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EYIDENCE

RULES OF COURT IN THE PHILIPPINES RULES 128-134

Ry

RICARDO J. FBANCISCO
Associate-J'ustice Supreme Court Prolessor of l-aw Ateneo de Manila UniversitY

THII{,D EDITION

1996

ir',iilibi" at:
Building Fourth Floor i.jbertad St. corner CalbaYog \landaluy'ong CitY 5 -r 19 i 63 Loc. 501 or \,rs. TeL:-i:tL5-1 -il I ;22 :-i:.Il-$:
PGNIC

EVIDENCE
GENERAL PROVISIONS RULE T28 Dvidence is the means, s"r,nctioned by Section 1. E,,*idence defined. - proceeding the truth respecting a lhese rules, of ascertaining in a judicial matter of fact. 1. Evidence defined. 2. Evidence distinguished from proof. 3. l'actum probandum distinguiahd from factum probans. 4. Kinds of evidence. evidence. ia) Direct evidence and circumstantial (b) Primary evidence and secondary evidence. (.) Positive evidence and negative evidence. (di Conoborative evidence and cumulative evidence. iei frima facie evidence and conclusive evidcnce. (ri Relevant evidence and material evidence. (g) Competent evidence. (f,) neUuttal and sur-rebuttal evidence. (i) Object (Real) evidence. (j) DocumentarY evidence. (k) Testimonial evidence. 5. What the rules of evidence determine. 6. Sources of the rules of evidence. Define eLidence. QUESTION \. The term ,,evidence" has given rise to a variety of ANS$,/En. meaiint;. This-sectionl of tle mle defines one. Murphy, in his yolk $ i,ro.ti"ii gpproach to Evidence defines evidence as "any material which tentls to persuacie the court of the truth or probability of some facts asserted before it"; gnd, Carter, in his treatise Cases and Statutes on bvidence as "the means'l:y which nny alleged matter of fact, the truth of .ufri.f. is submittetl to investigation, is established or disproved." Dist'inguislt eaidence from proof. QUESTION 2. Proof is the effect or result of evidence while evidence ANSWER. is the medium of Proof.r Distinguish facturn probanilum from factunx proQUESTION 3.
(m) Substantial
evidence.

uo"o**ruER.

Evidence is always a relative term. It signifies'a facts, the factum pr;bandum, or proposition to be ep!a\ relation between lished and the factum probans, or material eyidencing the proposition.' it is that tft" io*"r is necessariiy to be conceived of as hypothetical; tle tribunal being

*fti.fi tU. one party affirms and the other denie!, -as is conceived of for V*f "oi .ommiited-in either direction. The latterfor the eonsideration iractical purposes as existent, and is offered as such

bt ttte tribunbl. The latter is brought fonvard as reality for th,e purpose oi i""tit.ing the tribunal that the former is also a reality. . No eorrect and sure coriprehension of the nature of any evidential-question can evel b"-h"d unf..i this double or relative aspeci of it is distinctly pictured. occasion the question must be asked: What is the proposition O" "o.tt lo be proved? lVtrat is the evidentiary fact offered to prove it?r' A.iiira
1

on Evidence, p. 5. s lVigmore on Evidence, Sec. 2.


s 1 Jones

Sec, 1, Rule 128, Ruies

of Courb, as amended.

N,ULES OF COURT

sEc. I, RULE

128

e*ample of each?

QUESTION 4.

Wh.at are th.e kinils

of

euirlenee and, gi,ue an

ANS\\rER. They ar as follor,vs: (a) Direct eaid,ence and, cireumstantial eaidence. Dit,ect euid.ence - of any inferenc,e is that which proves the fact in dispute rvithout the aid ol'presumption.a Thus, the testimony of N that he saw A attack B with a bolo, killing hirn, is d.,irect eaidence in the charge for homicide against A. Circumstantial eai,ilence is the proof of facts from rvhich, takeu collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence.o Thus, the testimony of N that he saw B running away from the place where A was found dead with wounds; that the clothing of B was stained with blood, and that B had a bolo also stained rvith blood, all these facts are circumstantial e"-idence which taken together show that B is the one who killed A. (b) Primary eaidence ancJ secondary euid,ence. Primary or best , euidenee is that x'hich afforcls the greatest certainty of the fact in question. 'fhus, in an action on a written contract the original instrument rS prirnarE eaidencc of its contents. Secondary euidcnce is that evidence rvhich is necessarily inferior to primary evidence and shows on its face that better evidence exists.,; Iu an action on a written contract, a copy of the written instrument or the testimotty of a rritness as to its content-s constitutes secondary euidence. (c) Positiue euidencc and, negatiue ec-irJence Evidence is Ttositiue - occur. Evidence is u'hen the witness affirms that a fact did or. did not negative when the witness states that he did not see or know the occurrence of l fact.7 Generally speaking, the testimony of those who swear negatively that they did not see or hear is not to be accorded as great weight as the testimony of equally credible per.sons, having the same opportunities of seeing and observing that a tl-ring was or w:rs not done. For instance, the testimony of N that he saw A set fire the house of 13 on a specific date and time, is a positiue eaid,ence. And, accordingly, the testimony of N that he was on that occasion at the place where the house of B was burned and that he did not see A set fire on said house is a negatiue e,uidence. Negative evidence is admissible only if it tends to contradict positive evidence of the other side or would tend to exclude thc existence of fact sworn to by the other side. On the other hand, the witness who testifies affirmatively that something did happen and that he sarw it, if he be otherwise credible, should be believed, because it is unlikely that tr witness will remember what never happened. The rule does not apply where two witnesses with equal opportunity for knowledge contradict each other ss 1.o the existence or nonexistence of a fact.8 (d) Corroboratiae eaiclence and c'umulatiae euidence. Corrobora- character, tiue euid.ence is additional evidence of a different kind and tending to prove the same point.e For instance, in a case, the Court
I Lake County vs, Nellon, 44 Or., L4, 21, ,i4, p. 212. Stlte vs. Avery, 113, Mo. 476, 494,21 S.W. 193; Reynolds Trial Ev., sec. 4, p. ! lt 1 Jones on Evidence, scc, 8. ? Moore on Facts, p. 133G. r Underhill's Criminal Evidence, 5th Ed., Vol. I, pp. 10-11.
lVyne vs. Newman, ?5 Va. 811, 81?,
108.

sEC. 1, RULE

198

EVIDENCE

euid,ence is that which suffices for the proof of a particular fact, until ccntradicted and overcome by other evidence.la For example: entrlies in the course of business ryqde by a person in his professional capacity in the performance of duty and in the ordinary br regular cour." ,rf -or business or _{.u!r, are prima facie eaidcnce of the- facts sTated therein,s entries in official records made in the performance of his duty by pubiic officer of the Philippines, or by a person in the per{ormance of a auty specially enjoined by law ate Ttrima facie euiileice of the facts stateil therein,ls instruments acknowledged or proved and certified in the manner provided- by larr* arc prima facie ea'id..ence of the execution of thc instrument.l6 Conclusiue eaid,ence is f,hat u'hich is incontrovertible.l? When evidence is received which the law does not allow to be contradicted, it is said to be "conclusive." Accordingly, a party intr.oducing in eviclence : letter written by his agent to the adverse party, is bound by the statements contained therein.l8 Also, in an action to rccover money p:rid in setilement of an account in stock transactions, plaintiff is bound by his own testimony that the transactions were gambling tr:ansactions, so as to preclude recovery by him.tc (f) Releuant cuiclenee and,material eaid,ence. Evidence is releuant - plobability or improwhen it has a tendency in reason to establish the bability of a fact in issue.2, The terms rnaterial and, inrmaterial, as used in the law of evidence, do not appear to have been defined or distin* guishecl from the terms relevancy and irrelevancy, either by courts or text rvriters. That materiality has been used interchangeably with relevancy is apparent in numerous cases and texts. (g) Competent e.r*idence. Evidence is "competent,, when it is not excluded by law in a particular-case.21 In other words, evidence excluded by law or rules is incompetent.22 By way of illustrations we have the following rules:
11 Cal. Code Civ. Proc., Sec. 2839. 1e Gardner vs. Gardner, Gtay (Mass. l'3 Sec. 1833, Code Civil Procedure

concluded: "The testimonies of the prosecution witnesses that the victims died because of stab wounds inflicted by the armed men who entered their residence on the night of December 4, lg6b remain uncontroverted. xxx Their death certificates therefore are only corroborative of the testimonies of the prosecution witnesses.,,ro cumulatiue euid,ence is evidence of the same kind and character as that- already given, and tends to prove the same proposition.' Thus, on the issue of the capacity of a boy to write a certain paper, evidence of his school fellows as to his capacity is cumulative to that of hii teachers and medical men upon the same question.rz (e) Prima facie euid.ence and eonclusiue euid,ence, primo facic .-

loPeople vs. Watson, 2?8 Ala. 425, 118 So. 2d 819, SZ1 (1965).

of

la Sec. 43, Rule 130, Rules of Court, as amended. r5 Sec. 44, Rule 180, ibid. 16 Sec. 80, Rule 132, ibid. l7 1 Jones on Evidence, Sec. 18. rc Lilian Realty Co. vs. Erdum, 120 N.Y.S. ?49. le Atwater vs. A. G. Edwards Brokerage Co., L47 Mo.
zo

of

of California.

434).

1 Elliot on Evidence, p. 1g?. 21 Porter vs. Valentine, 18 Misc. Rep. 213, 41 N.y.S. 507. 22 See Sec. 3, Rule 128, Rules of Court, as amended.

A.

4A6, 126 S.W. gZ2.

NULES O}'COUIIT

sEc. 1, liul,E

198

(a) Best eaidence rul.e. When the subject of inquiry is the contents ot - be admissible other than the original document a document, no evidence shall itself . . . (Sec. 3, Rule 130, as amended) (b) Parol evid,enca ru,le.-Iilhen the terms of an agreement have been reduced to writing, it is considered as containing all the ternrs agreed upon and there can !e, between the parties and their successors in interest, no evidence of such terms other than the contents of the rvritten agreement...
(Sec. 9, Rule 130, as amended)

(c)

perception... (Sec. 36, Rule 130, as amended) (d) Offer of conlryorrLise.-In civil case an offer of conrpromise is not admission of any liability and is not admissible in evidence :rgainst the offeror. . .
(Sec. 27, Rule 130, as amended) (e) Disqualification of .witnesses by reason immaturity... (Sec. 21, Rule 130, as amended)

he knows

Haorsay eoid.ence. A rvitness can testify only to those facts which of his personal knowledge; that is, which are. derived from his own

of mental incapacity

or

(f) Disqualification by

reason

of marriage...

(Sec. 22, Bule 130, as


adverse

amended)

Rebu,ttal d,ncl srlr'-r'ebuttal, er;id,ence. Rebuttal e'uidence is that which is given to explain, repel, counteract -or disprove facts given in evidence by the adverse party.23 It is also defined as evidence in denial of some affirmative case or fact which the adverse party has attempted to prove.2{ Rebuttal evidence is, generally speaking, receivable only where new matter has been developed by the evidence of one of the parties and is generally limited to a reply to new points.z6 Ordinarily, the rebutting evidence offered by him upon whom tlle burden of proof rests eoncludes the intruduction of evidence, but noi always, and for god reasons, in the fuftherxnce of justice, the couri may, in its discretion, allow evidence in reply to that called forth by the rebuttal testimony. When plaintiff in reb',rttal is permitted to introductr new matter, defendant should be permitted to introduce eviclence iir sur-rebuttal, and to decline to permit him to do so is error, especiaily wher the evidence offered in sur-rebuttal is for tl:re first time made competent by the evidence introduced by plaintiff in rebuttal but defendant should ask for the right to meet the new matter.3o In a homicide case, the accused put up the defense of alibi and he and two witnesses testified that at the time the crime charged was committe(i -- around 10:30 p.n. the accused was attending a baptismal palty in a Xlunicipality five kilometers away from the place of the crimer The pt'osecution introduced in rebuttal the testimonl' of two witnesses who testified that the accused had really attended said baptismal party on the day of the crirne but that he left the party at 7 o'clock p.m., and boardeil
Stete vs. Silva, 2l Id,a,247,120, p. 835. 2aCarver vs. United States, 160 U.S. 653,40 L. eC.532, 16 S.Ct. 382. 2564 C.J., Sec. 1?6. 2oFraneisco's Trial Technique and Practice Court, pp. 726-127.
zs

/ $)

in violation of the right ogainst unreasonatrle searehes and seizures and the privacy of communication and correspondence (Secs. 2 and 3 of Art. III); confessions and admissions obtained in violation of the rights of a prsou under investigation forthe commission of an offense (Sec.12, Art. III); and the right against self-incrimination (Sec. 17, Art. III).

of privileged communication... (Sec.24, Rule 130, as amended) (i) Exclusionary provisions in the Constitution, sueh as evidencc obtained

(g) Disqualification by reason (Sec. 23, Rule 130, as amended) (h) Disqualification by reason

of death or insanity of

party...

sEc. 1, RULE

128

EVIDENCE

a jeepney. The

(i) Obiect (Real) eaid,ence. Obiect (Real) eaidence is that which is addressed to the senses of the tribunal, as where objects are presented for the inspection of the court.28 For instance, in a case where a weapon is used, the weapon, if it is a firearm the bullet and shells. (j ) Documenta,rg euid,ence. Do_cumentary eoid,ence is evidence supplied by written instruments, or derived from conventional symbols, such as letters, by which ideas are presented on material substances. It includes books, papers, accounts, and the like.s Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.so (k) Testi'monial eai'dence. Testi,monial euiilence is the testimony given in court or the deposition-by one who has observed that to which he ls testifying; or one who, though he has not observed the facts, is nevertheless qualified to give an opinion relative to such facts.3l (l) Etpert euidence. Enpert euid,ence is the testimony of one possessing in regard to a particular subject or department of human activity, linowledge not usually acquired by other persons.s2 For instance a handwriting expert may testify on the genuineness of a signature, identity of thumbmark and fingerprints . (m) Su.bstantial, eui,d,ence. Substantial euidence is that amount o1 relevant eviclence which a reasonable mind might accept as adequate to justify a conclusion;s evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred. (National Labor Relations Board vs. Columbian Enameling and Stamping Co., Inc., 306 U.S. 292-306).$4 QUESTION 5. * What clo the ru,les of eaid,ence d,etermine? --laNSwnR. All rights ancl liabilities are dependent upon and ar.ise

accused in sur-rebuttal, may introduce the testimony of the persons who attended the party to the effect that those witnesses lvho testified in rebuttal for the prosecution had never been in that party.rr

*t

$"iil'tsiuoiciat proceeding wh:rtever has for its pur?ose the or"itaining of some right or liabiliiy. If the proceeding is Criminal, thq. object is to ascertain the liability to punishment of the person accused. If the proceeding is Civil, the object is to ascertain some right of property or of status, or the right of one party, and the liability of the other, to some form of relief. In order to effect this result, provision must be made by law for the following objects: First, the legal effeet of particular classes ot

27 Ibid., pp. 141-142. 28 1 Jones on Evidence, 2s 22 C.J. 79!.


3rr

2nd ed., Sec.

16.

3? U.S. vs. Gil, 13 Phil. 530. Rul_e 133, Rules.of Court, as amended; Philippine Overseas Drilling and _1,,S9".5, ^.- Development corp. oil vs. l\{inistry of Labor, 146 scRA ?g;-caflete vs. workmeu,s-compensation Commission, 136 SCRA 302. 3+ united states Lirles, et al. vs. Associatd watchman and security union, Nos. L-12208-lL, May 21, 1958.

Sec. 2, Rule 130, Rules of Court, as amended. 3r Gilbert, Law Summaries on Evidence, p. 2.

RULES OF COURT

sEc. 2, RULE

128

ccurse of procedure must be laid down by which persons interested may apply the substantive law to particular cases. The law of proeedure includes, amongst others, two main branches: (1) the law of pleading, which determines rvhat in particular cases are the questions in dispute between the parties, and (2) the law of evidence, which determines how the parties ate to convince the Court of the existence of that state of facts which, according to the provisions of substantive law, would establish the existence of the right or liability which they allege to exist.st Consequently, the rules of evidence determine the following: (a) The relevancy of facts, or what sort of facts may be ploverl in order to establish the existence of the right, duty, or liability defined by substantive law.' . (b) The proof of facts, that is what sort of proof is to be given ; of those facts. (c) The production of proof of relevant facts, that is rvho is to give it and how it is to be given; and the effect of improper admission or rejection of evidence.s Thus, before the rules of evidence can be understood or applied-to any partiiular case, it is necessary to know so much of the substantive law as determines what, under given states of facts, would be the rights of the parties, and so much of the law of procedure as is sufficient to determine what questions it is open to them to raise in the particular
proceeding.3i

facts in establishing rights and liabilities must be determined. This is the province of what has been called substantive law. Secondly, a

the sorrl'ces of ow rules of eaidence? 6. ,,..QUESTION - What are AI{SWER. The sources of the rules of evidence are: (a) The 1987 Constitution of the Philippines; (b) Rules 128 to 133 of the Revised Rules of Court, effective on January 1", 1964, foi'merly Rule 123 of the (1940) Rules of Court (Evidence); (c) Resolution of the Supreme Court dated March L4, 1989 approving the Proposed Rules on Evidence submitted by the Rules of Court Revision Committee on August 31, 1987; (d) Rule 115, Sec. 1, formerly Rule 111, Sec. t of the Rules of Court (Rights of defendant at the trial) ; (e) Substantive and remedial statutes; (f) Judicial decisions. The former rules of evidence were found in Sections 173 to 347 and Secs. 381-383 of Act No. L90, known as the Code of Civil Procedure.

The rules of evidence shall be the same in all Sec. 2. Scope. - and hearings, except as otherwise provided by eourts and in all trials law cr these rules. 1. Rule of evidence same in all courts and trials. 2. Reasons for the rule.
36 Woodroffe's, 36 lbid. 87 lbid.

Law on Evidence, p,

14.

_tr

sEc.2, RULE 128


nut"" of

DVIDENCE

3. Rules of evidence in civil and criininal eases distinguished' 4. No vested right of property in rules of evidence.
D.

6. 7.

evidence sinciion6d by the Constitution cannot be altered by legis' lation. Rules of evidence may be waived. Foiicy to be observed Ly courts in the enforcement of the rules of evidence.

Are the rules of eaid,ence the sam,e in all courts QUESTION l. heari'ngs? anil trtals all anil, in ANSWER. Yes, they are, unless otherwise provided by law .o-r ttrese rutes (Rules of Cburt). Foi instance, there are laws--which-provide other rules'of evidence to govern certain proceedings. Under Sec. 16, p.O. ga6, affidavits and counter-affidavits, which are otllerwise inadmisrinf", *ny be allowed and are admissible in evidence. Direct testimonies oi *itn"si"s may be in narrative form subiect to cross-examination. Or, itre nutes of Summary Procedure where the decisioll can be reached iii"oogii position paperi, affidavits and counter-affidavits of the pafiies. In this connection, the rules of evidence are not strictly applied in p"o.."ainE* before the Labor Arbiter and the Nationnl Labor Relations Employees, Compensation Commission,? Securities and Exbommissi6n,t -Co"*issi-on,i CommisJion on Elections,a Agrarian cases,t Immi' P-robatiol court,a Board of "ft"og" of Tax App94s/Court Fioceedingsio ;;iifi Commission,ll and Industry oil il;;n""t"tioo,n ?6ti." Commission,'d bodies. other similar ,,::qUESTION 2. - WhA shoulil th'e mtles of eaid'ence be uniform'? The rules of evidence must be applied uniformly i" ?lt ANSWER. courts and in all triais and hcarings for the following reasons: (1) the ,l"lutiott between the evidentiary fact and a particular proposition- is the kind of litigation in rvhich tliat J;;yr the same, without regard to proved; (2) if the rules of evidence be to p""p".iti* lu.rir.r materiaf that must be and are the truth, the arrive af to course best ttte ii'.J""iti" same in all cases and in all civilized countries.l2 What are some of the dtfferences in the rutes of QUESTION 3. and ciail case? euidence in criminal The principle that the rules .of evidence shou6 6e ANSWER. trials and hearings does not mean that said principle uniform in all ;;;t;i;.; "o .liffe"etrces between civil and criminal proceedings, for therq il ilG"ial differences which must n6t be overloohed' In civil proceedings the parties attend by accord, while in criminal p"o.."aingt ti" accuseid attends by compul.lion; in .civil proceedings there il;;-p-;il*piio" as to either pirty, while in criminal proceedings the I Ltt.
g

221, P.D. No. 442, Labor Code. Ftritippine O""r"ea. S"itllng- ana Oil Development Corporation vs. nfinister of
1'8, Rules

Labor, --- 146 SCRA ?9.

lS;5,-Rule
4

Gerorno vs. Commission on Electiols, et al., 118 SCRA 165' 5 Bagsican vs. Court of Appeals, 141 SCRA 226.

of

Procedure

of

Securities and Exchange Commission.

* S".. ioi Executive Order lio. 113 (Rules ind Reguldtions for City and Munieipal Agencies). Police - --- rt gJluiiic ict No. 61?3, as amended by P.D, 1128 (Oil Industry Commission). ls R. V. Burdett, 4 B & Ald, 95, L22.

c Mov Yoke Shue vs. Johnson, 290 Fed. 621. ? Sec: 8, Republic Act No' 1125. e Sec. 1'5, p'.O. No. 968, as amended by P.D. No. 1257 (Probation Law)' o Sec. 29, Public Service Act, as arnended by P.D. No., 1.

RULES OF COURT

SEC. 2, RULE 128

presumption of innocence attends the accused throughout the trial until the same has been overcome by prima facie evidence of his guilt; and, finally, an offer to compromise in civil cases does not, as iI general rule, asrount to an admission of liability, whereas, in criminal cases it is ar"r implied admission of guilt. In civil cases the plaintiff must prove his claim by a preponderance of the evidence; in criminal cases the government must establish the guilt of the accused beyond a reasonable doubt. The rule that a preponderance of evidence is sufficient to sustain a verdict in a civil suit is due partly to the fact that there is no presumption in civil cases corresponding to the presumption of innocence, and partly to the fact that the ploof will only-result in a judgment for pecuniary damages or establish a civil right. In a criminal trial the accused starts with a legal presumption that he is innocent of the crime charged, which some authorities regard as evidence in his favor and which must'be overcome even though he should offer ho evidence in his own behalf. So the reputation, the future livelihood and career, and, perhaps, even the life of the accused are involved, while in civil cases any loss-the party may sustain, however great, may often bE retrieved by his future efforts.ls Ma.y euid,erzce inad,nuissible aecortling to the latt:s QUESTTON 4. in foice at the time -the cause of uction accrued be aclnzitterl at tlre tintc of the tr,iat of the case tf ba the laws tft,en in force the sum,e is alreod?J made admissible? Yes. There is no vested right of property in lttles ANSWER. any evidence inadmissible according to the iaws in of evidence. Hence, force at the time the action accrued, but admissible according to the larvs in force at the time of the trial, is receivable. Thus, at the trial ofl {r case after the Codc of Civil Procedure (Rules of Court) took effect, parol evidence of the contents of a document was admitted after pleliminary proof of execution and destruction has been made, although the cause of action accrued when Articte 7221 of the Civil Code was still in force, under which parol evidence could not be given to prove the contents of a destroyed instrument.la The reason is that the rules of evidence are merely methods for ascertaining facts. It must be supposed that change of law merely makes it more likely that the fact will be truly ascertained, either by admittittg evidence whose former suppression, or by suppressing evidence whose former admission, helped to conceal the truth. In either case no fact has been taken away from the party; it is merely that good evidence hers been given the one, or bad evidence been taken from the other.rt lilhat. rules of eaidence. sanctionetl by thc Con' QUESTION 5. altered by ordinarg lngislcr,tion? stitution cannot be ANSWER. A constitutional provision sanctioning a rule of evihas legal effect of naking it unalterable by ordinary statutot'1' dence the legislation. It also has the practical effect of inducing most Courts to construe the rule (if one of exclttsion) with unusual care to avoid the evasion of the Constitution, and with unusual and sometimes reprehe,tsible technicality in favor of the party benefitted by the rule.
u Aldeguer vs. Hoskyn, 2 Phil. 500; Ayala de Roxas vs.
15 13

Undelhill's Crinrinal Evidence, 6th Ed., Vol. 1, p.


7.

8.

Case,

8 Phil.

19?.

Wigmore on Evidence, Sec.

SEC. 3, RULE

128

EVIDENCE

The rules of evidence which have been expressly sanctioned by the various Constitutions are comparatively few. They include usually the pr.ivilege against self-incrimination, with occasional limitations of its i"op.;"the accused's right to confrontation, or cross-examination of witnesses; the rrrle for two witnesses in treason; the lccused's right to p"oceg for compelling the 2lfsniance of witnesses; and the right of iestifying without regard to theological belief. Apart from these rules expressly thus protected -against statutory legislative change, the Legislature has the power to alter or create any ru'i" of eviclencJ This is io for reasons inherent in the ntrture of legislative functions.lc QUESTION 6/ May the rules of etticlence bc -wat'acil?,. There are rules of evidence established merely for the ANSWER. parties. If, according to the .w-ell-,established doctrinc', protection of the 'the parties may liaive such rules during the trial of a case. there.is no reas6n why they cannot m4ke the waiver in a contract. For instance, a contrlct bf iniurance requiring the testimony of eyewitness as the oqly evidence admissible conceming fhe death of the insured person' is valid.r? Contract lvaiving the privilege against the disclosure of confidential communications made by a patient to 1 physician is also valid.rs Howh-as been establishetl ;;;; if td-iuie of evid'ence waived by the parties bt 61n' on grounds of public policy, the waiver is void. Accordingly, the *oiver of t*he privileee against the disclosure of state secrets is void.le What pokcy nrust courts obserue in th,e enforceQUESTION 7. - euidence? ment of the ru.les of Trial courts are enjoined to observe the strict enforceANSWER. meni of the rules of evidence which crystallized through constant use and pto.li"u and are very useful ancl effective aids in the search for truih i*A io" the effective administration of justice. But in connection with evidence which may appear to be of doubtful relevancy or incompetency or admissibility, it is the safest policy to be liberal, not rejecting them on doubtful or-technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their-rejection qlac.e.s ihem L"yottd the consicleration of the court, if -theV- are thereafter found ielevant-or competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied b$. completely discarding them or ignoring them.lo

is admissible when 'sec. 3. Ad,missibility of euidence. - Evidence by the law or these rules. it is relevant to the issue-and is not excluded
I Requisites of admissibility of evidence. 2. Two axioms of admissibilitY. B-4. Admissibility of evidence diltinguished from rveight of 5. Multiple admissibility of evidence. 6. Conditional admissibiiity of evidence.
1d lbid. 1? National

evidence.

Ass'n., 139

2o Banaria vs. Banaria, et al', C.A. No. 4142, May 31, 1950; People vs. Jaca, et al., G.R. No. L-10971, November 28' 1959.

444 N'W. 820. lsKeeler vs. Iss. Co., 95 Mo. App. 627,69 S.W. 612. rs Rorvland vs. Iss. Co., 95 Mo. App. 627,69 S.W. 612'

la.

Acc. Soc. vs. Ralstin, 101 I1l. App, 192; Connel vs. Travelling Men's

10

RULES OF COURT

sEc. 3, nuLE

128

euid,ence?

?. Curative admissibility of evidence, 8. Admissibility of telephone conversations, 9. Admissibility of radio broadcast. f0-11. 4dmissibility of wiretapping and tape recordings. 12. Requisites of recording conversations. 18. Admissibility of evidence illegally seized. - QUESTION 1. wlnt are the requisites

of

aclntissibitity of

-./ANswER. - rn order that evidence may be admissible, two requisites must concur, narnely: (1) that it is relevant to the issue; and (2, that is is competent, that is, that it does not belong to thlt class of evidence which is excluded by the law{' or Rules of Evidence. an affair of logic _ Admissibility is determined, first, by relevancy - of gnd n9t of law; second, but only indirectly, by the larv Evidence whicrr, [n strictness, only declares whether matter which is logically pr.obative ls
excluded.l

.State the two aciom,s of ailntissibitita. QUESTION 2. ANSWER. The modern system r.ests upon two axioms. The firsi is that: (a) None but facts hauing rational probatiue aalue are adlrissiblc. This principle is indeed axiomatic, for any system of evidence purporting to be rational. It assumes no particnlar doctrine as to the tcinct of ratiocinatio-n implied whether practical or scientific, coarse and ready or refined and systematic. It prescribes merely that whatever is presented as evidence shall be presented on the hypothesis that it is calculaterl, according to the prevailing stand:lrds of r.easoning, to effect lationrrl

"

prsuasron.

The second axiom on which our lalv of eviclence rests is this: (b) All facts hnaing rational probatiue aalue are acl.missibre, unress some- speeific rule forbids. This axiom expresses dre tr.uth flrat legal p{99f, though it has peculiar rules of its own, does not intend to vir.l without cause from what is generally nccepted in ilre rational processes of life; and that of such variations some vindication may, in theory. always be demanded. In other wor.ds. in the system of -evidence ilie rules of exclusion are, in their ultimate r-elation, iules of exeeption to :r genet'al admissibility of all that is rational and probative.s Distinguish atlmissibility of euiclence f rom rceight QUESTION 3.

of

eaidence

Feria, Retised Ru.les on Eaid.ence Annotalecj (plr;ilippine Legal Stuclies, Siries /r), p. 2. l Presumptions and the Law of Evidence, B Flar.v. L. Rcv. 18-14. 3 S igmore on Evidence, Secs, g, 10.

- of the evidence should be overruled, for. facts whicir refer to the weight have distinet probative value are not to be rejected mer:ely because ilre;l -;Iil-"lav/" was added to the former Rule and this includes the exelusionary provisions in the Constitution, such as evidence obtained in violation ifr. against unleasonable searches and seizures and privacy of - communication "i "ighi and cor-reslronde^nce (Sec' 2 and 3 of Art. III); confessions .nd adrnissions obtained in violation 9f the,rights of a person under'investigation fo; lh; eommission of an offense (sec. 12, Ibid.); and-the right against s6lf-incriminatlon- (sec. rz, iuld.j.

ANSWER.

Objections to the admissibility of eviclence wliich merely

sEc. 3, RULE

128

EVIDENCE

t1

should not be are not, in themselves, convincing. Admissibility of evidence confounded with its probative value'r to do with The admissibility of a particular item of e.vidence has is to be detep tnhet-ne" it;;;6 trre various tests by which its reliability the case in admitted e'idence to U"-"o"*iderea with bther ;;;a;;-; truth' the to in arriving at a decision as has to do with the effect of evidence admitted, its tendency The weight -ut is not determined to convince a p""ro"a". The weight of evidence testifving witnesses the of suilriority ;";h;;ti."uy uv tr,"-"otn""i.al its praciical effect in inducing belief '6ot'Oun""a; *"1

il;;ffi-i*it,

ot thl part of the iudge trying the case'a bv. ,of def ense QUESTION 4. - X is acaueil, lf murder anil. "yauthat he uas t-estifies mothe.t', attbi. oo ne aitiipts to estabtiri -M,-hi's d'istinguished P, a cont'mitied. r1as muriler ttie'-itmi-thi at inbeil at lromc 'iniitrni,iiruii"i'"itrii'"ii ios itiend.ins..to x. in \i2,ltgme at the timb
tltc. nzurd.er
lroas

committed. Are their teitimonies ad'nissible in euidence? Both are admissible. But it is likely that the coud ANSWER. physician, *,oot,a giuu grerter *.isht i" the. testimony of P, a disinterested perjury in rn effort commit to expected be iir;;;rM;irnour.i;;fi;;isha to save her son. atlmissibiktv ol QUESTION 5. - state the rule regard,ing multiple gour answe'r' eui,ilence and illustrate ANswER._Whenafactisofferedforonepurpose'and^i.sadmis. offered for sible in so far ur ii'r"ii.iies all rules applicable. to it when be appli' would which rule other som" ;ffi firp;r", itr }"il"" to satisfy putpose Thus, :t it.5 exclude not does to" uttottei ;;bt-di1 it' offered co-accused' his be cbmpetent as against confession of u1 a.iur"O -"v ""t or to prove conspiracy between them being hearsay *r-io the latter, nonetheless, withoui the conspiri.v-U.i"g esiablisheil by other evidence, of his owtt evidence as admitted be Jtu"o..otEd-may iii.--"oot"Jrion of
guilt.s
admissibik',tE QUESTION 6. - state the tale regard'i'ng cond;itionnl a answer' '11our of euiilence anil illustrate where two or more evidentiarl' facts are so connected" ANSWER. the relevancy of ott. depends upon another. not 1pt that under the issues -*a both at the same tn. p""ly i* on"bte to introduce them as a conditicn court, the by Ue "i:ia.tJ.C,the offeri]ni1"i"r"f ma' moment, (2) "equired to promise and facts, coniiectins th;;uppoi"a precedent (1) to &u
3

Imprcbability ot I18. 179 so. 972,2t8 Ala."JiiL*-"

People vs. Abellera, 47

Phil'

witness are not Manifest ir,"on.i.torr-"ies and discreparcies in the testimony of -a us' State' McCIwtg tlstimonf' &-to.ttconsidere<l in det"rminjn"g"irrl"iaill.tifi'ifitv So sl|, 25 Aln- A72P. 81. 142 --- iguia"nce Handboii-by Donigan, Fisher, Reeder and Williams, pp. 6-7' 6 Wifrmore's Code of Evidence, 3rd 4d" p' l'8' o People vs. Yatco, et al., 9? Phil' 940. as an admission, as -a decla' A declaration of a deceased person may be received as a dying declaration business, io""te-oi ;-;;6t-ii.--tft" interest, against ration purposes' the requirements one of these for offered if is gestJe. iu or as part of res it not being necessary that the requisites ;i th"-l^" L tn"t-"rfJ th;"ld b. ratisfied, gs PhiL 979 (unrep)' other purpos..-u" p.".."t. Peopte ot. Anoniaa,

l""r "Jf':o.tify refusing to adtnit it.

?31'

shanes tts. Stote'

for the

t2

NULES OF COURT

sEc. 3, RULE

128

to evidence them later. If a promise thus made is not fulfillerl, the court may strike out the evidence thus conditionally admitted, if a motion is made by the opposite party.? Thus, evidence of facts and declarations may noi become material or admissible until shown to be those of an agent of the other party, and a copy of a writing may not become competent evidence until the original is proven to be lost or destroyed.s State th,e ru,Ie re,garcling curati.ue u,ilntissibilit,y of QUESTION 7. - gour ansu)er. epid,enne ancl illustrate AIiSWER. Where an inadmissible fact has been offered by one - without objection, and the party and received opponents afterrvards, for the purpose of negativing or examining: or otherwise eounteracting it, offers a fact similarly intrdmissible, such fact is admissible if it serves to remove an unfair effect upon the court which might otherwise ensue from the original fact.e If the opponent made a timely objection at the time the inadmissiNe evidence was offer.ed, and his objection was errolllously overruled in the first instanee, the claim to present similar inadrnissible farts would be untenable since his objection would save him, on appeal, fiom any harm' which may accrue.s Thus, A sues B for'the lafter's alleged lefusal to pay for merchandise supplied by A. B denies having received the merchandise. In the course of the trial A introduces evidence showing that B swindled C, a third person, on a similar transaction before. This should not have been admitted. B norv offers to explain that he entered into a fair and honest tr.ansaction with C. In fairness to B, this should be admitted.ll Are telephone conaersations ulmissible in euiQUESTION 8.
d,ence ?

ANSWER. Unless otherwise a telephone conver'- witness and another objectionable, sation bctween a person is aclmissible in any case in which r face to face conversation betrveen a witness and another person would he admissible in evidence, provided that the identity of the person with rvhom the witness was speaking is satisfactorily established, but not otherwise. Pr',rof of identity is most readily afforded by the witness' recognitio:r of the voice of the person with whom he rvas speaking, and, indeed, a number of cases seem to regtrld the rvitness recognition or identificatiotr of the voice of the person with whom he spoke as essential to the admissibility of evidence of l telephone conversation. The gener.ally accepted vierv, however, is that the identity of the speaker may be estal> Iished by means other th:rn the recognition of his voice.lr lVlrcn is ct speech, by nteans of a radio broatlcast QUESTION 9. admissible iu, etttdence?
7

e
t)

Wignrore on Evidence (Students' Textbook), p.

lbid., p.

Brl.

35.

ro r1

on Evidence in Civil Cases, Sec.211, pp. 410-413. Where the witness $ias one of the parlies to the conversation and testifies that he recognized the voicc of the person on the other end of the line, because he had previous conversation with him, there is sufficient foundation and the conversation will be admittcd. Urdted Stat.es lus. EusterdaV, ST Fed. (21) 165 eertiot'ari clenied, 286 u.s.564,76 L. ed. 1297,51 Sup. Ct.646.

1t-S1 C..1.S.908,911. See also Joncs

lbid., p. 196. Cf. Wigmore, Textbook, p,

McCormick on Evidence, p. 134.


35.

SEC.3, RULE

128

EVIDENCE

13

ANSWER. of a message or a speech by means of raclio - Evidence broadcast is admissible as evidence when the identity df the speaker i; established either by the testimony of a witness who saw him iroadcasi his message or speech, or by the witness' recognition of ilre voice of the
speaker.r$

in

eaidcnce?

QUESTION 10.

Are wi,retapping an(I tape record;i,ngs

ailmi.ssi,ble

ANSWER. constitution explicitly provides that "The privacy - The communications and. correspondence shail be inviolable excepl upon lawful order of the court, or when public safely or order requires odtrertiise as prescribed by law." In this connection, wiretapping and other related violations of the privacy of communications, are prbhibited and penalized by Republic Act No. 4200, the contents of which are ouilined hereunder: I. UNLAWFUL ACTS A. .any person who, without authority from all the parties to the private communication or spoken word, does any of the following-acts: [sec. 1, par. l] 1. to tap any wire or cable; cr 2. to secretly overhear or intercept such communication or spohen word by using any other device or arrangement; or 3. to record such private communication or spoken word by using a device cornmolly k19yn as dictaphone oi dictagraph or deteitaphone or q'alkie-talkie or tape iecorder, or h-orv6ver otherwise

of

described.

rvho:

declared to be unlawful: [Sec.2]

1, par. 21 1. knowingly possesses any tape record, wire record, disc record or any ot}er such recold, or copies thereof, of any communication or spoken word secured either before or'after tf,e effective date of this Act in the manner prohibited by law;, or q to replay the sarne for any other person or persons; or .). to communicate the contents thereof, eittrer verbally or in writing; or 4. to furnish transcriptions thereof, whether eomplete or partial, to any other person. pers-on C. any_ who shall qid, permit, or cause to be done any of the acts . _
[Sec.

B.

any _ person,-_whether participant

or not in the

above penalized acts,

violation: [Sec. 2] II. EXEMPTED ACTS A. use of such record ot any copies thereof as evidence in any civil, criminat investigation or trial of offenses mentioned below: [Secs. 1, par.2] B. any peace officer, w'ho is authorized by the written order of the court (Regional Trial Court within rvhose territorial jurisdiction the acts for which
authority is applied for are to be executed), to execute any of the acts to be unlavful in cases involving the crimes of: [Sec. B, par. lJ 1. treason 2. espionage 3. provoking war and disloyalty in case of war 4. piracy 5. mutiny in the High Seas 6. rebellion ?. conspiracy and proposal to commit rebellion

. ?. . acts below or

uty

pers^on who

-shall of an order issued

violate the provisions of sbction B of the exempted thereunder, or aids, permits, or causes ;uct

declared

8. inciting

rebellion

p.

:,1.

_13Francisco, Revised Rules

of court Annotated,

(1990 Edition)

vol. vII, part I,

l4
9, 10.

RITLES OF COURT
sediti0n

sEc. 3, RULE

128

conspiracy

by the Revised Penal.Code vlolutldns"of Commonw"alth Act 616, punishing espionage and other offenses against national security The 1VRITTEN ORDEn shall only be issued or granted u-pon written- applieation rvith the examination uncler oath or affirmation of the applicant and the witnesses he may ploduce and must show: a) that there ere reasonable grounds to believe that any.of !!:
12. tidnup-pittg as defined
13.

11.

inciting to scdition

to commit

scdition

^"I1-f: be enumeraded tre"ein has been comrnitted or is being committed-or ig about to reb-ellion, conspiracv ;;;ilGa;;o"ia.a,"itt"i i" cases involving lhe ofJenses of sedition, conspira.cy. to ;;A;;;p"ri.i-to *o."-ii ""f"ttio", 4citin! to. rebellicn, proof tlt-! 1 .o*,nit iedition, .o.fr ""tto.iti sirall be lranted only upon prior or are Drng been actually have be, may case the as sedition, acts of rebellion or
committed; obtained'essential to

to believe that-evidence may be b) that there are reasonable, grounds ifr" .""ri.ii* of -""V person for, or to the solution of, or ,.lo the prevention of, any of such crimes; ro other means readily avaiiable for obtaining such c) that thele """ . cvidenee' Ctmtents: 1. the identity of the person or persons whose com-mtrnications,-convcrsrtions, Ois"ussionsl oi .poiiln-*ords ari to be overheard, intercepted, -or rccorded and, in tfte'Jas" oi-t"i"g"aphic or telephonic-ccmmunications, the telegraph line and the telephone number involved and its location; 2. the identity of the peace officer authorized to overhear, intercept' or reeord the communications, conversations, discussions, or spoken words; 3, the offerse or offenses sought to be conrmitted or prevented; and 4, the perir:tl of the authorization. speeified in the El{ectidtlr: The authorization shall be effectiv-e for-the-period order which sfr*ii nol uxcee{ siity tOOl days fronr the- dite of issuance of the order, unless u*t.naui-o"-""".*"d d,V itt" iourt upon being satisfied that such
extension or renerval is in the public interest. Pt'aced,are: All recor{ings made under court authorization hours after the expiratio-n of the period fixed in the order: 1. shali be deposited with the courl in a sealed envelope

within forty-eight

or sealed package; peace officer granted such 2. shall be accompanied by an affidavit of theauthority stating tire riumber oi recordings made, th; -dates- arrd times covered deposit tt ;;;ii"rt;rOtrie, ih" ""mber of tapes, discs,.or records.included in the a"na-.o"iiivi"s tirit ;J aupiicates or cbpibs are'included in the envelope or pockage
deposited

or 3. shull not be opened, or the recordings replayed, or used in evidence o"4." Jt itt" courd, which shall-not b9 granted their content" ""u"ui"Jlu*."irt-"p"" *itn aoe notice and opportunity to be heard to the pcrson ;;;;et opo" *otio", o"-p'"".oit" tlhose conversations or communiiations havc been recorded.

with the court;

iII, PENALTY

be punislted by:

Any person who violates the provisions of this Act, shall, upon conviction,

A.

inrprisonment
and

for not less than six months or more than six years;

R. rvith the accessoty penalty of perpetual absolute. disqualification from- nublic offiie lf the-offender be a public official at the time of the cornmission of the offense; and c. if the offender is an alien, he shall be subject to deportation proceedings.

IV. ADl\TISSIBILiTY

Any communication or spoken rvord, or the existence^ contents, substance, th. r"-. or {rny part thereof,.of any information persori in violation of this act it.".itt contained, obtained or secured by any judicial, quasi-judicial, or adminis' any in in evidence admissible shall not be
purport, effect or meaning of tratir"e hearing

cr

investigation'

SEC. 3, RULD

1S8

EVIDENCE

15

Cornplainan't Atty. Tito Pintar is cou,nsel for QUESTION 11. - complaint, f or direct assault filed' against I'eonard,tt Ma,nuel Montebon i.n a Laconieo. On October 22, 1975, complainant called uyt Ltr,conico to rj,[t:cq,ss the withd,rawal

of his client's complai,nt. In turn, Laconico contactd, appellant, Edgardo Gaanan, to seek adaice on the matter. He asktcl appellant to listen to his corvuersattion uith the complainant through tlL(' eatension line. Thus, uhen complainnnt ca'Ileil up, appel'Iant ouerlteari. the former's demo,nds for the settling of the case. Minutes later, com,plainant called up again to ask tahether Lacoruico was agree,a,ble and to Lell ltim to wait for further instructions regarcling th,e del;ittery of money. In a La"ter call, Lacon:ico, through, the ad'uice of CoI. Zuluetu of the CIS, i,nsisted that eomplainant himself sh'ould, receiue the money" (Jpon cam,' plainnnt's receipt of the'nloneA at the Igloo Restaurant, he. ruas im,mctliat,rllr apprehen(Ied bg agents of the Philippine Cortstalntlarll. A com,plaint for robbery/eutortion lans filed aguinst r:atrupluhtanrAttacheil thereto is an affiilauit exeaded bg appellant stuting thrt"t ht heard complninnnt demand ?8,000 from Laconico for the utithdrutrfi, *f the casa. On the other hand, complninant chu'rged' Lacanico and. n'pi,ellant for uiolation of the "Anti'-Wiretapping Aet" fo'r listerun.rl l,a llt'r: telephone conaersation without his consen't. Is an ertension teleTthone of the sam,e category as the othtt"prohibit:tl deui.ces enunteraied in section 1 of the Anti-Wirela7ttn51 Act? No. The phr:rse "any other device or &rrzrngemerit" ANSWER. - of :r wire or cable or the use of a "device cr xrl:iini{erefers to a "tap" ment" for the purpose of secretly overheaping, intercepting: 01 recordii::t the communication. There must be ejther a physical interrui;tion thror:!.ir a wiretap or the deliberate installzrtion of a device or arrangenreut iti olr.' to overhear, intercept or record the spoken words. An extension telephone cannot be plerced in tire s:rntc c:rtugor)" :;;; :t dictaplrone, dictagraph or the other devices enumerz)ted in Section 1. *f the Act as the use thereof cannot be considered as "tappillg" the r'vil'q ''i cable of a telephone line, The telephone extension in this c:Lse was ;i+t installed for that purpose. It just happened to be there for ordinnr'"

purpose.

The phrase "device or arrangement," although ni:t tlxclusive to i , ' enumerated therein, should be construed to comprehend instruurents .o tire same or similar in nature, that is, instruments, tlie use of rlil' -,' would be tantamount to tapping the main line of the t eleirhone. It re{r r * to instruments whose installation or presence cannot be llresumed bi7 11;': p.arty or parties being overheard because, by their very n:rtur, thsl':'1'^ not of eommon usage and their purpose is precisely for tapping, iriri:'' cepting or recording a telephone conversation. An extension telephone is an instrument whicir is very common esp":cially now when the extended unit does not have to l:e connected by wile to the trtain telephone but can be moved from place to plnce within a radius of a kilometer or more. A person should safely presume that th; party he is calling at the other end of the line 1rrobably htrs iln extensiort telephone and he runs the risk of third party listening as in the c:ise i:"i a party line or a telephone unit whicfr shares its line with another.

A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an extensittn

,l

16

RULES OF COURT

sEc. 4, RULE

128

seen that our lawmikers intended to discourage, through punishment, persons such as govemment authorities or representatives of organized groups from instalHng devices in order to gather evid-enc,e for use in couri 6r to intimidate, blackmail or gain some unvrarranted advantage over the telephone users. Consequentli, the Inere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature.l4 Before a recoriltng of conuersati,on, can be giaen QUESTION 12. probatiae aa.Iue, wtwt-reQuisites must first be established'? Before a recording of conversation can be given proANSWER. bative value, the following requisites must first be established: (1) a sftowing that the recording device was capable of taking testimony; (2) a $trowing that the operatorof the device was competent; (3) establishmeni of ttre-authenticitf and correctness of the recording; (4) a showing that clpnges, additioni, or deletions have not been made; (5) a showing cf ttre frariner of the presel'vation of the recording; (6) identification of the speakers; and (?) a showing that the testimony eliciled -was voluntarily niatte wiihout any kind of lnducement (Francisco, Evidence, 1964 cd., pp, 24-25, citing 20 Am. Jur., 1961 Supplement 43;.tc Is eaid,ence itlegal.Ig seized admissible in etti.dence? QUESTION 13.

telephone as a prohibited device or arrangement but o{ 8:reater importance, thei were more concerned with penalizing the act of recording than tht' It can be readily act-of merely listening to a telephone conversation. x x

The Moncado ruling (80 Phil. 1) that illegally seized ANSWER. - and things are admissible in evidence, must be abandocuments, papers doned. ttie ei'ctusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures.- The non-exclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures. If there is competent evidence to establish the probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason why the applicant should not comply rvith the constitutional requirements" If he has no such evidence, then it is not posrible for the iudge to find that there is a probable cause, and henee, no justification for the issuance of the warrant. The only possible explanation for the issuance in that case is the neeessity of fishing for evidence of the commission of a crime. Such a fishing expedition is indicative of the absence of evidence to establish a probable cause.ro
must have sueh Sec. 4. Releoancy;. collnteral matters, - Evidence in its existence or non' e relation to the fact in issue as to induce belief existenee. Evidence on collateral rhatters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. 1. Relevancy of evidence. 2. Tert of relevancy.
Gaanan vs. IAC. 146 SCRA 112. rsFeople w. Orpilla, CA-G.R. No. 06591-CR, Julv 22, t97t; XXXVI L'J' 284' also Pascual vs. De la Cruz, 28 SCRA 421. See - - ro Stonehill, et al. vs. Diokno, 20 SCRA 853. See also Corro vs. Lising, et aJ.' 13? sCRt 641; M;to vl. Bayotti, et al., 128 SCRA 391; Nolasco vs. Pafro, et al., fSg SCRA 162; People vs. Burgos, 144 SCRA 1.
14

h!

sEc. 4, RULE r28

EVIDENCE

t7

(c) The question is whether A was robbed. The facts that, soon aiter' .the alleged robbery, t e maae a
by him with
was ma.de. are relevant. (d) A sues B^for inducing

QUESTION 2. - What is the test of releaancy? ANS*ER' The test of rerevancy.is variousry stated: (1) every f:rct or eircumstance tendinj-to--t-rrrow-rigrrt (2) evidence is relevant from;hi.fihg f*?; on T116 i*.u" is rerevant: i*"o;'il togicallv inferable: (3) anv circumstance is rel,evanl- i"r,i.1, -*,iial-t" ti" p"o*.ition ai issue more or less probable,-o"-irti'.ii is carcurrt"J il'"e*prain or establish facts pertinent to th-e i-ncuirv;'-a). #r,ltfr"" the evidence !rr"-'t".J"iJ conduces to the p".oof- or i p6"iin'#t hypoi-hesiq .*h"'r,vpothesis being one which, if sustained, wourcr tosi"urivffiil;ih;'ilue; (b) f*cts a.e relevant if thev fairrv tend to pi"t" irt" ;ff;; a;r.u..t., Frrim these tests, we may draw the following examples: (a) A is accuse{ of a crime. The facts that after the commissio' of the alleged crime tte absconoea; i". *"* P ndirJl.ii, of property or the proceeds of nropertv.4;g"iid bv trt" to eoncear things which wei'e or mrgtrt il"; bd used""i-";;';;;;pted in committing it, are rerevant. (b) The ouestion is whether A was ravished. The *1. alleged rape she -rA" i complaint relating iacts that shorily Lf_tl to the crime, the -,t crrcumstances under which and the tenns in i.ii'the comptaint was made, ar.e relevant.

evidence. 11. Collateral facts difined 12. Admissibility of eollaieral facts. QUESTION l-/ When is eai.d,enee releaant? ANswER. is rerevant.when it rerates direcry to a fact --Evidence in issue; or to a.fag! from r"hi"il'iy the p"o.".u'i?iogic, an inference may be made as to the existence-o.norr-exisi""." oi:ort*t

3. Logical relevancy distinguished from legal relevancy. 4. Issue defined. 6. Fact defined. S' "Facts in issue" distinguished from .,facts relevant to the g-10. Effect of pleadin-gs-ir -a.t"iiiiiriing the relevancy of

issue,,.

in

issue.r

-iii

trre circums;;?;;. under'*i,1.1i"",'a-*f;1-r1t#

,'ft1liIfnttn:n:"$iilif;

fact which is part of the tiu"r".tion' "i-'"*pron"tory of a QUESTT'N B. - Distingui.sh Logicar rereaancgl from ,egar rereaaneE. ANSWERLosicaJ. r-erevancy of evidence means that the evidence - essentiar to the fact in i.ru;;;i;ite'tegat must be absoruterv rerevancy requires a higher standar.d of evidentiary force ir.i"aes rogicar rele_ vancv. Thus, the fact that evidence is iogicaily ""a ;;i";;;Tioes not insure admissilibity. It must be arso regairv-rerevant., A fact which, in connec_

c to break a contract service made A. c, gn 6;id -I'. i""uic",_.^v"--tJ"i,'of ,,1 am reaving t you because B has made me 6tt".otr"*;;-'dhi", .#"ffL't is a rerevant fact as explanatory of c's .onao.i*iii.t, " i, fact in issue. (e) A accused of theft, is seen ".i""o"i""?', give the property stolen ts who is seen to give. it to_A( *ii".---g ^to ..A to *"-v.,-u...rr."iliji"r, it, says you are to hide this." B's statem"nt i, "".fi;

'un-a.ii,iir,.-b;;ifi:T"i;,utiif t?n.$t.:"J:ril;loo,.soz.

t Ft"lt*"n vs. Consumerts Rrcuino

f.!^

18

RULES OF COURT

SEC. 4,

IiUI,E

133

tion with other facts, t'enders probable the existertce of a fact in issue, may still be rejected, if, in the opinion of tlte iudge, and undel the circumstances r-.f the ease, it is considered essentiall)'misleading or too rrmote.:l Legal relevancy is not different in its nature from logical relevancy. The only distinction is in its field of application. Legal relevancy is thc attribute of all those logically relevant matters which are not declared inadrnissible by one or mol of the excluding rules. Stephen procged..s upon the theoriy that logical relevancy is the main condition of admissibility, and that all rules excluding evidence which is logically relevant are,-iherefore, exceptions to the general rule.{ But it is equally.plain thal logical relevaniy does not in all cases render proposed testimony admissible. For example, a husband may not as 1 general rule, testify to the declarations of his wife, when she is a party to the suit; and an attorney may not testify to the communications of his client rnade in confidence. In these and other cases the testimony is exclurlecl, however pelevant, by positive rules of law.5 QUESTION 4. - Define issue under the rulcs of plcading. or points in question, at the con- ANSWER. - Issue is the point which one side affirms, and the othel' denies.6 clirsiol of the pleadings The pleadings are but the forms intended as the basis of the proof to be submitted it the trial of the issue. Issues arise upol the pleading where a faet or conclusion of law is mainfurined by the one llrttty, an<l is controverted by the other.? Define a fact. QUESTION 5. Fact is defined as :r thing done, or existing. Whether ANSWER. donr: does exist, is a question of fact for the court.s was or a thing Thus, that a man heard or saw something, is a fact; that a mlln said certain words, is a fact; that a m:in holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a patticulirr word in a particular sense, or is 01 was at a specified time conscious of a par'ticular sensation is a fact; that a man has a certain reputzrtion, is a fact.e Distinguish facts in iss'ue f rom facts releuant io QUESTION 6. the issue. Facts in issue are those facts rvhich a plaintiff mttst ANSWER. - establish his claim and those facts rvhich the defendant prove in order to must prove in order to establish a defense set up by him, but only when the fact alleged by the one party is not admitted by the other p:rrty. Facts which are admitted, expressly or by implication, are not in issue.r" To determine the relevancy of the evidence, the pleadings of the parties must first be looked to for the purpose of ascertaining the issue.l1 For example, if A sues B for assault, A must prove the assault. If B's defense
3
a McKelvey on Evidence, Sec. 99. 5 Jcnes on Evidence, pp. 23?-238. o Cochran's Law Lexicon, 176.

I
?

; I

I I
!

I I I

Best on Evidence, Sec. 251.

p.

Cochran's Law Lexicon, p. 133. I Woodroffe's Larv of Evidence, p. 11. 10 Phipson's Manual of the Law of Evidence, p. 24'
11

? 8

Sutherland's Code Pleading', Practice and Forms, Sec.

84.

2 Jones on Evidence, 2nd Ed., Sec. 609.

sDc. 4, RULE

128

EVIDENCE

19

t
r
?

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a a

I a I I t ,

is that A was trespassing on B's land and B was ejecting hirn with no more force than was reasonably necessary, B must prove that A was trespassing and that no unnecessary force was usetl to eject him. If there are no admissions, the facts in issue are that B assaulted A, that A was a trespasser and B edmits the assault, the sole fact at issue is whether the force used was reasonable in the circumstances.l2 Facts relevant to the issue are those facts which render probable the existence or non-existence of a fact in issue, or some other rilevant fact. Facts relevant to the issue are in the main determined by ordinary logic and experience.rs For instance, in the example given above, to prove tliat the forcc used on A was no more than was necessary to eject him, B might prove that A was abusive, refused to leave when asked, and resisted violently when B attempted to escort him off the property. These facts, if proved, render it more likely that the for.ce used on A was not more than was necessary.la QUESTION 7. - What. is the effect of pleailings in iletermi,ning the rele.,^ancy of eaiilence? ANSWER. -- The effect of the pleadings is that they hetp in deter.mining whether the evidenee offered is relevant to the case, for it is a familiar proposition that the evidence must be confined to the facts put in issue by the pleadings.rs In a prosecution for illcgal ytossessi.on of o,pium, QUESTION 8. - in reci.diaism is not charged the fui,fonnation. Maa proof of the same be ailmitteil? ANSWER. No, because no evidence can be adduced during the - which trial of the cause does not'directly or indirectly tend to prove some of the essential allegations of the complaint. Any evidence presented which rloes not directly or indirectly tend to prove some of the facts alleged in the complaint should be rejectecl by the court. Otherwise, and under any other rule, a defendant misht be charged with one crime and convicted of a very diffbrent and dissimilar crime, which, of course, can not be sanctioned under a government of law.10 A instituteil action against B as enecutor ol QUESTION 9. - one-half ofan the d,eceaseil X to recoaer certain properties, alleging that the same pertuined, to an orilinary ytartnership formeil between her anil X. Eaidence of mari,tal cohabitation beteoeen X anil A was presented,, and,4 A contendeil, that in aiew of said, ersid,ence, it should, be presumed that a marriage took place between th,em and there u;as, therefore, a conjugal partnershi,p tuhich gaae rise to patrhnoninl rights and obligati,ons. Marriage, howeuer, was not a,llegeil in the eom,plnint. Is the contention of
tennble?

'\

ANSWER. No, the contention of A is not tenable. The presump- from tion of marriage the marital cohabitation can not be invoked since such presumption would be inadmissible in view of the fact that maniage was not alleged in the complaint. Presumptions are not allegafions, but are evidence. And as they constitute evidence, presumptions are irre.
12 Phipson's 13 lbid. 14 Ibid., pp.
16

Manual of the Law of Evidence, p.


24-26,

24.

2 Jones, Commentaries on Evidence, 2d ed., Sec. 609. ro U.S, vs. Tieng Pay, 42 Phil. 212.

20

RULES OF COURT

SEC. 4, RULE

128

levant and therefore inadmissible rvhen they do not correspond with 'the allegations and the facts at issue in the allegations.r? A utas accu,sed of usurpation in that he toolt QUESTION 10. possession of real property belonging to another by the use of aiolence anil inti'm.id.ation. A offered to pr"oue, by auth'entic d,ocument, thnt h,e was thc lawful owner of the lnnd in question. The ud.mission of the euidence was objected to on the ground that it was 'irnrnaterial and it're' leaant. Sh.ould the obiection bc sustained'? |rfs, the objection should not be sustained, for in the ANSWER. - ownership of the property constitutes a necessary and case of usurpation, indispensable element for the determination of the defendant's grilt cr innoCence. If A could show that he was the owner of the land in question there would be no ground on which he could be convicted of the offense charged, because no one can, in a legal sense' be guilty of the usurpation of his own property.ls r QUESTION 11. - Define collateral facts. ANSWER. Collateral farcts may be defined as those that are outor ttrre not directly connected with the principal si$e the controversy, matter or issue in dispute, as indicated in the pleadings of the parties.lt Are euidence of colluteral fucts admissihle. QUESTION 72. Collateral matters are not allowedlo because thel' drarv ANSWER. - the court from the point at issue, and excite prejudice away the mind of and mislead it.21 They are however admissible when they tend in any reasonable degree to establish the probability or improbability of the fact

t i ; t I

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in

issue.er

i'elevant to show that the accused possessed or had access to articles lvith which the crime lvas or might have been committed, and the articles themselves may be admitted. Mere ability to commit a crime does not evidence its commission, but ability plus the possession af tools and skill necessary to commit it does have a probative value. Opportunity to commit the crime is generzrlly regarded as relevant. Motil'e and lach ot motive are always relevant, but motive alone is not enough to suppolt a conviction. Proof of motive, however, is not required when a delibelrite crimina! act is shown. Intent in offenses where it is not inferred fro:n the act itself may always be shorlt.s
r8 U.S.
30

Conduct of the defendant which is inconsistent with his innocence is properly allowed to go to the court, such as evidence of flight, preparation for crime, .and the possession of incriminating evidence. It is

of Court, as amended. Wharton's Criminal Evidence, p" 271. P See, 4, Rule 128, Rules of Court, as amended' 3sUnderhill's Criminal Evidence, 5th Ed., Vol. I, pp. 13-14. To show the state of mind of the accused towards the deceased, it is relevant to introduee in evidence facts and circumstances relating to any ill-treatment of the accused by the deceased, or any act which had greatly cxcited the anger of the accused. Not only quarrels and ill-wili rc'ievant in general, but the facts from which a stress of feeling may be reasonably inferred are aiso relevant. 1 Whartoii't
3r

615,25 So.

De Leon vs. Villanueva, 51 Phil. 6?6. vs. Fuster, 2 Phil. 695-697. resummerour vs. Felker, 102 Ga. 254,29 S.E. 448; Garner vs. State, 76 Miss,
17

Sec. 4, Rule 128, Rules

363.

Criminal Euidence, p. 316, IVlotive is inrpoitant only

if the culprit's iricnlily is in

doubt, not when he is

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,