EQUIPP REVIEW CENTER, INC.813 CMFFI Bldg., R. Papa St., Sampaloc, Manila

Tel No.: (02) 734-9893 / 733-5584Mobile No.: 09206139263

Email Add: equip_1997@yahoo.com

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

Main Source of the Law on Evidence:Rules of Court Rules 128-133 (134)PROOF, defined- the result or the effect of evidence.FACTUM PROBANDUM- the ultimate fact or the fact sought to be established. It is the fact to be proved.FACTUM PROBANS- factum probans is the evidentiary fact or the fact by which the factum probans is to be established

1. Object or real or autoptic evidence or physical evidence or tangible evidence- that which is directly addressed to the senses of the court and consists of tangible things exhibited in court.

Chain of Custody- the presenter of an object evidence may be required to prove its chain of custody, that is the people who took charge thereof from its recovery to presentation in court so that it may pass the process of authentication. If the object evidence is easy to identify, mere testimony of witness is sufficient.

2. Testimonial evidence- that which is submitted to the court through the testimony or deposition of a witness. It is that which directly comes out of the witness’s mouth, oral or written, such as depositions and affidavits.

3. Relevant evidence- evidence having any value in reason as tending to prove any matter provable in an action.

4. Material evidence- evidence directed to prove a fact in issue as determined by the rules of substantive law and pleading.

5. Competent evidence- evidence that is not excluded by the rules, statute or the Constitution.

6. Direct evidence- that which proves the fact in dispute without the aid of any inference or presumption.

7. Circumstantial evidence- the proof of fact or facts from which, taken either singly or collectively, the existence of the particular fact in dispute may be inferred as a necessary or provable consequence.

8. Cumulative evidence- evidence of the same kind and to the same state of facts.

9. Corroborative evidence- additional evidence of a different character to the same point.

10. Expert evidence- the testimony of one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by other persons.

11. Prima Facie Evidence- that which standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed.

12. Primary evidence- that which the law regards as affording the greatest certainty of the fact in question

13. Secondary evidence or Substitutionary Evidence- that which is inferior to the primary evidence and is permitted only when the best evidence is not available.

14. Positive evidence- when a witness affirms that a fact did or did not occur

15. Negative evidence- when a witness states he did not see or know of the occurrence of a fact.

16. Documentary evidence- it consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.

17. Electronic evidence- document or information received, recorded, transmitted, stored, processed or produced electronically.

18. Forgotten evidence- evidence which was not presented in court because of oversight or forgetfulness of a party or counsel.

19. Exculpatory evidence- that evidence which will excuse a person from an alleged fault or crime.

20. Evidence Aliunde or Extraneous evidence- evidence from outside or another source.

21. Inculpatory evidence- are evidence which has the tendency to implicate or incriminate a person.

22. Self serving evidence- one made by the party to favor his own interest. It is one made by a party out of court.

23. Opinion evidence – evidence given by an ordinary person regarding of what he thinks.

24. Rebuttal evidence- evidence that will contradict the other party’s evidence

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.

Evidence is admissible when: it is RELEVANT to the issue andis NOT EXCLUDED BY THE LAW OR THE RULES OF COURT.

1. Conditional Admissibility of Evidence- Evidence that will be admitted although seemingly not admissible provided that its relevancy would be shown in a later stage of the trial.

2. Curative Admissibility of Evidence- Evidence which will be admitted although normally inadmissible because similar inadmissible evidence has been introduced by the other party.

3. Multiple Admissibility of Evidence- when the evidence not admissible for one purpose but admissible for two or more purposes.

PLAIN VIEW RULE- Under this doctrine, unlawful objects within the plain view of an officer who has the right to be in the position to have that view are subject to confiscation and are admissible in evidence.

EXCLUSIONARY RULE- A rule of evidence that excludes evidence obtained in violation of one’s constitutional rights or obtained through illegal means, such as those obtained by tortures and the like.

FRUIT OF THE POSONOUS TREE- this doctrine states that once the primary source “the tree” is shown to have been obtained unlawfully, any derivative evidence, “the fruit” derived from it (meaning the tree) is likewise not admissible. Thus, evidence illegally obtained by the State should not be used to gain other evidence because the illegally obtained evidence taints all evidence subsequently obtained.

SILVER PLATTER RULE-The doctrine, now discredited (no longer followed in the U.S.), that allowed evidence seized by state officers in an illegal search and seizure to be used against the accused in a criminal trial.

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.

COLLATERAL MATTERS- Are facts and circumstances other then the facts in issue which are being offered in evidence as bases for inference as to the existence or non existence of a fact in issue.

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.

JUDICIAL NOTICE- the cognizance of certain facts which judges may properly take act on without proof because they already know them.

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.

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)

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.

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.

Object evidence (real evidence/autoptic evidence) is tangible thing submitted to the court for inspection, exhibition or demonstration.

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.

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

Best Evidence Rule,(Primary Evidence) (Original Document Rule) (Contents of Original Writing Rule) defined- it is that rule which states that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself.

It is that which affords the greatest certainty of a fact in question.

The opposite of Best Evidence is Secondary Evidence which is that evidence that is inferior to the primary evidence is to prevent fraud.

The purpose of the rule requiring the production of the best evidence is to prevent fraud.

Carbon paper copies are considered DUPLICATE ORIGINALS.

Xeroxed copies/photocopies are not admissible under the best evidence rule

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

  2. 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;

3. 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

  4. When the original is a public record in the

custody of a public officer or is recorded in a public office.

(a)The original of 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 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.

◦ Document, defined- a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth.

◦ Secondary evidence (Substitutionary Evidence) (Inferior Evidence) defined: That which is admissible when the best evidence is

not available; or Any evidence other than the original document itself;

or One which is inferior to the best evidence.

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(any machine copy), or ◦ by a recital of its contents in some authentic

document, or◦ by the testimony of witnesses in the order stated.

Q: How can an original document be proved if it is unavailable?

A: When 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.

Q: When may secondary evidence be admissible in evidence?

A: There must be proof of:◦ Due execution of the original;◦ Loss, destruction, or unavailability of all such

originals◦ Reasonable diligence and good faith in search for

or attempt produce the original.

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.

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.

Sec. 8.Party who calls for document not bound to offer it. — A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence.

When 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.

Parole Evidence, defined- any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. It is also defined as any outside or extrinsic evidence introduced to modify or explain or add something to an agreement that was put in writing.

Parole Evidence Rule defined- a rule which states that 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 agreemeement. It means that there can be no evidence of the terms of the written agreement other than the terms of the written agreement.

A party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading:

1. An intrinsic ambiguity, mistake or imperfection in the written agreement;2. The failure of the written agreement to express the true intent and agreement of the parties thereto;3. The validity of the written agreement; or4. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

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. Witness defined- a person who makes a statement to a judicial tribunal on a question of fact.Qualifications of child witness:

◦ He must have capacity of observation◦ He must have capacity of recollection◦ He must have capacity of communication

Qualification of a Witness:◦ All persons who can perceive and perceiving, and◦ Can make known their perception to others may be witnesses.

Biased witness- on who because of his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color to his statements, or to suppress or pervert the truth, or to state what is false.

Competent witness- one who is not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interests or the commission of crimes, or other cause rendering him excluded from testifying.

Dishonest witness- a witness who professes to remember things upon which he cannot be readily be contradicted and who declares that he forgets those upon which he would be open to contradiction. He usually takes refuge behind the shelter afforded by the phrase “I don’t remember”.

Instrumental witnesses- a witness who attests to the execution of a will or testament and affirms the formalities attendant to said execution.

Credible witness- one whose testimony is worth of credit and belief. One who is not disqualified to testify by mental incapacity, crime or other causes.

Competent Witness- One who has all the qualifications to testify. Thus he can perceive and can make known his perception to others regardless of political or religious belief or interest and conviction of a crime.

 

The following persons cannot be witnesses: (a)Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b)Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.

Deaf and mutes are competent witnesses when: they can understand the nature of an oath, can comprehend facts they are going to testify on, and can communicate their ideas through qualified interpreter.

A mental retardate is still qualified witness if he can make known his perceptions to others.

TEST OF COGNITION- when the accused committed the crime while under complete deprivation of intelligence. We follow this rule in determining insanity.

TEST OF VOLITION- when the accused committed the crime while there is total deprivation of the freedom of will.

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.

This privilege can be lost by consent or failure to object

The policy of the law is to guard the confidence of private life even at the risk of occasional failure of justice.

To preserve harmony between the husband and wife and family.

There is identity of interests between the husband and the wife.

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.◦ This privilege may be waived by cross examining the witness

If one party to the alleged transaction is precluded from testifying by death, insanity or mental disabilities, the other party should not take advantage of it by giving his own uncontradicted account of what transpired.

This rule is designed to close the lips of the party plaintiff when death has closed the lips of the other party defendant, in order to remove from the surviving party the temptation to falsehood and the great possibility of fictitious and exaggerated claims against the deceased.

The following persons cannot testify as to matters learned in confidence in the following cases: (a)The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; (Marital Communication Rule/Spousal Immunity Rule/Husband and Wife Privilege)

(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.

Disqualification by reason of mental incapacity or immaturity;

Disqualification by reason of marriage; Disqualification by reason of death or insanity

of adverse party; Disqualification by reason of privileged

communication between:◦ husband and wife;◦ attorney and client;◦ physician and patient;◦ priest and penitent;◦ public office (privilege of state secrets)

Q: Who are those disqualified to become a witness by reason of mental incapacity or immaturity?

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 relating them truthfully.

PRIVILEGED COMMUNICATION, defined- communications received in confidence by a person from another by reason of trust or intimate relationship may not be revealed to the court.

DISQUALIFICATION BY REASON OF MARRIAGE, defined- according to this rule, during their marriage, neither the husband or 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

Requisites of Marital or Spousal Immunity Rule:There must be a valid marriage;That marriage must be existing at the time of the offer of the testimony;The spouse is a party to the transaction

The marital Communication Rule may be waived by:◦ Failure to object to the testimony◦ The spouse calls the other spouse to testify

Disqualification by Reason of Death or Insanity of Adverse Party Rule, defined- according to this rule, parties or assignors of parties to a case or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

1. That the witness offered for examination is a party plaintiff, or the assignor of said party, or a person in whose behalf a case is prosecuted;

2. The case is against the executor or administrator or other representative of a person deceased or of unsound mind;

3. The case is upon a claim or demand against the estate of such deceased or unsound mind;

4. The testimony to be given is on a matter of fact occurring before the death of the deceased person or before such person became of unsound mine.

a rule which state that the following person persons cannot testify as to matters learned in confidence in the following cases:

1. 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 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.

2. 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 the 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;

3. Person authorized to practice medicine, surgery or obstetrics- in a civil case cannot be examined, without the consent of the patient 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.

4. Minister or priest- without the consent of the person making the confession, cannot be examined as to any confession made or to 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; (This privileged cannot be waived)

5. 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. (This privileged cannot be waived)

Requisites of Marital Privilege:

1.There was a valid marital relation;2.The privilege is invoked with respect to confidential communication between the spouses during the marriage;3.The spouse against whose the testimony is offered has not given his consent.

DQ By Reason of Marriage DQ By Reason of Marital Privilege

1. May be invoked if one of the spouses is a party to

the action

It may be claimed whether or not the spouse is a party

to the action.

2. Applicable only if the marriage is existing at the

time the testimony is offered

It can be claimed even after the marriage has been

dissolved.

3. It constitutes a total prohibition against any

testimony for or against the spouse of the witness.

Applies only to confidential communication between

the spouses.

Q: What is the purpose of the Privileged Communication between a lawyer and client?A: To encourage clients to make full disclosure to his lawyer in matters affecting his rights and obligations. However, in order that communication between a lawyer and his client may be privileged, it must be for a lawful purpose or lawful end.

Q: What are the requisites of physician and patient privilege?A: They are:

◦ the privilege is claimed in a civil case◦ the person against whom it is claimed is duly authorized

to practice medicine◦ the physician acquired the information while he was

attending to the patient in his professional capacity◦ the information was necessary for him to act in that

capacity◦ the information must be confidential, that is if disclosed

would blacken the reputation of the patient.

No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.

PARENTAL PRIVILEGE- parents cannot be compelled to testify against his descendants; while FILIAL PRIVILEGE means, witness cannot be compelled to testify against his parents or other direct ascendants

The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.

ADMISSION, defined- any statement of a fact by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him. It is a statement of fact which does not involve an acknowledgment of guilt or liability (this is the more popular definition)

CONFESSION, defined- the declaration of an accused expressly acknowledging his guilt of the offense charged.

An admission does not necessarily involve an acknowledgement of guilt as in the case of confession;An admission may be expressed or tacit while a confession is always express;Admission may be made by third persons and in certain cases admissible against a party, while a confession can be made only by the party himself, and in some instances are admissible against his co-accused.

Q: What are the types of admissions? A: They are:

◦ Admission by a party◦ Admission by co partner or agent◦ Admission by co conspirator◦ Admission by privies◦ Admission by silence

Flight from justice is an admission by conduct. “The wicked flees when no man pursueth, but the innocent is as bold as a lion.”

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.

.The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided.

This section is known as the RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET rule, which means “things done between strangers should not injure those who are not parties to them.”

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.

Q: What are the requisites of admission by a co partner or agent?

A: They are: the act or declaration was made within the scope of his

authority; it was made during the existence of the partnership or agency; the partnership or agency is proved by evidence other than

such act or declaration

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.

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.

Q: Who is a privy?A: He is one who derives his title to property from

another by purchase, conveyance or some other modes.

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.

Q: What is the basis for the rule on admission by silence?

A: The instinct of man is to resist an accusation or unfounded claim and defend himself, because it is totally against human nature to remain silent and say nothing in the face of false accusations.

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.

CONFESSION- a categorical acknowledgement of guilt made by the accused in a criminal case, without an exculpatory statement or explanation.

JUDICIAL CONFESSION- is one made before a court in which the case is pending and in the course of the legal proceedings therein, and by itself, can sustain a conviction.

CORPUS DELICTI defined- it may refer to:◦ The body of the crime or;◦ The actual commission of the crime charged; or◦ The fact that a crime has been actually

committed.

Confession must be express and categorical;

Confession must be intelligent; Confession must be voluntarily given; There must be no violation of article III Sec.

12 of the Constitution.

INTERLOCKING CONFESSION- is a confession in a criminal case so corroborative of each other as to impose faith that they must have a basis in fact. Where extrajudicial confession have been made by several persons charged with conspiracy and there could have been no collusion with reference to several confessions, the fact that the statements are in all material respects identical is confirmatory of the testimony of the accomplice.

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. (Res inter alios act alteri noceri non debet-Part II)

This section is known as SIMILAR ACT RULE OR PREVIOUS CONDUCT RULE.

Q: What is the basis of the rule on similar act rule or previous conduct rule or the res inter alios acta alteri noceri non debet rule part 2?

A: The fact that a person has committed the same or similar acts at some prior time does not mean that he committed the same act in question.

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.

.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.

Q: This section is known as the TESTIMONIAL KNOWLEDGE RULE. What is the testimonial knowledge rule?

A: It means that the testimony of a witness must be based on his personal knowledge as hearsays are excluded.

Q: What is “hearsay evidence”?A: It is evidence not of what the witness knows himself by personal knowledge but of what he has heard from others. Hearsay evidence as a general rule is not allowed. It is also known as SECOND HAND EVIDENCE.

Q: What is double hearsay (multiple hearsay)?A: The testimony of a person with respect to what was told him by another who was not a witness to a fact but who only obtained knowledge thereof from another.

Q: Why is hearsay evidence excluded?A: It is excluded because the party against whom it is presented is deprived of the right and opportunity to cross examine the persons to whom the statement is attributed.

Q: Rule on the admissibility of an affidavit?A: An affidavit is hearsay and hence not admissible unless the affiant (maker) is presented in court.

Q: What is the DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENT?A: It states that when the testimony is presented to establish not the truth but only the tenor of the statement or the fact that the statement was made, it is not hearsay and hence admissible. Under this rule, only the fact that such statements were made is relevant and admissible, but the truth or even the falsity thereof is not material.

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.

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. hanrovirtulaw library

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.

Sec. 40.Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy (ante litem motam), 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.

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.

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.

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.

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.

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.

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.

Sec. 47.Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. ◦ Testimony Generally Confined To Personal Knowledge; Hearsay

Excluded: A witness can testify only to those facts he knows of his personal knowledge that is, which are derived from his own perception, meaning the testimony of the witness must be based on personal knowledge, not on what he heard from others or what other people told him because what he heard or what the others told him is hearsay.

Q: When is evidence hearsay?”A: An evidence is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand.

Q: What is hearsay testimony?A: A testimony offered against a party who had no opportunity to cross-examine the witness.

Hearsay evidence may be admitted by failure of the party to make timely objections.

Independently relevant Statement- a doctrine which states that regardless of the truth or falsity of a statement, the fact that it has been made or relevant, the hearsay rule does not apply but the statement may be shown.

The test to determine whether an evidence is hearsay is whether the adverse party is deprived of the opportunity to confront or cross examine the witness against him.

Dying Declaration;declaration Against Interest;Act or declaration About Pedigree;Family reputation or Tradition Regarding Pedigree;Common Reputation;Parts of the Res Gestae;Entries in the Course of Business;Entries in Official Record;Commercial Lists and the Like;Learned treatises.

DYING DECLARATION (ANTE MORTEM STATEMENT OR STAEMENT IN ARTICULO MORTIS OR DECLARATION IN EXTREMIS) - is the declaration of a person, made under the consciousness of an impending death, maybe received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of his death

◦ That death is imminent and the declarant is conscious of that fact;

◦ The declaration refers to the cause and surrounding circumstances of such death;

◦ The declaration relates to facts which the victim is competent to testify to;

◦ The declaration is offered in a case wherein the declarant’s death is the subject of inquiry.

◦ The declaration was made under the consciousness of an impeding death

◦ The declarant thereafter dies

Q: Why is dying declaration admissible?

A: Because when a person is at the point of death, every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. Truth sits on the lips of dying men.

DECLARATION AGAINST INTEREST- this is the declaration made by a deceased person, 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.

1. That the declarant is dead or unable to testify;

2. That it relates to a fact against the interest of the declarant;

3. That at the time he made said declaration, the declarant was aware that the same was contrary to his interest;

4. The declarant had no motive to falsify and believed such declaration to be true.

the declarant is dead or unable to testify;the declarant is related to the person whose pedigree is subject of inquiry by birth or marriage;there is evidence to prove the relationship other than such declaration;that declaration was made ante litem motam (prior to the controversy).

There is controversy in respect to the pedigree of any family member;The reputation or tradition of the pedigree of the subject person existed prior to the controversy;The witness testifying to the reputation or tradition regarding the pedigree of the person is also a member of the family of the subject person.

PARTS OF THE RES GESTAE- these are 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. So also a statement accompanying an equivocal act material to the issue and giving it legal significance may be received as part of the res gestae.

Res Gestae refers to those exclamations or statements made by either the participants, victims, or spectators to a crime immediately before, during or immediately after its commission, when the circumstances are such that the statements were made a spontaneous reaction or utterance inspired by excitement of the occasion and there was no opportunity for the declarant to fabricate a false statement. The statement is one uttered without reflection, involuntarily, perhaps even without the declarants awareness of having uttered the same.

1. The statement must be spontaneous;2. Made while a startling occurrence is taking place or immediately prior or subsequent thereto;3. It must relate to the circumstances of the startling occurrence.

Dying declaration are made only after the homicidal attack has been committed; but in res gestae, the statement may precede accompany or be made after the homicidal attack.Dying declaration are made only by the victim; while statements as part of res gestae may be that of the killer himself or that of the third person.The trustworthiness of the dying declaration is based upon its being given under an awareness of impending death, while on res gestae has its justification on the spontaneity of the statement.

The person made an entry;That person is either dead or unable to testifyThe entries were made at or near the time of the transactionThe entrant was in a position to know the facts stated thereinThe entries were made in his professional capacity or performance of legal, moral or religious duties.

An entry was made by a person;He is a public officer or one enjoined by law to do so;It was made in the performance of duty;The entrant had sufficient knowledge of the facts stated by him

1. Handwriting experts2. Paraffin Tests3. Medical Certificate4. Polygraph Examination5. Tape Recordings6. DNA etc.

Q: What is the TOTALITY OF CIRCUMSTANCES DOCTRINE?

A: It is a test to determine the reliability and even admissibility of out of court identification of accused. The factors as enumerated are:1.The witness’ opportunity to view the criminal at the time of the commission of the crime.2.the level of certainty demonstrated by the witness at the time of identification3.The suggestiveness of the identification process.

Sec. 48.General rule. — The opinion of witness is not admissible, except as indicated in the following sections.

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.

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.

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

Q: Distinguish character from reputation.A: Character is what a man really is, reputation is what other people a man say he is. As a general rule the prosecution cannot prove the bad moral character of the accused. However, if the accused in his defense attempts to prove his good moral character, then the prosecution can introduce evidence of his bad moral character at the rebuttal stage.

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.

BURDEN OF PROOF (ONUS PROBANDI), defined- it is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense.

TYPE OF PROCEEDINGS

QUANTUM OF PROOF REQUIRED

1. Civil Cases Preponderance of Evidence

2. Administrative Cases

Substantial Evidence

3. Criminal Cases Proof Beyond Reasonable Doubt

PREPONDERANCE OF EVIDENCE- it means that the testimony adduced by one side is more credible and conclusive than that of the other, or the evidence as a whole, adduced by one side is superior to the other. It is not meant the mere numerical array of witnesses, but it means the weight, credit and value of the aggregate evidence on either side. Preponderance of evidence means evidence which is of greater weight or more convincing than the other.

SUBSTANTIAL EVIDENCE- such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Burden of Proof Burden of Evidence

1. Burden of proof does not shift because it remains with

the party upon whom it is imposed

Burden of evidence shifts from one party to another

2. Burden of proof is determined by the pleadings

filed by the party

Burden of evidence is determined by the

development at the trial

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:

◦ This is known as: ESTOPPEL IN PAIS

◦ (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.

◦ This is known as: ESTOPPEL BY DEED

Q: What is conclusive presumption?A: It is an inference which the law makes so peremptory that it will not allow such inference to be overturned by any contrary proof however strong. Conclusive presumption is also known as presumption juris et de jure.

Q: What is disputable presumption?A: It is a presumption which stands as true unless rebutted by contrary evidence. This is also known as presumption juris tantum.

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;

◦ (m)That official duty has been regularly performed; ◦ (w)That after an absence of seven years, (7) 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 (10). If he disappeared after the age of seventy-five years, an absence of five years (5) 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 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. aw library

(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 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.

(ff)That the law has been obeyed; (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)

Presumption of Law- is known as presumption presumtiones juris. They are the conclusive (juris et de jure) and disputable presumptions (presumption juris tantum).

  Presumption of fact is known as presumtiones hominis

Q: Mention some common and well recognized presumptions by jurisprudence.

A: They are:

1. A man and a woman living together are married.2. That every person is of sound mind as sanity is presumed and

not insanity.3. Good faith is always presumed and not bad faith.4. That a person is potent because impotency being an

abnormality is not presumed.

Q: What is the doctrine of STALE DEMANDS?

A: It is the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, thus giving rise to a presumption that the party entitled to assert it has abandoned or declined to assert it. The doctrine of stale demands is also known as LACHES.

TYPE OF PROCEEDINGS QUANTUM OF PROOF REQUIRED

1. Civil Cases Preponderance of Evidence

2. Administrative Cases, Labor Cases

Substantial Evidence

3. Criminal Cases Proof Beyond Reasonable Doubt

4. Other Cases Clear and Convincing Evidence

PREPONDERANCE OF EVIDENCE- it means that the testimony adduced by one side is more credible and conclusive than that of the other, or the evidence as a whole, adduced by one side is superior to the other. It is not meant the mere numerical array of witnesses, but it means the weight, credit and value of the aggregate evidence on either side.

SUBSTANTIAL EVIDENCE- such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

CLEAR AND CONVINCING EVIDENCE- is evidence more than preponderance of evidence but less than proof beyond reasonable doubt. It is the quantum required to prove insanity, paternity or filiation, self defense among others.

Burden of Proof Burden of Evidence

1. Burden of proof does not shift because it remains with

the party upon whom it is imposed

Burden of evidence shifts from one party to another

2. Burden of proof is determined by the pleadings

filed by the party

Burden of evidence is determined by the

development at the trial

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 call for a different mode of answer, the answers of the witness shall be given orally.

Q: What is an oath?A: A form of attestation by which a person signifies that he is bound in conscience and that in case he does not tell the truth divine retribution would follow against him.

Q: What is an affirmation?A: A declaration instead of an oath that a person will tell the truth.

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.

A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: ◦ (1)To be protected from irrelevant, improper, or

insulting questions, and from harsh or insulting demeanor;

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

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

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

◦ This is the right of the person against self incrimination. But it is not self executing or automatically operational. It must be claimed. Otherwise it is considered waived, as by failure to claim it at the appropriate time. Hence, the accused must actively invoke it. The proper time to invoke it is when a question calling for incriminating answer is asked. Note also that it applies to testimonial compulsion only.

◦ (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.

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; (Also known as

EXAMINATION IN CHIEF)

◦ (b)Cross-examination by the opponent; ◦ (c)Re-direct examination by the proponent; ◦ (d)Re-cross-examination by the opponent.

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.

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.

Q: What is “Laying the Predicate”?A: A process of cross examining the witness by first laying a ground upon cross examination, and if denied by the witness, then by introducing evidence of contradictory statements to impeach him.

Q: What is the “English Rule on Cross Examination”?A: Under this rule, a witness maybe examined not only upon matters testified to by him on his direct examination, but also upon on all matters relevant to the issue. We follow this style of cross examination.

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.

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.

Rebuttal Evidence and Sur Rebuttal Evidence

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.

A question which suggests to the witness the answer which the examining party desires is a LEADING QUESTION. It is not allowed, except: library◦ (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.

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.

Except with respect to witnesses referred to in paragraphs d (unwilling or hostile witness) and e (witness who is adverse party) of Section 10, the party producing a witness is not allowed to impeach his credibility.

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

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

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. (This section is known as LAYING THE PREDICATE)

Q: State the steps by which a witness may be impeached by prior inconsistent statements.

A: They are:◦ SHOW to the witness the statement in writing.◦ RELATE to the witness the statement with the

circumstances of time, persons and places.◦ ASK the witness if he made those statements.◦ EXPLAINATION is demanded of the witness

regarding the alleged inconsistencies.

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.

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.

1. 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 (This is known as Present Recollection Revived); 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. 2. 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 (This is known as Past Recollection Recorded).

. — 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. (This is known as the OPEN YOUR DOOR POLICY OR THE COMPLETENESS RULE).

Q: State the Open Door Policy or Completeness Rule of the law on evidence.

A: It states 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

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.

1. Direct examination by the proponent- direct examination is the examination in chief of a witness by the party presenting him on the facts relevant to the issue.

2. Cross examination- a mode of procedure to test the truth of the statements made by a witness under direct examination by testing the recollection, veracity, accuracy, honesty and bias or prejudice of a witness, and exhibit the improbabilities of his testimonies.

3. Re-direct examination- a procedure to meet and answer the cross examination, to explain or supplement statements made on cross examination which tend to create doubts and to contradict matters drawn forth on direct examination.

4. Re-cross examination- a procedure by which a party re-examines the witness on matter stated in his re-direct examination.

LEADING QUESTIONS, defined- it is a question which suggests to the witness the answer which the examining party desires to hear. It is one by which the answer of a witness may be rather an echo to the question than a genuine recollection of events. As a general rule leading questions are NOT ALLOWED.

On cross examination; On preliminary matters; When there is difficulty in getting from

ignorant or child witness, or deaf mute witness a direct and intelligible answer.

Unwilling or hostile witness Witness who is an adverse party

MISLEADING QUESTION defined- it is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. Misleading questions are not allowed.

 

A party may impeach the witness against him by:

◦ Contradictory evidence;◦ Evidence of prior inconsistent statement;◦ Evidence of his bad character.

Q: Under the law on evidence “impeachment” of a witness means:

a.discrediting a witness b.browbeating with the witnessc. removing the President of the Philippines d.respecting the witness

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

REVIVAL OF PRESENT MEMORY or PRESENT RECOLLECTION REVIVED- a rule which allows a witness to refer to a memorandum for the purpose of refreshing his memory respecting a fact provided:

That the memorandum has been written by him or under his direction;

That it was written: When the fact occurred, or immediately thereafter, or at anytime when the fact was fresh in his memory and he knew that the same was correctly stated.

REVIVAL OF PRESENT RECOLLECTION or PAST RECOLLECTION RECORDED- a rule which allows a witness to testify from a memorandum or writing, though he retains no recollection of particular facts , if he is able to swear that the writing correctly stated the transaction when made.

 

It may be proved:

◦ By anyone who saw the document executed or written; or

◦ By evidence of the genuiness of the signature or handwriting of the maker

Q: What is “OFFER OF EVIDENCE”? A: means the presentation or introduction

of evidence in court. The court shall consider no evidence which has not been formally offered.

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.

PRIVATE DOCUMENTS- are every deed or instrument executed by a private person without the intervention of a public notary or other persons legally authorized; by which some disposition or agreement is proved, evidenced or set forth.

COMMERCIAL DOCUMENT-any document defined and regulated by the Code of Commerce

OFFICIAL DOCUMENT- a document which is issued by a public official in the exercise of the functions of his office.

PUBLIC DOCUMENT- (See above definition)

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; library◦ (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. 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 (This is known as ANCIENT DOCUMENT RULE)

Q: What is an Ancient Document? A: It is a document which is more than 30

years old found in the proper custody and unblemished by any alteration or circumstance of suspicion.

Sec. 22.How genuineness of handwriting proved. — The handwriting of a person may be proved: 1. by any witness who believes it to be the handwriting of such person because he has seen the person write, or 2. by a witness who 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 3. 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.

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.

Q: What is prima facie evidence? A: Evidence which standing alone

unexplained or uncontradicted, is sufficient to maintain the proposition affirmed.

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 1. an official publication thereof or 2. by a copy attested by the officer having the legal custody of the record, or 3. 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.

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.

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.

Sec. 27.Public record of a private document. — An authorized public record of a private document may be proved 1. by the original record, or 2. by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody.

Sec. 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.

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.

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.

Q: What is the effect of notarization? A: It converts private documents into public

documents. Hence it becomes admissible in evidence without further proof of its authenticity.

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.

Sec. 32.Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned.

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.

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.

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.

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 therefore shall become reasonably apparent.

An offer of evidence in writing shall be objected to within three (3) days after notice unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified.

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.

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.

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.

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.

Q: What is the law on TENDER OF EXCLUDED EVIDENCE? (Offer of Proof/Proffer of Evidence).

A: A procedure undertaken by a party normally through a lawyer if the evidence is excluded by the court wherein 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.

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: ◦ 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 there 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, and ◦ 8. also their personal credibility so far as the

same may legitimately appear upon the trial. ◦ 9. The court may also consider the number of

witnesses, though the preponderance is not necessarily with the greater number.

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.

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.

Q: What are the requisites so that extrajudicial confession may be valid?

A: They are:◦ It must be voluntary;◦ It must be made with the assistance of a lawyer

who is competent and independent;◦ It must be in writing and must be express.

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.

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.

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.

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 DEPOSITION presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

Q: What is deposition? A: It is the written testimony of a witness

given in the course of judicial proceedings in advance of a trial or hearing upon oral examination.

Q: What is an affidavit? A: An affidavit is a statement of fact under

oath.

Proof Beyond Reasonable Doubt- in 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 is required or that degree of proof which produces conviction in an unprejudiced mind

An extrajudicial confession made by the accused, shall not be sufficient ground for conviction unless corroborated by evidence of corpus delicti.

CORPUS DELICTI- corpus delicti means that a crime has been committed. It is not correct to say that corpus delicti refers to the body of a murdered person.

SPECIFIC CRIME CORPUS DELICTI1. Murder, homicide and

kindred kindBody of the dead victim

or the fact of death2. Arson Property burned or the

fact of burning3. Theft Fact of lost (stolen

property plus felonious taking)

4. Illegal possession of firearm

Fact of possessing without license

(existence of unlicensed F/A with animus

possidendi)

Credibility of witness- refers to the integrity, disposition and intention to tell the truth in the testimony he has given.

Falsus In Uno Falsus in Omnibus- It literally means “false in one thing-false in everything”. It refers to that principle where on one point, the witness has lied, his testimony upon another points may be disregarded. This is no longer followed in the Philippines. The modern trend of jurisprudence is to the effect that the testimony of a witness maybe believed in part and disbelieved in part, depending upon the corroborative evidence and the probabilities and improbabilities of the case.

Alibi, defined- known as the weakest defense in a criminal case. It is an averment that the accused was at another place for such period of time that it was impossible for him to have been at the place where the act was committed at the time of its commission.

Alibi may be given strength to acquit the accused if:

 ◦ Where no positive or proper identification has

been made by the witnesses of the offender;◦ Where the prosecution’s evidence is weak and

unsatisfactory.

Q: When is circumstantial evidence adequate to support a conviction?

A: Circumstantial evidence is sufficient for conviction if:

1.There is more than one circumstance;2.The facts from which the inferences are

derived are proven; and3.The combination of all the circumstances is

such as to produce a conviction beyond reasonable doubt.

EQUIPOISE RULE, defined- where the inculpatory circumstances are capable of two inferences, one which is consistent with the presumption of innocence and the other compatible with the finding of guilt, the court must acquit the accused because the evidence does not fulfill the test of moral certainty and therefore insufficient to sustain a judgment of conviction. It may also be defined as where the evidence of the parties in a criminal case is evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused and he should be acquitted.

Equiponderance of Evidence Rule- when the scale shall stand upon equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant.

COMPILED BY:  Mr. Makamasa A. Gapit FOR: Pamantasan Ng Lungsod Ng MuntinlupaDe La Salle University DasmariñasUniversity of Perpetual Help Dalta Las PiñasEmilio Aguinaldo CollegePhilippine College of CriminologyLyceum of Alabang -WHILE UNDER THE WARM and PASSIONATE EMBRACES OF-

Ms. Emma Lee Bunton St. Theresa’s Primary SchoolSylvia Young Theatre School MaryleboneREFERENCES:Generoso, E.B., Evidence for Everybody, Central BookstoreRicardo, Francisco Evidence 1996 Edition Central BookstoreBernardo, Oscar Evidence Annotated, National BookstoreMORENO, FEDERICO, Philippine Legal Dictionary Central BookstoreSupreme Court Reports Annotated Central BookstoreFIAT JUSTITIA RUAT CAELUMSOLI DEO GLORIA