Evidence Summer 2015

8/20/2019 Evidence Summer 2015

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Evidence

I. PRELIMINARY CONSIDERATION :

A. Importance of the study of Evidence in Law Enforcement:

As an element of our Criminal Justice System, it is the duty of every law enforcement agencies to provide the prosecution with the materials and information (Evidence) necessary in order to support

conviction.

Every person is entitled to e presumed innocent of a crime or wrong, unless proven otherwise. !his

is a prima facie presumption which must e overcome y proof eyond reasonale dout. "rima

facie also refers to specific evidence that, if elieved, supports a case or an element that needs to e proved in the case. !he term prima facie evidence is used in oth civil and Criminal #aw. $or

e%ample, if the prosecution in a murder case presents a videotape showing the defendant screaming

death threats at the victim, such evidence may e prima facie evidence of intent to &ill, an elementthat must e proved y the prosecution efore the defendant may e convicted of murder. 'n its

face, the evidence indicates that the defendant intended to &ill the victim.

B. Connecting the chain of events through Evidence during Trial:

!rial refers to the e%amination efore a competent triunal, according to the laws of the land, of the

facts in issue in a cause, for the purposes of determining such issue (*.S. v. +aymundo, - "hil-).

Evidence helps in the determination of /uestions of $acts y helping the 0udge reconstruct the chainof events from the conception up to the consummation of a criminal design.

C. Factum ro!andum and Factum ro!ans

$actum "roandum 1 !he ultimate facts to e proven. !hese are the proposition of law.

E%amples:

2 murder was committed thru treachery

2 roery was made through force upon things

$actum "roans 1 !he evidentiary $acts. !hese address 3uestions of fact.

E%amples:2 e%it wounds were in front indicating that victim was shot at the ac&

2 destroyed loc&s indicative of force upon things

!hus, the outcome of every trial is determined y:

2 "ropositions of law, and

2 /uestions of fact.

". roof and Evidence

Evidence 1 the means to arrive at a conclusion. *nder the +evised +ules of Court, evidence is

defined as the means, sanctioned y the rules, for ascertainment in a 0udicial proceeding, the truth,

respecting a matter of fact.

roof 1 the result of introducing evidence. !he estalishment of a re3uisite degree of elief in the

mind of the 0udge as to the facts in issue. 4t refers to the accumulation of evidence sufficient to

persuade the trial court.

#uantum of evidence 1 the totality of evidence presented for consideration

#uantum of proof 1 refers to the degree of proof re3uired in order to arrive at a conclusion.


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Burden of evidence 1 the duty of a party of going forward with evidence.

Burden of proof 1 the duty of the affirmative to prove that which it alleges.

5ariations on degrees of proof ased on type of action:

. Criminal Action 1 proof eyond reasonale dout 6that degree of proof which producesconviction in an unpre0udiced mind7

8. Civil Action 1 preponderance of evidence 6evidence of greater weight or more convincing than

that which is offered to refute it7

9. Administrative Action 1 sufficiency of evidence 6that amount of relevant evidence which areasonale mind might accept as ade3uate to 0ustify a conclusion7

E. E$clusionary %ule. &Fruit of the poisonous tree doctrine'

Evidence 4##EA##; ' are inadmissile for reasons of pulic policy. !his is so ecause

of the constitutional re3uirement of due process. >ue process has een defined as the law that hears

efore it condemns, which proceeds upon in3uiry, and renders 0udgment only after fair trial.

As a result, 0urisprudence has evolved a rule that renders inadmissile any evidence otained in anillegal search from eing introduced in trial.

F. rinciple of Chain of Custody of Evidence

4f the evidence is of a type which cannot e easily recogni?ed or can readily e confused or tampered

with, the proponent of the o0ect must present evidence of its chain of custody. !he proponent need

not negate all possiilities of sustitution or tampering in the chain of custody, ut must show that:!he evidence is identified as the same o0ect which was ta&en from the scene@

4t was not tampered with, or that any alteration can e sufficiently e%plained (i.e. discoloration due tothe application of ninhydrine solution, etc.)@ and!he persons who have handled the evidence are &nown and may e e%amined in court with regard to

the o0ect.

II. GENERAL PROVISIONS:

A. Concepts of evidence:

. 4t is a means of ascertainment 1 used to arrive at a legal conclusion

8. 4t is sanctioned y the rules of court 1 meaning, not e%cluded y the rules on relevancy and

admissiility9. 4t is used in a 0udicial proceeding 1 there is a 0ural conflict involving different rights asserted y

different parties

-. 4t pertains to the truth respecting a matter of fact 1 evidence represents a claim either for the prosecution or for the defense where issues (clashes of view) are present.

Admissiility of Evidence:

$or evidence to e admissile, it must e:

) relevant to the issue 6relevancy test7, and

8) not e%cluded y the law or rules of court 6competency test7.

=ote: !o determine the relevancy of any item of proof, the purpose for which it is sought to e

introduced must first e &nown (!here must e a formal offer).

!est of relevancy of evidence:

hether or not the factual information tendered for evaluation of the trial court would e helpful inthe determination of the factual issue that is disputed.


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hen is evidence relevantB

hen it has a relation to the fact in issue as to induce elief in its:

) e%istence, or

8) nonDe%istence

4n other words, evidence is relevant when it is:

) material, and8) has proative value

hat is meant y proative valueB

4t is the tendency of the evidence to estalish the proposition that it is offered to prove.

Collateral atters not admissile e%cept when it tend in any reasonale degree to estalish proaility or improaility of the fact in issue.

Collateral matters 1 matters other than the fact in issue and which are offered as a asis for inference

as to the e%istence or nonDe%istence of the facts in issue.

Collateral matters are classified into:

. Antecedent circumstances 1 facts e%isting efore the commission of the crime 6i.e. hatred, ad

moral character of the offender, previous plan, conspiracy, etc.7

8. Concomitant circumstances 1 facts e%isting during the commission of the crime 6i.e.opportunity, presence of the accused at the scene of the crime, etc.7

9. Suse3uent circumstances 1 facts e%isting after the commission of the crime 6i.e. flight,

e%tra0udicial admission to third party, attempt to conceal effects of the crime, possession of stolen property, etc.7

/uery: 4s modus operandi an antecedent, concomitant or suse3uent circumstanceB


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pleadings.

9. Competent evidence 1 not e%cluded y law.-. >irect evidence 1 proves the fact in issue without aid of inference

or presumptions.

F. Circumstantial evidence D the proof of fact or facts from which, ta&en either singly orcollectively, the e%istence of a particular fact in dispute

may e inferred as necessary or proale conse3uence.

. ositive evidence 1 evidence which affirms a fact in issue.G. ,egative evidence D evidence which denies the e%istence of a fact

in issue.

H. %e!utting evidence 1 given to repel, counter act or disprove facts

given in evidence y the other party.I. rimary*Best evidence 1 that which the law regards as affording

the greatest certainty.

. -econdary evidence 1 that which indicates the e%istence of amore original source of information.

. E$pert evidence 1 the testimony of one possessing &nowledge

not usually ac3uired y other persons.

8. rima facie evidence 1 evidence which can stand alone to support a conviction unless reutted.

9. Conclusive evidence 1 incontrovertile evidence-. Cumulative evidence 1 additional evidence of the same &ind earing

on the same point.

F. Corro!orative evidence 1 additional evidence of a different &ind

and character tending to prove the same point as that of previouslyoffered evidence.

. Character evidence 1 evidence of a persons moral standing or

personality traits in a community ased on reputation or opinion.G. "emeanor evidence 1 the ehavior of a witness on the witness stand

during trial to e considered y the 0udge on the issue of crediility.H. "emonstrative evidence 1 evidence that has tangile and

e%emplifying purpose.

I. earsay evidence 1 oral testimony or documentary evidence which

does not derive its value solely from the credit to e attached to the

witness himself.8.Testimonial evidence 1 oral averments given in open court y

the witness.

8. /!)ect*Auotoptic proferrence*%eal evidence 1 those addressed tothe senses of the court (sight, hearing, smell, touch, taste).

88. "ocumentary evidence 1 those consisting of writing or any material

of written e%pression offered as proof of its contents. containing letters, words, numers, figures, symols or other modes

Best Evidence %ule:

hen the su0ect of the in3uiry is the contents of a document, no evidence shall e admissile other

than the original of the document.

$or e%ceptions, see Sec. 9, +ule 9, +evised +ules of Court.

A document is legally considered 'riginal when:

. 4t is the su0ect of an in3uiry

8. hen in two or more copies e%ecuted at or aout the same time, with identical contents.9. hen an entry is repeated in ordinary course of usiness, one eing copied from another at or

near the time of the transaction.

/uestion: ay a fa&e document e considered as original or authenticB

;es. A forged or spurious document when presented in court for e%amination is considered as theoriginal fa&eKforged document. !hus, a mere photocopy of the allegedly forged or spurious

document is only secondary to the original 3uestioned document.


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Secondary Evidencehen the original document has een:

. lost,

8. destroyed, or 9. cannot e produced in court.

!he offeror without ad faith must:. prove its e%ecution or e%istence, and

8. prove the cause of its unavailaility.

Secondary evidence may consist of:. a copy,

8. recital of its contents in some authentic document, or

9. y testimony of witnesses.

hen original document is in the custody of:

. adverse party 1 adverse party must have reasonale notice to produce it. After such notice and

satisfactory proof of its e%istence, he fails to produce it, secondary evidence may e presented.8. pulic officer 1 contents may e proved y certified copy issued y the pulic officer in custody

thereof.

444. !ES!4'=4A# E54>E=CE:

/ualifications of witnesses:

. can perceive

8. can ma&e &nown their perception to others9. not dis3ualified y reason of mental incapacity, immaturity, marriage, privileged

communications, or dead mans statute.

+es 4nter Alios Acta +ule

eneral +ule: !he rights of a party cannot e pre0udiced y an act, declaration, or omission of

another.

E%ception:

. admission y a coDpartner or agent

8. admission y a conspirator 9. admission y privies

-. admission y silence

4n the aove cases, the admission of one person is admissile as evidence against another.

!estimonial Lnowledge:eneral +ule: A witness can testify only to those facts which he &nows of his personal &nowledge@

that is, which are derived from his own perception. Any statement which derives its strength from

anothers personal &nowledge is hearsay, and is therefore inadmissile.

E%ceptions:

. >ying declarations (anteDmortem statements)

8. >eclaration against interest

9. Act or declaration aout pedigree-. $amily reputation or tradition regarding pedigree

F. Common reputation. "art of the res gestae

G. Entries in the course of usiness

H. Entries in official records

I. Commercial lists and the li&e. #earned treatises

. !estimony or deposition at a former proceeding


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8. E%amination of child victimKwitness in cases of child ause

45. E= '$ "+''$ A=> "+ES*"!4'=S:


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ias, or the reverse, and to elicit all important facts earing upon the issue.

+eDdirect e%amination 1 second 3uestioning y the proponent to e%plain or supplement answers

given in the cross e%amination.

+eDcross e%amination 1 second 3uestioning y the adverse party on matters stated on the reDdirectand also on such matters as may e allowed y court.

"ifferent Types of #uestions:#eading 3uestions 14t is one where the answer is already supplied y the e%aminer into the mouth of

the witness. 6E%. ;ou saw Jose &illed Juan ecause you were present when it happened, didnt youB7

isleading 3uestion 1 a 3uestion which cannot e answered without ma&ing an unintended

admission. 6E%. >o you still eat your wifeB7Compound 3uestion 1 a 3uestion which calls for a single answer to more than one 3uestion. 6E%.

Mave you seen and heard himB7

Argumentative 3uestion 1 a type of leading 3uestion which reflects the e%aminers interpretation ofthe facts. 6E%. hy were you driving carelesslyB7

Speculative 3uestion 1 a 3uestion which assumes a disputed fact not stated y the witness as true.

6E%. !he victim cried in pain, didnt heB7

Conclusionary 3uestion 1 a 3uestion which as&s for an opinion which the witness is not 3ualified or permitted to answer. 6E%. As&ing a high school dropDout whether the gun used is a Cal. -F pistol or

Imm pistol7Cumulative 3uestion 1 a 3uestion which has already een as&ed and answered.

MarassingKEmarrassing 3uestion 1 6E%. Are you a homose%ualB7

Classes of >ocuments:>ocuments are either pulic or private.

"ulic documents are:

. !he written official acts, or records of the official acts of sovereign authority, official odies andtriunals, and pulic officers, whether of the "hilippines, or a foreign country. 8. >ocuments ac&nowledged efore a notary pulic e%cept last wills and testaments.

9. "ulic records () &ept in the "hilippines, or private documents (8) re3uired y law to e

entered therein.

All other writings are private.

-/+E 0-EF0L LATI, TE%+- A," LE1AL +A2I+-:

3er!a legis non est decendendum 1 from the words of the law there can e no departure.

"ura le$ sed le$ 1 the law may e harsh ut it is the law.

Ignorantia legis neminem e$cusat 1 ignorance of the law e%cuses no one.

Ignorantia facti e$cusat 1 mista&e of fact e%cuses.

raeter intentionem 1 different from that which was intended.

Error in personae 1 mista&e in identity.

A!!eratio Ictus 1 mista&e in the low

,ulum crimen4 nulla poena sine lege 1 there is no crime when there is no law punishing the same.

Actus non facit reum4 nisi mens sit rea 1 the act cannot e criminal where the mind is not criminal.

Actus mi invictu reus4 nisi mens facit reum 1 an act done y me against my will is not my act.


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+ens rea 1 guilty mind.

Actus reus 1 guilty act.

%es ipsa lo5uitor 1 the thing spea&s for itself.

Causa ro$ima 1 pro%imate cause which produced the immediate

effect.

rima facie 1 at first glance.

Locus Criminis 1 scene of the crime or crime scene.

ro %eo 1 principle in Criminal #aw which states that where the statute admits of several

interpretations, the one most favorale to the accused shall e adopted.

%es 1estae 1 the thing itself.

Falsus in unum4 falsus in omni!us 1 false in one part of the statement would render the entirestatement false (note: this ma%im is not recogni?ed in our 0urisdiction).

Evidence 6 "efinition of Terms: ,e$t age

Evidence - Definition of TermsAdmissile evidence D Evidence that is oth relevant and

competent.

Admissions D Any statement of fact made y a party against his

interest or unfavorale to the conclusion for which he contends

or is inconsistent with the facts alleged y him.


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character to the same point.

Cumulative Evidence D Evidence of the same &ind and to the

same state of facts.

>irect Evidence D "roves the fact in dispute without aid of any

inference or presumption.

>ocumentary Evidence : ritings or any material containing

letters, words, numers, figures, symols or other modes of

written e%pression offered as proof of their content.

Electronic >ata essage D 4nformation generated, sent, received

or stored y electronic, optical or similar means

Electronic >ocument D 4nformation or the representation of

informationKdataKfiguresKsymols or other modes of written

e%pression descried or however represented, y which a right

is estalished or an oligation e%tinguished, or y which a factmay e proved and affirmed, which is receivedKrecordedK

transmittedKstoredKprocessedKretrievedKproduced electronically.4t includes digitally signed documents and any print out or output,

readale y sight or other means, which accurately reflects the

electronic data message or electronic document.

Electronic Signature D Any distinctive mar&, characteristic andKor

sound in electronic form, representing the identity of a person

and attached to or logically associated with the electronic datamessage or electronic document or any methodologyK

procedure employedKadopted y a person and e%ecutedKadopted y such person with the intention of authenticating, signing or approving an electronic data message or electronic document.

Ephemeral Electronic Communication D +efers to telephone

conversations, te%t messages, chatroom sessions, streamingaudio, streaming video and other electronic forms of

communication the evidence of which is not recordedKretained.

E%tra Judicial Admission D Any admission other than 0udicial.

$actum proandum 1 ultimate fact or the fact sought to eestalished.

$actum proans 1 evidentiary fact or the fact y which the factum proandum isto e estalished.

Judicial Admissions D Admissions, veral or written, made y

the party in the course of the proceedings in the same case.4t re3uires no proof.

=egative Evidence D hen witness states that he did not see or

&now of the occurrence of a fact (total disclaimer of personal&nowledge).

'0ect Evidence D >irectly addressed to the senses of the court.

Also called real evidence.

"arol Evidence +ule D Any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a

complete and enforceale agreement emodied in a


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document.

"edigree D +elationship, family genealogy, irth, marriage,

death, the dates when and the places where these fast

occurred, and the names of the relatives. 4t also emraces factsof family history intimately connected with pedigree.

"ositive Evidence D hen a witness affirms that a fact did or didnot occur (there is personal &nowledge).

"reponderance of Evidence D !he evidence adduced y one

side is, as a whole, superior to or has greater weight than thatof the other. here the evidence presented y one side is

insufficient to ascertain the claim, there is no

preponderance of evidence.

"rima $acie Evidence D !hat which, standing alone, is sufficient

to maintain the proposition affirmed.

"rimary Evidence D (


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1. Defnitions

a. Factum probandum – ultimate act or the act sought to beestablished

b. Factum probans – evidentiar act or the act b !hich the actumprobandum is

to be established

". Classifcation o evidence

a. #b$ect %&eal'

% (hat !hich is directl addressed to the senses o the court andconsists o tangible

things e)hibited or demonstrated in open court* inan ocular inspection* or at a place

designated b the court or itsvie! or observation o an e)hibition* e)periment or

demonstration+al!as relevant regardless o contents

Documentar

% Evidence supplied b !ritten instruments or derived romconventional smbols*

such as letter* b !hich ideas are represented onmaterial substances

(estimonial% (hat !hich is submitted to the court through the testimon ordeposition o a

!itness

b. &elevant

% Evidence having an value in reason as tending to prove anmatter provable in an

action% &elevanc – logical relation o evidentiar act to act in issue

,aterial

% Evidence directed to prove a act in issue

Competent% #ne that is not e)cluded b la! in particular case

c. Direct

% (hat !hich proves the act in dispute !ithout the aid o aninerence or

presumption

Circumstantial

% (he proo o the acts other than the act in issue rom !hich*ta-en either singl or

collectivel* the e)istence o the particularact in dispute ma be inerred as a

necessar or probable conseuence

d. Cumulative

% Evidence o the same -ind and to the same state o acts

Corroborative

% /dditional evidence o a di0erent character to the same pointor higher probative

value

e. rima acie

% (hat !hich standing alone* une)plained or uncontradicted issu2cient to maintain

a proposition

Conclusive% Class o evidence !hich the la! does not allo! to be contradicted

. rimar or 3est

% (hat !hich the la! regards as a0ording greatest certaint o theact in uestion

4econdar or 4ubstitutionar

% (hat !hich is inerior to the primar evidence and is permittedb la! onl !hen

the best evidence is not available


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g. ositive

% (he !itness a2rms that a act did or did not occur

Negative

% (he !itness states that he did not see or -no! o the occurrenceo a act

RULE 129 WHAT NEED NOT BE PROVED

1. 5hat do not need to be proved6 7N/I(/48

,atters o $udicial notice

9udicial admissions

Facts presumed

/llegations in complaint or ans!er !hich are immaterial to the issue

Facts admitted or not denied in the ans!er* provided the have beensu2cientl

alleged

(hose !hich are the sub$ect o an agreed stipulation o acts bet!eenthe parties* as

!ell as $udicial admissions made in the course o theproceedings

(echnical admission – !hen deendant ails to specifcall den theallegations o

plainti0

". Doctrine o processual presumption – absent an evidence oradmission* the

oreign la! in uestion is presumed to be the same asthat in the hilippines

:. ,andator $udicial notice 74;/(#N


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% Courts cannot ta-e $udicial notice o custom. Custom must beproved as a matter o

act.

ardon is granted b the Chie E)ecutive and as such is a private act!hich must be

pleaded and proved b the person pardoned.

>. 9udicial /dmissions6

% Verbal or !ritten+ made b a part in course o the proceedingsin the same case

% ,a onl be contradicted b sho!ing that6

,ade through palpable mista-e+ or

No such admission !as made.

% /dmissions made in a pleading later amended6 lose their status as$udicial

admissions+ become merel e)tra?$udicial admissions !hich mustbe o0ered.

% / stipulation made during a criminal proceeding is tantamount toa $udicial

admission and need not be signed as reuired b &11@* A= tobe binding on the

accused.

% / court cannot ta-e $udicial notice o an admission made b apart in another case

even i the latter case is pending beore thesame sala or $udge* e)cept6

In the absence o ob$ection+

5ith -no!ledge or upon reuest o the parties+

It is part o the records.

RULE 130 RULES OF ADMISSIBILITY

1. /dmissibilit o ob$ect evidence

&elevant to act in evidence

#b$ect must be authenticated beore it is admitted

roduction o documents under this rule and Bnder &ule " %modes odiscover'*

distinguished

&ule 1: &ule " roduction is procured b mere notice to adversepart* and

reuirements or such notice must be complied !ith as acondition precedent or the

subseuent evidence b the proponent

roduction is b proper motion in the trial court* and is permittedonl upon good

cause sho!n %mode o discover' resupposes that the document to be produced is

intended as evidenceor the proponent !ho is presumed to have -no!ledge o its

contents*secondar evidence thereo being available in case o its

nonproductionContemplates situation !herein document is either assumedto be

avorable to the part in possession thereo #& that the partsee-ing its production

is not su2cientl inormed o the contents othe same

3est Evidence &ule

1.


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a. #riginal is lost or destroed* or cannot be produced in court!ithout bad aith on

the part o the o0eror+

5hen the original is in the custod o the part against !hom theevidence is

o0ered* and the latter ails to produce it aterreasonable notice+

5hen the original consists o numerous accounts or other documents!hich cannot

be e)amined in court !ithout great loss o time and theonl act sought to beestablished is the general result o the !hole+and

5hen the original is a public record in the custod o a public o2ceror is recorded in

a public o2ce.

:. ,eaning o GoriginalH document

(he one the contents o !hich are the sub$ect o an inuirI in " or more copies

e)ecuted6

/t or about the same time+ /ND

5ith identical contents

% (hen all copies are originalsI entr is&epeated in regular course o business*

!ith#ne being copied rom another+

/t or near the time o the transaction*

% (hen all entries are originals

=. I original is unavailable6

% #rder o proo %but can be changed at courts discretion'6

E)istence

E)ecution6

Established berson !ho e)ecuted it+

(he person beore !hom its e)ecution !as ac-no!ledged

/n person !ho !as present and sa! it e)ecuted* and recognied thesignature+

/n person to !hom the parties to the instrument had previouslconessed the

e)ecution thereo

c. ;oss or Destruction

% I there are several original copies* all copies must beaccounted or beore

secondar evidence ma be received.

d. Contents

roo o Contents o ;ost #riginal or #riginal in custodcontrol o

adverse part %4econdar Evidence' – in order stated6

/ cop

/ recital o its contents in an authentic document

(estimon o !itnesses

J. 5hat must be proven i original in possession o adverse part

#pponents possession o original


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&easonable notice to opponent to produce the original

4atisactor proo o its e)istence

Failure or reusal o opponent to produce original in court

% 3 opponents ailure to produce the document on demand* he isno! orbidden to

produce the document in order to contradict the otherparts copevidence o its

contents

arol Evidence &ule

1.


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% / mental retardate is not* or this reason alone* disualifedrom being a !itness.

b. Children !hose mental maturit is such as to render themincapable o perceiving

the acts respecting !hich the are e)aminedand o relating them truthull.3ut a

child* regardless o age* ma be considered as a competent!itness* i he is capable

o 7#&C86

#bservation

&ecollection+ and

Communication

,arital Disualifcation &ule

MDuring their marriage* neither the husband nor the !ie ma testior or against

the other !ithout the consent o the a0ected spouse*e)cept in a civil case b one

against the other* or in a criminal caseor a crime committed b one against the

other or the latters directdescendants or ascendants.

1. E)emptions to ,arital Disualifcation

% 5ie ma testi against the husband in a criminal case oralsifcation* !here the

husband made it appear that the !ie gave herconsent to the sale o a con$ugal

house %considered as a crimecommitted against the !ie'

% I husband?accused deends himsel b imputing the crime to the !ie*he is

deemed to have !aived all ob$ections to the !ies testimonagainst him.

Dead ,ans 4tatute

Marties or assignors o parties to a case* or persons in !hose behala case isprosecuted* against an e)ecutor or administrator or otherrepresentative o a

deceased person* or against a person o unsoundmind* upon a claim or demand

against the estate o such deceased personor against such person o unsound mind*

cannot testi as to an mattero act occurring beore the death o such deceased

person or beoresuch person became o unsound mind.

1. &euisites or /pplication o Dead ,ans 4tatute 7/C#8

a. (he !itness is a art or assignor o a part to a case* or o aperson on !hose

behal a case is prosecuted+% Dead ,an 4tatute not applicable to a corporations

o2cers andstoc-holders in a suit instituted b the corporation. (hus* theo2cers andstoc-holders ma testi.

b. (he action is /gainst an e)ecutor* administrator or otherrepresentative o a

deceased person* or against a person o unsoundmind+

% eirs o deceased person are considered GrepresentativesH o adeceased person.

c. (he sub$ect matter o the action is a Claim or demand against theestate o such

deceased person* or against such person o unsound mind+

d. (he testimon reers to an matter o Fact occurring beore thedeath o such

deceased person* or beore such person became o unsoundmind.

% Not covered b the &ule6

Counterclaim b deendant %plainti0 ma testi in his deense'

Deceased contracted !ith plainti0 thru an agent o the deceasedinsane%in the

contract !hich is the sub$ect o the action' !ho is still aliveand can testi %but the

testimon is limited to the acts perormed bthe agent'


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I adverse part is called as a !itness b the representative o

thedeceasedincompetent or i representative introduced evidence as to

thetransactions or communications !ith the deceasedincompetent(o cadastral

proceedings* !here there is no deendant or plainti0

rivileged Communications6

1. Oinds o rivileged Communications6

,arital privilege

/ttorne?client

Doctor?patient

riest?enitent

ublic #2cers rivilege

". &euisites or ,arital rivilege

Valid marital relation must have e)isted

rivilege is claimed !ith respect to a communication made b one spouseto another

during the marriage+

Communication !as made in confdence

:. ,arital disualifcation and marital privilege distinguished

,arital Disualifcation ,arital rivilege Can be invo-ed onl i oneo the spouses is

a part to the action Can be claimed !hether or notthe spouse is a part to the

action &ight to invo-e belongs to thespouse !ho is a part to the action &ight to

invo-e belongs to thespouse ma-ing the communication /pplies onl i the

marriage ise)isting at the time the testimon is o0ered Can be claimed even

aterthe marriage has been dissolved Constitutes a total prohibitionagainst an

testimon or or against the spouse o the !itness %!ithcertain e)ceptions' /pplies

onl to confdential communications bet!eenspouses made during the marriage

=. /ttorne?Client rivilege

(here is an attorne?client relationship

(here is a communication made b the client to the attorne

4uch communication !as made in the course o* or !ith a vie! to*proessional

emploment

% E)tends to attornes secretar* stenographer or cler-+ reuiresconsent o both

emploer and the client to testi as to matterslearned in their proessional capacit

% E)ceptions6

/ctions brought b client against his attorneCommunications made in presence o

third persons

Communications regarding an intended crime

%


18/34

(he disclosure !ould open the client to civil liabilit+

5here the identit is intended to be confdential% rivilege not confned to verbal or

!ritten communications* bute)tends to all inormation communicated b the client

to the attorneb other means* such as !hen the attorne is called to !itness

thepreparation o a document.

>. &euisites or hsician?atient privilege 7C&/N38

(he action is a Civil case

(he &elation o phsician?patient e)isted

(he inormation !as /cuired b the phsician !hile attending to thepatient in his

proessional capacit

(he inormation !as Necessar or the perormance o his proessional

dut(he disclosure o the inormation !ould 3lac-en the reputation o thepatient

% / patients husband is not prohibited rom testiing on a reportprepared b his

!ies pschiatrist since he is not the treatingphsician %although it !ould be

hearsa'

% / phsician is not prohibited rom giving e)pert testimon inresponse to a strictl

hpothetical uestion in a la!suit involving thephsical or mental condition o a

patient he has treatedproessionall.

J. &euisites or riest?enitent rivilege

Conession !as made or advice given b the priest in his proessionalcharacter in

the course o the discipline en$oined b the church to!hich the priest or ministerbelongs+(he conession must be confdential and penitent in character

. &euisites or ublic #2cers rivilege

Communication made to a public o2cer in o2cial confdenceublic interest !ould

su0er b the disclosure

@. GNe!smans privilegeH – a publisher* editor* columnist or dulaccredited reporter

cannot be compelled to disclose the source o ne!sreport or inormation appearing

in the publication !hich is related inconfdence* the disclosure o !hich is not

demanded b the securit othe state.

/dmissions and Conessions

1. /dmission and Conession distinguished

/dmission Conession 4tatement o act !hich does not involve anac-no!ledgment

o guilt or liabilit Involves ac-no!ledgment o guiltor liabilit ,a be e)press or

tacit ,ust be e)press ,a be made bthird persons* and in certain cases* are

admissible against a part Canbe made onl b the part himsel* and in some

cases* are admissibleagainst his co?accused N#(E6 I a $ustifcation is alleged* it

ismerel an admission.

% &ight against sel?incrimination applies to the re?enactment othe crime b the

accused

". &euisites or admissibilit o an admission

Involves a matter o act* not o la!

Categorical and defnite


19/34

Ono!ingl and voluntaril made

/dverse to the admitterPs interest* other!ise* sel?serving andinadmissible as

hearsa

:. /dmissions and Declarations against sel?interest distinguished

/dmissions Declaration against Interest Need not be* though !illgreatl enhance

probative !eight i made against the interest o thedeclarant ,ust have been made

against the proprietar or pecuniarinterest o the parties ,ade b the part himsel

and is a primarevidence and competent though he be present in court and read

totesti ,ust have been made b a person !ho is either deceased orunable to

testi Can be made at an time ,ust have been made antelitem motam

=. Compromises

% Civil Cases6 not admission o liabilit

% Criminal Cases6 implied admission o guilt.

E)cept6 uasi?o0enses or those allo!ed b la! to be compromised* or!hen made to

avoid ris-s o criminal actions against him.

% /lso* o0er to pa e)penses occasioned b in$ur not admissibleas proo o civil or

criminal liabilit or the in$ur.

% / plea o orgiveness made !ith the -no!ledge* consent oracuiescence o the

accused is tantamount to an o0er to compromise bthe accused.

% I the purpose o the o0er is to bu peace and avoid litigation*then the o0er is

inadmissible.

% /s held in the case o Daggett v. /tchinson* etc. %=@ Cal."dJ>>'* it is the general

rule that evidence o precautions ta-en andrepairs made ater the happening o the

accident is not admissible tosho! a negligent condition at the time o the accident.

>. &euisites or /dmission b 4ilence %/daptive /dmissions'

(he part heard the declaration or observed the act o the other persone must

have understood the statement or act

e !as at libert to interpose a denial

4tatement !as !ith respect to some matter a0ecting his rights or in!hich he !as

then interested* and calling* naturall* or an ans!er

Facts !ere !ithin his -no!ledge

Facts admitted or inerence to be dra!n rom his silence is material tothe issue

(he part has no right to remain silent %as held in Common!ealth v.Dravec* ="=

a. >@" or "" /?"d Q='

% I private complainant in a rape case ails to rebut testimonieso deense !itnesses

that she and accused !ere s!eethearts and thatthe had previous se)ualencounters* she is deemed to have impliedladmitted the truth o the acts asserted

b said !itnesses.

J. &es inter alios acta alteri nocero non debet

a. First branch

% 4ection "* the rights o a part cannot be pre$udiced b an act*declaration or

omission o another


20/34

% ERCE(I#N46 !here the third person is a partner* agent* $ointo!ner* $oint debtor or

has a $oint interest !ith the part* or is a coconspiratoror a priv o the part* during

the e)istence o thepartnership* conspirac* etc. as established b evidence other

thansuch act or declaration* or !hile holding title to propert in relationto such

b. 4econd branch

% 4ec. :=* evidence that one did or did not do a certain thing atone time notadmissible to prove that he did or did not do thesamesimilar thing at another

time% E)ceptions6 7OI44ICB8 it ma be received to prove a specifcintent or

-no!ledge* identit* plan* sstem* scheme* habit* custom* orusage

. /dmission b a Co?artner or /gent

artnership* agenc or $oint interest is established b evidence otherthan the act or

declaration

/ct or declaration is !ithin the scope o the partnership* agenc or$oint interest

/ct or declaration must have been made during the e)istence o thepartnership*agenc or $oint interest

@. /dmission b Co?conspirator

% &euisites appl onl to e)tra$udicial acts or statements* andnot to testimon

during trial

Conspirac is sho!n b evidence other than the act or declaration

/dmission !as made during e)istence o the conspirac

/dmission relates to the conspirac itsel

% /n e)tra?$udicial conession o an accused is not admissible inevidence against his

co?accused !hen the latter had not been given theopportunit to hear him testi

and cross?e)amine him. 4uch conessionis not admissible as an /dmission b co?

conspirator because it !as madeater the conspirac had ended and ater the

commission o the crime.

Q. /dmissions b rivies

,ust be a relation o privit bet!een the part and the declarant

/dmission !as made !hile declarant as predecessor in interest* !hileholding title to

the propert

/dmission is in relation to said propert

% #5EVE&* such evidence is still not admissible to contradict theterms o the

!ritten instrument

1. #pinion o a !itness

E)pert – special -no!ledge* s-ill e)perience or training

(he matter to be testifed to is one that reuires e)pertise

(he !itness has been ualifed as an e)pert

MIt is not enough that a !itness !ho is being presented as an e)pertbelongs to the

proession or calling to !hich the sub$ect matter o theinuir relates. e must

urther sho! that he possesses special-no!ledge to the uestion on !hich he

proposes to e)press an opinion.


21/34

#rdinar

Identit o person about !hom he has adeuate -no!ledge

and!riting* i !ith su2cient amiliarit

,ental sanit* i su2cientl acuainted

Impressions on emotion* behavior* condition or appearance !hich he hasobserved

#rdinar matters common to all men o common perception

earsa &ule

1. E)ceptions to hearsa rule

Ding declaration – ante mortem or in articulo mortis

Declaration against interest

/ct or declaration against pedigree

Famil reputation or traditions regarding pedigree

Common reputation

&es gestae

Entries in course o business

Entries in o2cial records

Commercial lists and the li-e

;earned treatises

Court ta-es $udicial notice+ or

(estifed to b an e)pert

(estimon or deposition at a ormer proceeding

% Ne!spaper clippings are hearsa and have no evidentiar value unless

substantiated b persons !ith personal -no!ledge o the acts.

". Doctrine o independentl relevant statements

% Independent o !hether the acts stated are true* the arerelevant since the are

the acts in issue or are circumstantialevidence o the acts in issue% Not covered b

the hearsa rule

% E)ample6 (he statements or !ritings attributed to a person !hois not on the

!itness stand are being o0ered* not to prove the trutho the acts stated therein*

but onl to prove that such statements!ere actuall made or such !ritings !ere

e)ecuted* or to prove thetenor thereo.

:. &euisites o Declaration /gainst Interest

a. Declarant dead or unable to testi

% ,ere absence rom $urisdiction does not ma-e declarant Gunable totesti.H

E)ception contemplates that the declarant is dead* mentallincompetent or

phsicall incapacitated

b. Declaration !as against his o!n interest


22/34

c. &easonable man in declarants position !ould not have made thedeclaration

unless he believed it to be true% Declarations b accused against his interest are

inadmissible idone in violation o his constitutional rights

=. &euisites o /ct or Declaration about edigree

Declarant dead or unable to testi

Declarant is related to the person !hose pedigree is in uestion

,ade ante litem motam

&elationship bet!een declarant and person !hose pedigree is in uestionsho!ed b

evidence other than the declaration ERCE( i claiming romthe declarant* !here

the declaration itsel is su2cient

>. &euisites o Famil &eputation(radition regarding edigree

&eputation or tradition e)ists in amil o person !hose pedigree is inuestion

&eputation or tradition e)isted previous to the controvers

5itness testiing thereon is a surviving member o that amil* beither a2nit or

consanguinit

% / persons statement as to the date o his birth and age* as helearned o these

rom his parents or relatives* is an ante litem motamdeclaration o amil

reputation.

J. &euisites o Common &eputation

Facts to !hich the reputation reers are o public or general interest

&eputation is ancient %or more than : ears old'

&eputation must have been ormed among a class o persons !ho !ere in aposition

to have some sources o inormation and to contributeintelligentl to the ormation

o the opinion

&eputation must e)ist ante litem motam

% #5EVE&* i the reputation concerns marriage or moral character*the reuisite

that the reputation must be ancient does N#( appl

. &euisites o Ding Declarations

a. Declaration is conscious o impending death

b. Declaration relates to the acts or circumstances pertaining tothe atal in$ur or

death

4tatements reerring to the antecedents o the atal encounter oropinion*

impressions* or conclusions o the declarant are notadmissible. %roessor 3autista

believes that the opinion rule isstill applicable in ding declarations.

c. Declarant !ould have been comptent to testi had he survived

d. Declaration is o0ered in a case !herein the declarants death isthe sub$ect o the

inuir.

Ding declarations are admissible in /NS case not onl in criminal

prosecutions or homicide !hich !as the ormer rule.

@. &es gestae


23/34

% " -indsclasses6

a. 4pontaneous statements+

% &euisites6

(here is a startling occurrence

4tatement must relate to the circumstances o the occurrence

4tatement is unconscious and unpremeditated

% Factors to be considered in determining spontaneit o statement6

(ime that elapsed bet!een occurrence and the ma-ing o the statement

lace !here statement !as made

Condition o the declarant !hen he made the statement

resence or absence o intervening occurrences bet!een the occurrenceand thestatement

Nature and circumstances o the statement itsel

b. Verbal acts6

% &euisites6

&es gestae or principal act must be euivocal

/ct material to issue

4tatements must accompan euivocal act

4tatements must give legal signifcance to euivocal act

Q. &es gestae and Ding Declarations distinguished

&es


24/34

Entr !as made b public o2cer o the hilippines or b a personespeciall en$oined

b la! to ma-e such entr

Entr !as made in the perormance o entrants dut

Entrant must have been in a position to -no! the acts therein stated

% 3aptismal certifcates or parochial records are not public oro2cial records and are

not proo o relationship or fliation o thechild baptied.

1". Entries in the course o business and Entries in o2cial recordsdistinguished

Entries in the course o business Entries in o2cial records

4u2cient that entrant made the entries pursuant to a dut eitherlegal* contractual*

moral or religious* or in the regular course obusiness or dut entrant is a public

o2cer in perormance o dut* ori a private individual* must have acted pursuant to

a specifc legaldut %speciall en$oined b la!' (he person !ho made such entries

mustbe dead or unable to testi there is no such reuirement oradmissibilit*

precisel because the o2cer is e)cused

1:. &euisites o (estimon or Deposition in ormer proceeding

5itness !hose testimon is o0ered is dead or unable to testi

art against !hom the evidence is o0ered* or his priv* !as a partto the ormer

case or proceeding* $udicial or administrative

(estimon or deposition relates to the same sub$ect matter %identit ofssue'

(he reuirement o identit

/dverse part had opportunit to cross?e)amine

(estimon given during preliminar investigation !here the deense hadthe

opportunit to cross?e)amine the unavailable !itness is admissiblein the criminal

case

1=. ,odes o E)tra?$udicial Identifcation o /ccused

4ho!?ups – !here accused alone is brought ace?to?ace !ith the !itnessor

identifcation

,ug shots – !here photographs are sho!n to the !itness oridentifcation

;ine?ups – !here a !itness identifes the suspect rom a group opersons lined up

or the purpose

% Identifcation !ill be admissible i it passes the totalit ocircumstances test !hich

considers the ollo!ing actors6

(he !itness opportunit to vie! the criminal at the time o the crime

5itness degree o attention at that time

/ccurac o an prior description b the !itness

(he level o certaint demonstrated b the !itness at the identifcation

;ength o time bet!een the crime and identifcation

4uggestiveness o the identifcation procedure

1>. (he 4C approved an additional e)ception to the hearsa rule inits /.,. no. ?=?

?4C approving the roposed &ule on E)amination o aChild 5itness.M


25/34

% / statement made b a child describing an act or attempted acto child abuse

N#( other!ise admissible under the hearsa rule* ma beadmitted in evidence in

an criminal or non?criminal proceeding sub$ectto the ollo!ing rules6

3eore such statement ma be admitted* its proponent shall ma-e -no!nto the

adverse part the intention to o0er such statement and itsparticulars to allo! him

an opportunit to ob$ect.

I the child is available

% (he court shall reuire the child to be present at thepresentation o the hearsa

statement or cross?e)amination b theadverse part.

I the child is unavailable

% (he act o such circumstance must be proved b the proponent.

In ruling on the admissibilit o such hearsa statement* the courtshall consider the

time* content and circumstances thereo !hichprovide su2cient indicia o reliabilit.

It shall consider theollo!ing actors6

5hether there is a motive to lie

(he general character o the declarant child

5hether more than one person heard the statement

5hether the statement !as spontaneous

(he timing o the statement and the relationship bet!een the declarantchild and

!itness.

Cross?e)amination could not sho! the lac- o -no!ledge o the declarantchild.

(he possibilit o ault recollection o the declarant child+

(he circumstances surrounding the statement are such that there is noreason to

suppose the declarant child misrepresented the involvement othe accused.

(he child !itness shall be considered unavailable in the ollo!ingsituations6

i. Is deceased* su0ers rom phsical infrmit* lac- o memor*mental illness or !ill

be e)posed to severe pschological in$ur+

Is absent rom the hearing and the proponent o his statement has beenunable to

procure his attendance b process or other reasonable means.

d. 5hen the child !itness is unavailable* his hearsa testimonshall be admitted

onl i corroborated b other admissible evidence.

&ule 1:1 3urden o roo and resumptions

1. resumptions o la!

,a be conclusive or absolute* or disputable or rebuttable

/ certain inerence must be made !henever the acts appear !hichurnish the basis

o the inerence

&educed to f) rules and orm a part o the sstem o $urisprudence

". resumptions o act

/ discretion is vested in the tribunal as to dra!ing the inerence


26/34

Derived !holl and directl rom the circs o the particular case bmeans o the

common e)perience o man-ind

:. 3urden o proo

% #nus probandi

% #bligation imposed upon a part !ho alleges the e)istence o0acts necessar or

the prosecution o his action or deense toestablish the same b the reuisite

presentation o evidence

% In civil cases* it is on the part !ho !ould be deeated i noevidence is given on

either side+ in criminal cases* the prosecutionhas the burden o proo.

% Does not shit+ remains on part upon !hom it is imposed

% Determined b pleadings fled b part

% E0ect o a legal presumption on 3urden o roo6 (he e0ect isto create the

necessit o presenting evidence to meet the prima aciecase created b thepresumption+ and i no proo to the contrar iso0ered* the presumption !ill prevail.

(he legal presumption does notshot the burden o proo. (he burden o proo

remains !here it is* butb the presumption* the one !ho has the burden is relieved*

or thetimebeing* rom producing evidence in suuport o his averment* becausethe

presumption stands in place o evidence.

=. 3urden o evidence

% ;ies !ith part asserting a2rmative allegations

% 4hits during trial* depending on e)igencies o the case

% Determined b developments at trial or b provisions o la!

%presumptions* $udicial notice* admissions'

% In criminal cases* a negative act must be proven i it is anessential element o the

crime.

% eople vs. ,acagaling – in a charge o illegal possession o2rearms* the burden is

on the prosecution to prove that the accusedhad no license to possess the same.

% eople vs. ,analo – in a charge or selling regulated drugs !ithoutauthorit* it !as

held that although the prosecution has the burden oproving a negative averment

!hich is an essential element o the crime

%i.e. lac- o license to sell'* the prosecution* in vie! o thedi2cult o proving a

negative allegation* need onl establish aprima acie case rom the best evidence

obtainable. In this case* thelac- o license !as held to have been established b the

circumstancesthat the sale o the drug !as consummated not in a drug store

orhospital* and that it !as made at 16 ,.

&ule 1:" resentation o Evidence

1. Bse immunit

% rohibits use o the !itnessP compelled testimon and its ruitsin an manner in

connection !ith the criminal prosecution o the !itness

% 5here the statute grants onl use immunit* merel testiingandor producing

evidence does not render the !itness immune romprosecution despite his

invocation o the right against selfncrimination

". (ransactional immunit


27/34

% . Impeaching o!n !itness

%


28/34

J. &euisites o revival o present memor

,emorandum has been !ritten b him or under his direction+ and

5ritten b him6

5hen the act occurred or immediatel thereater+ or

/t an other time !hen the act !as resh in his memor and he -ne!that the same!as correctl recorded

. &euisites o &evival o ast &ecollection

5itness retains no recollection o the particular acts+

3ut he his able to s!ear that the record or !riting correctl statedthe transaction

!hen made

@. &evival o present memor and &evival o past recollectiondistinguished

resent &ecollection &evived ast &ecollection &ecorded /pplies i the!itnessremembers the acts regarding his entries /pplies !here the!itness does not recall

the acts involved Entitled to greater !eight

Entitled to lesser !eight Evidence is the testimon Evidence is the!riting or record

&ule o evidence a0ected is competenc o !itness*e)amination o !itness %laing

the predicate' &ule o evidence a0ectedis the best evidence rule

Q. /dditional modes o authenticating a private !riting

Doctrine o sel?authentication

% 5here the acts in the !riting could onl have been -no!n b the!riter

&ule o authentication b the adverse part

% 5here repl o the adverse part reers to and a2rms thesending and his receipt

o the letter in uestion* a cop o !hich theproponent is o0ering as evidence

1. /uthentication not reuired6

/ncient document

,ore than : ears old

Contains no alterations or circumstances o suspicion

roduced rom a custod in !hich it !ould naturall be ound i genuine

ublic document or record

Notarial document ac-no!ledged* proved or certifed

/uthenticit and due e)ecution has been e)pressl or impliedl admitted

%e.g.* actionable documents* ailure to den under oath'

% Computer printouts are inadmissible unless properl authenticatedb a !itness

attesting that the came rom the computer sstem or thatthe data stored in the

sstem !ere not and could not have been tampered!ith beore the same !ere

printed out.

11. and!riting6 evidence o genuineness

5itness actuall sa! person !riting the instrument


29/34

Familiar !ith hand!riting and !itness can give opinion

Comparison o uestioned hand!riting and admitted genuine specimens

E)pert evidence

#0er and #b$ection

(he court shall consider no evidence !hich has not been ormallo0ered. (hepurpose or !hich the evidence is o0ered must bespecifed.

E)ception6 I there !as repeated reerence thereto in the course othe trial b

adverse parts counsel and o the court* indicating thatthe documents !ere part o

the prosecutions evidence.

% (!o reuisites must concur %eople vs. Napta'

a. (he document must have been dul identifed b testimon dulrecorded.

b. (he document must have been incorporated to the records o thecase.

/ part !ho has introduced evidence is not entitled as matter o rightto !ithdra! it

in fnding that it does not ans!er his purpose+ 3B( hema !ithdra! an o0er o an

e)hibit an time beore the court haspassed on its admissibilit.

Evidence o0ered is presumed to be admissible or competent until thecontrar has

been established.

% (hus* the opposing part must #39EC( to its introduction.

5hen to ob$ect

#0er (ime to #b$ect #0ered orall ,ade immediatel ater the o0eris made

Luestion propounded in the course o the oral e)amination o a!itness 4hall be

made as soon as the grounds thereo shall becomereasonabl apparent #0er o

evidence in !riting 4hall be ob$ected to!ithin : das ater notice o the o0er unless

a di0erent period isallo!ed b the court.

5hen is a motion to stri-e out ans!er properU

a. 5hen the !itness ans!ered the uestion beore the counsel has achance to

ob$ect

5here a uestion !hich is not ob$ectionable ma be ollo!ed b anob$ectionableunresponsive ans!er

5here a !itness has volunteered statements in such a !a that the parthas not

been able to ob$ect thereto

5here a !itness testifes !ithout a uestion being addressed to him

5here a !itness testifes beond the ruling o the court prescribingthe limits !ithin

!hich he ma ans!er

5hen a !itness dies or becomes incapacitated to testi and the otherpart has not

been given the opportunit to cross?e)amine the !itness.

(here must be an ob$ection frst beore a motion to stri-e. I thepart slept on his

right to ob$ect* he cannot later on avail a motionto stri-e to e)clude the evidence.

5hen is a motion to stri-e out improperU

/ part cannot insist that competent and relevant evidence be stric-enout or

reasons going to his !eight* su2cienc or credibilit


30/34

#ne cannot move to stri-e it out because it proves unavorable to him

. I court improperl e)cludes an other!ise admissible evidence*remed is to

tender the e)cluded evidence* also -no!n as #FFE& #F #F6

Documentar – b attaching the document or ma-ing it part o the record

(estimonial – b stating the personal circumstances o !itness and thesubstance o

proposed testimon

&ule 1:: 5eight and 4u2cienc o Evidence

1. roo beond reasonable doubt

% Does not mean such degree o proo as* e)cluding possibilit oerror* produces

absolute certaint

% ,oral certaint onl is reuired* or that degree o proo !hichproduces conviction

in an unpre$udiced mind

". Circumstantial evidence to sustain conviction must6

,ore than one circumstance

Facts rom !hich inerences are derived are proven

Combination o all circumstances such as to produce conviction beondreasonable

doubt

:. 4ubstantial evidence

% (hat amount o relevant evidence !hich a reasonable mind mightaccept as

adeuate to $usti a conclusion.

ertinent rovisions o the Implementing &ules o the E?Commerce /ct6

Chapter II ;egal &ecognition o Electronic Data ,essages /nd

Electronic Documents

4ection . ;egal &ecognition o Electronic Data ,essages and Electronic

Documents. ? Inormation shall not be denied validit or enorceabilitsolel on the

ground that it is in the orm o an electronic datamessage or electronic document*

purporting to give rise to such legale0ect. Electronic data messages or electronic

documents shall have thelegal e0ect* validit or enorceabilit as an other

document or legal!riting. In particular* sub$ect to the provisions o the /ct and

these

&ules6

/ reuirement under la! that inormation is in !riting is satisfed ithe inormation is

in the orm o an electronic data message orelectronic document.

/ reuirement under la! or a person to provide inormation in !ritingto another

person is satisfed b the provision o the inormation inan electronic data messageor electronic document.

/ reuirement under la! or a person to provide inormation to anotherperson in a

specifed non?electronic orm is satisfed b the provisiono the inormation in an

electronic data message or electronic documenti the inormation is provided in the

same or substantiall the sameorm.


31/34

Nothing limits the operation o an reuirement under la! orinormation to be

posted or displaed in specifed manner* time orlocation+ or or an inormation or

document to be communicated b aspecifed method unless and until a unctional

euivalent shall havebeen developed* installed* and implemented.

4ection @. Incorporation b &eerence. ? Inormation shall not bedenied validit or

enorceabilit solel on the ground that it is notcontained in an electronic data

message or electronic document but ismerel incorporated b reerence therein.

4ection Q. Bse Not ,andator. ? 5ithout pre$udice to the application o

4ection " o the /ct and 4ection : o these &ules* nothing in the /ctor these &ules

reuires a person to use or accept inormation containedin electronic data

messages* electronic documents* or electronicsignatures* but a personPs consent to

do so ma be inerred rom thepersonPs conduct.

4ection 1. 5riting. ? 5here the la! reuires a document to be in!riting* or obliges

the parties to conorm to a !riting* or providesconseuences in the event

inormation is not presented or retained inits original orm* an electronic documentor electronic data message!ill be su2cient i the latter6

,aintains its integrit and reliabilit+ and

Can be authenticated so as to be usable or subseuent reerence* inthat6

It has remained complete and unaltered* apart rom the addition o

anendorsement and an authoried change* or an change !hich arises inthe

normal course o communication* storage and displa+ and

It is reliable in the light o the purpose or !hich it !as generatedand in the light o

all relevant circumstances.

4ection 11. #riginal. ? 5here the la! reuires that a document bepresented or

retained in its original orm* that reuirement is met ban electronic document or

electronic data message i –

(here e)ists a reliable assurance as to the integrit o the electronicdocument or

electronic data message rom the time !hen it !as frstgenerated in its fnal orm

and such integrit is sho!n b evidencealiunde %that is* evidence other than the

electronic data message

itsel' or other!ise+ and

(he electronic document or electronic data message is capable o beingdisplaed to

the person to !hom it is to be presented.

For the purposes o paragraph %a' above6

(he criteria or assessing integrit shall be !hether the inormationhas remained

complete and unaltered* apart rom the addition o anendorsement and an

change !hich arises in the normal course ocommunication* storage and displa+

and

(he standard o reliabilit reuired shall be assessed in the light othe purpose or!hich the inormation !as generated and in the light oall relevant circumstances.

/n electronic data message or electronic document meeting and compling!ith the

reuirements o 4ections J or o the /ct shall be the bestevidence o the

agreement and transaction contained therein.


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4ection 1". 4olemn Contracts. ? No provision o the /ct shall appl tovar an and

all reuirements o e)isting la!s and relevant $udicialpronouncements respecting

ormalities reuired in the e)ecution o

documents or their validit. ence* !hen the la! reuires that acontract be in some

orm in order that it ma be valid or enorceable*or that a contract is proved in a

certain !a* that reuirement isabsolute and indispensable.

;egal &ecognition o Electronic 4ignatures

4ection 1:. ;egal &ecognition o Electronic 4ignatures. /n electronicsignature

relating to an electronic document or electronic data messageshall be euivalent to

the signature o a person on a !ritten document

i the signature6

Is an electronic signature as defned in 4ection J%g' o these &ules+and

Is proved b sho!ing that a prescribed procedure* not alterable b theparties

interested in the electronic document or electronic datamessage* e)isted under!hich6

/ method is used to identi the part sought to be bound and toindicate said

parts access to the electronic document or electronicdata message necessar or

his consent or approval through theelectronic signature+

4aid method is reliable and appropriate or the purpose or !hich theelectronic

document or electronic data message !as generated orcommunicated* in the light

o all circumstances* including an relevantagreement+

It is necessar or the part sought to be bound* in order to proceedurther !ith thetransaction* to have e)ecuted or provided theelectronic signature+ and*

(he other part is authoried and enabled to veri the electronicsignature and to

ma-e the decision to proceed !ith the transactionauthenticated b the same.

(he parties ma agree to adopt supplementar or alternative proceduresprovided

that the reuirements o paragraph %b' are complied !ith.

For purposes o subparagraphs %i' and %ii' o paragraph %b'* theactors reerred to in

/nne) G"H ma be ta-en into account.

4ection 1=. resumption &elating to Electronic 4ignatures. ? In anproceedinginvolving an electronic signature* the proo o theelectronic signature shall give rise

to the rebuttable presumptionthat6

(he electronic signature is the signature o the person to !hom itcorrelates+ and

(he electronic signature !as a2)ed b that person !ith the intentiono signing or

approving the electronic data message or electronicdocument unless the person

reling on the electronicall signedelectronic data message or electronic document

-no!s or has notice odeects in or unreliabilit o the signature or reliance on

theelectronic signature is not reasonable under the circumstances.

,odes o /uthentication

4ection 1>. ,ethod o /uthenticating Electronic Documents* Electronic

Data ,essages* and Electronic 4ignatures. ? Electronic documents*electronic data

messages and electronic signatures* shall beauthenticated b demonstrating*

substantiating and validating a claimedidentit o a user* device* or another entit

in an inormation orcommunication sstem.


33/34

Bntil the 4upreme Court* b appropriate rules* shall have so provided*electronic

documents* electronic data messages and electronicsignatures* shall be

authenticated* among other !as* in the ollo!ingmanner6

(he electronic signature shall be authenticated b proo that a letter*character*

number or other smbol methodolog or securit procedures* !hen applicable* !ere

emploed or

adopted b a person and e)ecuted or adopted b such person* !ith theintention o

authenticating or approving an electronic data message orelectronic document+

(he electronic data message or electronic document shall beauthenticated b proo

that an appropriate securit procedure* !henapplicable !as adopted and emploed

or the purpose o veriing theoriginator o an electronic data message or

electronic document* ordetecting error or alteration in the communication* content

or storageo an electronic document or electronic data message rom a

specifcpoint* !hich* using algorithm or codes* identiing !ords or

numbers*encrptions* ans!ers bac- or ac-no!ledgement procedures* or

similarsecurit devices.

4ection 1J. 3urden o /uthenticating Electronic Documents or Electronic

Data ,essages. ? (he person see-ing to introduce an electronic documentor

electronic data message in an legal proceeding has the burden oproving its

authenticit b evidence capable o supporting a fndingthat the electronic data

message or electronic document is !hat theperson claims it to be.

,odes or Establishing Integrit

4ection 1. ,ethod o Establishing the Integrit o an Electronic

Document or Electronic Data ,essage. In the absence o evidence to thecontrar*

the integrit o the inormation and communication sstem in!hich an electronic

data message or electronic document is recorded orstored ma be established in

an legal proceeding* among other methods

3 evidence that at all material times the inormation andcommunication sstem or

other similar device !as operating in a mannerthat did not a0ect the integrit o the

electronic document orelectronic data message* and there are no other reasonable

grounds todoubt the integrit o the inormation and communication sstem+

3 sho!ing that the electronic document or electronic data message !asrecordedor stored b a part to the proceedings !ho is adverse ininterest to the part using

it+ or

3 sho!ing that the electronic document or electronic data message !asrecorded

or stored in the usual and ordinar course o business b aperson !ho is not a part

to the proceedings and !ho did not act underthe control o the part using the

record.

/dmissibilit and Evidential 5eight

4ection 1@. /dmissibilit and Evidential 5eight o Electronic Data

,essages and Electronic Documents. ? For evidentiar purposes* anelectronic

document or electronic data message shall be the unctionaleuivalent o a !ritten

document under e)isting la!s. In an legalproceeding* nothing in the application o

the rules on evidence shallden the admissibilit o an electronic data message or

electronicdocument in evidence6

#n the sole ground that it is in electronic orm+ or


34/34

#n the ground that it is not in the standard !ritten orm.

(he /ct does not modi an statutor rule relating to theadmissibilit o electronic

data messages or electronic documents*e)cept the rules relating to authentication

and best evidence.

In assessing the evidential !eight o an electronic data message orelectronic

document* the reliabilit o the manner in !hich it !asgenerated* stored orcommunicated* the reliabilit o the manner in!hich its originator !as identifed*

and other relevant actors shallbe given due regard.

4ection 1Q. roo b /2davit and Cross?E)amination. ? (he mattersreerred to in

4ection 1" o the /ct on admissibilit and evidentiar!eight* and 4ection Q o the

/ct on the presumption o integrit oelectronic signatures* ma be presumed to

have been established b ana2davit given to the best o the deponents or a2ants

personal-no!ledge sub$ect to the rights o parties in interest to cross?e)aminesuch

deponent or a2ant as a matter o right. 4uch right o crosse)aminationma li-e!ise

be en$oed b a part to the proceedings !hois adverse in interest to the part !ho

has introduced the a2davit orhas caused the a2davit to be introduced.

/n part to the proceedings has the right to cross?e)amine a personreerred to in

4ection 11* paragraph =* and sub?paragraph %c' o the/ct.

&etention o Electronic Data ,essage and Electronic Document

4ection ". &etention o Electronic Data ,essage and Electronic

Document. ? Not!ithstanding an provision o la!* rule or regulation tothe contrar6

a. (he reuirement in an provision o la! that certain documents beretained in

their original orm is satisfed b retaining them in theorm o an electronic datamessage or electronic document !hich6

&emains accessible so as to be usable or subseuent reerence+

Is retained in the ormat in !hich it !as generated* sent or received*or in a ormat

!hich can be demonstrated to accuratel represent theelectronic data message or

electronic document generated* sent orreceived+ and*

5here applicable* enables the identifcation o its originator andaddressee* as !ell

as the determination o the date and the time it !assent or received.

(he reuirement reerred to in paragraph %a' is satisfed b using theservices o a

third part* provided that the conditions set orth insubparagraphs %i'* %ii' and %iii' o

paragraph %a' are met.

&elevant government agencies tas-ed !ith enorcing or implementingapplicable

la!s relating to the retention o certain documents ma* bappropriate issuances*

impose regulations to ensure the integrit*reliabilit o such documents and the

proper implementation o 4ection1: o the /ct.

M (he resolution came out last November "1* ". (he rule too- e0ect

last December 1>* ".

&E,EDI/; ;/5 %EVIDENCE'

,E,#&S /ID

/teneo Central 3ar #perations ""