suppression is an exercise of a privilege.

(People v. Navaja, 220 SCRA 624)

The presumption that evidence not

produced or willfully suppressed is adverse to the

party, will not apply if the evidence is at the disposal

of both the defense and the prosecution and if the

evidence is merely conclusive.

Instances of conclusive presumptions

1. a party has, by his own declaration, act, or

omission, intentionally and deliberately led

Lex Española 115

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.

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)

e. 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)

I. BURDEN OF PROOF AND PRESUMPTIONS

Section 1. Burden of Proof… the Duty of a party to

present evidence on the facts in issue necessary to

establish his claim by the amount of evidence

required by law. This is also known as the Onus

Probandi

Relationship between allegation and proof.

He who alleges must prove. Allegations do not prove

themselves. Although plaintiff‘s causes of actions are

couched in the strongest terms and most persuasive

language, the allegations are of no consequence

unless they are substantiated. Similarly, in criminal

cases, the offense and the aggravating

circumstances charged in an Information remain just

accusations until they are shown to be true by the

presentation of evidence. Defendant is not relieved

from liability simply because the raises a defenses.

II - Distinguished from related concepts:

1. Burden of Proof Proper or Burden of Persuasion or

Risk of Non Persuasion- the duty of the party alleging

the case to prove it.

a). This lies with the plaintiff

b). This lies too with the defendant as to his

defenses and counter-claim

2. Burden of Evidence or Burden of Going Forward-

The duty or logical necessity imposed upon a party,

at any time during the trial, to establish a prima facie

case in his favor or to overcome a prima facie case

against him

―… when the prosecution has succeeded in

discharging the burden of proof by presenting

evidence sufficient to convince the court of the truth

of the allegations in the Information, or has

established a prima facie case against the accused,

the burden of evidence shifts to the accused making

it incumbent upon him to adduce evidence in order

to meet and nullify, if not overthrow, that prima facie

evidence‖. ( PP vs. Villanueva, 506 SCRA 280)

3. Points of distinction:

a). The former never shifts but remains

constant with the party while the latter shifts from one

party to the other as the trial progresses

b). In civil cases where it leis is determined

by the pleadings while the latter is determined by the

rules of logic.

III. Who has the Burden of Proof Proper

1. The general rule is- he who would lose the case if

no evidence is presented. Hence it is the plaintiff as

to his causes of action, and the defendant as to his

counterclaim.

2. In criminal cases, the burden of proving guilt is

always the plaintiff/prosecution. But if the accused

sets up an affirmative defense, the burden is on him

to prove such by ―clear, affirmative and strong

evidence‖

Lex Española 116

The foregoing rests on the maxim: EL INCOMBIT

PROBOTION QUI DECIT NON QUI NEGAT (He who

asserts, not he who denies, must prove}

IV. The Equipoise Rule: where the evidence of the

parties is evenly balanced, the case will be resolved

against the plaintiff, thus in criminal cases the

accused must be acquitted and in civil cases, the

complaint must be dismissed.

V. What to prove in criminal cases:

A. By the Prosecution:

1. Each and every element of the crime

charged in the Information

2. Where there be two or more accused,

the prosecution must prove the conspiracy and the

participation of each of the several accused in the

commission of the crime

3. All aggravating circumstances, whether

ordinary, special or qualifying, as are alleged in the

Information

4. The civil liability based on the crime

B. By the Accused

1. Non-Liability

a). His Affirmative Defenses by clear,

positive and convincing evidence

b). His negative defenses such as denial

alibi, or mistake in identity

2. Lesser liability: the offenses is a lesser

offense or lesser stage of commission, or

that his participation is of lesser degree

3. Mitigating circumstances

VI. Rule as to Negative Allegations: A. General Rule:

Negative allegations need not be proved

B. Exceptions:

1. In civil cases- if it constitutes part of the statement

of the cause of action of the plaintiff

a). Actions based on non-payment or non-delivery of

money or goods

b) Actions based on non-compliance with a legal

obligation, such as giving of support, or of a

contractual obligation or with the terms or conditions

of a contract

c). Allegations of lack of due care on the part of the

defendant

2. Criminal Cases:

a). if the negative allegation is an essential element

of the offense charged or when the charge is

predicated on a negative allegation.

i). Lack of permit or license in offenses

involving firearms

ii). Lack of permit or authority to recruit

iii). Absence of a Building Permit

iv). Absence of consent of the victim in sex

crimes, theft or robbery; Arbitrary Detention requiring

proof of absence of formal charges filed within the

required period

v). Lack of care or failure to obey traffic

rules, or to take necessary precautions, in case of

reckless imprudence

b). (i) If the negative of an issue does not permit of

direct proof or (ii) the facts are more immediately

within the knowledge of the accused in which case

the onus probandi rest upon the accused ( PP. vs.

Macalaban, 395 SCRA 461)

Example: Rule as to Drug Cases. Unlike in offenses

involving firearms, the prosecution has no burden to

prove the lack of authority from the Dangerous Drugs

Board or government agency for the accused to sell,

transport or possess dangerous drugs. It is the

accused who must prove he is exempted from

obtaining a license or permit. The reason is because

this is a matter which is purely within his knowledge (

PP. vs. Johnson, 348 SCRA 526).

When the Burden of Proof is Dispensed With

1. In case of facts which were judicially admitted

2. As to facts Judicially noticed

3. As to facts conclusively presumed

4. As to facts which are irrelevant

Lex Española 117

5. As to facts which exclusively within knowledge of

the adverse party

6. As to negative allegations

PRESUMPTIONS

I. Introduction: The facts in issue are either (i) proved

by the presentation of testimonial, documentary or

object evidence or they are (ii) presumed

II. Concept: An assumption or conclusion as to the

existence of a fact based on another fact or group

of facts which were already established. These are

based on human experience or common sense, or

laws of nature.

III. Classification:

Praesumption Legis: these are presumptions

which the law directs to be made by the court

a). Juris tantum- or prima facie, rebuttable

or disputable presumption or those which may be

overcome or disproved

b). Juris et de Jure: conclusive or those

which the law does not allow to be contradicted

c). Statutory and Constitutional

Praesumption Hominis (Fact) these are

presumptions which may be made as a result of the

mental processes of inductive or deductive

reasoning from a fact

IV. Evidentiary Value:

1. Presumptions cannot substitute for

evidence. They are to be indulged in only when

there is no evidence as to the fact in issue or there is

great difficulty in obtaining direct evidence of the

fact in issue

2. Once there is evidence of the fact in

issue, the presumption ceases

3. The role and importance of presumptions

is to relieve a party of the difficulty of complying with

the burden of proof.

Thus there is no need to present the Bank

Representative in case of Violation of B.P. 22

4. In case of Conflicting Presumptions or

whenever several presumptions arise from the same

set o facts, the rule is: (1) that which has the weightier

reason prevails otherwise all will be considered as

equal and therefore all will be disregarded and (b)

Constitutional prevails over statutory presumptions.

5. When there is a presumption of law, the

onus probandi (burden of proof) generally imposed

upon the State, is now shifted to the party against

whom the inference is made to adduce satisfactory

evidence to rebut the presumption and hence, to

demolish the prima facie case. Such prima facie

evidence , if unexplained or uncontroverted, can

counter balance the presumption of innocence to

warrant a conviction ( Wa-acon vs. PP)

V. Components of a Presumption

1. The Ultimate Fact or the Presumed Fact

2. The basic fact or factual basis because a

presumption can not arise or be based on another

presumption. This may either be:

a). A fact within Judicial Knowledge in

which case the presumption becomes operative at

the moment the case is filed or at any time

thereafter. The basic fact need not be proven.

For example: The presumption of innocence

becomes operative the moment an Information is

filed in Court. So also the presumption of sanity of

parties and witnesses or the presumption of good

moral character of every party arises whenever a

case is filed in court and at the time the witnesss

testify.

b). The basic fact which must be proven.

For example: The presumption of a child being that

of the husband arises only after it is proven: that the

parents were validly married and the child was born

thereafter. The presumption that a public officer was

regularly appointed or elected after it is first shown

he was acting as a public officer. Likewise the

presumption of survivorship.

Note: There must be a rational connection between

the Ultimate Fact and the Basic Fact

Sec. 2 Conclusive Presumptions: The following are

instances of conclusive presumptions.

1. Estoppel in Pais: whenever a party has, by his

own declaration, act or omission, intentionally and

deliberately led another to believe a particular thing

to be 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.

Lex Española 118

2. Estoppel Against a Tenant: the tenant is not

permitted to deny title of his landlord at the time of

the commencement of the relation of landlord and

tenant between them.

A. Estoppel in General: a principle which bars a

person from denying or asserting anything to the

contrary of that which has been established as the

truth arising from his own acts or representations. It

may be: (1). Estoppel in Pais or equity (2).By deed i.e

document and (3). By Record or Judgment i.e those

found and established as true by a court of

competent jurisdiction

B. Estoppel in Pais: The essence is intentional

misrepresentation

1. Requirements:

a). As to the party estopped: (i). a conduct

amounting to false representation or concealment of

material facts (ii). an intention that the conduct be

acted upon or that it will influence the other party

and (iii) knowledge of the true facts

b). As to the party claiming estoppel: (i) an

absolute lack of knowledge or of the means of

knowledge as to the true facts, not lack of diligence

(ii) reliance in good faith upon the conduct of the

other party and (iii) the action or inaction resulted to

his damage or injury

2. Illustrations

a). A man who represents himself to be the

true owner in a sale will not be permitted later to

deny the sale after he acquire title thereto

b). Estoppel to deny validity of sale as when

the wife, in collusion with the husband, concealed

her true status induce her parents to believe she is

single and to a property which in truth is conjugal.

The husband cannot deny the validity of the deed

c). The heirs who represented the minors in

a suit for partition cannot impugn the validity of the

judgment for lack of proper authorization

d) Jurisdiction by estoppel

e). Agency/Partnership by estoppel

f) But estoppel does not apply to the

government for acts of the public officials

C. Estoppel Against a Tenant

1. The relationship is that between parties to an

original contract of lease ( not sublease) involving a

real property . The tenant refers to the lessee. What is

deemed conclusive as to the tenant is the ownership

of the lessor over property.

2. The lessee cannot use his physical possession over

the property as basis to dispossess the lessor of the

latter‘s ownership. The law seeks to protect owners of

real property from being deprived of their ownership

by those in actual physical possession who are their

own lessees.

3. However the downside of the law is that it does

not jibe with the proposition that the land should be

owned by those who actually till and utilize the land

over those whose sole connection to the land is

merely a piece of document.

4. However, the lessee may assert ownership if after

the lease, he acquires the property is in his own right,

such as when he buys it in an execution sale

RULE 132

PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES

SECTION 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 questions calls for a different mode of

answer, the answers of the witness shall be given

orally. (1a)

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.

(2a)

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:

Lex Española 119

(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 to be 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. (3a, 19a)

Sec. 4 . Order in the examination of an individual

witness. — The order in which the individual witness

may be examined is as follows;

(a)Direct examination by the proponent;

(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. (5a)

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 many 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)

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)

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)

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)

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 a difficulty is 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.

(5a, 6a, and 8a)

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,

honestly, 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)

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.

Lex Española 120

The unwilling or hostile witness so declared, or the

witness who is an adverse party, may be impeached

by the party presenting him in all respects as if he

had been called by the adverse party, except by

evidence of his bad character. He may also be

impeached and cross-examined by the adverse

party, but such cross-examination must only be on

the subject matter of his examination-in-chief. (6a,

7a)

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)

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)

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

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 writing or

record, though he retain no recollection of the

particular facts, if he is able to swear that the writing

or record correctly stated the transaction when

made; but such evidence must be received with

caution. (10a)

Sec. 17 . When part of transaction, writing or record

given in evidence, the remainder, the remainder

admissible. — When part of an act, declaration,

conversation, writing or record is given in evidence

by one party, the whole of the same subject may be

inquired into by the other, and when a detached act,

declaration, conversation, writing or record is given

in evidence, any other act, declaration,

conversation, writing or record necessary to its

understanding may also be given in evidence. (11a)

Sec. 18 . Right to respect writing shown to witness. —

Whenever a writing is shown to a witness, it may be

inspected by the adverse party. (9a)

B. AUTHENTICATION AND PROOF OF DOCUMENTS

Sec. 19 . Classes of Documents. — For the purpose of

their presentation 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 acknowledge before a notary public

except last wills and testaments; and

(c)Public records, kept in the Philippines, of private

documents required by law to the entered therein.

All other writings are private. (20a)

Sec. 20 . Proof of private document. — Before any

private document offered as authentic is received in

evidence, its due execution and authenticity must be

proved either:

(a)By anyone who saw the document executed or

written; or

(b)By evidence of the genuineness of the signature

or handwriting of the maker.

Any other private document need only be identified

as that which it is claimed to be. (21a)

Sec. 21 . When evidence of authenticity of private

document not necessary. — Where a private

document is more than thirty years old, is produced

from the 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. (22a)

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

Lex Española 121

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. (23a)

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.

(24a)

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 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. (25a)

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. (26a)

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. (27a)

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)

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)

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. (30a)

Sec. 30 . Proof of notarial documents. — Every

instrument duly acknowledged or proved and

certified as provided by law, may be presented in

evidence without further proof, the certificate of

acknowledgment being prima facie evidence of the

execution of the instrument or document involved.

(31a)

Sec. 31 . Alteration 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 innocent 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. (32a)

Sec. 32 . Seal. — There shall be no difference

between sealed and unsealed private documents

insofar as their admissibility as evidence is

concerned. (33a)

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. (34a)

C. OFFER AND OBJECTION

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)

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)

Lex Española 122

Sec. 36 . Objection. — Objection to evidence offered

orally must be made immediately after the offer is

made.

Objection to a question propounded in the course of

the oral examination of a witness shall be made as

soon as the grounds therefor shall become

reasonably apparent.

An offer of evidence in writing shall be objected to

within three (3) days after notice of the unless a

different period is allowed by the court.

In any case, the grounds for the objections must be

specified. (36a)

Sec. 37 . When repetition of objection unnecessary.

— When it becomes reasonably apparent in the

course of the examination of a witness that the

question 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. (37a)

Sec. 38 . Ruling. — The ruling of the court must be

given immediately after the objection is made,

unless the court desires to take a reasonable time to

inform itself on the question presented; but the ruling

shall always be made during the trial and at such

time as will give the party against whom it is made

an opportunity to meet the situation presented by the

ruling.

The reason for sustaining or overruling an objection

need not be stated. However, if the objection is

based on two or more grounds, a ruling sustaining

the objection on one or some of them must specify

the ground or grounds relied upon. (38a)

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)

Sec. 40 . Tender of excluded evidence. — If

documents or things offered in evidence are

excluded by the court, the offeror may have the

same attached to or made part of the record. If the

evidence excluded is oral, the offeror may state for

the record the name and other personal

circumstances of the witness and the substance of

the proposed testimony. (n)

PRESENTATION OF EVIDENCE

The order in which an individual witness may be

examined is as follows:

1. Direct examination by the proponent – the

examination-in-chief of a witness by the party

presenting him on the facts relevant to the issue.

2. Cross-examination by the opponent – 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.

3. Re-direct examination by the proponent – 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.

4. Re-cross-examination by the opponent – 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.

Leading questions – a question which suggests to the

witness the answer which the examining party desires

General Rule: 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;

e. unwilling or hostile witness; or

f. 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.

Lex Española 123

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.

General Rule: 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

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. 36. Objection to evidence offered orally must be

made immediately after the offer is made.

Objection to a question propounded in the

course of the oral examination of a witness shall be

made as soon as the grounds therefor shall become

reasonably apparent.

An offer of evidence in writing shall be

objected to within three (3) days after notice of the

offer unless a different period is allowed by the court.

In any case, the grounds for the objections

must be specified.

Grounds for objection – Hearsay, argumentative,

leading, misleading, incompetent, irrelevant, best

evidence rule, parol evidence rule, question has no

basis

When evidence considered offered

People 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.

Rule 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.

When objection should be made

People 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.

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.

Lex Española 124

PRESENTATION OF EVIDENCE

Rule 132 governs the manner by which Testimonial

and Documentary evidences are to be presented in

Court.

2. Principles in the presentation of evidence by the

parties:

a). A case is won or lost depending upon

how effective was the presentation of evidence,

particularly as to what evidence were presented and

how they were presented

b). Parties should be allowed a certain

latitude in the presentation of their evidence

otherwise they might be so hampered that the ends

of justice may eventually be defeated or appear to

be defeated. The court should not limit the evidence

to be presented.

c). The parties should be allowed to

maintain their own way or style of presenting

evidence when these can be done without injury to

the speedy disposition of the case and to the best

interest of the administration of justice

d) The court should liberally receive all

evidence offered in the trial to be able to render its

decision with all the possibly relevant proof in the

record and to assure the appellate court to have a

good judgment and to obviate remanding the case

for re-trial or reception of evidence.

Section 1. Provides the manner of

presenting testimonial evidence to be as follows:

By presenting the witness personally in open court

a). The witness must appear in person so that the

court and the opponent may observe him and hear

his testimony

b). His personal presence cannot be substituted by

the submission of written statements or audio

testimony

c) There is also no secret testimony and it must

always be in the presence of the adverse party,

except when the presentation is allowed to be ex

parte, or testimony through interrogatories or

depositions in advance of trial before a hearing

officer but upon prior approval of the court and with

proper notice to the adverse party

d). CHILD WITNESSES: the witness may testify inside a

room but the child must be visible and can be heard

through the medium of facilities appropriate for the

purpose such as a mirror

QUESTION: May the witness testify wearing masks to

preserve his identity?

To be examined under oath or affirmation

a). To answer questions as may be asked by

the proponent, the opponent and by the court

(i). Oath: an outward pledge by the witness

that his testimony is made under an immediate sense

of responsibility to a Supreme Being. An appeal is

made to the almighty that he will tell the truth.

(ii.) Affirmation: a solemn and formal

declaration that the witness will be truthful

iii). The purpose of an oath or affirmation

are: (a) to affect the conscience of the witness and

compel him to speak the truth and (b) to lay him

open to punishment for perjury. But it is not essential

that he knows what or how he will punished.

iv). If the opponent believes the witness is

not aware of his obligation and responsibility to tell

the truth and consequences of telling a lie, the party

may ask for leave to conduct a VOIRE DIRE

examination.

v). Effect of lack of oath: If the opponent

fails to object then the testimony may be given

weight as the party would be estopped or, the party

may move to disallow the witness from testifying, or

move to strike the testimony after he found the lack

of oath. The proponent however may ask that the

witness be placed under oath. . .

The form of testimony must be :

a). Oral answers to questions unless:

(i) the question calls for a different form of

answer such as by bodily movements or

demonstrable actions,

(ii) or the witness is a deaf mute

(iii) in case of a child witness

b) Not in a narrative

(i) in order to prevent the witness from

testifying and narrating facts which are irrelevant

and thus he will testify straight to the point in issue, as

well as

(ii) to give the opponent an opportunity to

raise an objection.

Lex Española 125

Sec. 2. The Proceedings must be recorded.

Courts of the Philippines are courts of record.

Anything not recorded is deemed not to have

transpired or taken-up and will not be considered in

the resolution of the case. The matters to be

recorded include:

a). Questions by the proponent, opponent

and the court, which are propounded to the witness

b). The answers of the witness to the

questions

c). Manifestations, arguments, and

statements of counsel

d). Statements of the court to the counsel

e). Instructions or statements of the court to

the court personnel

f). Demonstrable actions, movements,

gestures or observations asked to be described and

recorded

g). Observations during the conduct of

ocular inspections

Matters not recorded:

Off-the-records statements - Statements which were

ordered or requested to be stricken from the record

such as those which are improper, irrelevant or

objectionable. Example: hearsay direct testimony

Sec. 3. Rights and Obligations of Witnesses

The obligation of a witness is to answers all

questions which are asked of him. He cannot choose

which questions to answer and to answering others.

The witness however has the right to be

protected against tactics from the opponent which

are intended to ―brow beat, badger, insult,

intimidate, or harass him‖.

He has the right not to be detained longer

that is necessary.

He may refuse to answer the following

questions:

a). Those which are not pertinent to the

issue

b). Those which are self-incriminatory

except in the following cases:

(i) where the accused is testifying as a witness in his

own behalf, as to questions relating only to the

offense upon which he is testifying

(ii) where the witness was granted immunity from

prosecution as when he is under the Witness

Protection Program or was discharged to be used a s

a state witness, or he is a government witness in Anti-

Graft Cases.

c). Those which are self-degrading, unless it

is to discredit the witness by impeaching his moral

character

EXAMINATION OF A WITNESS

1. ―Examination‖ – to find out facts from the witness

or to test his memory, truthfulness or credibility by

directing him to answer appropriate questions.

2. Proponent - the party who owns or who called the

witness to testify in his favor. Opponent- the party

against whom the witness was called.

3. Friendly Witness- one who is expected to give

testimony favorable to the party who called for him.

Hostile Witness, one whose testimony is not favorable

to the cause of the party who called him as a

witness. Party witness and accused-witness refer to

the plaintiff, defendant or the accused, testifying as

witness for themselves, as opposed to ordinary

witnesses

B. ORDER OF EXAMINATION

First, Direct examination by the proponent

Second, Cross-examination by the opponent

Third, Re-direct examination by the proponent

Fourth, Re-cross examination by the opponent

C. ORDER OF PRESENTATION OF EVIDENCE

Presentation of Evidence in Chief by the Plaintiff

Presentation of Evidence in Chief by the Defendant

Presentation of Rebuttal Evidence by the Plaintiff

Presentation of Sur rebuttal Evidence by the

Defendant

Lex Española 126

Section 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.

A. Procedural Requirement

Offer of Testimony- the proponent shall state the

substance of the intended testimony of the witness

(an outline of the major points) and the purpose of

said testimony ( what the proponent intends to prove

by said testimony)

a). Importance of the Offer- (i) The direct

examination may be objected to by the opponent

(ii) Matters not included in the offer may not be

allowed to be testified on upon proper objection

and (iii) to shorten the proceedings as the opponent

may admit or stipulate on the matters to be testified

on.

In cases under the Rules on Summary Procedure, the

sworn statement of the witness must have been

submitted to the court before hand

B. Importance of the Direct Examination

This is the only opportunity for the

proponent to elicit from the witness all the facts

which are important and favorable to him. The

witness should be considered as a sponge heavy

with facts. By the time the direct examination is over,

all favorable facts should have been squeezed from

the witness. The examination must be clear, forceful,

comprehensive, and must efficiently present the

facts of the case.

Effective Direct Examination

a). KEEP IT SIMPLE. Avoid these two pitfalls (i)

too little time on critical points and (ii) too much time

on unimportant points

b). ORGANIZE LOGICALLY. Determine the

key points and organize them in a logical order. If

possible resort to a chronological presentation of

testimony.

c). INTRODUCE THE WITNESS AND DEVELOP

HIS BACKGROUND

d). USE PRELIMINARY QUESTIONS WHICH ARE

INTRODUCTORY, TRANSITION OR ORIENTING

QUESTIONS

e). ELICIT SCENE DESCRIPTION

f). ELICIT GENERAL FLOWING DESCRIPTION.

Let the witness paint a picture. Avoid excessive

detail.

g). USE PACE IN DESCRIBING ACTION.

Control the speed of the examination by eliciting

testimony in small segments at the most

advantageous rate. SLOW DOWN THE ACTION.

h). USE SIMPLE LANGUAGE. Choose simple

words and phrases. Word choice affects answers.

Avoid jargons, idioms and technical words. WHAT

MATTERS AND WHAT WILL BE REMEMBERED IS NOT

HOW BEAUTIFUL AND IMPRESSIVE THE LAWYER

PHRASED HIS QUESTIONS BUT WHAT THE WITNESS

NARRATED.

i). HAVE THE WITNESS EXPLAIN.

j). USE NONLEADING OPEN-ENDED

QUESTIONS

k). USE EXHIBITS TO HIGHLIGH AND

SUMMARIZE

l). PRACTICE WITH THE WITNESS.

Sec. 6. Cross Examination.

A. Concept: The examination of the witness by the

opponent after the direct examination.

B. Nature:

1. An essential part of the right to procedural due

process i.e. the right of a party to confront witnesses

against him face-to-face. The essence however is

not actual cross examination but that a party be

given the opportunity to cross examine. Hence the

consequences are as follows:

a). If the opponent was never given the

opportunity to cross examine a witness, the direct

testimony may, on motion of the opponent, be

stricken off as hearsay.

b). All assertions of facts not based on the

personal knowledge of the witness may also be

stricken off as hearsay since the source cannot be

subjected to the opportunity of cross-examination

2. Limitations:

a). The right may however be waived

expressly

b). It may be lost through the fault or

negligence of the opponent.

Lex Española 127

c). After a witness has been cross-examined

and discharged, further cross-examination is no

longer a right but must be addressed to the sound

discretion of the court

d). The Court may limit the cross-

examination if its needlessly protracted, or is being

conducted in a manner which is unfair to the witness

or is inconsistent with the decorum of the court, as

when it degenerates into a shouting match with the

witness

3. Effect of the Loss or non-completion of the cross

examination

a). If the loss, in whole or in part, was due to

the fault of the adverse party, the testimony of the

witness is to be taken into consideration

b). If the cross-examination cannot be done

or completed due to causes attributable to the party

offering the witness, the testimony is rendered

incompetent

c). If the loss or –non-completion was due to

the death or unavailability of the witness then that

part of the testimony which was subjected to cross-

examination remains admissible.

4. Character of Cross Examination: It is both an Art

and a Science

a). It is an Art because it requires

consummate skill which is acquired and developed.

There is no standard method as it is highly

personalized, subjective and be adaptive to who the

witness is and to the subject of the cross examination.

The length, style of questioning or approach to a

witness requires intuition and understanding of

human nature; of the habits, weaknesses, bias and

prejudices of people; their reactions to situations,

their perception of matters, and such other factors

that vary according to circumstances of time,

place, people and occasions.

It requires the ability to think quickly, read quickly and

to know when to quit. The lawyer‘s antennae must

ever be tuned in to the witness: his character,

personality; mannerism, and all traits which will give a

favorable clue; to the adverse counsel and to the

Court.

b). Should a party cross examine or not

depends on a full understanding of what to expect.

The following must be considered before a party

attempts to cross-examine:

i). Whether the witness has hurt the case or

the impact of his testimony on the case

ii). Whether the witness is important, as for

example an eye witness, or a party witness

iii). Whether the testimony is credible

iv). The risks that the party undertakes

5. It is a science. It requires a thorough preparation

and mastery of certain rules/jurisprudence on

procedure in the presentation of evidence.

C. Importance and Purpose of Cross Examination

Cross examination is both a weapon to

destroy or weaken the testimony of the opponent‘s

witness and a tool to build up or strengthen a party‘s

case. The conduct of cross-examination must always

be directed towards achieving a specific purpose or

purposes.

Constructive Cross-Examination, where the

purposes are: (a) to amplify or expand the story of

the witness so as to place the facts in a different light

which is favorable to the party. Note that the witness

of the opponent seldom volunteer facts favorable to

the cross-examiner, hence the manner of

questioning should be ―insinuating‖, and (b) To

obtain favorable or establish additional facts

favorable to the cross-examining party.

Destructive Cross-Examination: The

purposes are: (a) to discredit the testimony of the

witness by showing its absurdity, or that it is

unbelievable or contrary to the evidence (b) To

discredit the witness by showing his bias, interest,

lapse of or selective memory, incorrect or

incomplete observation of event, and similar

situations.

D. Scope of Cross Examination

1. Under section 6 the witness may be examined:

(a) As to any matter stated in the direct examination

(b) or any matter connected therewith

(c) as to the accuracy and truthfulness and freedom

of the witness from interest or

bias, or the reverse and

(d) upon all important facts bearing upon the issue.

2. The English Rule is followed in the Philippines: the

cross examination is not confined to matters subject

Lex Española 128

of the direct examination but extends to other

maters, even if not inquired in the direct examination

but are material to the issues.

This is

distinguished from the American Rule which holds

that the scope of the cross-examination is confined

to the facts and circumstances brought out, or

connected with, matters stated in the direct

examination

D. Questioning by the Court:

1. The Court may ask questions:

a) To

clarify itself on certain points

b) To call the

attention of counsel to points at issue that are

overlooked and

c) To direct counsel to questions

on matters to elicit facts and clarify ambiguous

answers

2. However, the questioning by the court should not

be confrontational, probing and insinuating. It should

not be partisan and not over extensive. The court is

not to assume the role of an advocate or prosecutor.

BASIC RULES ON CROSS EXAMINATION

1. PREPARE. Know what the witness has

testified on and its relation to the case and how it

affects your own evidence

2. KNOW YOUR OBJECTIVE. What are the

points in the testimony of the witness which are

critical and are these points to be brought out and

emphasized

3. OBSERVE PACING AND PATIENCE . Do not

rush the witness and avoid being over eager in

bringing out an important point.

4. LEAD THE WITNESS. State the facts and let

the witness ratify. Know how to lead. Use variation in

the phraseology of the questions.

5. HAVE A STYLE AND ADAPT IT TO THE

OCCASION. Be true to yourself and develop an

approach or style suited to your personality and

character. Be able to vary your style and know when

is it effective to use either a booming or soft voice; to

move around or to stay put; to be conversational or

confrontational or tough and confident..

6. KNOW WHEN TO QUIT. Stop when (1) the

witness has been discredited or made a monumental

concession. There is no need for an over kill. or when

the witness is killing the case or the counsel.

7. KNOW WHAT MATERIALS TO TAKE TO

CONFRONT THE WITNESS. Have them be ready and

easily accessible.

8. KNOW THE JUDGE. Are you making an

impact or are you boring, antagonizing or confusing

the Judge?

9. KNOW THE RULES OF EVIDENCE

ADDITIONAL PRACTICAL TIPS

1. BE BRIEF. Confine to the strongest points.

2. SHORT QUESTIONS. Use plain words and

avoid fancy words or elaborate syntax.

3. NEVER ASK A QUESTION to which you do

not already know the answer.

4. LISTEN TO THE WITNESS. Tune in if he was

contradicted by another witness or prior testimony; is

the testimony contrary to human experience or

completely inconsistent with nature.

5. DO NOT QUARREL WITH THE WITNESS.

6. DO NOT PERMIT THE WITNESS TO EXPLAIN

7. DO NOT REPEAT HIS TESTIMONY ON

DIRECT.

8. AVOID QUESTIONS TOO MANY

9. SAVE THE EXPLANATION FOR THE

MEMORANDUM. Questions should not be

explanations of your position.

Sec. 7. Redirect Examination by the proponent

A. Purpose and Scope:

To afford the party calling the witness to

explain or amplify the testimony given on cross-

examination; to explain apparent contradictions, or

inconsistencies, and to rehabilitate the testimony.

The scope is confined to matters taken up

in the cross-examination, not those outside, which

may be objected to on the ground that it is improper

for redirect.

But, new matter may be inquired into

provide the prior approval of the court was obtained

and the testimony on the new matter must be

subject to cross-examination by the opponent.

Lex Española 129

Sec. 8. Re-cross examination by the opponent.

This is confined to matters subject of the re-

direct examination.

Sec. 9. Recalling Witnesses.

A. On Motion By a party: This is not a right

but the recall must be addressed to the discretion of

the court and the recall must be on justifiable

grounds.

B. By the Court: If there be matter it wishes

to clarify

Sec. 10. Leading and Misleading Questions.

A. Introduction. The examination of a witness is by

asking questions the answers to which will bring out

facts from the witnesses. However a lawyer is subject

to certain rules such as to what questions he is

allowed to ask, how they are to be phrased or

worded so that facts known only to the witness

through his own perception are revealed, or so that

facts which are suppressed or forgotten may be

forced out from the witness.

Some of these limitations consist of the

prohibition on leading and misleading questions.

B. Leading Questions. Section 10 defines it as a ―A

question which suggest to the witness the answer

which the examining party desires‖. It is also known

as ―Suggestive Question‖.

1. Witnesses are to give data spontaneously

from there own memory, according to their own

perception and interpretation. The role of the lawyer

is simply to ask questions which will help the witness

recall events. The question should be framed in such

a manner that the lawyer does not in any way

suggest or influence the answer to be given,

otherwise the fact or answer becomes merely the

product of the suggestion, and not what the witness

personally knows.

2. If the witness is asked simply to confirm or

deny, then in effect it is the lawyer who is supplying

the facts through the mouth of the witness who is

reduced to being merely the echo and mouthpiece

of the lawyer.

3. Test : The form or phraseology and the

contents of the question in that whether it contains a

statement of a fact which the witness is asked to

affirm or agree to. In such case the witness

contributes no substantial data. The lawyer is

coaxing.

The tone, inflection, mannerism or body

language of counsel, may also indicate if the

counsel is leading his witness.

C. General Rule On Direct: The witness being a

friendly witness and having been called by the

proponent, he is naturally expected to be

sympathetic to the cause of the proponent. Thus

there is great danger that he would just confirm any

and all facts suggested to him by the proponent.

Hence leading questions are not allowed.

The following instances are the exceptions when

leading questions are allowed to be asked during

direct:

1. On preliminary matters

a. those pertaining to the personal circumstances of

the witness and which are asked at the start of the

cross-examination

b. those which are intended to bring the witness

directly to the point in issue; they are referred to as

―orienting, introductory or transitory questions‖

When there is difficulty in getting direct and

intelligible answers from the witness who by reason

of the any of the following:‖ is immature; aged and

infirm; in bad physical condition; ignorant of, or

unaccustomed to, court proceedings;

inexperienced; unsophisticated; feebleminded;

confused and agitated; terrified; timid or

embarrassed while on the stand; lacking in

comprehension of questions or slow to understand;

deaf and dumb; or unable to speak or understand

the English language or only imperfectly familiar

therewith‖ ( PP. vs. Dela Cruz, July 11, 2002)

c) is suffering from some mental deficiency, or where

the intelligence of the witnesses is impaired, thereby

making necessary the making of suggestions:

For example: witnesses who are ignorant,

feeble minded deaf-mutes, minors or uneducated

d) In case of unwilling or hostile witnesses: they are

uncooperative and will not readily supply the facts

desired by the examiner. The approach to these

witnesses is to conduct a direct examination as if it

were a cross-examination

unwilling witnesses include (i) those who have to

be compelled to testify by the coercive

processes of the court (ii) or those who, at the

time of their presentation at the witness stand,

become evasive, reluctant or unfriendly

hostile-may refer to (i) a witness who manifest so

much hostility and prejudice during the direct

examination that the party who called him is

Lex Española 130

allowed to cross-examine, i.e to treat him as if he

had been called by the opposite party or (ii)

one who surprises the party and unexpectedly

turns against him.

In either case, the party calling the

witness must present proof of either adverse

interest on the part of the witness, his

unjustified reluctance, or of his misleading

the party into calling him a witness, and on

the basis of which the court shall declare

the witness to be a hostile witness.

Thereafter leading questions are asked.

2. In case the witness is the adverse party, or

representative or officer of a juridical entity which is

the adverse party. Said witnesses is expected to resist

any attempt to obtain favorable data, hence the

direct examination is in the nature of a cross-

examination and the most effective manner of

forcing favorable data, or of destroying his credibility,

would be through leading questions

3. When the witness is not voluntarily offered but is

required by law to be presented by the proponent,

as in the case of subscribing witnesses to a will.

4. When the witness lacks the power of recollection a

leading question is allowed in order to refresh the

memory.

5. To identify persons or things.

6. In case of an expert witness as to his opinion.

D. Leading and Misleading Questions on Cross.

A. Rule on Leading Questions: During cross-

examinations leading questions are allowed for the

reason that the witness is not expected to be

sympathetic to the cause of the opponent and

would not volunteer important facts favorable to the

opponent, or that he would resists to testify on facts

adverse to the party who called him. Thus it

becomes necessary that the opposing counsel has

to force the facts from the witness thru leading

questions.

The opponent states a fact favorable to him

and forces the witness to confirm it.

B. Misleading Questions are not allowed. They are of

two kinds:

1. A question which assumes a fact not yet

testified to by a witness or still unproven or by putting

words into the mouth of the witness

2. A question premised on a fact which is

contrary to that testified to or proven or those which

distort or do not accurately state the true facts. This is

akin to twisting the words of the witness

IMPEACHMENT

A. Concept: The process of showing that a witness is

not credible or that his testimony is not worthy of

belief, i.e. casting doubt as to the credibility of the

witness or credibility of his testimony. Note that

credibility of the witness is different from credibility of

testimony

B. Impeachment of the witness of the adverse party

Generally the witness may be impeached

during his cross-examination or during the

presentation of evidence by the party. Thus the

witness of the plaintiff may be impeached at the

time he is cross-examined by the defendant and/or

during the presentation of evidence in chief by the

defendant. On the other hand, the witness of the

defendant may be impeached by the plaintiff during

the cross examination of said witness and/or during

the presentation of evidence during the rebuttal

stage.

C. Specific Modes pursuant to section 11 and

jurisprudence

1. By presenting evidence or facts which contradict

the version of the witness

2. By proving the bad general reputation of the

witness for truth or honesty or integrity.

a). He cannot be impeached by the direct

testimony of witnesses of the adverse party as to

particular instances of immoral acts, improper

conduct, or other evidence of misconduct.

b). The person who is called by the adverse

party to testify to the bad general reputation of the

witness of the opponent is called the ―Impeaching

witness‖ who himself may also be impeached.

3. By proof of prior inconsistent statements in that a

truthful person will be consistent with his statement

even on different occasions and to different persons

4. By introducing evidence of his bias or interest, such

as his relationship to a party, or financial gain as well

as of his motive or intent.

5. By showing his social connections, occupations

and manner of living in that he voluntarily associates

with those who are engaged in disreputable

activities, or if he is addicted to disgraceful or vicious

Lex Española 131

practices, or follows an occupation which is

loathsome and vile, even if not criminal, as all these

affects his credibility.

6. By proof of prior conviction: the moral integrity of

a person is placed in doubt by reason of a

conviction for violation of the law, but not by the fact

that there are pending cases against him

7. By showing the improbability of his testimony or

that it is not in accordance with ordinary human

experience. Example: (i) the claim of an accidental

firing of a caliber gun is not believable because the

mechanism of the gun which requires that pressure

be applied on the trigger for the gun to fire (ii) the

claim of four big able men having been attacked

and mauled by one person who is who is much

smaller in height and heft

8. By showing defects in his observation, or that he

has a faulty or selective memory

9. By showing that this actions or conduct is

inconsistent with his testimony.

Example: A rape victim was shown to have been

partying with the alleged rapist after the rape

10. By engaging the witness in contradictions and

discrepancies as to the material facts testified by

him.

D. Impeachment of one‘s own witness.

1. General Rule: It is not allowed pursuant to section

12. The reason is that a party calling a witness is

supposed to vouch for the truthfulness of the witness

and of his testimony, which he is assumed to know

before hand, and is therefore bound by whatever

the witness testifies to in court. A party is not

permitted to let the witness be believed as to facts

favorable to him, but to impeach him as to facts not

favorable.

2. Exceptions: If the witness presented is any of the

following:

a). An unwilling witness

b). He turns out to be a hostile witness or a

treacherous witness and the party was mislead into

calling him as a witness

c). An adverse party witness

E. Impeachment by Prior Inconsistent Statement.

1. The procedure or Laying the Foundations is

outlined by section 13. To be effective the steps

should follow the following sequence:

a). Recommit: Confront the witness with his

prior statements narrating the circumstances of time,

place, persons or occasion, or by showing him the

prior written statement. Get the witness to affirm he

made the statements

b). Build-Up. Let the witness affirm he made

the prior statements freely, knowingly and that he

stood by the accuracy and truthfulness of said

statements

c). Contrast: Confront the witness by the

fact that his prior statement contradicts or deviates

or is materially different from his present statement

d). Demand an explanation why he made

a different statement from his previous statements

2. Reason for the Procedure:

a). Fairness to the witness and avoid

surprising him, so that he may recollect the facts, and

to give him the opportunity to explain the reason,

nature, circumstances, or meaning, of his statements.

Example: He might have been too emotional then, or

was improperly influenced, or wanted to avoid

embarrassment, and similar reasons.

b). To save time if he admits his prior

statements

3. Exceptions when there is no need to lay the

foundation:

a). In case of statements made by a

deceased which contradicts his dying

declarations

b). If the contradictory statements are

testified to by another person as an admission

Section 14. Exclusion and separation of witness.

A. Concept: The act of excluding a future witness

from the court room at the time another witness is

testifying or, of ordering that witnesses be kept

separate from one another to prevent them from

conversing with one another.

1. This is upon the court‘s own motion or on

motion of the adverse party.

2. A disobedient witness may be testify but

his

Lex Española 132

(a) testimony may be excluded or

(b). his

disobedience may be considered to affect his

credibility and (c) he maybe punished for

contempt of court

B. Purpose: To ensure the witnesses testify to the truth

by preventing them from being influenced by the

testimony of others; to prevent connivance or

collusion among witnesses

(Note: the practical purpose of this rule is

defeated by the reservations for cross examination or

resetting to present another witness, such that the

counsel and other witness have the opportunity to

go over the testimony of the witnesses).

C. Who may not be excluded.

1. Parties to an action even if they are numerous.

a) In criminal cases, the presence of the

accused is indispensable and he may not be

excluded.

b). The private offended party should not

also be excluded even if he will be a witness. As such

he has a right to be present because it is his interest

which is involved and also to assure that the

proceedings are conducted properly. Besides he is

party to the civil aspect of the case.

2. Expert witnesses as they testify to their opinions

based on facts of their own knowledge, or on

hypothetical facts

3. Witnesses on rebuttal

4. Character witnesses

5. Spectators unless they behave in a manner which

is against the proper decorum of the court or when

the evidence to be presented are sensitive

REVIVING THE MEMORY OF WITNESSES

A. Introduction: A witness may suffer from lapses of

memory or loss of recollection as to material facts so

that there is a need for him to recollect the facts. The

remedy of reviving applies more appropriately to the

adverse party conducting a cross-examination rather

than to the proponent. The reasons are: (i) because

a party presenting a witness is presumed to know

what the witness is to testify on and is expected to

have prepared him for the direct examination and

(ii). matters favorable to the cross-examiner may

have been forgotten by the witness.

B. Modes of reviving

1. By asking leading questions

2. By the Process of Association i.e. calling the

attention of a person to a material connected with a

certain event so it would trigger the brain to

associate the material with the event and thereby

enable the person to remember the event.

Examples:

a). Presenting a pictorial representation of

a person, thing, place, object or person

b). Playing the record of a conversation

c). Presenting physical objects such as

trinkets, or other ―memorabilia‖

d). By allowing the witness to refer to a

memorandum under section 16

Section 16. When witness may refer to a

memorandum.

A. Two Methods of Revival under Section 16. (These

are useful methods to the opposing counsel when

conducting his cross examination. The proponent is

supposed to have already gone over the testimony

of his witness and briefed him; hence, resorting to

these methods reflect badly on the proponent).

1. Present Recollection Revived: the witness is

presented the memorandum or record with the

expectation that it will pull a switch in the brain and

enable the witness to put aside the memorandum

and testify on what he now recalls.

Thus the evidence is not the memorandum

or writing but what the testify remembers as now

testified Provided:

a). The written record/memorandum was

written by him or by someone under his direction (

who wrote it?)

b). It was written at the time the fact/event

occurred or immediately thereafter or at any time

when the facts was still fresh in his mind ( when was it

written?)

c). The record/memorandum is presented

to the adverse party who may cross-examine on it,

and it may be read into the evidence.

2. Past Recollection Recorded. The same

procedure is followed but the witness is still unable to

Lex Española 133

recollect the event but he can assert that the facts

therein narrated are true. The evidence therefore is

the writing itself.

3. Examples:

(a). Filing clerks who record conversations

then forget all about it

(b) Diaries

(c) Letters

Section 17. The Rule of Completeness.

A. Concept: When a part of an act, declaration or

conversation, writing or record, is given in evidence

by one party, the adverse party may : (i) ask or

inquire into the whole or (b) introduce evidence on

the remainder, and in case of writing he may have

the other portion or even the entire writing be read in

evidence.

As a matter of procedure, in case of

documents already in court, a party merely

underscores only those portions which are material to

his case. It is for the opposing party to inquire as to

the rest.

The other portions is limited to those which

tend to qualify or explain the part first given and

which were given at the same time.

B. Examples:

1. As the issue is the nature of the transaction

between the parties, where plaintiff presented his

letter, it was proper for defendant to introduce all the

other letters which passed between them

2. Where a letter is presented on direct examination,

it is proper on cross to ask if there be any reply to it

3. Where a witness testified to the occurrence of a

fight, it is proper to inquire on the antecedents and

details thereof, past altercations between those

involved or any bad blood between them

4. Where the Prosecution presented only a part of

the records of the Preliminary Investigation, the

defense may introduce the whole record

C. Need for Precision of Statements:

1. The general rule is that verbal accuracy is not

required but the substance or effect of the actual

words spoken will be sufficient so that the witness

may testify to the substance as best as he can from

his recollection

2. However, in case of oral defamation, there is a

need for verbal accuracy

RULE ON EXAMINATION OF CHILD WITNESS

I. INTRODUCTION: The Supreme Court, in an en banc

Resolution adopted the so called-Rule on

Examination of a Child Witness which became

effective on December 15, 2000. The rule applies to

child witnesses who are victims of crimes, accused of

a crime, and witnesses to a crime. It shall apply to

criminal proceedings and non-criminal proceedings

involving child witnesses.

A. Child Witness - any person who, at the time of

giving testimony, is below the age of 18 years. In

child abuse cases, a child includes one over 18 years

but is found by the court as unable to fully take car

of himself or protect himself from abuse, neglect,

cruelty, exploitation, or discrimination because of a

physical or mental disability or condition.

SALIENT FEATURES

I. Creates a Presumption of Competency in favor of

a child-witness subject to a Competency Test.

a. ―Every child is presumed qualified to be a

witness. However the court shall conduct a

competency examination o a child moto

proprio or on motion of a party, when it finds

that substantial doubt exist regarding the ability

of the child to perceive, remember,

communicate, distinguish truth from falsehood,

or appreciate the duty to tell the truth in

court‖.(Sec. 6).

b. A party seeking a competency examination

must present proof of necessity of competency

examination. The age of a child shall not by itself

is not a sufficient basis for a competency

examination.

II. Allows the Court to, motu proprio or on motion,

appoint certain persons to help in the testimony of

the child-witness:

a. Guardian Ad Litem - a person to protect the

best interest of the child whose appointment

took into consideration his familiarity with the

judicial process, social service programs, and

child development. The parent if preferred, if

qualified. Has the right to be present in all

proceedings, to obtain copies of documents,

interview witnesses, make recommendations to

the court, and to do all to protect the child.

Lex Española 134

b. Interpreter - one, other than the regular court

interpreter, whom the child can understands

and who understands the child.

c. Facilitator- one who poses the questions to the

child who may be a child psychologist,

psychiatrist, social worker, guidance counselor,

teacher, religious leader, parent or relative.

Counsels shall pose questions only through the

facilitator.

d. Support Person- person chosen by the child to

accompany him to testify at or attend a judicial

proceeding or deposition to provide emotional

support to the child

III. Contains Child-Centered provisions at the actual

testimony such as:

A. A separate waiting area furnished to

make the child comfortable

B. To create a more comfortable courtroom

environment, the court may direct and supervise the

location, movement, deportment of all person in the

court room;

C. The child may testify from a place other

than the witness chair; child is not required to look at

the accused

D. To testify during the time of day that the

child is well rested

E. Reasonable periods of relief is allowed as

often as is necessary

F. The child is allowed to use testimonial

aids, such as dolls, puppets, drawings, mannequins or

any other appropriate devise to assist in the

testimony of the child.

G. Child is allowed to have an Emotional

Security Item of his own choosing as a blanket, toy,

doll.

IV. Manner of Questioning and Objections

1. Leading Questions are allowed especially for

Child-Directs

AUTHENTICATIONS AND PROOF OF DOCUMENTS

I. INTRODUCTION. Per section 2 of Rule 130,

documents are writings or any material containing

letters, words, symbols, numbers, figures, or other

modes of written expressions offered as proof of their

contents. They are either paper based or other solid

surfaced based documents. These are what are

referred to by Rule 132.

As to Electronic documents, the manner of

their authentication is as provided for by the

Electronics Evidence Law.

II. CLASSIFICATION OF DOCUMENTS.

A. Section 19 provides that for purposes of their

presentation in court they are either (i) public or (ii)

private

Importance of the classification:

a) As to the need for authentication: public

documents are admissible without further proof of

their due execution whereas private documents must

be authenticated

b). As to the persons bound: public

documents are evidence even as against third

persons as to the fact which gave rise to their

execution whereas private documents bind only the

parties thereto and their privies

c) As to the validity of certain transactions:

certain transactions are required by law to be public

documents in order to be valid and/or enforceable.

E.g.: the law on donations of real properties, Statute

of Frauds

B. Classification into Domestic and Foreign Public

Documents

The following are public domestic documents:

a). Written Official acts of sovereign

authority, official bodies, tribunals and public officers:

such as decisions or courts or quasi-judicial bodies,

legislative enactments, executive orders, directive

from superior officers or memoranda, written

appointments, warrants issued by court, subpoenae,

ship‘s log book

b). Record of the official acts of said bodies

or officers: e.g: the marriage contract embodies the

act of solemnizing a marriage; records of birth and

death; written oaths; returns and reports,

congressional records of the deliberations in

congress

c). Acknowledged documents such as

contracts and conveyances

d). Public record

(i)

kept in the Philippines of private writings

Example of the first would be documents affecting

registered lands which are submitted to the Register

Lex Española 135

of Deeds, Assessors Office, Letters of

acknowledgement submitted to the Local Civil

Registrar.

(ii) or required by law to be kept therein.

Example of the second: Personal Bio Data or

Information Sheets submitted to form part of the 201

File of government officials

III. AUTHENTICATION.

A. Concept: As to documents, it is the process of

proving that the document presented in court is not

spurious, falsified, or questionable, or that it is not a

different document. As to objects, it is the process of

proving that the object presented in court is the very

object involved in the case without any alteration or

substitution.

B. Rule as to private documents: Section 20 provides

that in order for a private document to be

admissible, it is necessary to prove the ― due

execution and authenticity of the document‖ in that

it is not spurious, counterfeit or a different document.

This is because private documents are not self-

authenticating.

IV. How to prove a private document is authentic or

genuine

A. By direct evidence consisting of the testimony of

witness such as (i) the parties to the document (ii) by

an attesting /subscribing witness (iii) by a person who

was present and saw its execution and (iv) by the

person before whom it was executed and

acknowledged

B. By proof or evidence of the genuineness of the

handwriting or signature of the maker or of the

parties thereto. It may be by any of the following:

1. Direct evidence consisting of the

testimony of the maker or party affirming his own

handwriting or signature

2. By the testimony of the

attesting/subscribing witnesses or of witnesses to the

execution thereof

3. By the use of ―Opinion Evidence‖

pursuant to the Section 22 of Rule 131 such as (a) by

one who has obtained sufficient familiarity (b) by an

expert (c) based on a comparison with a genuine

handwriting

4. By the contents of the document

5. By the style of writing

V. When Authentication Not Necessary

A. In case of ancient documents: referring to private

document which are more than 30 years old,

produced from a custody in which it would naturally

be found in genuine and unblemished by any

alteration or circumstance of suspicion

PRIVATE DOCUMENTS. How Proven= Rule 132, Sec. 20

Before any private document offered as

authentic is received in evidence, its due execution

and authenticity must be proved either: (1) by

anyone who say the document executed or written;

or (2) by evidence of the genuineness of the

signature or handwriting of the maker. Any other

private document need only be identified as that

which it is claimed to be.

Ancient Document Rule = Rule 132, Sec. 21 (Not

Required to Authenticate)

Requisites:

(1) The private document is more than 30

years old; (2) It is

produced from a custody in which it would naturally

be found if genuine;

(3) It is unblemished by any

alterations or circumstances of suspicion.

If all requisites have been met, no other evidence of

its authenticity is required.

1. The reason is the possible unavailability of witness

due to the passage of time. Age is to be reckoned

from the execution to the date it is offered

2. Requirements for ―Ancient Documents‖

(a) Proof of age: to be counted backwards

from the time of offer to its date of execution

(b) Proof that on its face it is free from any

circumstance of suspicion, as when it bears

signatures which are not counter-signed, deletions,

insertions, a missing page, a page which is new or

recent, use of different inks, or it bears different

handwritings, or suspicious tears

(c) Proof of proper custody: this removes

the suspicion of fraud and suggests the document is

genuine. Proper custodian/depository includes one

who is entitled to the possession such as a party and

his successors in interest, privies or agents; as well as

one who is connected to the document that he may

Lex Española 136

reasonably be inferred to be in [possession thereof,

such as a common witness.

B. When the due execution and genuiness has been

admitted either expressly or by provision of law, as in

failure to deny under oath

C. When the due execution and authentication is

immaterial , as in documents which arte used as

annexes or attachments

D. When the document need only to be identified

E. In case of public documents

V. PROBATIVE VALUE AND PRESENTATION OF PUBLIC

DOCUMENTS

A. Requirement of authentication does not apply

because of (a) necessity in

that it is difficult and inconvenient to require the

attendance of the public officer to appear

in court (b) trustworthiness of the

documents

B. Probative Value Under Section 23.

How Genuineness of Handwriting is Proven= Rule 132,

Sec. 22

It 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.

Not much weight is given to handwriting

experts. Unless, therefore, there is, in a given case,

absolute absence, or manifest dearth, or direct or

circumstantial competent evidence of the character

of a questioned handwriting, much weight should

not be given to characteristic similarities, or

dissimilarities, between the questioned handwriting

and an authentic one. (Punzalan v. Commission on

Elections, G.R. No. 132435 prom. April 27, 1998 citing

Lorenzo v. Diaz, 53 O.G. 4110-4111, cited in Francisco

on Evidence, Vol. VII, Part I, 1997 Edition, p. 674)

Questions involving the mere similarity or

dissimilarity of handwritings could be determined by

the court itself as authorized under Sec. 22, Rule 132

of the Rules of Court by making a comparison of the

disputed handwriting "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.

1. Written Official Acts are conclusive because it is

the act which is recorded

2. 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 stated

therein

This does not include those made in excess of

official duty and they are limited to those facts which

the public.

Examples:

(i) Entries in the Records of Birth, Marriage, or Death

of a person, as entered by the Local Civil Registrar

(ii) Data in the Police Blotter

(iii) Return of Search Warrants

(iv). Entries in the time record

(v) Entries in the Community Tax Certificate or Tax

Declaration of Property

(vi) The terms, conditions or consideration in a

contract

3. The recitals in a public instrument, executed with

all the legal formalities are evidence against the

parties thereto and their successors in interest, and a

high degree of proof is necessary to overcome the

presumption that such recitals are true.

4. In order to overcome the documentary evidence,

the oral testimony must be ―clear, strong and

convincing‖

5. Examples: Certifications issued by a public officer.

Recommendations and endorsements by a public

official.

C. How to Prove a Public Document (Section 24)

1. In case of written official acts or records of official

act of public or sovereign bodies

Lex Española 137

(i). By presenting the Official Publication

thereof

(ii) By presenting a certified true copy i.e.

attested by the proper custodian and bearing the

certification by him, his signature, and the seal of his

office. A certified copy is allowed by reason of the

principle of Irremovability of Public records under

Section 26.

Example: Laws of national application are proved by

a certified copy thereof or a copy appearing in the

official publication. In case of publication other than

the Official Gazette, the copy must be

accompanied by the Certificate of the Publication

by the publisher

2. As to written foreign public documents

(i) By an Official Publication thereof

(ii) By a Copy attested by the official custodian and

accompanied by a certificate by the proper officer

of the Philippine foreign service stationed in the

country where such foreign document is kept

Thus, a Special Power of Attorney executed abroad,

must be bear the ―Red Ribbon‖ coming from the Phil.

Embassy or Consul

QUESTION: How is a foreign law proven in the

Philippines?

Ans. If it is written it is proved by: (i) the Official

Publication thereof (ii) An official copy issued by the

custodian (iii) certified true copy accompanied by

the certification of the Phil. Foreign official and (iii) By

the testimony of an expert

D). In case of the public record of a private writing

(i) By the original record i.e. the very private

document kept in official custody

(ii) By a copy duly certified by the custodian

The Original of public record can not be

presented by reason of the Rule on the

Irremovability of Public Records under section

26. Hence secondary evidence is allowed which

consist either of the Official Publication, if so

published, or a certified true copy thereof, unless

if is extremely necessary that the original of the

public record be produced in court, but only

upon lawful order of the court.

If the documents be in a non-official language,

i.e not in English or Pilipino, it must be

accompanied by a translation in either r said

language

In case of notarized documents . the

acknowledgment suffices to authenticate the

document and there is no need to present the

notary public

Private documents need not be sealed

If the documents contain alterations, the party

offering the document must explain the

alteration was: made by another without his

concurrence; as consented by all the parties,

was innocently made, or that it does not

change the meaning, or any other valid reason.

Said explanation must be made a the time of

the presentation of the document.

If the document presented consist of judicial

record, such as decisions or orders, they are

conclusive and the only grounds to impeach

said records are (a) want of jurisdiction of the

court which issue them (b) there was collusion

between the court and the prevailing party and

(c) extrinsic fraud was practiced by the winning

party

If what is sought to be proven is the lack of records in

a certain public office, there must be a certificate to

that effect

Examples:

1. Certifications

from the National Statistics Office that no

marriage ever took place between two

people; or

(2) from the POEA in illegal

recruitment cases and the (3) FEU

in prosecutions for illegal possession of

firearms.

NEED FOR FORMAL OFFER:

The purpose for which evidence is offered must be

specified because such evidence maybe admissible

for several purposes under the doctrine of multiple

admissibility, or may be admissible for one purpose

and not for another, otherwise the adverse party

cannot interpose the proper objection ( Uniwide vs.

Titan-Ikeda 511 SCA 335)

Presentation of Evidence

Note: The Rules apply to Summary Procedure

but in a modified form, since in Summary Procedure

the testimonies of the witnesses, (in civil cases) will be

reduced into writing in the form of affidavit. Hence,

there is no direct, cross, re-cross or re-direct

examination.

Affiant is not allowed in Summary Procedure

to embody hearsay testimony.

In criminal cases under Summary Procedure,

Lex Española 138

the affidavits of the witnesses take the place of the

direct examination. There is cross examination

VOIR DIRE- preliminary examination of witnesses for

the purpose of establishing whether or not a witness

really is qualified as such. (Likewise done in

examination of a child witness, but it is only the judge

who can ask questions, plaintiff and defendant can

write their questions and give it to the judge)

Note: Ordinary witnesses are not allowed to be

examined in a narrative form, except a child witness.

A. Examination of Witnesses

1. How done – Rule 132, Sec. 1

open court under oath or affirmation

Mode of answering

General Rule: oral

Exception: Witness is incapacitated to speak

or Question calls for a different mode of

answer

2. Rights and Obligations – Rule 132, Sec. 3

Obligation of a witness: answer questions,

although his answer may tend to establish a claim

against him.

Rights of a witness:

To be protected from irrelevant, improper, or

insulting questions, and from harsh or insulting

demeanor;

Not to be detained longer than the interests of

justice require;

Not to be examined except only as to matters

pertinent to the issue;

Not to give an answer which will tend to subject

him to a penalty for an offense unless otherwise

provided by law; or

Not to give an answer which will tend to

degrade his reputation, unless it to be 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.

Case: Supposing a witness refused to answer

because he feels the question is incriminatory.

However, the court directs the witness to give an

answer and the witness obeys the order of the court.

Later on the answer turns out to be incriminatory and

later on the witness was indicted for the commission

of this offense, can his testimony in court be given in

evidence against him in the form of an admission?

NO, because the witnsess has initially objected

and he gave the answer only in compliance with an

order of the court. According to some decisions that

could be treated as a compelled testimony given

under duress and therefore could not be used

against the witness.

EXCEPTIONS TO RULE AGAINST SELF-INCRIMINATION

1. Use Immunity- the witness will still be indicted for

the commission of an offense, but the statements

given by the witness cannot be used against him. He

is not immunized from prosecution.

2. Transactional Immunity- There is absolute

immunity, both to prosecution and use of the

statements given by the witness.

Order in the Examination – Rule 132, Sec. 4

1 Direct Examination – Rule 132, Sec. 5

- Examination-in-chief of a witness by the party

presenting him on the facts relevant to the issue.

2 Cross-Examination – Rule 132, Sec. 6

- When conducted: upon termination of direct

examination

- Matters covered: 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.

Implied waiver of cross-examination – The party was

given the opportunity Dela Paz vs. IAC (1987)

TWO RULES ON LIMITS OF CROSS EXAMINATION

1. English Rule- where a witness is called to testify to a

particular fact, he becomes a witness for all purposes

and may be fully cross-examined upon all matters

Lex Española 139

material to the issue, the examination not being

confined to the matters inquired about in the direct

examination.

2. American Rule- restricts cross-examination to facts

and circumstances which are connected with the

matters that have been stated in the direct

examination of the witness. (applies when witness is

the accused in a criminal case; and when witness is

hostile or adverse party witness)

3 Re-direct Examination – Rule 132, Sec. 7

- When conducted: after the cross-examination of

the witness has been concluded

- Why conducted: to explain or supplement his

answers given during the cross-examination. On re-

direct-examination, the court in its discretion may

allow questions on matters not dealt with during the

cross-examination.

4 Re-cross Examination – Rule 132, Sec. 8

- 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, upon the conclusion of the re-

direct examination.

Recalling Witnesses – Rule 132, Sec. 9

- After the examination of a witness has been

concluded by both sides has been concluded, the

witness cannot be recalled without leave of court.

The court will grant or withhold leave in its discretion

as the interests of justice may require.

There must be a satisfactory showing of

some concrete, substantial ground (i.e. particularly

identified material points were not covered in the

cross-examination; particularly described vital

documents were not presented to the witness; the

cross-examination was conducted in so inept a

manner as to result in a virtual absence thereof.

(People vs. Rivera, 1991)

Leading and Misleading Questions – Rule 132, Sec. 10

Leading questions

Questions that suggest to the witness the answer,

which the examining party desires, are leading

questions.

General Rule: Not allowed

Exceptions:

1. On cross examination;

2. On preliminary matters;

3. When there is a difficulty is 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;

4. Of an unwilling or hostile witness; or

5. 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.

6. 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.

When the answer is derived from a leading

question the evidence has no probative value

at all even if there is no objection to a leading

question.

Misleading questions

1 Those that assume as true a fact not yet testified

to by the witness, or contrary to that which he

has previously stated.

2 Not allowed.

DOCTRINE OF INCOMPLETE TESTIMONY: When cross

examination cannot be done or completed due to

causes attributable to the party who offered the

witness, the incomplete testimony is rendered

incompetent and should be stricken from the record.

Except: where the prosecution witness was

extensively cross-examined on the material points

and thereafter failed to appear and cannot be

produced despite a warrant for his arrest. (People v.

GOrospe, GR 51513, May 15, 1984)

Scope of judge’s participation at trial: A judge who

presides at a trial is not a mere referee. He must

actively participate therein by directing counsel to

the facts in dispute, by asking clarifying questions,

and by showing an interest in a fast a fair trial. (Clarin

v. Yatco, 56 O.G. 7042, Nov. 14, 1960)

Lex Española 140

He can interrogate witnesses to elicit the

truth, to obtain clarification, or to test their credibility.

(People v Moreno, 83 Phil. 286)

However, this power must be exercised by

the court sparingly and judiciously. (People v. Ferrer,

44 O.G. 112). Of course, the judge cannot curtail

counsel's right to interrogate witnesses. (People v.

Bedia, 83 Phil. 909)

There is no prohibition against the judge

conducting the examination of the witness. The

counsel may object to the questions propounded by

the judge.

Power of court to stop further evidence:

1) The court may stop

2) the introduction of further testimony

3) upon any particular point

4) when the evidence upon it is already so full

5) that more witnesses to the same point

6) cannot be reasonably expected

7) to be additionally persuasive.

But this power should be exercised with caution.

When the evidence already presented on one point

is sufficient and the party merely seeks to present

cumulative evidence which cannot produce

additional persuasive effect or that he is not sure of

what the other witnesses would testify, the court may

in its sound discretion stop the introduction of such

further evidence. (People v. Reyes, et al., 133 SCRA

51)

Role of attorney during presentation of evidence: An

attorney has a dual role to perform relative to

proving the truth respecting a matter of fact.

He must ensure that all evidence supporting the

material allegations, whether raised in the pleadings

or not are admitted by the court. His other role is to

block the admission of evidence supporting his

opponents' material allegations whether raised in the

pleadings or not.

In order to perform this dual role the attorney

should ensure that the evidence he offers are

admissible in accordance with the Rules of Court

and those of his opponent are properly objected to

for being inadmissible

Impeachment of Witnesses

1. Impeachment of Adverse Party’s Witness – Rule

132, Sec. 11

How done:

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.

Evidence of particular wrongful acts is not

allowed 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.

2. Impeachment of Own Witness – Rule 132, Sec.

12

General Rule: The party producing a witness is not

allowed to impeach the latter’s credibility.

Exception: The witness is an unwilling or hostile

witness.

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 impeachment may be made by the

party presenting the hostile or unwilling witness in all

respects as if he had been called by the adverse

party, except by evidence of 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.

3. Impeachment by Prior Inconsistent Statements –

Rule 132, Sec. 13

- 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

Lex Española 141

persons present, and he must be asked whether he

made such statements, and if so, be 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 (laying the predicate).

Laying the foundation or laying the basis- refers to a

situation where an evidence which is otherwise

incompetent will be introduced in evidence

because it falls under the exceptions to that rule on

exclusion.

Example: If a party desires to introduce

secondary or substitutionary evidence he must first

lay the foundation or lay the basis. He must first

proved that there was a writing duly executed and

that the original has been lost or destroyed.

Exclusion and Separation of Witnesses – Rule 132,

Sec. 14

- 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 have the witnesses separated and

prevented from conversing with each other until all

have been examined.

Refreshing Recollection of Witnesses – Rule 132, Sec.

16

1 Revival of Present Memory

- 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 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.

Note: The memorandum is not evidence, it is still the

testimony

2 Past Recollection Recorded

- A witness may testify from such writing or record, (as

in the case in revival of present memory) 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.

Note: It is the memorandum that will serve as

evidence (documentary evidence)

What is the consequence of giving in evidence a

part of an act, declaration, conversation, writing or

record? (Rule 132, Section 17) [RULE OF

COMPLETENESS]

- 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.

Rule on Examination of a Child Witness

Applicability of the Rule. — Unless otherwise

provided, this Rule shall govern the examination of

child witnesses who are victims of crime, accused of

a crime, and witnesses to crime. It shall apply in all

criminal proceedings and non-criminal proceedings

involving child witnesses. (ß1)

Child witness

I. Definition (ß4(a))

Any person who at the time of giving testimony is <

18 years.

In child abuse cases: a child includes one over

eighteen (18) years but is found by the court as

unable to fully take care of himself or protect himself

from abuse, neglect, cruelty, exploitation, or

discrimination because of a physical or mental

disability or condition.

II. Competency of a Child Witness: Every child is

presumed qualified to be a witness. To rebut the

presumption of competence enjoyed by a

child, the burden of proof lies on the party

challenging his competence. (ßß6, 6(b))

Competency exam

A. When conducted-

Motu proprio or on motion of a party, when it

finds that substantial doubt exists regarding the

ability of the child to perceive, remember,

communicate, distinguish truth from falsehood,

or appreciate the duty to tell the truth in court.

(ß6)

A party seeking a competency examination

must present proof of necessity of competency

examination. The age of the child by itself is not

a sufficient basis for a competency examination.

(ß6(a))

B. Who are allowed to attend-

- The judge and necessary court personnel;

Lex Española 142

- The counsel for the parties;

- The guardian ad litem;

- Support person/s for the child; and

- The defendant, unless the court determines that

competence can be fully evaluated in his

absence.

C. How conducted-

- By whom conducted: by the judge, counsel for

the parties, however, can submit questions to

the judge that he may, in his discretion, ask the

child. (ß6(d))

- Questions asked: appropriate to the age and

developmental level of the child; shall not be

related to the issues at trial; and shall focus on

the ability of the child to remember,

communicate, distinguish between truth and

falsehood, and appreciate the duty to testify

truthfully. (ß6(e))

- The court has the duty of continuously assessing

the competence of the child throughout his

testimony. (ß6(f))

III. Testifying

A. Oath: Before testifying, a child shall take an

oath or affirmation to tell the truth. (ß7)

B. Examination

1. How conducted –

General Rule: open court, 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.

(ß8)

Exception/s:

a) Exclusion of the public –

Why made:

To protect the right to privacy of

the child or

If the court determines on the

record that requiring the child to

testify in open court would cause

psychological harm to him, hinder

the ascertainment of truth, or

result in his inability to effectively

communicate due to

embarrassment, fear, or timidity.

- In making its order, the court shall consider the

developmental level of the child, the nature of

the crime, the nature of his testimony regarding

the crime, his relationship to the accused and to

persons attending the trial, his desires, and the

interests of his parents or legal guardian.

- The court may, motu proprio, exclude the public

from the courtroom if the evidence to be

produced during trial is of such character as to

be offensive to decency or public morals.

- The court may also, on motion of the accused,

exclude the public from trial, except court

personnel and the counsel of the parties.

b) The court may order that persons attending the

trial shall not enter or leave the courtroom

during the testimony of the child. (ß24)

c) Motion by party who presents a child witness or

the guardian ad litem of such child witness may,

however, move the court to allow him to testify

in the manner provided in this Rule (ß8):

Live-link television testimony in criminal cases where

the child is a victim or a witness. (ß25)

Who may apply for an order that testimony of the

child be taken in a room outside the courtroom and

be televised to the courtroom by live-link television:

1 prosecutor,

2 counsel or the

3 guardian ad litem

Period for application: The person seeking such an

order shall apply at least five (5) days before the trial

date, unless the court finds on the record that the

need for such an order was not reasonably

foreseeable.

Hearing on the application:

The court may motu proprio hear and determine,

with notice to the parties, the need for taking the

testimony of the child through live-link television.

The judge may question the child in chambers, or in

some comfortable place other than the courtroom,

in the presence of the support person, guardian ad

litem, prosecutor, and counsel for the parties. The

questions of the judge shall not be related to the

issues at trial but to the feelings of the child about

testifying in the courtroom.

The judge may exclude any person, including the

accused, whose presence or conduct causes fear to

the child.

Order denying/granting use of live-link TV:

Lex Española 143

The court shall issue an order granting or denying the

use of live-link television and stating the reasons

therefor.

Factors considered by the court in granting/denying

application:

(1)†The age and level of development of

the child;

(2)†His physical and mental health,

including any mental or physical disability;

(3)†Any physical, emotional, or

psychological injury experienced by him;

(4)†The nature of the alleged abuse;

(5)†Any threats against the child;

(6)†His relationship with the accused or

adverse party;

(7)†His reaction to any prior encounters with

the accused in court or elsewhere;

(8)†His reaction prior to trial when the topic

of testifying was discussed with him by parents or

professionals;

(9)†Specific symptoms of stress exhibited by

the child in the days prior to testifying;

(10)†Testimony of expert or lay witnesses;

(11)†The custodial situation of the child and

the attitude of the members of his family regarding

the events about which he will testify; and

(12)†Other relevant factors, such as court

atmosphere and formalities of court procedure.

The court may order that the testimony of the child

be taken by live-link television if there is a substantial

likelihood that the child would suffer trauma from

testifying in the presence of the accused, his counsel

or the prosecutor as the case may be. The trauma

must be of a kind which would impair the

completeness or truthfulness of the testimony of the

child.

How done:

where testimony is taken: in a room separate from

the courtroom

who are present:

guardian ad litem;

one or both of his support persons;

the facilitator

and interpreter, if any;

a court officer appointed by the court;

persons necessary to operate the closed-circuit

television equipment; and

other persons whose presence are determined

by the court to be necessary to the welfare and

well-being of the child;

The judge, prosecutor, accused, and counsel

for the parties shall be in the courtroom. The

testimony of the child shall be transmitted by live-link

television into the courtroom for viewing and hearing

by the judge, prosecutor, counsel for the parties,

accused, victim, and the public unless excluded.

If it is necessary for the child to identify the

accused at trial, the court may allow the child to

enter the courtroom for the limited purpose of

identifying the accused, or the court may allow the

child to identify the accused by observing the image

of the latter on a television monitor.

The court may set other conditions and

limitations on the taking of the testimony that it finds

just and appropriate, taking into consideration the

best interests of the child.

The testimony of the child shall be preserved

on videotape, digital disc, or other similar devices

which shall be made part of the court record and

shall be subject to a protective order as provided in

section 31(b).

ii. Screens, one-way mirrors, and other devices to

shield child from accused.

Who may apply for an order that the chair of the

child or that a screen or other device be placed in

the courtroom in such a manner that the child

cannot see the accused while testifying:

1 prosecutor or

2 guardian ad litem (consultation with prosecutor

or counsel as in application for use of live-link TV.

also required)

Order granting application:

The court shall issue an order stating the reasons and

describing the approved courtroom arrangement

Lex Española 144

If the court grants an application to shield the child

from the accused while testifying in the courtroom,

the courtroom shall be arranged to enable the

accused to view the child.

iii. Videotaped deposition.

Who may apply for an order that a deposition be

taken of the testimony of the child and that it be

recorded and preserved on videotape?

1 prosecutor,

2 counsel, or

3 guardian ad litem (consultation with prosecutor

or counsel as in application for use of live-link TV.

also required)

When allowed:†If the court finds that the child will

not be able to testify in open court at trial, it shall

issue an order that the deposition of the child be

taken and preserved by videotape.

Deposition-taking:

Who are present

Judge – who shall preside at the

videotaped deposition of a child;

Prosecutor;

defense counsel;

Guardian ad litem;

Accused, provided that, if the order of the

court is based on evidence that the child is

unable to testify in the physical presence of the

accused, the court may direct the latter to be

excluded from the room in which the deposition

is conducted. In case of exclusion of the

accused, the court shall order that the testimony

of the child be taken by live-link television in

accordance with section 25 of this Rule. If the

accused is excluded from the deposition, it is not

necessary that the child be able to view an

image of the accused.

Other persons whose presence is

determined by the court to be necessary to the

welfare and well-being of the child;

Support person/s, the facilitator and

interpreter, if any;

Court stenographer; and

†Persons necessary to operate the

videotape equipment.

Objections to testimony or evidence; rights

of the accused

Objections to deposition testimony or

evidence, or parts thereof, and the grounds for

the objection shall be stated and shall be ruled

upon at the time of the taking of the deposition.

The rights of the accused during trial,

especially the right to counsel and to confront

and cross-examine the child, shall not be

violated during the deposition.

The videotaped deposition shall be preserved and

stenographically recorded. The videotape and the

stenographic notes shall be transmitted to the clerk

of the court where the case is pending for

safekeeping and shall be made a part of the record.

The court may set other conditions on the taking of

the deposition that it finds just and appropriate,

taking into consideration the best interests of the

child, the constitutional rights of the accused, and

other relevant factors.

The videotaped deposition and stenographic notes

shall be subject to a protective order as provided in

section 31(b).

If, at the time of trial, the court finds that the child is

unable to testify for a reason stated in section 25(f) of

this Rule, or is unavailable for any reason described in

section 4(c), Rule 23 of the 1997 Rules of Civil

Procedure, the court may admit into evidence the

videotaped deposition of the child in lieu of his

testimony at the trial. The court shall issue an order

stating the reasons therefor.

After the original videotaping but before or during

trial, any party may file any motion for additional

videotaping on the ground of newly discovered

evidence. The court may order an additional

videotaped deposition to receive the newly

discovered evidence.

When conducted: The court may order that the

testimony of the child should be taken during a time

of day when the child is well-rested. (ß14)

Provisions for ease of child in

testifying/accommodations for a child

a. Interpreter for child (ß9)

How appointed: the court motu proprio or upon

motion

When appointed:†When a child does not

understand the English or Filipino language or is

unable to communicate in said languages due to his

developmental level, fear, shyness, disability, or other

similar reason

Lex Española 145

Who may be interpreter?

†If a witness or member of the family of

the child is the only person who can serve as an

interpreter for the child, he shall not be disqualified

and may serve as the interpreter of the child. The

interpreter, however, who is also a witness, shall testify

ahead of the child.

An interpreter shall take an oath or

affirmation to make a true and accurate

interpretation.

b. Facilitator to pose questions to child (ß10)

How appointed: The court motu proprio or upon

motion,

When appointed: child is unable to understand or

respond to questions asked.

Who may be a facilitator: The facilitator may be a

child psychologist, psychiatrist, social worker,

guidance counselor, teacher, religious leader,

parent, or relative. The facilitator shall take an oath

or affirmation to pose questions to the child

according to the meaning intended by counsel.

Function of facilitator:† Respective counsels for the

parties shall pose questions to the child only through

the facilitator. The questions shall either be in the

words used by counsel or, if the child is not likely to

understand the same, in words that are

comprehensible to the child and which convey the

meaning intended by counsel.

c. Support persons (ß11)

A child testifying at a judicial proceeding or making

a deposition shall have the right to be accompanied

by one or two persons of his own choosing to provide

him emotional support.

(1)†Both support persons shall remain within

the view of the child during his testimony.

(2)†One of the support persons may

accompany the child to the witness stand, provided

the support person does not completely obscure the

child from the view of the opposing party, judge, or

hearing officer.

(3)†The court may allow the support person

to hold the hand of the child or take other

appropriate steps to provide emotional support to

the child in the course of the proceedings.

(4)†The court shall instruct the support persons

not to prompt, sway, or influence the child during his

testimony.

Support person, also a witness

1 Disapproved if it is sufficiently established that

the attendance of the support person during the

testimony of the child would pose a substantial

risk of influencing or affecting the content of the

testimony of the child.

2 If allowed his testimony shall be presented

ahead of the testimony of the child.

Waiting area for child witnesses (ß12) that is

separate from waiting areas used by other

persons.

Courtroom environment

Aim: create a more comfortable environment for the

child

court may, in its discretion, direct and supervise the

location, movement and deportment of all persons

in the courtroom including the parties, their counsel,

child, witnesses, support persons, guardian ad litem,

facilitator, and court personnel.

The child may be allowed to testify from a place

other than the witness chair.

The witness chair or other place from which the child

testifies may be turned to facilitate his testimony but

the opposing party and his counsel must have a

frontal or profile view of the child during the

testimony of the child. The witness chair or other

place from which the child testifies may also be

rearranged to allow the child to see the opposing

party and his counsel, if he chooses to look at them,

without turning his body or leaving the witness stand.

The judge need not wear his judicial robe.

Nothing in this section or any other provision of law,

except official in-court identification provisions, shall

be construed to require a child to look at the

accused.

Accommodations for the child under this section

need not be supported by a finding of trauma to the

child.

Recess during testimony

The child may be allowed reasonable periods

of relief while undergoing direct, cross, re-direct, and

re-cross examinations as often as necessary

depending on his developmental level.

Testimonial aids: use of dolls, anatomically-

Lex Española 146

correct dolls, puppets, drawings, mannequins, or any

other appropriate demonstrative device to assist him

in his testimony.

Emotional security item (ß17): While testifying, a

child shall be allowed to have an item of his own

choosing such as a blanket, toy, or doll

Conduct in questioning the witness:

i. Conduct of counsel: a counsel may be prohibited

from approaching a child if it appears that the

child is fearful of or intimidated by the counsel.

(ß18)

ii. Mode of questioning:

- The court shall exercise control over the

questioning of children so as to

(1) facilitate the ascertainment of the truth,

(2) ensure that questions are stated in a

form appropriate to the developmental level of the

child,

(3) protect children from harassment or

undue embarrassment, and

(4) avoid waste of time.

- The court may allow the child witness to testify in a

narrative form.

iii. Questions and objections thereto leading

questions in all stages of examination of a child

may be allowed if the same will further the interests

of justice

Objections to questions should be couched in a

manner so as not to mislead, confuse, frighten, or

intimidate the child.

Weight given to testimony of child

witness: strong; corroboration not required - His

testimony, if credible by itself, shall be sufficient to

support a finding of fact, conclusion, or judgment

subject to the standard of proof required in

criminal and non-criminal cases.

IV. Questions of Admissibility

C. Hearsay Exception in Child Abuse Cases

Where admitted: child abuse cases, criminal or non-

criminal

How admitted:

1) Before such hearsay statement may be

admitted, its proponent shall make known to the

adverse party the intention to offer such

statement and its particulars to provide him a

fair opportunity to object.

A. Child is available

The court shall, upon motion of the adverse

party, require the child to be present at the

presentation of the hearsay statement for cross-

examination by the adverse party.

B. Child is unavailable

the fact of such circumstance must be proved

by the proponent.

When unavailable:

(1)†Is deceased, suffers from physical

infirmity, lack of memory, mental illness, or will be

exposed to severe psychological injury; or

(2)†Is absent from the hearing and the

proponent of his statement has been unable to

procure his attendance by process or other

reasonable means.

†When the child witness is unavailable, his

hearsay testimony shall be admitted only if

corroborated by other admissible evidence.

(3) In ruling on the admissibility of such

hearsay statement, the court shall consider the time,

content and circumstances thereof which provide

sufficient indicia of reliability. It shall consider the

following factors:

C. Whether there is a motive to lie;

d. The general character of the declarant

child;

e. Whether more than one person heard the

statement;

f. Whether the statement was spontaneous;

g. The timing of the statement and the

relationship between the declarant child

and witness;

h. Cross-examination could not show the lack

of knowledge of the declarant child;

i. The possibility of faulty recollection of the

declarant child is remote; and

j. The circumstances surrounding the

Lex Española 147

statement are such that there is no reason

to suppose the declarant child

misrepresented the involvement of the

accused.

D. Videotaped and audiotaped in-depth

investigative or disclosure interviews in child

abuse cases (ß29)

When admissible:

1 The child witness -

(1)†Is deceased, suffers from physical

infirmity, lack of memory, mental illness, or will be

exposed to severe psychological injury; or

(2)†Is absent from the hearing and the

proponent of his statement has been unable to

procure his attendance by process or other

reasonable means.

2 Before the videotape or audiotape is offered in

evidence, all parties shall be afforded an

opportunity to view or listen to it and shall be

furnished a copy of a written transcript of the

proceedings.

By whom conducted:

duly trained members of a multidisciplinary

team or representatives of law enforcement or child

protective services in situations where child abuse is

suspected so as to determine whether child abuse

occurred.

individual conducting the interview of the child

shall be available at trial for examination by any

party.

Proof of the following must be given by party offering

the videotape or audiotape:

(1)†The videotape or audiotape discloses the identity

of all individuals present and at all times includes their

images and voices;

(2)†The statement was not made in response to

questioning calculated to lead the child to make a

particular statement or is clearly shown to be the

statement of the child and not the product of

improper suggestion;

(3)†The videotape and audiotape machine or

device was capable of recording testimony;

(4)†The person operating the device was competent

to operate it;

(5)†The videotape or audiotape is authentic and

correct; and

(6)†It has been duly preserved.

Value of an investigative interview that was not done

as required in this Rule: The fact that an investigative

interview is not videotaped or audiotaped as

required by this section shall not by itself constitute a

basis to exclude from evidence out-of-court

statements or testimony of the child. It may,

however, be considered in determining the reliability

of the statements of the child describing abuse.

E. Sexual abuse shield rule

Inadmissible evidence in any criminal proceeding

involving alleged child sexual abuse:

(1) Evidence offered to prove that the alleged victim

engaged in other sexual behavior; and

(2) Evidence offered to prove the sexual

predisposition of the alleged victim.

When admissible: Evidence of specific instances of

sexual behavior by the alleged victim to prove that a

person other than the accused was the source of

semen, injury, or other physical evidence shall be

admissible.

How admitted:

1. A party intending to offer such evidence

must:

a. File a written motion at least 15 days before trial,

specifically describing the evidence and stating

the purpose for which it is offered, unless the

court, for good cause, requires a different time

for filing or permits filing during trial; and

b. Serve the motion on all parties and the guardian

ad litem at least 3 days before the hearing of

the motion.

2. Before admitting such evidence, the

court must conduct a hearing in chambers and

afford the child, his guardian ad litem, the

parties, and their counsel a right to attend and

be heard. The motion and the record of the

hearing must be sealed and remain under seal

and protected by a protective order set forth in

section 31(b). The child shall not be required to

testify at the hearing in chambers except with

his consent.

V. Other protective measures for the child

F. Confidentiality of records.

When records may be released: upon written

Lex Española 148

request and order of the court

To whom may be released:

(1) Members of the court staff for

administrative use;

(2) The prosecuting attorney;

(3) Defense counsel;

(4) The guardian ad litem;

(5) Agents of investigating law enforcement

agencies; and

(6) Other persons as determined by the court.

G. Protective order

What are covered: Any videotape or audiotape of a

child that is part of the court record

Provisos of the protective order:

(1) Tapes may be viewed only by parties, their

counsel, their expert witness, and the guardian ad

litem.

(2) No tape, or any portion thereof, shall be

divulged by any person mentioned in sub-section (a)

to any other person, except as necessary for the trial.

(3) No person shall be granted access to the

tape, its transcription or any part thereof unless he

signs a written affirmation that he has received and

read a copy of the protective order; that he submits

to the jurisdiction of the court with respect to the

protective order; and that in case of violation

thereof, he will be subject to the contempt power of

the court.

(4) Each of the tape cassettes and transcripts

thereof made available to the parties, their counsel,

and respective agents shall bear the following

cautionary notice:

―This object or document

and the contents thereof are

subject to a protective order

issued by the court in (case

title), (case number). They shall

not be examined, inspected,

read, viewed, or copied by any

person, or disclosed to any person,

except as provided in the

protective order. No additional

copies of the tape or any of its

portion shall be made, given, sold,

or shown to any person without

prior court order. Any person

violating such protective order is

subject to the contempt power of

the court and other penalties

prescribed by law.‖

(5) No tape shall be given, loaned, sold,

or shown to any person except as ordered by

the court.

(6) Within 30 days from receipt, all copies of

the tape and any transcripts thereof shall be

returned to the clerk of court for safekeeping unless

the period is extended by the court on motion of a

party.

(7) This protective order shall remain in full

force and effect until further order of the court.

H. Additional protective orders. — The court may,

motu proprio or on motion of any party, the

child, his parents, legal guardian, or the

guardian ad litem, issue additional orders to

protect the privacy of the child.

I. Publication of identity contemptuous.

What is prohibited: Publication or causing publication

in any format the name, address, telephone number,

school, or other identifying information of a child who

is or is alleged to be a victim or accused of a crime

or a witness thereof, or an immediate family of the

child

Liability of violator: contempt of court

J. Physical safety of child; exclusion of evidence.

A child has a right at any court proceeding not to

testify regarding personal identifying information,

including his name, address, telephone number,

school, and other information that could endanger

his physical safety or his family.

The court may, however, require the child to

testify regarding personal identifying information

in the interest of justice.

K. Destruction of videotapes and audiotapes

produced under the provisions of this Rule or

otherwise made part of the court record shall be

destroyed after 5 years have elapsed from the

date of entry of judgment.

L. Records of youthful offender: privileged

1. Youthful offender has been charged before any

city or provincial prosecutor or before any

municipal judge and the charges have been

ordered dropped

Lex Española 149

All the records of the case shall be considered as

privileged and may not be disclosed directly or

indirectly to anyone for any purpose whatsoever.

2. Youthful offender has been charged and the

court acquits him, or dismisses the case or

commits him to an institution and subsequently

releases him pursuant to Chapter 3 of P. D. No.

603,

All the records of his case shall also be considered

as privileged and may not be disclosed directly or

indirectly to anyone EXCEPT to determine if a

defendant may have his sentence suspended under

Article 192 of P. D. No. 603 or if he may be granted

probation under the provisions of P. D. No. 968 or to

enforce his civil liability, if said liability has been

imposed in the criminal action.

The youthful offender concerned shall not be held

under any provision of law to be guilty of perjury or of

concealment or misrepresentation by reason of his

failure to acknowledge the case or recite any fact

related thereto in response to any inquiry made to

him for any purpose.

VI. Suppletory application of Rules of Court: The

provisions of the Rules of Court on deposition,

conditional examination of witnesses, and

evidence shall be applied in a suppletory

character. (ß32)

Authentication and Proof of Documents

1. Classes of Documents

1.1 Public Documents – Rule 132, Sec. 19

1.1.1-A Written official acts of the sovereign

authority, official bodies and tribunals, and public

officers, whether of the Philippines or of a foreign

country;

- How Proven = Rule 132, Sec. 23

- 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.

1.1.1-B 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.

- How Proven = Rule 132, Sec. 24

- The record may be evidenced by: (1) an official

publication thereof; (2) 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 record 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.

*Contents of Attestation = Rule 132, Sec 25

- The attestation must state 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.

- Irremovability of Record = Rule 132, Sec. 26

- 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.

1.1.2 Notarial Documents except last wills and

testaments;

- How Proven = Rule 132, Sec. 30

- Notarial documents may be presented in evidence

without further proof, the certificate of

acknowledgment being prima facie evidence of the

execution of the instrument or document involved.

1.1.3 Public Records (kept in the Philippines) of

Private Documents required by law to be entered

therein

- How Proven = Sec. 27

- Such may be proved by the original record, or a

copy thereof, attested by the legal custodian of the

record, with an appropriate certificate that such

officer has the custody.

- Proof of Lack of Record = Sec. 28

A written statement signed by an officer having the

custody of an official record or by his deputy that

Lex Española 150

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 that such officer has

the custody, is admissible to prove that the records of

his office contain no such record or entry.

1.2 Private Documents

- How Proven = Rule 132, Sec. 20

Before any private document offered as authentic is

received in evidence, its due execution and

authenticity must be proved either: (1) by anyone

who say the document executed or written; or (2) by

evidence of the genuineness of the signature or

handwriting of the maker. Any other private

document need only be identified as that which it is

claimed to be.

- Ancient Document Rule = Rule 132, Sec. 21

Requisites: (1) The private document is more than 30

years old; (2) It is produced from a custody in which it

would naturally be found if genuine; (3) It is

unblemished by any alterations or circumstances of

suspicion.

If all requisites have been met, no other evidence of

its authenticity is required.

1. How Genuineness of Handwriting is Proven = Rule

132, Sec. 22

It 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.

2. Impeachment of Judicial Record – Rule 132, Sec.

29

How done – 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.

3. Alterations – Rule 132, Sec. 31

- 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.

Failure to do so would result in the inadmissibility of

evidence.

- He may show that the alteration was made

f) by another,

g) without his concurrence, or

h) made with the consent of the parties affected

by it, or

i) was otherwise properly or innocent made, or

j) The alteration did not change the meaning or

language of the instrument.

Seal – Rule 132, Sec. 32

- There shall be no difference between sealed and

unsealed private documents insofar as their

admissibility as evidence is concerned.

Documents Written in an Unofficial Language – Rule

132, Sec.33

- Not admissible unless accompanied with a

translation into English or Filipino; parties or their

attorneys are directed to have such translation

prepared before trial.

IS THERE ANY WAY TO AVOID THE TEDIOUS PROCESS

OF AUTHENTICATION?

1. Rule on actionable documents (Rule 8). It provides

that if an actionable document is the basis of a

complaint of an answer, the law requires that it

should be annexed to the pleading or that the

contents thereof be copied in verbatim. If there is

failure to specifically deny under oath the

genuineness and due execution of an actionable

document that judicial admission will take the place

of authentication

2. Mode of discovery- Request for admission of the

genuineness and due execution of a private writing.

Failure to object within 15 days, deemed admitted.

3. Pre-trial of civil and criminal case wherein parties

may enter into stipulations, where they will admit the

genuineness and due execution of the private

writing.

Offer and Objection

1. Offer of Evidence – Rule 132, Sec, 34

1 Why made?

Lex Española 151

- For evidence to be considered by the court - court

shall consider no evidence, which has not been

formally offered.

1.1 When to make offer – Rule 132, Sec. 35

- Testimonial Evidence = at the time the witness is

called to testify.

- Documentary Evidence = after the presentation of

a party‘s testimonial evidence; offer shall be done

orally unless allowed by the court to be done in

writing.

When evidence admitted even if not formally offered:

1. The same must have been duly identified by

testimony duly recorded

2. The same must have been incorporated to the

records of the case (Mata Vda. De Onate vs. CA)

STAGES in the presentation of documentary evidence

1. Identification- proof that the document being

offered is the same one referred to by the witness in

his testimony

2. Marking

3. Authentication- proof of document‘s due

execution and genuineness

4. Inspection

5. Formal Offer

6. Objections

2. Objection - Rule 132, Sec. 36

- Testimonial Evidence = must be objected to

immediately after the offer is made.

= Objection to a question propounded in the course

of the oral examination of a witness shall be made as

soon as the grounds therefore shall become

reasonably apparent.

- Documentary Evidence = shall be objected to

within 3 days after notice of the offer unless a

different period is allowed by the court.

Kinds of Objection

1. General or broadside- does not go beyond

declaring the evidence as immaterial, incompetent,

irrelevant, or inadmissible. Does not specify the

grounds

2. Specific- States the ground

- When repetition is unnecessary – Rule 132, Sec. 37

(Rule on Continuing Objection)

It shall not be necessary to repeat the objection

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 be

sufficient for the adverse party to record his

continuing objection to such class of questions.

- Ruling – Rule 132, Sec. 38

= 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.

3. Motion to Strike – Rule 132, Sec. 39

- The court may sustain an objection and order the

answer given to be stricken off the record should a

witness answer the question before the adverse party

had the opportunity to voice fully its objection and

such objection is found to be meritorious.

- The court may also, upon proper motion, order the

striking out of answers, which are incompetent,

irrelevant or otherwise improper.

4. Tender of Excluded Evidence (Proffer of excluded

evidence)– Rule 132, Sec. 40

- Documentary evidence – the offeror may have the

same attached or made part of the record.

- Testimonial evidence – the offeror may state for the

record the name and other personal circumstances

of the witness and the substance of the proposed

testimony.

There is a distinction between identification

of documentary evidence and its formal offer as an

Lex Española 152

exhibit. The former is done in the course of the trial

and is accompanied by the marking of the evidence

while the latter is done only when the party rests

his/her case. That a document has been identified

does not mean that it will be offered. (Interpacific

Transit vs. Aviles, 1990)

While there was no offer of the testimony,

petitioner waived this defect by failing to object

when the ground became reasonably apparent the

moment private respondent was called to testify

without any prior offer having been made. (Catuira

vs. CA, 1994)

The rule requiring that there must be a

formal offer of evidence before the evidence can

be considered may be relaxed provided the

evidence must have duly identified by testimony duly

recorded and they must have been incorporated in

the records of the case. (Vda. De OÒate vs. CA,

1995)

OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE vs.

OFFER OF EVIDENCE

First, is only resorted to if admission is refused by the

court for purposes of review on appeal. Second,

refers to testimonial, documentary or object

evidence that are presented or offered in court by a

party so that the court can consider his evidence

when it comes to the preparation of the decision.

RULE 133

Weight and Sufficiency of Evidence

SECTION 1 . Preponderance of evidence, how

determined. — In civil cases, the party having

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

there are testifying, the nature of the facts to which

they testify, the probability or improbability of their

testimony, their interest or want of interest, and also

their personal credibility so far as the same may

legitimately appear upon the trial. The court may

also consider the number of witnesses, though the

preponderance is not necessarily with the greater

number. (1a)

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, excluding possibility of error,

produces absolute certainly. Moral certainly only is

required, or that degree of proof which produces

conviction in an unprejudiced mind. (2a)

Sec. 3 . Extrajudicial confession, not sufficient ground

for conviction. — An extrajudicial confession made

by an accused, shall not be sufficient ground for

conviction, unless corroborated by evidence of

corpus delicti. (3)

Sec. 4 . Circumstantial evidence, when sufficient. —

Circumstantial evidence is sufficient for conviction if:

(a)There is more than one circumstances;

(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)

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)

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)

Weight and Sufficiency of Evidence

A. Required Quantum of Evidence

1. Preponderance of Evidence (Civil

Cases) – Rule 133, Sec. 1

How determined? The court may consider:

All the facts and circumstances of the case;

The witnesses‘ manner of testifying;

Lex Española 153

Their intelligence;

Their means and opportunity of knowing the

facts to which they testify;

The probability or improbability of their

testimony;

Their interest or want of interest;

Personal credibility so far as the same may

legitimately appear upon the trial;

Number of witnesses (note preponderance that

is not necessarily equated with the no. of

witnesses)

2. Proof Beyond Reasonable Doubt

(Criminal Cases) –Rule 133, Sec. 2

What is proof beyond reasonable doubt? That

degree of proof which produces conviction in an

unprejudiced mind.

Absolute certainty is not required, only

moral certainty.

3. Substantial Evidence

(Administrative/Quasi-Judicial Cases)

Rule133, Sec. 5

- What is substantial evidence? The amount of

relevant evidence which a reasonable mind might

accept as adequate to support a conclusion.

B. Extrajudicial Confessions – Rule 133, Sec. 3

- An extrajudicial confession made by an

accused, is not a sufficient ground for conviction

UNLESS corroborated by evidence of corpus delicti.

C. Circumstantial Evidence – Rule 133, Sec. 4

- Requisites for circumstantial evidence to be

sufficient for conviction:

a. There is more than 1 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.

OUT-OF-COURT IDENTIFICATION, THE TOTALITY OF

CIRCUMSTANCE TEST

1. Witness‘ opportunity to view the criminal act at

the time of the crime

2. Witness‘ degree of attention at that time

3. The accuracy of any prior description given by

the witness

4. The level of certainty demonstrated by the

witness at the identification

5. The length of time between the crime and the

identification

6. The suggestiveness of the identification

procedure

res ipsa loquitur (The thing speaks for itself)- A

procedural device which presumes that the person is

negligent, when he is in control of an instrumentality

causing an injury in the absence of some

explanation by him.

Falsus in uno, falsus in omnibus (False in one thing,

false in everything)- If the testimony of the witness on

a material issue is willfully false and given with an

intention to deceive, court may disregard all the

witness‘ testimony. (Not a mandatory rule of

evidence)

It deals only with the weight of evidence

and not a positive rule of law

The witnesses’ false or exaggerated

statements on other matters shall not

preclude the acceptance of such

evidence as is relieved from any sign of

falsehood

The court may accept and reject portions

of the witness’ testimony depending on the

inherent credibility thereof.

May the court stop the introduction of further

testimony? YES 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;

this power should be exercised with caution. (Rule

133, Section 6)

How will the court dispose of a motion

which is based on facts not appearing of record?

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. (Rule 133, Section 7)

Examples of motion which need hearing hence the

presentation of evidence:

Lex Española 154

CRIMINAL CASES:

Motion for bail (Under Criminal Procedure,

the evidence taken up during the hearing of the

motion will form part automatically of the records of

the case, so there is no need to repeat in the trial

what have been covered in the hearing of the

motion)

CIVIL CASES:

Application for preliminary

attachment/injunction

Motion to dismiss founded on certain facts

which are not solely predicated on absence of

jurisdiction or failure to state a COA, i.e. it is

predicated on the ground of payment

(Same with Criminal Case, evidence taken up

during hearing made part automatically of records

of the case)

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.

A cause of action on the ground of reformation of

instrument must be proven by clear and convincing

evidence.

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.

A defense of self-defense must be proven by clear

and convincing evidence.

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

Generally, the motive of the accused is immaterial in

a criminal case, not being an essential element of

the crime, hence, it does not need to be proved.

Exceptions:

1. when there is no eyewitness and the suspicion is

likely to fall on a considerable number of persons;

2. when there is doubt as to whether the accused is

or is not the person who committed the offense;

3. when it is necessary to determine the sanity of the

accused or the voluntariness of the act, the specific

nature of the crime committed, or whether the

shooting was intentional or accidental;

4. when the accused interposes self-defense or

defense of stranger.

WEIGHT AND SUFFICIENCY OF EVIDENCE

Weight of Evidence: - The balance of evidence and

in whose favor it tilts. This refers to the indication of

the greater evidence between the parties . This

depends on the judicial evaluation within the

guidelines provided by the rules and by

jurisprudence.

Sufficiency of Evidence- refers to the adequacy of

evidence. Such evidence in character, weight, or

amount, as will legally justify the judicial action

demanded or prayed by the parties.

This refers to the question as to whether the evidence

amounts or meets the required quantum needed to

arrive at a decision in a civil, criminal, or

administrative case; or to prove matters of defense

or mitigation or to overcome a prima facie case or a

presumption

II. HIERARCHY OF EVIDENTIARY VALUES

a). Proof beyond reasonable doubt

b). Clear and convincing proof

c). Preponderance of Evidence

Lex Española 155

d). Substantial evidence

2. a). Conclusive- overwhelming or

incontrovertible

b). Prima Facie- that which suffices until

rebutted

c). Probable Cause- as that required for

filing of an Information in Court or for the issuance of

a warrant of arrest

III. QUANTUM OF EVIDENCE REQUIRED

A. Criminal cases: Proof of Guilt Must be Beyond

reasonable doubt.

1. That degree of proof, which, excluding

the possibility of error, produces moral certainty. If

the inculpatory facts are capable of two or more

explanations, one of which is consistent with the

innocence of the accused and the other consistent

with his guilt, then the evidence does not fulfill the

test of moral certainty and is not sufficient to support

a conviction.

B. Civil Cases: Preponderance of Evidence. This

means that he weight, credit and value of the

aggregate evidenced of one is superior to the other

IV. RULES IN THE EVALUATION OF EVIDENCE

1. Courts shall consider and take into consideration :

(a) all facts which were presented during the trial

whether testimonial, object, or documentary

(b) all facts which were stipulated or judicially

admitted

(c) those judicially noticed and

(d) all facts which are presumed

2. No extraneous matters shall be considered even if

the Court knows them as existing in his personal

capacity

3. In determining the weight and sufficiency of a

party‘s evidence, the court shall consider :

A.) All the facts and circumstances of the case.

B). The testimonial characteristics of a witness

such as:

i). The manner of testifying by a witness

which includes his conduct and behavior on the

witness stand, the emphasis, gestures, and inflection

of his voice in answering questions. This is the reason

why the rules require the witness to personally testify

in open court.

ii). The intelligence of the witness. This refers

o this position to perceive by the sue of his organs of

sense, his opportunity for accurate observation and

faithful recollection of the facts to which he is

testifying.

This intelligence must be coupled with integrity, a

general reputation for truth, honesty and integrity.

This is because a witness to be believed must be

truthful in his narration of correct facts.

iii). The means and opportunity of knowing

the facts which includes his presence and

observation of the facts.

iv). The nature of the facts to which the

witness is testifying such as: whether he did the act as

a participant, whether he saw the occurrence of an

accident as he was a passenger; the identity of a

person who is an old acquaintance; thus as to the

circumstances of the birth a person, the mother

would be the best witness on this point mother.

v). The absence or presence of interest or

basis for bias or prejudice.

vi). Personal Credibility of the witness,

referring to his general reputation for truth, honesty or

integrity as for example: (i) the case of an young girl

who makes a complaint for rape ; as for instance the

accused claiming self defense who is well built,

broad shouldered a boxer and expert in martial arts

claiming the victim of assault by an ordinary person

viii). The probability or improbability of the

testimony

C. The number of witnesses. However

witnesses are to been weighed not numbered

because quantitative superiority does not necessarily

mean legal preponderance. Thus an accused may

be convicted based solely on the testimony of one

witness.

But where the evidence for both parties is

principally testimonial where the version of each

exhibit equal tendency to be true and accurate,

and the witnesses have not betrayed themselves by

major contradictions or other indications of

falsehood, there exists every reason to measure

preponderance by numerical advantage.

Lex Española 156

4. The Court has the power to stop the further

presentation of evidence on the same point as when

the additional evidence is only corroborative or the

point has already been established, or when it results

to unnecessary delay

5. As to the testimony of a witness:

A). the court must consider everything stated by the

witness during the direct, cross, re-direct and re-cross

examinations

B). the testimony of a witness maybe believed in part

and disbelieved in other parts, depending on the

corroborative evidence and the probabilities and

improbabilities of the case. It is accepted as a matter

of common sense that if certain parts of the

testimony are true, his testimony can not be

disregarded entirely.

Contrast this with the so called ―Falsus in unos, falsus

in omnibus‖

6. The Preference of Evidence must be observed in

case of conflict:

A). Physical or Object evidence is evidence

of the highest order and prevails over contrary

testimonial evidence

B). Documentary over testimonial evidence

C). Positive over negative evidence. E.G.

positive identification over alibi; an assertion of the

occurrence of a thing over a plain denial. ―Denials, if

unsubstantiated by clear and convincing evidence,

are deemed negative and self-serving evidence

unworthy of credence.‖ ( Wa-acon vs. People, 510

SCRA 429)

D). Direct over circumstantial

E). Testimony in open court over sworn

statements or affidavits

F). The ―Admitted Facts Rule‖- evidence of

whatever description must yield to the extent that it

conflicts with admitted or clearly established facts‖.

Thus courts give superior credit to witnesses whose

testimonies on material points are in accord with

facts already established ( Frondarina vs. Malazarte

510 SCRA 223)

7. Rule in criminal cases

A. For conviction

i). For conviction: the prosecution must

adduce proof of guilt beyond reasonable doubt i.e.

moral certainty not absolute certainty

ii). Every doubt is to be resolved in favor of

the accused

iii) Accusation is not synonymous with guilt

iv) Accused need not present evidence if

the evidence against him is weak because

conviction must be on the strength of the evidence

of the prosecution and not on the weakness of the

evidence of the accused

B. Affirmative Defenses be shown by clear, positive

and convincing evidence

C. Two Witness Rule in Treason

D. If conviction is based on circumstantial evidence.

The requirements under section 4 must be present

i). There must be more than one

circumstance

ii). The facts from which the inferences are

derived are proven

iii). The combination of all such

circumstances produces conviction beyond

reasonable doubt

E. If based on Extra Judicial Confession, same must

be corroborated by evidence of corpus delicti

IV. CREDIBLE EVIDENCE: Evidence to be believed

requires:

A.) That it be credible in itself i.e. such as the

common experience and observation of mankind

can approve as probable under the circumstances.

Testimony must be natural, reasonable and probable

as to make it easy to believe

B). Must come from a credible source- a credible

witness is one who testifies in a categorical,

straightforward spontaneous and frank manner and

remains consistent on cross examination

V. APPRECIATION OF EVIDENCE BY TRIAL COURT

generally accorded respect by appellate courts as

the former have first hand contact with the evidence

and were able to observe the witness as they

testified.

Lex Española 157

In matters concerning the credibility of witnesses,

appellate courts will generally not disturb the findings

of trial courts unless they neglected, ignored or

misappreciated material and substantial facts, which

could materially affect the results of the case.

VI. 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 wholly or partially on oral testimony or

depositions.

This refers to collateral issues or motions

based on facts not appearing on record such as (i)

proof of service by publication (ii) relief from order of

default (iii) Taking of depositions (iv) motion for new

trial (v) relief from judgment (vi) issuance of writ of

preliminary injunction

RULE 134

[NOTE: This rule will be transposed to Part 1 of the

Rules of Court on Deposition and Discovery]

Perpetuation of Testimony

SECTION 1 . Petition. — A person who desires to

perpetuate his own testimony or that of another

person regarding any matter that may be cognizable

in any court of the Philippines, any file a verified

petition in the court of the province of the residence

of any expected adverse party.

Sec. 2 . Contents of petition. — The petition shall be

entitled in the name of the petitioner and shall show:

(a) that the petitioner expects to be a party to an

action in a court of the Philippines by is presently

unable to bring it or cause it to be brought; (b) the

subject matter of the expected action and his

interest therein; (c) the facts which he desires to

establish by the proposed testimony and his reasons

for desiring to perpetuate it; (d) the names of a

description of the persons he expects will be adverse

parties and their addresses so far as known; and (e)

the names and addresses of the persons to be

examined and the substance of the testimony which

he expects to elicit from each, and shall ask for an

order authorizing the petitioner to take the

depositions of the persons to be examined named in

the petition for the purpose of perpetuating their

testimony.

Sec. 3 . Notice and service. — The petitioner shall

thereafter serve a notice upon each person named

in the petition as an expected adverse party,

together with a copy of a petition, stating that the

petitioner will apply to the court, at a time and place

named therein, for the order described in the

petition. At least twenty (20) days before the date of

hearing the notice shall be served in the manner

provided for service of summons.

Sec. 4 . Order of examination. — If the court is

satisfied that the perpetuation of the testimony may

prevent a failure or delay of justice, it shall make an

order designating or describing the persons whose

deposition may be taken and specifying the subject

matter of the examination, and whether the

depositions shall be taken upon oral examination or

written interrogatories. The depositions may then be

taken in accordance with Rule 24 before the hearing.

Sec. 5 . Reference to court. — For the purpose of

applying Rule 24 to depositions for perpetuating

testimony, each reference therein to the court in

which the action is pending shall be deemed to refer

to the court in which the petition for such deposition

was filed.

Sec. 6 . Use of deposition. — If a deposition to

perpetuate testimony is taken under this rule, or if,

although not so taken, it would be admissible in

evidence, it may be used in any action involving the

same subject matter subsequently brought in

accordance with the provisions of Sections 4 and 5 of

Rule 24.

Sec. 7 . Depositions pending appeal. — If an appeal

has been taken from a judgment of the Regional Trial

Court or before the taking of an appeal if the time

therefor has not expired, the Regional Trial Court in

which the judgment was rendered may allow the

taking of depositions of witnesses to perpetuate their

testimony for use in the event of further proceedings

in the said court. In such case the party who desires

to perpetuate the testimony may make a motion in

the said Regional Trial Court for leave to take the

depositions, upon the same notice and service

thereof as if the action was pending therein. The

motion shall show (a) the name and the addresses of

the persons to be examined and the substance of

the testimony which he expects to elicit from each;

and (b) the reason for perpetuating their testimony. If

the court finds that the perpetuation of the testimony

is proper to avoid a failure or delay of justice, it may

make an order allowing the depositions to be taken,

and thereupon the depositions may be taken and

used in the same manner and under the same

conditions as are prescribed in these rules for

depositions taken in actions pending in the Regional

Trial Court. (7a)

To perpetuate is to preserve for future use

.Rule 134 governs the procedure on how a party or

witness may preserve his testimony because the

person may not be available to personally testify in

Court during the trial of a case in which he may be

involved, And therefore the purpose is prevent the

loss or unavailability of the testimony.

Lex Española 158

B. The depositions are of two kinds:

1). Depositions de bene esse: one filed after a case

has already been filed in court , i.e to preserve

testimony in danger of being lost before the witness

can be examined in court

Examples: a). the witness scheduled to leave abroad

with no possibility of returning b). the witness is so sick

and might die

2. Depositions perpetuam rei memoriam: one taken

in anticipation of a case not yet filed in court

C. The requirement of notice to the adverse party(ies)

is essential. It cannot be used against a party who

was not named in the Petition or not issued a notice

of the date and place of the hearing.

D. The deposition may be taken by oral testimony or

by written interrogatories, as directed by the court.

1. In oral testimony, the court may designate before

whom the testimony shall be taken. The witness

undergoes the stages of direct, cross, re-direct t and

re-cross, examinations, which are duly recorded,

including objections by the parties.

2. If the witness is no longer available for personal

testimony during the trial, the testimony as, recorded

becomes his testimony in court.

Rules on Electronic Evidence

Scope

Unless otherwise provided herein, these Rules shall

apply whenever an electronic document or

electronic data message

Cases covered.

All civil actions and proceedings, as well as quasi-

judicial and administrative cases.

Electronic data message

Information generated, sent, received or stored by

electronic, optical or similar means.

Electronic Signatures

Refers to any distinctive mark, characteristic and/or

sound in electronic form, representing the identity of

a person and attached to or logically associated

with the electronic data message or electronic

document or any methodology or procedure

employed or adopted by a person and executed or

adopted by such person with the intention of

authenticating, signing or approving an electronic

data message or electronic document.

Includes digital signatures

Refers to an electronic signature consisting of a

transformation of an electronic document or an

electronic data message using an asymmetric

or public cryptosystem such that a person

having the initial untransformed electronic

document and the signer‘s public key can

accurately determine:

(i) Whether the transformation was created using

the private key that corresponds to the signer‘s

public key; and,

(ii) Whether the initial electronic document had

been altered after the transformation was

made.

―Digitally signed‖ refers to an electronic

document or electronic data message bearing

a digital signature verified by the public key

listed in a certificate.

Admissible in evidence as the functional equivalent

of the signature of a person on a written document.

How authenticated?

1. By evidence that a method or process was

utilized to establish a digital signature and verify

the same;

2. By any other means provided by law; or

3. By any other means satisfactory to the judge as

establishing the genuineness of the electronic

signature.

Disputable presumptions relating to e-signatures:

1. The electronic signature is that of the person to

whom it correlates;

2. The electronic signature was affixed by that

person with the intention of authenticating or

approving the electronic document to which it

is related or to indicate such person‘s consent to

the transaction embodied therein; and

3. The methods or processes utilized to affix or

verify the electronic signature operated without

error or fault.

Disputable presumptions relating to digital signatures:

Lex Española 159

1. The information contained in a certificate is

correct;

2. The digital signature was created during the

operational period of a certificate;

3. No cause exists to render a certificate invalid or

revocable;

4. The message associated with a digital signature

has not been altered from the time it was

signed; and,

5. A certificate had been issued by the

certification authority indicated therein.

Electronic document

Information or the representation of information,

data, figures, symbols or other modes of written

expression, described or however represented, by

which a right is established or an obligation

extinguished, or by which a fact may be proved and

affirmed, which is received, recorded, transmitted,

stored, processed, retrieved or produced

electronically.

Includes digitally signed documents and any printout

or output, readable by sight or other means, which

accurately reflects the electronic data message or

electronic document. For purposes of these Rules,

the term ―electronic document‖ may be used

interchangeably with ―electronic data message‖.

Functional equivalent of paper-based documents

Admissible in evidence if it complies with the rules on

admissibility prescribed by the Rules of Court and

related laws and is authenticated in the manner

prescribed by these Rules.

Confidential character of a privileged

communication is not lost solely on the ground that it

is in the form of an electronic document.

BEST EVIDENCE RULE:

An electronic document shall be regarded as

the equivalent of an original document under

the Best Evidence Rule if it is a printout or output

readable by sight or other means, shown to

reflect the data accurately.

Originals And Copies:

When copies or duplicates regarded as

originals:

1. When a document is in two or more copies

executed at or about the same time with

identical contents, or

2. Is a counterpart produced by the same

impression as the original, or from the same

matrix, or by mechanical or electronic re-

recording, or by chemical reproduction, or by

other equivalent techniques that accurately

reproduces the original.

When copies or duplicates shall not be

admissible to the same extent as the original:

3. If a genuine question is raised as to the

authenticity of the original; or

4. If in the circumstances it would be unjust or

inequitable to admit the copy in lieu of the

original.

Authentication of Electronic Documents

1. Burden of proving authenticity: person seeking

to introduce an electronic document in any

legal proceeding has the burden of proving its

authenticity.

2. Manner of authentication – Before any private

electronic document offered as authentic is

received in evidence, its authenticity must be

proved by any of the following means:

(a) by evidence that it had been

digitally signed by the person purported to have

signed the same;

(b) by evidence that other

appropriate security procedures or devices as

may be authorized by the Supreme Court or by

law for authentication of electronic documents

were applied to the document; or

(c) by other evidence showing its

integrity and reliability to the satisfaction of the

judge.

1 A document electronically notarized in

accordance with the rules promulgated by the

Supreme Court shall be considered as a public

document and proved as a notarial document

under the Rules of Court.

Evidentiary Weight Of Electronic Documents

> Factors for assessing evidentiary weight.

(a) The reliability of the manner or method in which it

was generated, stored or communicated,

including but not limited to input and output

procedures, controls, tests and checks for

accuracy and reliability of the electronic data

message or document, in the light of all the

circumstances as well as any relevant

agreement;

(b) The reliability of the manner in which its

originator was identified;

Lex Española 160

(c) The integrity of the information and

communication system in which it is recorded or

stored, including but not limited to the hardware

and computer programs or software used as

well as programming errors;

(d) The familiarity of the witness or the person who

made the entry with the communication and

information system;

(e) The nature and quality of the information which

went into the communication and information

system upon which the electronic data message

or electronic document was based; or

(f) Other factors which the court may consider as

affecting the accuracy or integrity of the

electronic document or electronic data

message.

> Integrity of an information and communication

system. – In any dispute involving the integrity of the

information and communication system in which an

electronic document or electronic data message is

recorded or stored, the court may consider, among

others, the following factors:

(a) Whether the information and communication

system or other similar device was operated in a

manner that did not affect the integrity of the

electronic document, and there are no other

reasonable grounds to doubt the integrity of the

information and communication system;

(b) Whether the electronic document was recorded

or stored by a party to the proceedings with

interest adverse to that of the party using it; or

(c)†Whether the electronic document was recorded

or stored in the usual and ordinary course of

business by a person who is not a party to the

proceedings and who did not act under the

control of the party using it.

Hearsay rule exception: A memorandum, report,

record or data compilation of acts, events,

conditions, opinions, or diagnoses, made by

electronic, optical or other similar means at or near

the time of or from transmission or supply of

information by a person with knowledge thereof, and

kept in the regular course or conduct of a business

activity, and such was the regular practice to make

the memorandum, report, record, or data

compilation by electronic, optical or similar means,

all of which are shown by the testimony of the

custodian or other qualified witnesses.

This presumption may be overcome by evidence of

the untrustworthiness of the source of information or

the method or circumstances of the preparation,

transmission or storage thereof.

How are matters relating to the admissibility and

evidentiary weight of an electronic document

established?

by an affidavit stating facts of direct personal

knowledge of the affiant or based on authentic

records.

The affidavit must affirmatively show the

competence of the affiant to testify on the

matters contained therein.

The affiant shall be made to affirm the

contents of the affidavit in open court and may

be cross-examined as a matter of right by the

adverse party.

Examination Of Witnesses

Electronic testimony

1 After summarily hearing the parties pursuant to

Rule 9 of these Rules, the court may authorize

the presentation of testimonial evidence by

electronic means. Before so authorizing, the

court shall determine the necessity for such

presentation and prescribe terms and conditions

as may be necessary under the circumstances,

including the protection of the rights of the

parties and witnesses concerned.

2 When examination of a witness is done

electronically, the entire proceedings, including

the questions and answers, shall be transcribed

by a stenographer, steno typist or other recorder

authorized for the purpose, who shall certify as

correct the transcript done by him. The transcript

should reflect the fact that the proceedings,

either in whole or in part, had been

electronically recorded.

3 The electronic evidence and recording thereof

as well as the stenographic notes shall form part

of the record of the case. Such transcript and

recording shall be deemed prima facie

evidence of such proceedings.

Ephemeral electronic communication

1 Refers to telephone conversations, text

messages, chatroom sessions, streaming audio,

streaming video, and other electronic forms of

communication the evidence of which is not

recorded or retained.

2 Shall be proven by the testimony of a person

Lex Española 161

who was a party to the same or has personal

knowledge thereof. In the absence or

unavailability of such witnesses, other

competent evidence may be admitted.

Audio, photographic and video evidence

Audio, photographic and video evidence

of events, acts or transactions shall be admissible

provided it shall be shown, presented or displayed to

the court and shall be identified, explained or

authenticated by the person who made the

recording or by some other person competent to

testify on the accuracy thereof.

Same rule covers a recording of the telephone

conversation or ephemeral electronic

communication shall be covered by the

immediately preceding section.

If ephemeral, audio, photographic and video

evidence are recorded or embodied in an electronic

document, then the provisions authentication

electronic documents apply.

RULE ON DNA EVIDENCE

(a) "Biological sample" means any organic material

originating from a person's body, even if found in

inanimate objects, that is susceptible to DNA testing.

This includes blood, saliva and other body fluids,

tissues, hairs and bones;

(b) "DNA" means deoxyribonucleic acid, which is the

chain of molecules found in every nucleated cell of

the body. The totality of an individual's DNA is unique

for the individual, except identical twins;

(c) "DNA evidence" constitutes the totality of the

DNA profiles, results and other genetic information

directly generated from DNA testing of biological

samples;

(d) "DNA profile" means genetic information derived

from DNA testing of a biological sample obtained

from a person, which biological sample is clearly

identifiable as originating from that person;

(e) "DNA testing" means verified and credible

scientific methods which include the extraction of

DNA from biological samples, the generation of DNA

profiles and the comparison of the information

obtained from the DNA testing of biological samples

for the purpose of determining, with reasonable

certainty, whether or not the DNA obtained from two

or more distinct biological samples originates from

the same person (direct identification) or if the

biological samples originate from related persons

(kinship analysis); and

(f) "Probability of Parentage" means the numerical

estimate for the likelihood of parentage of a putative

parent compared with the probability of a random

match of two unrelated individuals in a given

population.

Application for DNA Testing Order. The appropriate

court may, at any time, either motu proprio or on

application of any person who has a legal interest in

the matter in litigation, order a DNA testing. Such

order shall issue after due hearing and notice to the

parties upon a showing of the following:

(a) A biological sample exists that is relevant to the

case;

(b) The biological sample:

(i) was not previously subjected to the type

of DNA testing now requested; or

(ii) was previously subjected to DNA testing,

but the results may require confirmation for good

reasons;

(c) The DNA testing uses a scientifically valid

technique;

(d) The DNA testing has the scientific potential to

produce new information that is relevant to the

proper resolution of the case; and chan robles virtual

law library

(e) The existence of other factors, if any, which the

court may consider as potentially affecting the

accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without

need of a prior court order, at the behest of any

party, including law enforcement agencies, before a

suit or proceeding is commenced.

An order granting the DNA testing shall be

immediately executory and shall not be appealable.

Petition for certiorari shall not stay the

implementation of order unless a higher court issues

an injunctive order.

Grant of a DNA testing application NOT an

automatic admission of DNA evidence.

Post-conviction DNA testing may be available,

without need of prior court order, to the prosecution

Lex Española 162

or any person convicted by final and executory

judgment provided that

(a) a biological sample exists,

(b) such sample is relevant to the case, and

(c) the testing would probably result in the reversal or

modification of the judgment of conviction.

Factors in Assessment of probative value of DNA

evidence.

(a) The chain of custody, including how the

biological samples were collected, how they were

handled, and the possibility of contamination of the

samples;

(b) The DNA testing methodology, including the

procedure followed in analyzing the samples, the

advantages and disadvantages of the procedure,

and compliance with the scientifically valid

standards in conducting the tests;

(c) The forensic DNA laboratory, including

accreditation by any reputable standards-setting

institution and the qualification of the analyst who

conducted the tests. If the laboratory is not

accredited, the relevant experience of the

laboratory in forensic casework and credibility shall

be properly established; and

(d) The reliability of the testing result

FACTORS in evaluating the Reliability of DNA Testing

Methodology.

(a) The falsifiability of the principles or methods used,

that is, whether the theory or technique can be and

has been tested;

(b) The subjection to peer review and publication of

the principles or methods;

(c) The general acceptance of the principles or

methods by the relevant scientific community;

(d) The existence and maintenance of standards

and controls to ensure the correctness of data

generated;

(e) The existence of an appropriate reference

population database; and

(f) The general degree of confidence attributed to

mathematical calculations used in comparing DNA

profiles and the significance and limitation of

statistical calculations used in comparing DNA

profiles.

FACTORS in Evaluation of DNA Testing Results.

(a) The evaluation of the weight of matching DNA

evidence or the relevance of mismatching DNA

evidence;

(b) The results of the DNA testing in the light of the

totality of the other evidence presented in the case;

and

(c) DNA results that exclude the putative parent

from paternity shall be conclusive proof of non-

paternity. If the value of the Probability of Paternity is

less than 99.9%, the results of the DNA testing shall be

considered as corroborative evidence. If the value of

the Probability of Paternity is 99.9% or higher, there

shall be a disputable presumption of paternity.

Remedy if the Results Are Favorable to the Convict.

The convict or the prosecution may file a petition for

a writ of habeas corpus in the court of origin.

In case the court, after due hearing, finds the petition

to be meritorious, it shall reverse or modify the

judgment of conviction and order the release of the

convict, unless continued detention is justified for a

lawful cause.

A similar petition may be filed either in the Court of

Appeals or the Supreme Court, or with any member

of said courts, which may conduct a hearing thereon

or remand the petition to the court of origin and issue

the appropriate orders.

RELEASE OF DNA results.

Through order of the court.

Shall only be released to any of the following, under

such terms and conditions as may be set forth by the

court:

(a) Person from whom the sample was taken;

(b) Lawyers representing parties in the case or action

where the DNA evidence is offered and presented or

sought to be offered and presented;

(c) Lawyers of private complainants in a criminal

action;

(d) Duly authorized law enforcement agencies; and

(e) Other persons as determined by the court.

Lex Española 163

Indirect Contempt- to those who publishes or disclose

the DNA results without proper court order

Preservation of DNA Evidence. The trial court shall

preserve the DNA evidence in its totality, including all

biological samples, DNA profiles and results or other

genetic information obtained from DNA testing. For

this purpose, the court may order the appropriate

government agency to preserve the DNA evidence

as follows:

(a) In criminal cases:

i. for not less than the period of time that any person

is under trial for an offense; or

ii. in case the accused is serving sentence, until such

time as the accused has served his sentence; and

(b) In all other cases, until such time as the

decision in the case where the DNA evidence was

introduced has become final and executory.

Physical destruction of a biological sample before

the expiration of the periods set forth above,

provided that:

(a) There is a court order or

(b) The person from whom the DNA sample was

obtained has consented in writing to the disposal of

the DNA evidence.

Reference:

1. Agpalo, Evidence; Francisco, Evidence;

2. Regalado, Compendium of Remedial Law;

3. Evidence (A Restatement for the Bar).

End of Lecture of Judge RRMabalot on Evidence

2nd Semester 2012-2013

School of Law, University of Baguio

EVIDENCE:

Basic Principles and Special Problems

By: Judge Roberto R. Mabalot

Parties‘ pleadings fail to tender any issue of fact:

1. Parafiaque vs CA – 268 SCRA 727

Questions of fact exist when the doubt or difference

arises as to the truth or falsehood of alleged facts:

2. Santos vs CA – 337 SCRA 67

Facts peculiarly within the knowledge of the opposite

party

3. Republic vs Neri – 424 SCRA 676

Issue in a query is factual: 4. Royal Cargo vs DFS –

573 SCRA 414

5. Juaban vs Espina – 548 SCRA 588

Un-offered direct testimony without objection from

the adverse party

6. Pp vs Marcos – 212 SCRA 748

Failure to offer within considerable time:

7. Heirs of Pedro Pasag vs Pasag – 522 SCRA

410

Mere marking, identification or authentication of

documentary evidence

8. Pp vs Santito – 201 SCRA 87

Annexes attached to pleadings not formally offered

9. Llaban vs CA – December 20, 1991

10. Ong vs CA – 301 SCRA 387

Evidence submitted for one purpose can‘t be

considered for another

11. Uniwide vs Titan – 511 SCRA 335

Evidence not offered is excluded:

2. Landingin vs Pp - 493 SCRA 415

Evidence not formally offered may be admitted and

considered

13. Ramos vs Dizon – 498 SCRA 17

Exceptions to the rule that evidence not offered can‘t

be considered

14. Heirs of Sabanpan vs Comorposa – 408

SCRA 692

15. Pp vs Napat-a – 179 SCRA 403

16. Ong vs Republic – 328 SCRA 749

17. Pp vs Tabuena – 196 SCRA 650

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Admission of proof in court:

18. Pp vs Abalos – 30 SCRA 599

Presentation of evidence:

19. Pp vs Montejo – 63 SCRA 488

Judge‘s authority to admit or reject evidence:

20. Deutsche Bank vs Spouses Yok See – 481

SCRA 672

Power of judicial notice:

21. Garcia vs Recio – 366 SCRA 437

Personal knowledge is not judicial knowledge:

22. Land Bank vs Wycoco – 419 SCRA 67

Judicial notice of proceedings in another case

23. Gener vs de Leon – 367 SCRA 631

24. LandBank vs Banal – 434 SCRA 543

25. Clarion vs NLRC – 461 SCRA 272

26. Cariaga vs CA – 358 SCRA 583

27. Pp vs Mendoza – 204 SCRA 288

Judicial notice of a court‘s own act and records in

the same case

28. Republic vs CA – 277 SCRA 633

Witness unable to testify anew:

29. Tan vs CA – 20 SCRA 57

Self-serving evidence:

30. Tuason vs CA – 241 SCRA 695

Admission or stipulations during pre-trial

31. Fule vs CA – 162 SCRA 448

32. Bayas vs Sandiganbayan – 391 SCRA

415

33. Pp vs Razul – 392 SCRA 553

34. Pp vs Bandang – 430 SCRA 570

Admission during trial:

35. Pp vs Hernandez – 260 SCRA 25

Extrajudicial admissions

36. Tuason vs CA – 241 SCRA 695

37. Republic vs Qua – 435 SCRA 480

38. Ching vs CA – 331 SCRA 16

39. Director vs CA – 196 SCRA 94

Extrajudicial confessions

40. Pp vs Jimenez – 71 SCRA 186

41. Pp vs Camalog – 169 SCRA 816

42. Pp vs Trinidad – 162 SCRA 714

Admissions in a pleading which are withdrawn or

superseded by an amended pleading:

43. Bastida vs Menzi – 58 Phil 188

Formal offer in evidence the original pleading having

the extrajudicial admission:

44. Javellana vs Plaza – 32 SCRA 261

45. Torres vs CA – 131 SCRA 24

46. Director vs CA – 196 SCRA 94

Best evidence rule:

47. Citibank vs Investors – 504 SCRA 378

48. Pp vs Tandoy – 192 SCRA 28

49. BPI vs Casa – 430 SCRA 261

50. Ebreo vs Ebreo – 483 SCRA 583

51. Citibank vs Teodoro – 411 SCRA 577

52. Edsa Shangrila vs BF Corp – 556 SCRA 25

53. Air France vs CArrascoso – GR L-21438,

September 28, 1966

A document is in two or more copies executed:

54. De Vera vs Aguilar – 218 SCRA 602

Parol evidence rule:

55. Cruz vs CA – 192 SCRA 209

56. Mactan-Cebu vs CA – 346 SCRA 126

57. Lechugas vs CA 143 SCRA 335

Waiver of right to counsel

58. Pp vs Galit – 135 SCRA 465

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59. Morales vs Enrile – 121 SCRA 538

Refusal to be informed of his Constitutional rights:

60. Pp vs Policarpio – 158 SCRA 85

Admissibility of extrajudicial confessions:

61. Pp vs Morial – 363 SCRA 96

62. Pp vs Rapeza – 520 SCRA 596

63. Pp vs Samus – 389 SCRA 93

64. Pp vs Camalog – 169 SCRA 16

65. Pp vs SAyaboc – 419 SCRA 659

66. Pp vs Janson – 400 SCRA 584

67. Pp vs Policarpio – 158 SCRA 85

68. Astudillo vs Pp – 509 SCRA 302

69. Abelle vs Pp – 183 SCRA 196

70. Remolona vs CSC – 414 Phil 590

71. Ladiana vs Pp – 393 SCRA 419

72. Tolentino vs Mendoza – 440 SCRA 519

73. Pp vs Bongcarawan – 384 SCRA 525

Extrajudicial confession uncorroborated by evidence

of corpus delicti

74. Pp vs BArlis – 231 SCRA 426

Admissibility of voluntary statement or confession

during administrative investigation

75. Pp vs Ayson – 175 SCRA 216

Admission of adulterous conduct made by a woman

to her husband

76. Arroyo Jr. vs CA – 203 SCRA 750

Examination of witnesses:

77. San Luis vs Roja – 547 SCRA 345

78. Pp vs Go – 394 SCRA 350

79. Pp vs Servano – 406 SCRA 508

80. Garces vs Pp – 527 SCRA 827

81. Pp vs Givera – 349 SCRA 513

82. Pp vs Zheng – 338 SCRA 420

83. Pp vs de Leon – 378 SCRA 495

84. Tabuena vs Sandiganbayan – 268 SCRA

332

Affidavits in lieu of direct testimony:

85. Pp vs Estenzo – 72 SCRA 428

Volunteering unsought for information:

86. Pp vs Calixto – 193 SCRA 303

Waiver to cross-examination due to fault of adverse

party

87. De la Paz vs IAC – 154 SCRA 65

Uncompleted testimony rendered incompetent due

to fault of party offering

88. Ortigas vs Lufthanza – 64 SCRA 610

Direct testimony of witness who was partially corss-

examines

89. Pp vs Señeris – 99 SCRA 92

Effect of expert witness versus expert witness of each

party testifying

90. Bayot vs Sandiganbayan – 142 SCRA

304, 318

Failure to interpose objection in any stage:

91. Bayani vs Pp – 530 SCRA 84

Guideline in appreciating age:

92. Pp vs Pruna – 390 SCRA 577

Burden of proving minority:

93. Sierra vs Pp – 591 SCRA 666, 683

Ground for objection:

When is evidence considered offered?

94. Pp vs Franco – 269 SCRA 211

95. PBC vs CA – 195 SCRA 567

When must an objection be made?

96. Pp vs Java – 227 SCRA 668

97. InterPacific vs Aviles – 186 SCRA 385

Authentication and proof of documents

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98. Fulero vs Pp – 533 SCRA 97

99. Intestate of Locsin vs Locsin – 371 SCRA

711

100. Heirs of Sps Arcilla vs Teodoro – 561

SCRA 545

101. Ramos vs Heirs of Ramos – 381 SCRA

594

Competence and capability of child witness

102. Pp vs Bisda – 406 SCRA 454

103. Pp vs de Jesus – 407 SCRA 265

104. Pp vs Gajo – 327 SCRA 612

Electronic Evidence:

105. MCC vs Ssangyong – 536 SCRA 408

106. NPC vs Codilla – 520 SCRA 412

107. Nuez vs Cruz-Apao – 455 SCRA 288

108. Magtolis vs Salud – 469 SCRA 439

109. Aznar vs Citibank – 519 SCRA 287

DNA Evidence:

110. Tijing vs CA – 354 SCRA 17

111. Pp vs Yatar – 428 SCRA 504

112. Tecson vs Comelec – 424 SCRA 277

113. Pp vs Umanito – 537 SCRA 553

114. Pp vs Vallejo – 382 SCRA 192

115. Gan vs Pondevida – 382 SCRA 357

116. Estate of Ong vs Diaz – 540 SCRA 480

117. Herrera vs Alba – 460 SCRA 197

118. Andal vs Pp – 307 SCRA 650

119. Cabataña vs CA 441 SCRA 96

120. In re: Writ of Habeas Corpus of de Villa

– 442 SCRA 706

References:

Agpalo, Evidence; Francisco, Evidence

Regalado, Compendium of Remedial Law

Riano, Evidence

Passcode: 9175353855Otrebor

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