2011-2

012
Layno, Ian
Rabajante, Diory
Morana, Hansel
Reyes, Harly
Suyat, Kat
Baraoidan, Kimberly

[JARA
POWER
NOTES ON
EVIDENCE]
This is merely a compilation of questions
asked by Dean Jara for Evidence in his
2011-2012 class. The writers guarantee the
integrity of all the questions and the
materials used in the making of this
recitation reviewer. However, there is no
guarantee that these will be the same set
of questions he will ask on the subsequent
semesters/years. Read this together with
Riano, Regalado, Moran, Memaid, and Jara
Notes.

2011-2012 [JARA POWER NOTES ON EVIDENCE]

JARA RECITATION NOTES FOR EVIDENCE

PRELIMINARY MATTERS
What is Evidence?
Evidence is the means, sanctioned by these rules, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact.
Can Evidence be used to answer questions of fact?
How about questions of law?
As provided for by the definition, Evidence can be used to
answer ONLY questions of fact, and not questions of law.
Why cannot we use Evidence to answer disputes of
law?
Under our legal system, it is conclusively presumed that
everybody knows the law. Ignoratia legis non-excusat. All
parties to the dispute must know the law applicable in the
case. There could be o dispute between the parties and
even the court itself concerning the truth about a matter of
law.
Distinguish Questions of Fact from Questions of Law
Question of fact (also known as a point of fact) is a
question which must be answered by reference to facts
and evidence, and inferences arising from those facts. On
the other hand, a question of law is a question which
must be answered by applying relevant legal principles,
by an interpretation of the law.
Is the issue on jurisdiction a question of fact or law?

shall deny only the remainder. Where a defendant is

without knowledge or information sufficient to form a
belief as to the truth of a material averment made to the
complaint, he shall so state, and this shall have the effect
of a denial. (Sec.10, Rule 8)
Can there be a question of fact when a party raises an
affirmative defense?
NO. When a party raises an affirmative defense, he in
effect, hypothetically admits the material allegations of his
opponent in his pleadings.
In a case where a party defaults, is there still a need
to present evidence?
YES. The court should still require the non-defaulting
party to present his evidence. There is still a need to
prove the allegations made in the complaint.
In every case that requires adjudication, is there a
need to present evidence at all times?
No. There are instances when Evidence is not required to
be presented such as the following:
1.
2.
3.
4.
5.
6.

When no factual issue exists in a case.

Where the case presents only a question of law.
When the pleadings in a civil case do not tender
an issue of fact.
Evidence may also be dispensed with by
agreement of the parties.
Matters of judicial notice (See Rule 129).
Matters judicially admitted (See Rule 129).

Are evidentiary rules also found outside Rules

128-133?

It is a question of law. Jurisdiction pertains to the power of

the Courts to decide cases. It is vested by substantive
law. Any issue relating to it is a legal question.

YES.

When does a question of fact arise?

Note: Example ni Jara ito. Supposing in a complaint for

sum of money, the plaintiff alleges that the defendant is
indebted to him for P10 million pesos. Upon the
presentation of evidence, the plaintiff presents to the
court a promissory note evidencing the indebtedness of
the defendant. The note however indicates that such
indebtedness amounts to P30 million pesos. May the
court admit aforementioned evidence even if the original
complaint only alleged P10 million? YES. Under Sec. 5,
Rule 10 (Amendment to conform or to authorize
presentation of evidence). You see, this is an evidentiary
rule outside Rules 128-133 (This was a total mind-fuck.
Please take note of this example of his).

When the issues are already joined.

When does that joinder happen?
Upon the filing of an answer which contains a specific
denial as to the existence of a certain fact.
Define a specific denial.
It refers to a denial of the material facts or facts alleged in
the pleading of the claimant essential to his cause of
action.
A defendant must specify each material allegation of fact
the truth of which he does not admit and, whenever
practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a
defendant desires to deny only a part of an averment, he
shall specify so much of it as is true and material and

Illustration?

What is Factum Probandum and Factum Probans?

Factum probandum is the ultimate fact or the fact sought
to be established. Factum Probans pertains to the
evidentiary fact or the facts by which the Probandum is
established. The former refers to the proposition, while

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the latter refers to the materials which establish that
proposition.
Does probandum exist in a case where a party
defaults?
YES. Party still needs to present evidence ex-parte.
A prosecutor files in the court an information for
homicide. Is there probandum already?
NO. Because the accused has yet to be arraigned. In
criminal cases, the arraignment of the accused
determines whether or not there exists a probandum.
If the accused pleads guilty to a crime, does that
negate the existence of probandum?
Not in all instances. Probandum is still necessary when
the case involves a heinous crime.
True or False. Probandum is always determined by
the allegations in the pleadings.
FALSE. Probandum may also be determined by the pretrial order and it may change during the course of the trial
(see Sec. 5, Rule 10).
Can probandum change easily in a criminal case?
No. probandum cannot be changed the same way it can
be changed in a criminal case. There is a necessity to
amend the pleadings according to the Rules on Criminal
Procedure.

Distinguish Proof from Evidence.

Proof is not the evidence itself. There is proof only
because of evidence. It is merely the probative effect of
evidence and is the conviction or persuasion of the mind
resulting from a consideration of evidence. On the other
hand, Evidence is the medium by which a fact is proved
or disproved.
What are the different classifications of evidence?
According to Form:
1.

2.

3.

As to ability to establish a fact in dispute:

1.
2.

1.

The rules of evidence, being part of the Rules of Court,

apply only to judicial proceedings, subject to inapplicable
cases in Sec. 4, Rule 128.

2.
3.

Yes. Summary proceedings partake the nature of judicial

proceedings. Being the case, we can definitely apply the
Rules on Evidence in such.
Do we present Evidence in Summary Proceedings? If
so, what then is our evidence?
YES. Evidence is still presented by virtue of the pleadings
and affidavits submitted before the court. They partake
the nature of documentary evidence and they serve to
prove an issue of fact provided that they are admissible
pursuant to law.
How about in Quasi-Judicial Proceedings?
Yes. The same apply by analogy whenever practicable
and convenient except where the governing law on that
particular proceeding specifically adopts the rules of
evidence in the Rules of Court.

Direct: proves a fact in dispute without any aid of

any inference or presumption.
Circumstantial: proof of fact or facts which taken
singly or collectively, the existence of a fact in
dispute may be inferred as a necessary or a
probable consequence.

As to Probative Value:

When do we apply the Rules on Evidence?

Can we apply evidence in Summary Proceedings?

Object: evidence that is directly addressed to the

senses of the court and consists of tangible
things exhibited or demonstrated in open court,
in an ocular inspection, or in a designated place.
Documentary: evidence supplied by written
instruments or derived from conventional
symbols, such as letters, by which ideas are
represented on material substances.
Testimonial: submitted to the court through the
testimony or the depositon of a witness.

4.

Prima Facie: that which standing alone

unexplained, is sufficient to establish the
proposition affirmed.
Conclusive: Evidence which is incontrovertible.
Corroborative: additional evidence of a different
kind and character from that already given
tending to prove the same point.
Cumulative: additional evidence of the same kind
and character proving the same fact.

As to weight and acceptability:

1.
2.

Primary: evidence which affords the greatest

certainty of the fact in question.
Secondary: evidence which is inferior to primary
evidence.

As to Quality:
1.
2.
3.
4.
5.

Relevant
Material
Admissible
Credible
Competent

What are the Axioms of Admissibility?

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Axiom of Relevance: None but the facts having a rational
probative value are admissible.
Axiom of Competence: Facts having a rational probative
value are admissible unless some specific rule prohibits
their admission.
What are the different classes of admissibility
according to jurisprudence?
1.

2.

3.

Multiple Admissibility of Evidence where the

evidence is relevant and competent for two or
more purposes, such evidence may be admitted
for any or all purposes which it is offered
provided it satisfies all the requirements of law
for the admissibility therefor.
Conditional Admissibility of Evidence where
evidence initially offered appears to be
immaterial or irrelevant unless it is connected
with facts to be subsequently proved, such
evidence may be admitted under the condition
that the subsequent facts shall be proven;
otherwise, they shall be stricken out from the
record.
Curative Admissibility of Evidence Where
improper evidence was admitted against the
opposition of another party, he may be allowed to
contradict it with similar improper evidence.
WHAT NEED NOT BE PROVEN

What are some matters that do not require any

evidence?
1.
2.
3.
4.
5.

Where no factual issue exists in a case.

Where the case presents only a question of law.
When the pleadings in a civil case do not tender
an issue of fact.
When there is an agreement made by the parties
(usually done in the pre-trial).
When courts have taken judicial notice of such
matters.

What do you mean by Judicial Notice?

It is the cognizance of certain facts which judges may
properly take and act upon without proof.
Why? I thought facts must be proven in court?
Yes. That is the general rule. However, there are some
matters, on the basis of expediency and convenience,
which do not require proof. The need for evidence is set
aside by the rules.
What are matters subject of Judicial Notice?
1.
2.
3.
4.

Existence and territorial extent of states;

Political history, forms of government, and
symbols of nationality;
Law of nations
Admiralty and maritime courts of the world and
their seals;

5.
6.
7.
8.
9.

Political constitution and history of the

Philippines;
Official acts of the legislative, executive, and
judicial departments of the Philippines;
Laws of nature;
Measure of time; and
Geographical divisions.

What is the doctrine of Processual Presumption?

The foreign law, whenever applicable, should be proved
by the proponent thereof, otherwise, such law shall be
presumed to be exactly the same as the law of the forum.
Is it not the duty of the Courts to apply the Local
Law?
It is. However, there are certain transactions and legal
acts that are bound by laws of foreign jurisdictions. It is
important that courts respect the governing laws over
such acts. However, the existence of such laws must be
proven as a matter of fact.
How do you then prove foreign law?
As for foreign statutes and issuances, you prove the
foreign law through acquiring a copy of the said document
which is certified by the agent of the said country through
the DFA (As per Jaras lecture, get a copy of the law
abroad or in the embassy, have it certified through a
consul, ambassador, or a foreign public official, and para
sigurado, idaan mo na din sa DFA).
Do we still need certification that the said foreign law
exists even though the existence of such has been
stipulated by both parties?
The general rule is that the foreign law must still be
proven as a matter of fact. However, in the case of PCIB
vs. Escolin, the Supreme Court held that where the
foreign law is within the actual knowledge of the court
such as when the law is generally well known, had been
ruled upon in previous cases before it and none of the
parties claim otherwise, the court may take judicial notice
of the foreign law. In essence, the Escolin case gives the
requisites for the exception:
1.
2.
3.

Actual knowledge by the Court;

Foreign law is generally well known;
Stipulation by the parties.

What if the foreign law is Common Law? How do you

prove such creature?
Common law (also known as case law or precedent) is
law developed by judges through decisions of courts and
similar tribunals (as opposed to statutes adopted through
the legislative process or regulations issued by the
executive branch). You prove such by getting a copy of
the foreign courts decision and having the same certified
in the like manner as you certify foreign statutes.
Is Judicial Notice absolute according to the Rules?

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No. There are some matters that require hearing before

courts can take judicial notice.
When does it require hearing?
1.

2.

During 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 court 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.

What are Judicial Admissions?

It is an admission, verbal or written, made by a party in
the course of the proceedings.
Note: for an extensive discussion on admissions, please
see the memory aid.
Lather. Rinse. Repeat.
May a complaint contain a judicial admission?
Yes, if there is an allegation that is contrary to the
interests of the complainant. In evidence, such admission
must be DISADVANTAGEOUS to the one who made the
complaint (Jara statement).
Are admissions made by a counsel binding upon his
client?
Generally, Yes. Unless of course the lawyer was patently
stupid.
Note:
The function of the rule that negligence or
mistake of counsel in procedure is imputed to and binding
upon the client, as any other procedural rule, is to serve
as an instrument to advance the ends of justice. When in
the circumstances of each case the rule desert[s] its
proper office as an aid to justice and becomes its great
hindrance and chief enemy, its rigors must be relaxed to
admit exceptions thereto and to prevent a manifest
miscarriage of justice.
The court has the power to except a particular case from
the operation of the rule whenever the purposes of justice
require it [Aguilar v. CA, 320 Phil. 456 (1995)].
What if because of the stupidity of the lawyer, he
made a general denial of all the allegations?
Normally, the case would be ripe for judgment on the
merits. However, the client may still amend his pleading
as a matter of right especially if there is no reply yet.

Usually in cases where there is an amendment of

pleadings, a judicial admission is transformed into an
extrajudicial admission. Will the same hold true in the
problem above?
Yes. Party must then raise such admissions as evidence.
What happens to the judicial admissions contained in
the pleadings which are subsequently amended?
An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings
may be received in evidence against the pleader; and
claims or defenses alleged therein not incorporated in the
amended pleading shall be deemed waived (Sec.8, Rule
10). Such admissions, however, are considered extrajudicial admissions. Having been amended, the original
complaint lost its character as a judicial admission, which
would have required no proof, and became merely an
extrajudicial admission, the admissibility of which, as
evidence, required its formal offer (Torres vs. CA,
L-37420-21, July 31, 1984).
In appealed cases, may there be a verbal judicial
admission?
Yes. In cases for a petition for new trial.
What the doctrine of adoptive admission?
An adoptive admission is a partys reaction to a statement
or action by another person when it is reasonable to treat
the partys reaction as an admission of something stated
or implied by the other person (Estrada v. Desierto, G.R.
Nos. 146710-15). In this case, Estradas admission of his
resignation as President was based on the diary of
Angara.
Supposing evidence was presented tending to prove
a substantially different (usually greater) claim which
was not subject of a previous admission by the
adverse party during the pre-trial, may the court
admit such evidence?
YES. Rule 10, Sec. 5.
Does information contain admissions in so far as
People of the Philippines are concerned?
No.
Is there a need to wait for a response?
No.
Is there a need for a judicial admission to be
prejudicial to the admitter?
No. The self-serving rule which prohibits the admission or
declaration of a witness in his favor applies only to extrajudicial admissions.

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Self-serving statements, even if made in the complaint,

are admissible because the claimant or the witness
making it may be cross-examined on such statements.
However, whether it will be credible or not, is a matter of
appreciation on the part of the court.
What was the case of Prats vs. Phoenix?
Facts: This action was instituted in the Court of First
Instance of the City of Manila by Prats & Co., a mercantile
partnership, for the purpose of recovering from the
Phoenix Insurance Co., of Hartford, Connecticut, the sum
of P117,800.60, with interest, by reason of a loss alleged
to have been sustained by the plaintiff, on August 21,
1924, from a fire, it being alleged that said loss was
covered by policy of insurance No. 600217, for the sum of
P200,000, issued by the defendant company to the
plaintiff. For answer, the defendant, Pheonix Insurance
Co., admitted the insurance of the policy of insurance but,
by way of special defense, alleged, among other things,
that the fire in question had been set by the plaintiff, or
with its connivance, and that the plaintiff had submitted
under oath to the defendant a fraudulent claim of loss, in
contravention of the express terms of the policy.
The trial of the case covered a period of almost two
years, in which fifty separate sessions were held, without
counting the numeruos hearings upon the taking of the
deposition of Francisco Prats, a partner in the plaintiff
firm, whose testimony was taken at the instance of the
defendant. Taken all together, the time thus consumed
was out of all proportion to the difficulties of the case. An
examination of the voluminous transcript reveals at least
part of the reason for this inordinate consumption of time;
since we find that far too much of the space in the
transcript is taken up with the record of petty skirmishes
in court resulting from objections over the admission of
evidence.
Issue: WON the technical rules of evidence may be
relaxed in admitting evidence.
Held: Yes. In the course of long experience we have
observed that justice is most effectivly and expenditiously
administered in the courts where trivial objections to the
admission of proof are received with least favor. The
practice of excluding evidence on doubtful objection to its
materiality or technical objection to the form of the
questions should be avoided. In a case of any intricacy it
is impossible for a judge of first instance, in the early
stages of the development of the proof, to know with any
certainty whether testimony is relevant or not; and where
there is no indication of bad faith on the part of the
attorney offering the evidence, the court may as a rule
safely accept the testimony upon the statement of the
attorney that the proof offered will be connected later.
Moreover, it must be remembered that in the heat of the
battle over which he presides a judge of first instance
may possibly fall into error in judging of the relevancy of
proof where a fair and logical connection is in fact shown.
When such a mistake is made and the proof is
erroneously ruled out, the Supreme Court, upon appeal,
often finds itself embarrassed and possibly unable to

correct the effects of error without returning the case for a

new trial, -- a step which this court is always very loath to
take. On the other hand, the admission of proof in a court
of first instance, even if the question as to its form,
materiality, or relevancy is doubtful, can never result in
much harm to either litigant, because the trial judge is
supposed to know the law; and it is its duty, upon final
consideration of the case, to distinguish the relevant and
material from the irrelevant and immaterial. If this course
is followed and the cause is prosecuted to the Supreme
Court upon appeal, this court then has all the material
before it necessary to make a correct judgment.
In this connection it should be remembered that many of
the technical rules of evidence which are often invoked in
our courts were originally worked out in England and the
United States, where the jury system prevails. These
rules were adopted for the purpose of keeping matter
from juries which - it was supposed - might unduly
influence them in deciding on the facts. They have little
pertinence to a system of procedure, like ours, in which
the court is judge both of law and facts, and in which
accordingly it is necessary for the court to know what the
proof is before it rules upon the propriety of receiving it.
Apart from these considerations is the circumstance
mentioned above that the time consumed in the trial on
such collateral points is generally many times greater
than would be consumed if the questionable testimony
should be admitted for what it is worth. What has been
said above finds special relevancy in this case in view of
the action of the trial court in refusing to consider the
proof referred to in the opinion showing that the plaintiff,
while engaged in assembling its stock, procured maritime
insurance upon a fictitious importation of silk. We
earnestly commend the maintenance of liberal practice in
the admission of proof.
Our examination of the case leads to the conclusion that
the result reached by the trial court was correct.
What happened in the case of Maceda?
Facts: This is a criminal action for slight slander instituted
in the justice of the peace court of Pasig, Rizal, against
defendants Generoso Maceda and Corazon Maceda and
which was dismissed on the ground that the offense had
already prescribed. The offense was allegedly committed
on July 21, 1940, and the action was filed on October 22,
1940, that is three months and one day after the
supposed commission thereof. The private attorney for
the offended party made an admission to the effect that
no damages had been sustained by the latter.
Issue: WON the offended party may be bound by the
admission of his attorney.
Held: In the instant case, the supposed admission is
denied. Besides, no attorney can waive his client's cause
of action unless with the consent of the client, and, in the
instance case, the admission attributed to the private
prosecuting attorney is not alleged to have been made
with the offended party's consent.
OBJECT EVIDENCE

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What is Object Evidence?

Is ocular inspection part of the judicial proceedings?

Objects as evidence are those addressed to the senses

of the court.
Are there other terms for object evidence?

Yes. It is part of the trial. Inasmuch as evidence is thereby

being received, such inspection should be made in the
presence of the parties or at least with previous notice to
them of the time and place set for the view.

1.
2.
3.
4.

Real
Physical
Demonstrative
Autoptic preference.

Are there rules on exclusion for object evidence?

Section 1 of Rule 130 provides that when an object is
relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court.
Aside from being Relevant?
Generally, there could be no rules for the exclusion of
object evidence.
Are there exceptions?
1.
2.

3.
4.

5.

The exhibition of such object is contrary to public

policy, morals or decency;
Observation of such evidence in an ocular
inspection would result in delays, inconvenience,
unnecessary expenses out of proportion to the
evidentiary value of such object;
Such object evidence would be misleading or
confusing;
The testimonial or documentary evidence already
presented in curt already portrays the object in
question as to render a view thereof
unnecessary.
Those evidence acquired through illegal
searches and seizures.

What do you call to those evidence acquired through

unlawful searches and seizures?
Derivative Evidence.
What are the categories of Object Evidence?
1.
2.
3.

Unique objects that have readily identifiable

marks.
Objects made unique objects that are readily
made identifiable.
Non-unique objects with no identifying marks
and cannot be marked.

How does the court conduct an ocular inspection?

The court goes to the place where the object evidence is
located, whenever the said object cannot be brought to
the chambers of the court because it is an immovable or
moving such object would cause undue inconvenience.

Is the judge always needed to be present in the

ocular inspection?
No. There are certain evidence-gathering procedures that
do not require the presence of the judge such as those
proceedings conducted by commissioners.
Can there be a practical mechanism to allow the
inspection while dispensing the need for the
presence of the judge?
I just answered your question bitch.
What is the case of US vs. Tegrado?
A colt valued at P34 was stolen from Valeriano Blanca. It
was subsequently found in the possession of Agapito
Partolan. The latter testified that he bought the animal
from Zacarias Tegrado, the accused. The accused,
however, claimed that the colt was raised from a mare
belonging to him and then sold to Partolan. Identification
of the colt to determine if its mother was a mare
belonging to the complainant Valeriano Blana or if its
mother was a mare belonging to the accused Zacarias
Tegrado is, therefore, the determining factor.
The colt was identified by a number of witnesses as the
property of Blanca. Other witnesses testified to having
seen the colt following a mare belonging to the accused.
Whom shall we believe? We could, of course, rest our
conclusion on the findings of the trial court. We could, in
addition, point out grave discripancies in the testimony of
the witnesses for the defense, which argues against its
reliability. But there was present as in interested,
spectator, another witnesses, who, without being sworn,
could tell the truth and nothing but the truth. This was the
colt. The colt was separated from the mare of the
complaining witness and turned loose; it at once went
back to this mare. The colt was then taken to the mare of
the accused; but showed its dislike for the mare and tried
to find the mare of the complaining witness. Another colt
was placed near the mare of the complaining witness;
thereupon the mare and that colt both resisted. This was
a practical demonstration worthy of a Solomon by which
the colt was able to testify by manifesting all the signs of
the young, whether human or not, on finding a long lost
mother.
In the case of Tegrado, why did the court gave
reference to King Solomon?
A Solomonic approach was done in the case of Tegrado
because of the way the court arrived with a proof
through the use of demonstrative evidence, in observing

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the demeanor of the horse in order to determine its true
owner.

the condition in which it was delivered to the next link in

the chain.

What was the object evidence in Tegrado?

What was the object evidence in the case of

Gutierrez?

The court observed the horse and its demeanor.

What happened in the case of People vs. Gutierrez?
At around 4:45 p.m. on September 12, 2002, the police
station of Ramos, Tarlac acting on a tip regarding a shabu
transaction (drug-pushing) taking place somewhere in
Purok Jasmin, Poblacion Norte, dispatched a three-man
team composed of PO3 Romeo Credo, P/Insp. Napoleon
Dumlao, and SPO1 Restituto Fernandez to the place
mentioned. Arriving at the target area, the three noticed
Fernando and one Dennis Cortez under a santol tree
handing plastic sachets containing white crystalline
substance to certain individuals. At the sight of the police
officers, Fernando and the others scampered in different
directions. After a brief chase, however, one of the three
police operatives caught up with and apprehended
Fernando, then carrying a bag.
Without a trace of equivocation, the RTC and later the CA
held that the prosecution had discharged the burden of
proving all the elements of the crime charged. Since
Fernando was caught carrying the incriminating bag after
the police had been tipped off of drug pushing in the
target area, any suggestion that he was not in actual
possession or control of the prohibited drug hidden in the
area would be puny. Thus, ownership of the bag is truly
inconsequential.
We emphasize at this juncture that in no instance did
Fernando intimate to the trial court that there were lapses
in the safekeeping of the seized items that affected their
integrity and evidentiary value. He, thus, veritably admits
that the crystalline substance in the sachets found in his
bag was the same substance sent for laboratory
examination and there positively determined to be shabu
and eventually presented in evidence in court as part of
the corpus delicti. In other words, Fernando, before the
RTC and the CA, opted not to make an issue of whether
the chain of custody of the drugs subject of this case has
been broken. This disposition on the part of Fernando is
deducible from the August 18, 2005 Order of the trial
court, pertinently saying, [The] Acting Provincial
Prosecutor x x x and Atty. Emmanuel Abellera, counsel de
officio of the accused manifested that the chain of
custody of the searched illegal drug or shabu is admitted.
As a mode of authenticating evidence, the chain of
custody rule requires that the presentation of the seized
prohibited drugs as an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is
what the proponent claims it to be. This would ideally
cover the testimony about every link in the chain, from
seizure of the prohibited drug up to the time it is offered in
evidence, in such a way that everyone who touched the
exhibit would describe how and from whom it was
received, to include, as much as possible, a description of

The seized drugs.

What is the Doctrine of the Chain of Custody?
Chain of Custody means the duly recorded authorized
movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall
include the identity and signature of the person who held
temporary custody of the seized item, the date and time
when such transfer of custody were made in the course of
safekeeping and used in court as evidence, and the final
disposition (Section 1, DDB Regulation No. 1, Series of
2002).
How is the process conducted?
Under Sec. 21 of the Comprehensive Dangerous Drugs
Acts of 2002:
1.

2.

3.

The apprehending team having initial custody

and control of the drugs shall, immediately after
seizure and confiscation, physically inventory
and photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative from
the media and the DOJ, and any elected public
official who shall be required to sign the copies of
the inventory and be given a copy thereof;
Within 24 hours upon confiscation/seizure of
dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia
and/or laboratory equipment, the same shall be
submitted to the PDEA Forensic Laboratory for a
qualitative and quantitative examination.
A certification of the forensic laboratory
examination results, which shall be done under
oath by the forensic laboratory examiner, shall be
issued within 24 hours after the receipt of the
subject item/s: Provided, that when the volume of
the dangerous drugs, plant sources of dangerous
drugs, and controlled precursors and essential
chemicals does not allow the completion of
testing within the time frame, a partial laboratory
examination report shall be provisionally issued
stating therein the quantities of dangerous drugs
still to be examined by the forensic laboratory:
Provided, however, that a final certification shall
be issued on the completed forensic laboratory
examination on the same within the next 24
hours;

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4.

5.

6.

7.

After the filing of the criminal case, the Court

shall, within 72 hours, conduct an ocular
inspection of the confiscated, seized and/or
surrendered dangerous drugs, plant sources of
dangerous drugs, and controlled precursors and
essential chemicals, including the instruments/
paraphernalia and/or laboratory equipment, and
through the PDEA shall within 24 hours
thereafter proceed with the destruction or burning
of the same, in the presence of the accused or
the person/s from whom such items were
confiscated and/or seized, or his/her
representative or counsel, a representative from
the media and the DOJ, civil society groups and
any elected public official. The Board shall draw
up the guidelines on the manner of proper
disposition and destruction of such item/s which
shall be borne by the offender: Provided, that
those item/s of unlawful commerce, as
determined by the Board, shall be donated, used
or recycled for legitimate purposes: Provided
further, that a representative sample, duly
weighed and recorded is retained;
The Board shall then issue a sworn certification
as to the fact of destruction or burning of the
subject item/s which, together with the
representative sample/s in the custody of the
PDEA, shall be submitted to the court having
jurisdiction over the case. In all instances, the
representative sample/s shall be kept to a
minimum quantity as determined by the Board;
and
The alleged offender or his/her representative or
counsel shall be allowed to personally observe
all of the above proceedings and his/her
presence shall not constitute an admission of
guilt. In case the said offender or accused
refuses or fails to appoint a representative after
due notice in writing to the accused or his/her
counsel within 71 hours before the actual burning
or destruction or the evidence in question, the
SOJ shall appoint a member of the PAO to
represent the former;
After the promulgation and judgment in the
criminal case wherein the representative sample/
s was presented as evidence in court, the trial
prosecutor shall inform the Board of the final
termination of the case and, in turn, shall request
the court for leave to turn over the said
representative sample/s to the PDEA for proper
disposition and destruction within 24 hours from
receipt of the same.

Is it necessary that the whole amount of drugs must

be presented in evidence?
No. Only a sample amount as determined by the DDB
may be presented to the court.
How do you then prove the existence of such
amount?

Through an initial certification and a subsequent ocular

inspection done by the court hearing the case.
Is that not substitution?
No. Since a sample was taken from the very objects that
were seized by the authorities themselves. Besides, to
require the presentation of all the amount/volume of
evidence before the court would only cause great
inconvenience. You do not want to destroy Judge
Wagans mood by wasting her time looking at the stacks
of marijuana and accounting for their volume. Judge
Wagan can be very angry. And you would not like it when
shes angry.
Are pictures in drug cases sufficient?
No, because the narcotic substance is the very corpus
delicti of the crime.
Is failure to comply strictly with the mandate of Sec.
21 of R.A. No. 9165 (pertaining to the custody and
disposition of confiscated, seized, and surrendered
dangerous drugs, etc.) fatal to the prosecution?
No. Non-compliance by the apprehending/buy-bust team
with Section 21 is not fatal as long as there is justifiable
ground, and as long as the integrity and the evidentiary
value of the confiscated/seized items are properly
preserved by the apprehending officer/team. Its noncompliance will not render an accuseds arrest illegal or
the items seized/confiscated from him inadmissible. What
is of utmost importance is the preservation of the integrity
and the evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or
innocence of the accused. Crucial in proving the chain of
custody is the marking of the seized driugs or other
related items immediately after thet are seized from the
accused. Marking after seizure is the starting point in the
custodial link, thus, it is vital that the seized contraband
are immediately marked because succeeding handlers of
the specimens will use the markings as reference. The
marking of the evidence serves to separate the marked
evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused
until they are disposed of at the end of criminal
proceedings, obviating switching, planting, or
contamination of evidence (People of the Philippines v.
Allen Udtojan Mantalaba, G.R. No. 186227).
Is the class card an object evidence?
It depends. If we pertain solely to the paper itself, the
class card itself without having to look into the contents of
the same, it can be said that the class cards partake the
nature of object evidence. On the other hand, if there is a
need to view the contents written on the class cards, they
partake the nature of documentary evidence.
Supposing there was an action for damages arising
from a quasi-delict on account of a vehicular
accident. In the complaint, the plaintiff alleged that
he figured in the collision and in the process, his arm

2011-2012 [JARA POWER NOTES ON EVIDENCE]

got amputated. Can the plaintiff bring to the court the
amputated arm?
Nope. for the following reasons (According to Moranas
recollection of Jaras explanation):
1.
2.

Kadiri. It is offensive to the senses and thus, will

violate the norms of decency in court
proceedings.
Madaya. Can you imagine if you are the judge
and while you are writing your decision, the
amputated arm is right before your eyes? It will
be prejudicial to the defendant in that case.

Is it not the right of the plaintiff to choose the type of

object evidence he may desire for as long as it is
relevant?
Yes. That is the GENERAL RULE. However, it must still
be subject to the common norms of public policy, decency
and morality.
What is your legal basis?
Jara: court decisions have established certain grounds to
refuse to admit such evidence. (He did not cite any case.
Up to you to look for them).
Let us take for example a special proceeding. A
person wants to change the sex indicate in the entry
in his birth certificate from male to female. Mali daw
ang nalagay. Dapat daw babae siya. Can the plaintiff
undress before the court?

For what purpose do we offer documentary

evidence?
In order to prove the contents of the writing.
What is the Best Evidence Rule?
The term best has nothing to do with the degree of its
probative value in relation to other types of evidentiary
rules. It is not intended to mean the most superior
evidence. More accurately, it is the original document
rule or the primary evidence rule. This rule applies to
documentary evidence only, or a document presented as
proof of its contents. It does not apply where there is no
bona fide dispute on the contents of documents and no
useful purpose would be served by its production. Simply
stated, when the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the
original document itself.
Is the Rule Absolute?
No. The Best Evidence Rule admits several exceptions:
1.
2.

3.

No. Again, it will offend the norms of decency. It would be

better if were done in closed chambers.
What is Demonstrative Evidence? How does one test
its admissibility?
Demonstrative evidence is not the actual thing but it is
referred to as demonstrative because it represents or
demonstrates the real thing. It is not strictly real
evidence because it is not the very thing involved in the
case. A map, a diagram, a photograph and a model, fall
under this category.
The admissibility of this type of evidence largely depends
on laying the proper foundation for the evidence. The rule
boils down to one basic question: Does the evidence
sufficiently and accurately represent the object it seeks to
demonstrate or represent? If it does, the evidence would
be admissible
DOCUMENTARY EVIDENCE
BEST EVIDENCE RULE
What is Documentary Evidence?
Documentary Evidence consists of writings or any
material containing letters, words, numbers, figure,
symbols or other modes of written expressions offered as
proof of their contents.

4.

When the original has been LOST or

DESTROYED, or cannot be PRODUCED in
court, without bad faith on the part of the offeror.
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.
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.
When the original is a PUBLIC RECORD in the
custody of a public officer or is recorded in a
public office.

Why is there such a rule?

1.
2.

To prevent fraud;
To exclude uncertainties in the contents of a
document

So if I present a photocopy of a certain document, is

it automatically excluded because of the Best
evidence Rule?
NO. If the presentation of the photocopied document is
only for the purpose of proving the existence, execution,
or the delivery of the said photocopied document without
any reference as to its terms, such evidence may still be
admissible.
Under the best evidence rule, the original document must
be produced whenever its contents are the subject of
inquiry. A photocopy, being mere secondary evidence, is
not admissible unless it is shown that the original is
unavailable. Before a party is allowed to adduce

2011-2012 [JARA POWER NOTES ON EVIDENCE]

secondary evidence to prove the contents of the original,
the offeror must prove the following:
1.
2.
3.

The existence or due execution of the original;

The loss and destruction of the original or the
reason for its non-production in court; and
On the part of the offeror, the absence of bad
faith to which the unavailability of the original can
be attributed.

The correct order of proof is as follows: existence,

execution, loss, and contents
Does the Best Evidence Rule apply absolutely in all
cases a document is presented as an evidence in
court?
NO. With respect to documentary evidence, the best
evidence rule applies only when the contents of such
document is the subject of inquiry. Where the issue is
only as to whether such a document was actually
executed, or exists, or on the circumstances relevant to or
surrounding its execution, the best evidence rule does not
apply and testimonial evidence is admissible
OK. I present the original of a document. Is it
automatically admitted?

complete and enforceable agreement embodied in a

document.
Why is there such a rule?
When an agreement has been reduced into writing, they
are presumed to have intended the writing as the ONLY
EVIDENCE of their agreement, and, therefore, they are
supposed to have embodied all the terms of such
agreement. Consequently, all prior or contemporaneous
collateral stipulations which the parties might have had
and which do not appear in writing, are presumed to have
been waived or abandoned by them, and therefore, not
provable.

How do you determine whether or not the subject of

an oral agreement is separate and distinct from the
subject of the writing?
STEPS:
1.

No. It has to undergo the process of authentication,

except if the document is a public document.
2.
PAROL EVIDENCE RULE
What is the Parol Evidence Rule?
GENERAL RULE: When the terms of an agreement have
been reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between the
parties and successors in interest, no evidence of such
terms other the contents of the written agreement.
EXCEPTION: a party may present evidence to modify,
explain or add to the terms of the written agreement if he
puts in issue in his pleading:
1.
2.
3.
4.

The failure of the written agreement to express

the true intent of the parties thereto;
The intrinsic ambiguity, mistake or imperfection
in the written agreement;
The validity of the written agreement;
The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.

The term agreement includes wills.

What is Parol Evidence?
Parol evidence is any evidence aliunde, whether oral or
written, which is intended or tends to vary or contradict a

3.

4.

Determine first what is the whole subject

intended by the parties to be covered by such
writing. This question may be determined from
the contract itself, in light of the subject-matter
with which it deals and of the circumstances
attending its execution.
Ascertain the subject of the oral agreement
offered to be proved. To this effect, the parol
evidence may be admitted provisionally.
A comparison should be made between the
writing and the oral negotiation and from that
comparison it may be seen whether or not the
subject of the writing is separate and distinct
from that of the oral negotiation.
If the subject of the oral negotiation is not so
closely connected with the subject of the writing
as to form part and parcel of it, then parol
evidence is admissible.

Distinguish Parol Evidence rule from the Best

Evidence Rule.

Availability
of the
Original
Document

Parol Evidence
Rule

Best Evidence
Rule

Presupposes that
the original
document is
available in court.

Contemplates the
situation wherein
the original writing
is not available
and/or there is a
dispute as to
whether said
writing is the
original.

2011-2012 [JARA POWER NOTES ON EVIDENCE]

What the
rule
prohibits

What kind
of
documents
does the
rule apply?

Who may
invoke?

Prohibits the
varying of terms
of a written
agreement.

Prohibits the
introduction of
substitutionary
evidence in lieu of
the original
d o c u m e n t
regardless of
whether or not it
varies the contents
of the original.

Applies only to Applies to all kinds

documents which of writings.
are contractual in
nature, including
wills.
Only when the
controversy is
between the
parties to the
w r i t t e n
agreement, their
privies, or any
party directly
affected thereby.

Can be invoked by
any party to an
action regardless
of whether or not
such party has
participated in the
writing involved.

If the last paragraph in Section 9 of Rule 130 was not

included, would parol evidence rule still be
applicable?
Yes. The Civil Code is pretty clear on this one:
Art. 789. When there is an imperfect description, or when
no person or property exactly answers the description,
mistakes and omissions must be corrected, if the error
appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator
as to his intention; and when an uncertainty arises upon
the face of the will, as to the application of any of its
provisions, the testator's intention is to be ascertained
from the words of the will, taking into consideration the
circumstances under which it was made, excluding such
oral declarations.
AUTHENTICATION AND PROOF OF DOCUMENTS
Let us discuss the process of authenticating a
document. What is a public document? What is a
private document?
Public Documents are:
1.

2.
3.

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;
Documents acknowledged before a notary public
except last wills and testaments; and
Public records, kept in the Philippines, or private
documents required by law to be entered therein.

All other documents are private.

Is a notarized will a public document?

NO. Last wills and testament must undergo an
authentication process even if they are notarized. The
substantive rule in the Civil Code provides that: No will
shall pass either real or personal estate unless it is
proved and allowed in the probate court.
Therefore, is Sec. 19, Rule 132 applicable to wills?
Hindi phowZ. Jejeje.
Distinguish a notarized deed of sale from a notarized
will.
A notarized deed of sale is a public document and needs
no authentication. A notarized will, by express provision of
the Civil Code and the Rules of Court, needs to undergo
authentication. Even if such is notarized, it cannot be
considered a public document.
Why is there a need to authenticate a notarized will?
Public policy requires it. Courts must at all times give
respect to testamentary intent. In order to prevent fraud,
authentication of wills is mandatory.
How may the genuineness of a notarized deed be
assailed?
It may be assailed by discrediting the genuineness of the
signature, or the handwriting, or the identity of the public
officer who prepared the same (not sure. But sounds
right).
How do you prove a private document?
The due execution and authenticity of a private document
must be proved either by:
1.
2.

Anyone who saw the document executed or

written;
Evidence of the genuineness of the signature or
handwriting of the maker.

It is therefore NOT NECESSARY that the witness be an

eyewitness
Must all private documents undergo the process of
authentication?
NO. The following are private writings which may be
admitted in evidence without previous proof of its
authenticity and due execution:
1. When the genuineness and due execution of the
document is admitted by the adverse party;
2. When such genuineness and due execution are
immaterial to the issue;
3. W h e n t h e d o c u m e n t i s a n A N C I E N T
DOCUMENT.
4. Rule on Actionable Documents when the
adverse party fails to specifically deny under oath
the genuineness and due execution of the

2011-2012 [JARA POWER NOTES ON EVIDENCE]

5.

6.

actionable document and to set forth what he

claims to be the facts, the same shall be deemed
admitted (Rule 8,Sec.8).
Request for Admission if the party fails to
specifically deny the matters on which the
admission is requested within the period given,
the genuineness and due execution shall be
deemed admitted (Rule 26).
Pre-Trial the parties can enter stipulations and
admit the genuineness and due execution.

What are ancient documents? What is the rule with

respect to such?
Requirements for Ancient Document Rule:
1.
2.
3.

The private document is more than 30 years old;

It is produced from custody in which it would
naturally be found if genuine;
It is unblemished by any alterations or
circumstances of suspicions.

It is important to note, however, that the ancient

document rule applies only when there are no available
witnesses to testify as to the authenticity of the document.
A documentary evidence in an unofficial language
was presented to the court. How can a proponent
convince the court that the translation is credible?
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.
To convince the court, present the evidence, get a
translation, have a translator take the witness stand as an
expert witness, qualify the witness, make him testify and
read the whole thing, then let him translate the language.
How do you impeach judicial records?
1.
2.
3.

By evidence of want of jurisdiction of the court or

judicial officer;
Collusion between the parties;
Extrinsic fraud on the part of the party offering
the record, in respect of the proceedings.

What happened in the case of US vs. Gregorio?

In the suit instituted for the payment of a certain sum of
money, judgment was rendered wherein the debtor was
sentenced to pay to the plaintiff P275.92, with interest
thereon, and the costs. For the execution of the said
judgment, two rural properties belonging to the debtor
were attached. Bernardo Gregorio requested the deputy
sheriff to exclude the said realty from the attachment,
alleging that he was the owner of the land situated in
Tambogon, one of the properties levied upon for the
reason that he had acquired it by purchase from the
judgment debtor, Balistoy, in 1905, prior to the filing of the
complaint. In order that the claim of intervention

presented to the sheriff might prosper, Bernardo Gregorio

attached thereto the document Exhibit D, at the end of
which and among other particulars appears the
memorandum dated in Libog as of February 22, 1905,
and signed by Eustaquio Balistoy, Lorenzo Gregorio, and
Cirilo Valla, and in which Balistoy states that he bought
the land referred to in the said document from Luis
Balistoy and sold it to Bernardo Gregorio for P300,
wherefore he signed as such vendor. A complaint was
filed in each of the two aforesaid causes in the Court of
First Instance of Albay, charging each of the defendants
with the crime of the falsification of a private document.
Issue: WON Balistoy, with intent to injure his creditor,
Pedro Salazar, and for the purpose of avoiding the
attachment and sale of one of the properties did execute
or write the said memorandum whereby, on February 25,
1905, he made or simulated a conveyance of one of the
attached properties in favor of the said Bernardo
Gregorio, according to the aforesaid copy, when in fact
the said memorandum was written in April, 1908.
Held: In the charge filed in this cause against the vendor
and the vendee of the land in question, it is stated that
these parties, the defendants, simulated the said
memorandum of sale or conveyance of the land with the
intent to injure the creditor, Pedro Salazar; but as the
original document, setting forth the said memorandum,
was not presented, but merely a copy thereof, and
furthermore, as it could not be ascertained who had the
original of the document containing the memorandum in
question, nor the exact date when the latter was written;
the said memorandum, presumed to be simulated and
false, was not literally compared by the sheriff who
testified that he had seen its original for but a few
moments, nor by any officer authorized by law to certify to
documents and proceedings such as are recorded in
notarial instruments, nor even by two witnesses who
might afterwards have been able to testify before the
court that the copy exhibited was in exact agreement with
its original; therefore, on account of these deficiencies,
doubt arises as to whether the original of the document,
Exhibit D, really existed at all, and whether the
memorandum at the foot of the said exhibit is an exact
copy of that alleged to have been written at the end of the
said original document.
In criminal proceedings for the falsification of a document,
it is indispensable that the judges and courts have before
them the document alleged to have been simulated,
counterfeited, or falsified, in order that they may find,
pursuant to the evidence produced in the cause, whether
or not the crime of falsification was committed, and also,
at the same time, to enable them to determine the degree
of each defendant's liability in the falsification under
prosecution. Through the lack of the original document
containing the memorandum alleged to be false, it is
improper to hold, with only a copy of the said original in
view, that the crime prosecuted was committed; and
although, judging from the testimony of the witnesses
who were examined in the two consolidated causes, there
is reason to entertain much doubt as to the defendants'
innocence, yet, withal, this case does not furnish decisive

2011-2012 [JARA POWER NOTES ON EVIDENCE]

and conclusive proof of their respective guilt as coprincipals of the crime charged. Defendants in a criminal
cause are always presumed to be innocent until their guilt
be fully proven, and, in case of reasonable doubt and
when their guilt is not satisfactorily shown, they are
entitled to a judgment of acquittal.
What happened in Government vs. Martinez?
In the cadastral proceedings instituted in the Court of
Land Registration for the settlement of titles to lands in
the municipality of Iloilo, Province of Iloilo, Dolores and
Carmen Martinez appeared claiming to be the owners of
lots Nos. 873 and 450. They alleged that they were in
possession thereof for about twenty-five years, having
acquired them by donation from Maria Sarlabus, and that
their predecessors in interest had possession of the same
for at least three years prior to said donation.
On the otherhand, Julio Salvador, through his attorney,
entered his appearance and claimed title to said lots,
alleging that he was in actual possession thereof, and
that his predecessors in interest had been in possession
before him for at least fourteen years. To support their
claim, they presented before the court the testimony of
two witnesses and a certified copy issued by the acting
registrar of deeds of Iloilo dated May 13, 1914.
The CFI of Iloilo ruled in favor of Julio Salvador on the
ground that, in the opinion of the court, it was proved that
the Martinez sisters had sold said land to one named
Domenech and that the latter, in return, sold it to Julio
Salvador, who could, therefore, be considered owner of
the disputed lots.
Dolores and Carmen Martinez excepted to said judgment
and filed a bill of exceptions after their motion for new trial
had been overruled, and they had excepted to the order
overruling said motion.
Issue: WON the trial court erred in admitting the copy of
the record of a supposed document of sale presented by
Julio Salvador, in support of his claim of title without the
disappearance or loss of the original document having
been previously proved.
Held: Yes. Section 299 of the Code of Civil Procedure
provides: "The written acts of record of the acts of the
sovereign authority, of official bodies and tribunals and of
public officers, legislative, judicial, and executive of the
Philippine Islands, or of the United States, or of any
States of the United States or of a foreign country, and
public records kept in the Philippine Islands of private
writings are public writings. A copy of a public writing, duly
certified to be a true copy thereof, is admissible evidence
in like cases and in like effect as the original writing."
The certified copy issued by the acting registrar of deeds
of Iloilo, Exhibit 2, is not a true copy of the document of
sale which is said to have been executed by the Martinez
sisters in favor of Antonio Domenech, but of the recital
appearing in the books of said registry with respect to the
urban property, consisting of those two lots.

In the case at bar, Julio Salvador, had not first complied

with the provisions of section 321 of the Code of Civil
Procedure. The Supreme Court ruled that the best
obtainable evidence should be adduced to prove every
disputed fact, and a failure to produce it, but an attempt
instead to sustain the issue by inferior evidence, will
authorize the inference that the party does not furnish the
best evidence because it would tend to defeat, instead of
sustaining, the issue of his part. In requiring the
production of the best evidence applicable to each
particular fact, it is meant that no evidence shall be
received which is merely substitutionary in its nature, so
long as the original evidence can be had.
Undoubtedly the best evidence of the contents of a
written instrument consists in the actual production of the
instrument itself, and the general rule is that secondary
evidence of its contents cannot be admitted until the
nonproduction of the original has been satisfactory
accounted for.
Secondary evidence of the contents of writings if admitted
on the theory that the original cannot be produced by the
party by whom the evidence is offered, within a
reasonable time by the exercise of reasonable diligence.
And ordinarily secondary evidence is not admissible until
the nonproduction of the primary evidence has been
sufficiently accounted for.
The contents of a lost instrument cannot be proved
unless it appears that reasonable search has been made
in the place where the paper was last know to have been,
and if not found there, that inquiry has been made of the
person last known to have had its custody.
In accordance with the rule set forth in the next preceding
paragraph parol evidence of the contents of a will is
inadmissible, unless it is first shown that diligent and
unavailing search has been made for the original, by or at
the request of the party interested, and in the place where
it is most likely to be found. . . . But to justify admission of
secondary evidence of a deed, it is not necessary to
prove its loss beyond all possibility of mistake. A
reasonable probability of its loss is sufficient; and this
may be shown by a bona fide and diligent search,
fruitless made for it in places where it is likely to be found.
As the failure of the oppositor Salvador to present the
original document in question was not accounted for; as it
is not proper to suppose that the original could not have
been presented within a reasonable time if he had
exercised due diligence for he or his counsel had the
means, opportunity and time to find the original if it really
existed; as no proof was adduced that said document had
been lost, or destroyed, or that proper search therefor
was made in the general files of notarial documents in the
City of Manila, or that an attempt was made to secure a
copy thereof if it existed in said files; as the notary,
Gregorio Yulo, a person well known in Iloilo, was not
asked directly and clearly as to the whereabouts of said
document or some particular or data it in order to obtain
from him some conclusive and categorical answer; as

2011-2012 [JARA POWER NOTES ON EVIDENCE]

said notary has not been presented at the trial to be
examined on these points; and, lastly, as it was not
shown that the party interested in the presentation of said
document who is Julio Salvador, had made a diligent and
proper, but fruitless, search for said document in any
place where it could probably be found therefore the
secondary evidence presented by the oppositor,
consisting of the testimony of the witnesses, Saez and
Madrenas, and the certified copy issued by the registrar
of deeds of Iloilo, Exhibit 2, is of no value for the purpose
intended and such evidence was improperly considered
by the court in reaching the conclusion that said Julio
Salvador was the owner of the lots in question.
The judgment appealed from is therefore reversed and
the claims of Julio Salvador is denied; and we declare
that the two lots Nos. 873 and 450 should be adjudicated
to the appellants Carmen and Dolores Martinez and be
registered in their name. No special pronouncement is
made as to costs. So ordered.

What happened in the case of MCC vs. Ssangyong?

Facts: Petitioner MCC Industrial Sales (MCC), a domestic
corporation with office at Binondo, Manila, is engaged in
the business of importing and wholesaling stainless steel
products. One of its suppliers is the Ssangyong
Corporation (Ssangyong), an international trading
company with head office in Seoul, South Korea and
regional headquarters in Makati City, Philippines. The two
corporations conducted business through telephone calls
and facsimile or telecopy transmissions. Ssangyong
would send the pro forma invoices containing the details
of the steel product order to MCC; if the latter conforms
thereto, its representative affixes his signature on the
faxed copy and sends it back to Ssangyong, again by fax.
Due to the failure of MCC to put up a Letter of Credit,
Ssangyong sued MCC in the RTC. After Ssangyong
rested its case, defendants filed a demurrer to evidence,
alleging that Ssangyong failed to present the original
copies of the pro forma invoices on which the civil action
was based. In an Order dated April 24, 2003, the court
denied the demurrer, ruling that the documentary
evidence presented had already been admitted in the
December 16, 2002 Order and their admissibility finds
support in RA 8792, otherwise known as the Electronic
Commerce Act of 2000. Considering that both testimonial
and documentary evidence tended to substantiate the
material allegations in the complaint, Ssangyong's
evidence sufficed for purposes of a prima facie case.
RTC ruled in favor of Ssangyong, so did the CA.
Issue: WON the printout and/or photocopies of facsimile
transmissions are electronic evidence and admissible as
such.
Held: Although the parties did not raise the question
whether the original facsimile transmissions are
"electronic data messages" or "electronic documents"

within the context of the Electronic Commerce Act (the

petitioner merely assails as inadmissible evidence the
photocopies of the said facsimile transmissions), we
deem it appropriate to determine first whether the said fax
transmissions are indeed within the coverage of RA 8792
before ruling on whether the photocopies thereof are
covered by the law.
RA 8792, otherwise known as the Electronic Commerce
Act of 2000, considers an electronic data message or an
electronic document as the functional equivalent of a
written document for evidentiary purposes. The Rules on
Electronic Evidence regards an electronic document as
admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related
laws and is authenticated in the manner prescribed by the
said Rules. An electronic document is also the equivalent
of an original document under the Best Evidence Rule, if
it is a printout or output readable by sight or other means,
shown to reflect the data accurately. Thus, to be
admissible in evidence as an electronic data message or
to be considered as the functional equivalent of an
original document under the Best Evidence Rule, the
writing must foremost be an "electronic data message" or
an "electronic document."
According to the deliberations in Congress, when
Congress formulated the term "electronic data message,"
it intended the same meaning as the term "electronic
record" in the Canada law. This construction of the term
"electronic data message," which excludes telexes or
faxes, except computer-generated faxes, is in harmony
with the Electronic Commerce Law's focus on "paperless"
communications and the "functional equivalent approach"
that it espouses. In fact, the deliberations of the
legislature are replete with discussions on paperless and
digital transactions. Facsimile transmissions are not, in
this sense, "paperless," but verily are paper-based.
Accordingly, in an ordinary facsimile transmission, there
exists an original paper-based information or data that is
scanned, sent through a phone line, and reprinted at the
receiving end. Be it noted that in enacting the Electronic
Commerce Act of 2000, Congress intended virtual or
paperless writings to be the functional equivalent and to
have the same legal function as paper-based documents.
Further, in a virtual or paperless environment, technically,
there is no original copy to speak of, as all direct printouts
of the virtual reality are the same, in all respects, and are
considered as originals. Ineluctably, the law's definition of
"electronic data message," which, as aforesaid, is
interchangeable with "electronic document," could not
have included facsimile transmissions, which have an
original paper-based copy as sent and a paper-based
facsimile copy as received. These two copies are distinct
from each other and have different legal effects. While
Congress anticipated future developments in
communications and computer technology when it drafted
the law, it excluded the early forms of technology, like
telegraph, telex and telecopy (except computer-generated
faxes, which is a newer development as compared with
the ordinary fax machine to fax machine transmission),
when it defined the term "electronic data message."

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We, therefore, conclude that the terms "electronic data
message" and "electronic document," as defined under
the Electronic Commerce Act of 2000, do not include a
facsimile transmission. Accordingly, a facsimile
transmission cannot be considered as electronic
evidence. It is not the functional equivalent of an original
under the Best Evidence Rule and is not admissible as
electronic evidence.
Since a facsimile transmission is not an "electronic data
message" or an "electronic document," and cannot be
considered as electronic evidence by the Court, with
greater reason is a photocopy of such a fax transmission
not electronic evidence.
Ang vs. CA?
Facts: Rustan Ang and private respondent Irish Sagud
were sweethearts on an on-and-off basis towards the
end of 2004. When Irish learned afterwards that Rustan
had taken a live-in partner (now his wife), whom he had
gotten pregnant, Irish broke up with him. Before Rustan
got married, however, he got in touch with Irish and tried
to convince her to elope with him, saying that he did not
love the woman he was about to marry. Irish rejected the
proposal and told Rustan to take on his responsibility to
the other woman and their child. One day, Irish received
through multimedia message service a picture of a naked
woman with spread legs with her face superimposed on
the figure. The message allegedly came from Rustans
number. After she got the obscene picture, Irish got other
text messages from Rustan. He boasted that it would be
easy for him to create similarly scandalous pictures of
her. And he threatened to spread the picture he sent
through the internet. Subsequently, a criminal complaint
for violation against women through harassment was filed
against Rustan. During trial, Rustan claimed that Irish
merely sought his help to identify a prankster who was
sending her malicious text messages. Rustan got the
senders number and, pretending to be Irish, contacted
the person. Rustan claims that he got back obscene
messages from the prankster, which he forwarded to Irish
from his cellphone. This explained, he said, why the
obscene messages appeared to have originated from his
cellphone number. After trial, the RTC gave more
credence to Irishs testimony. The lower court found
Irishs testimony completely credible, given in an honest
and spontaneous manner, and hence convicted Rustan of
the crime of violence against women through harassment.
Upon appeal, CA affirmed the RTC decision. Rustan
interposed, among others, that the obscene picture
should be inadmissible as evidence since such picture
sent to Irish through a text message constitutes an
electronic document and thus should be authenticated
under the Rules on Electronic Evidence.
Issue: WON the RTC properly admitted in evidence
the obscene picture presented in the case.
Held: Yes. The Court noted that the objection of Rustan
as to the admissibility of the obscene picture as evidence
was already too late since he should have objected to the
admission of the picture on such ground at the time it was

offered in evidence. He should be deemed to have

already waived such ground for objection. Besides, the
Rules on Electronic Evidence do not apply to the present
criminal action. It was held that it applies only to civil
actions, quasi-judicial proceedings, and administrative
proceedings. Accordingly, the Court affirmed RTCs
admission in evidence of the subject obscene picture.
ELECTRONIC EVIDENCE
Note: Codal provisions lang ang labanan dito. Please
read the rules.
When is electronic evidence regarded as being the
equivalent of an original document under the Best
Evidence Rule?
An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by sight
or other means, shown to reflect the data accurately.
May a print-out or photocopy or both of facsimile
transmissions be considered as electronic evidence
and admissible as the term is defined under the ECommerce Act and its implementing rules?
NO. The definitions under the E-Commerce Act, its IRR
and the Rules on Electronic Evidence, at first glance,
convey the impression that facsimile transmissions are
electronic data messages or electronic documents
because they are sent by electronic means. When the
Senate voted to adopt the term electronic data
message, it was consonant with the explanation of
Senator Miriam Defensor-Santiago that it would not apply
to telexes or faxes, except computer generated faxes,
unlike the UN model law on electronic commerce.
There is no question that when Congress formulated the
term electronic data message, it intended the same
meaning as the term electronic record in the Canada
law. This construction of the term electronic data
message, which excludes telexes or faxes, except
computer generated faxes, is in harmony with the
Electronic Commerce Laws focus on paperless
communications and the functional equivalent approach
that it espouses. In fact, the deliberations of the
Legislature are replete with discussions on paperless and
digital transactions.
Since a facsimile transmission is not an electronic data
message or an electronic document, and cannot be
considered as electronic evidence by the Court, with
greater reason is a photocopy of such a fax transmission
not considered electronic evidence (MCC Industrial
Sales, Corp. v. Ssangyong Corp., G.R. No. 170633).
How does one treat text messages as evidence?
Text messages have been classified as ephemeral
electronic communication under Sec. 1 (k), Rule 2 of the
Rules on Electronic Evidence, and shall be proven by the
testimony of a person who was a party to the same or has

2011-2012 [JARA POWER NOTES ON EVIDENCE]

personal knowledge thereof. Ephemeral electronic
communication refers to telephone conversations, text
messages and other electronic forms of communication
the evidence of which is not recorded or retained
(Vidallon-Magtolis v. Salud., A.M. No. CA-05-20-P).
TESTIMONIAL EVIDENCE
QUALIFICATIONS AND DISQUALIFICATIONS OF
WITNESSES
What are the necessary qualifications in order for one
to be a witness?
All persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.

When do you determine the qualifications of a

witness?
The qualifications and disqualifications of a witnesses are
determined as of the time said witnesses are produced
for examination in court or at the taking of their
depositions. With respect to children of tender years, their
competence at the time of the occurrence to be testified
should also be taken into account, especially if such
event took place long before their production as
witnesses.
Distinguish spousal immunity from marital privilege.
Disqualification Disqualification
by Reason of by Reason of
Marriage
Privileged
Communication
b e t w e e n
spouses

Are there any disqualifications?

Disqualifications of a witness:
1.
2.
3.
4.
5.
6.

7.

Disqualification by reason of mental incapacity or

immaturity;
Disqualification by reason of marriage;
Dead Mans statute;
Privileged communications;
Parental and filial privileges;
Art. 821 of the New Civil Code disqualifies those
who have been convicted of falsification of a
document, perjury or false testimony from being
witnesses to a will.
Section 17, Rule 119 of the Rules of Court
requires that the accused sought to be
discharged to be state witness has not at any
time been convicted of any offense involving
moral turpitude. The same requirement is
provided for a state witness under R.A. 6981 or
Witness Protection, Security and Benefit Act.

Are deaf-mutes disqualified to testify as witnesses?

NO. deaf-mutes are not necessarily incompetent as
witnesses. They are competent where they: (a) can
understand and appreciate the sanctity of an oath; (b) can
comprehend the facts they are going to testify to; and (c)
can communicate their ideas through a qualified
interpreter (People v. Tuangco, 345 SCRA 429)
Distinguish competency of a witness and credibility
of a witness.
Competency of a
witness

Credibility of a witness

Has reference to the

qualifications of a witness
as his capacity to perceive
and his capacity to
communicate his
perception to others. It
also includes the absence
of any disqualifications
imposed upon a witness.

Refers to the believability

of the witness and has
nothing to do with the law
or the rules. it refers to
the weight and the
trustworthiness or
reliability of the testimony.

P e r i o d f o r A p p l i e s o n l y Applies even after

Prohibition
d u r i n g t h e i r the marriage
marriage
Scope of A
n
y
Prohibition
communication
received by one
from the other

Exception

1.
2.

As
to
communication
received in
confidence by one
from the other
during their
marriage

Unless there is consent by

the other spouse; or
Except in a civil case by one
against the other, or in a
criminal case fro a crime
committed by one against
the other or the latters direct
descendants or ascendants.

Can you compel an adverse party to be your witness?

Yes, in civil cases. Such party is then treated as a hostile
witness. However, there must be compliance with the
requirements of Rule 25 and Rule 26 of the Rules of
Court (SHOTGUN QUESTION).
RULE ON THE EXAMINATION OF A CHILD WITNESS
When is the rule on examination of child witnesses
applicable?
Examination of child witnesses who are victims, accused,
and witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings involving child
witnesses
How shall the rule be construed?
Liberally, to uphold the best interests of the child, and to
promote maximum accommodation of child witnesses,
without prejudice to the rights of the accused.

2011-2012 [JARA POWER NOTES ON EVIDENCE]

Who may be considered a child witness?

Any person who, at the time of giving testimony, is below
the age of 18 years. In child abuse cases, a child includes
one over 18 years but is found by the court as unable to
fully take care of himself or protect himself from abuse,
neglect, cruelty, exploitation, or discrimination because of
a physical or mental disability or condition.
Who is a guardian ad litem?
A person appointed by the court where the case is
pending for a child who is a victim of, accused of, or a
witness to a crime to protect the best interests of the said
child.
What are the powers and functions of the Guardian
Ad Litem?
Section 5. Guardian ad litem.
(a) The court may appoint a guardian ad litem for a child
who is a victim of, accused of, or a witness to a crime to
promote the best interests of the child. In making the
appointment, the court shall consider the background of
the guardian ad litem and his familiarity with the judicial
process, social service programs, and child development,
giving preference to the parents of the child, if qualified.
The guardian ad litem may be a member of the Philippine
Bar. A person who is a witness in any proceeding
involving the child cannot be appointed as a guardian ad
litem.

(e) The guardian ad litem shall not testify in any

proceeding concerning any information, statement, or
opinion received from the child in the course of serving as
a guardian ad litem, unless the court finds it necessary to
promote the best interests of the child.
(f) The guardian ad litem shall be presumed to have acted
in good faith in compliance with his duties described in
sub-section (b).
What are the best interests of the child?
The totality of the circumstances and conditions as are
most congenial to the survival, protection, and feelings of
security of the child and most encouraging to his physical,
psychological, and emotional development. It also means
the least detrimental available alternative for safeguarding
the growth and development of the child.
What is the rule with regard to the qualification of the
child as a witness?
Every child is presumed qualified to be a witness.
However, the court shall conduct a competency
examination of a child, motu proprio or on motion of a
party, when it finds that substantial doubt exists regarding
the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court.
Who must prove the need for competency
examinations?

(b) The guardian ad litem: (1) Shall attend all interviews,

depositions, hearings, and trial proceedings in which a
child participates; (2) Shall make recommendations to the
court concerning the welfare of the child; (3) Shall have
access to all reports, evaluations, and records necessary
to effectively advocate for the child, except privileged
communications; (4) Shall marshal and coordinate the
delivery of resources and special services to the child; (5)
Shall explain, in language understandable to the child, all
legal proceedings, including police investigations, in
which the child is involved; (6) Shall assist the child and
his family in coping with the emotional effects of crime
and subsequent criminal or non-criminal proceedings in
which the child is involved; (7) May remain with the child
while the child waits to testify; (8) May interview
witnesses; and (9) May request additional examinations
by medical or mental health professionals if there is a
compelling need therefor.

A party seeking a competency examination must present

proof of necessity of competency examination. The age of
the child by itself is not a sufficient basis for a
competency examination. Moreover, to rebut the
presumption of competence enjoyed by a child, the
burden of proof lies on the party challenging his
competence.

(c) The guardian ad litem shall be notified of all

proceedings but shall not participate in the trial. However,
he may file motions pursuant to sections 9, 10, 25, 26, 27
and 31(c). If the guardian ad litem is a lawyer, he may
object during trial that questions asked of the child are not
appropriate to his developmental level.

(a) When a child does not understand the English or

Filipino language or is unable to communicate in said
languages due to his developmental level, fear, shyness,
disability, or other similar reason, an interpreter whom the
child can understand and who understands the child may
be appointed by the court, motu proprio or upon motion,
to interpret for the child.

(d) The guardian ad litem may communicate concerns

regarding the child to the court through an officer of the
court designated for that purpose.

Is the competency examination a final determination

as to the competence of the child?
No. The court has the duty of continuously assessing the
competence of the child throughout his testimony.
When may the court appoint an interpreter for the
child?
Section 9. Interpreter for child.

(b) If a witness or member of the family of the child is the

only person who can serve as an interpreter for the child,

2011-2012 [JARA POWER NOTES ON EVIDENCE]

he shall not be disqualified and may serve as the
interpreter of the child. The interpreter, however, who is
also a witness, shall testify ahead of the child
(c) An interpreter shall take an oath or affirmation to make
a true and accurate interpretation.
When may the court appoint a facilitator to ask
questions to the child?
Section 10. Facilitator to pose questions to child.
(a) The court may, motu proprio or upon motion, appoint a
facilitator if it determines that the child is unable to
understand or respond to questions asked. The facilitator
may be a child psychologist, psychiatrist, social worker,
guidance counselor, teacher, religious leader, parent, or
relative.
(b) If the court appoints a facilitator, the respective
counsels for the parties shall pose questions to the child
only through the facilitator. The questions shall either be
in the words used by counsel or, if the child is not likely to
understand the same, in words that are comprehensible
to the child and which convey the meaning intended by
counsel.
(c) The facilitator shall take an oath or affirmation to pose
questions to the child according to the meaning intended
by counsel.
Who is a support person?
Person chosen by the child to accompany him to testify at
or attend a judicial proceeding or disposition to provide
emotional support for him.
What are the rules relevant to support persons?
Section 11. Support persons.
(a) A child testifying at a judicial proceeding or making a
deposition shall have the right to be accompanied by one
or two persons of his own choosing to provide him
emotional support. (1) Both support persons shall remain
within the view of the child during his testimony. (2) One
of the support persons may accompany the child to the
witness stand, provided the support person does not
completely obscure the child from the view of the
opposing party, judge, or hearing officer. (3) The court
may allow the support person to hold the hand of the child
or take other appropriate steps to provide emotional
support to the child in the course of the proceedings. (4)
The court shall instruct the support persons not to prompt,
sway, or influence the child during his testimony.
(b) If the support person chosen by the child is also a
witness, the court may disapprove the choice if it is
sufficiently established that the attendance of the support
person during the testimony of the child would pose a
substantial risk of influencing or affecting the content of
the testimony of the child.

May the courtroom environment be adjusted to make

the child more comfortable?
Yes. Section 13 says: To create a more comfortable
environment for the child, the court may, in its discretion,
direct and supervise the location, movement and
deportment of all persons in the courtroom including the
parties, their counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court personnel. The
child may be allowed to testify from a place other than the
witness chair. The witness chair or other place from which
the child testifies may be turned to facilitate his testimony
but the opposing party and his counsel must have a
frontal or profile view of the child during the testimony of
the child. The witness chair or other place from which the
child testifies may also be rearranged to allow the child to
see the opposing party and his counsel, if he chooses to
look at them, without turning his body or leaving the
witness stand. The judge need not wear his judicial robe.
Nothing in this section or any other provision of law,
except official incour identification provisions, shall be
construed to require a child to look at the accused.
Accommodations for the child under this section need not
be supported by a finding of trauma to the child.
May the child use testimonial aids during his / her
testimony?
Yes. The court shall permit a child to use dolls,
anatomically-correct dolls, puppets, drawings,
mannequins, or any other appropriate demonstrative
device to assist him in his testimony.
May the child be allowed to have an emotional
security item?
Yes. While testifying, a child shall be allowed to have an
item of his own choosing such as a blanket, toy, or doll.
Does the examination of the child need to follow
strictly the usual procedure for examination of
witnesses?
No. Some exceptions are:
1.
2.
3.

The court may allow leading questions in all

stages of examination of a child if it will further
the interests of justice
The court may allow the child witness to testify in
a narrative form
Objections must be couched in a manner so as
not to mislead, confuse, frighten, or intimidate the
child.

Does the child witness testimony need to be

corroborated?
No. His / her testimony, if credible by itself, shall be
sufficient.
On what grounds may the court exclude the public
during the examination of a child witness?

2011-2012 [JARA POWER NOTES ON EVIDENCE]

Such an order may be made to protect the right to privacy
of the child or if the court determines on the record that
requiring the child to testify in open court would cause
psychological harm to him, hinder the ascertainment of
truth, or result in his inability to effectively communicate
due to embarrassment, fear, or timidity.
Does the child need to testify inside the courtroom?
No. The prosecutor, counsel or the guardian ad litem may
apply for an order that the testimony of the child be taken
in a room outside the courtroom and be televised to the
courtroom by live-link television. Also, the judge may
question the child in chambers, or in some comfortable
place other than the courtroom, in the presence of the
support person, guardian ad litem, prosecutor, and
counsel for the parties. The questions of the judge shall
not be related to the issues at trial but to the feelings of
the child about testifying in the courtroom.
What are the grounds to allow testimony by live-link
television?
If there is a substantial likelihood that the child would
suffer trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the case may
be.
What other similar measures may the court take aside
from live-link television?
The prosecutor or the guardian ad litem may apply for an
order that the chair of the child or that a screen or other
device be placed in the courtroom in such a manner that
the child cannot see the accused while testifying. If the
court grants an application to shield the child from the
accused while testifying in the courtroom, the courtroom
shall be arranged to enable the accused to view the child.
May the testimony of the child be given through
videotaped deposition?
Yes. If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order that the
deposition of the child be taken and preserved by
videotape.
Does the hearsay rule apply to childrens testimony?
Not strictly, in child abuse cases. A statement made by a
child describing any act or attempted act of child abuse,
not otherwise admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-criminal
proceeding subject to certain rules found in Section 28
(a).
May the court admit videotape and audiotape
interviews as evidence?

(a) Inadmissible evidence. - The following evidence is not

admissible in any criminal proceeding involving alleged
child sexual abuse: (1) Evidence offered to prove that the
alleged victim engaged in other sexual behavior; and (2)
Evidence offered to prove the sexual predisposition of the
alleged victim.
(b) Exception. - Evidence of specific instances of sexual
behavior by the alleged victim to prove that a person
other than the accused was the source of semen, injury,
or other physical evidence shall be admissible. A party
intending to offer such evidence must: (1) File a written
motion at least fifteen (15) days before trial, specifically
describing the evidence and stating the purpose for which
it is offered, unless the court, for good cause, requires a
different time for filing or permits filing during trial; and (2)
Serve the motion on all parties and the guardian ad litem
at least three (3) days before the hearing of the motion.
Before admitting such evidence, the court must conduct a
hearing in chambers and afford the child, his guardian ad
litem, the parties, and their counsel a right to attend and
be heard. The motion and the record of the hearing must
be sealed and remain under seal and protected by a
protective order set forth in section 31(b). The child shall
not be required to testify at the hearing in chambers
except with his consent.
How is the privacy of the child protected?
Any records regarding the child shall be confidential and
kept under seal. Except upon written request and order of
the court, the record may only be released to certain
persons under Section 31(a). Moreover, any videotape or
audiotape of a child that is part of the court record shall
be under a protective order as provided by Section 31(b).
The court may issue additional protection orders to
protect the childs privacy. Whoever publishes or causes
to be published the identifying information of the child or
the immediate family of the child shall be liable to the
contempt power of the court. Any videotape or audiotape
of a child made part of the court record shall be destroyed
after 5 years from the date of entry of judgment.
How are the ordinary rules of Court applied?
Suppletorily.
When do you challenge the qualification of the
witness?
Before he is made to testify on the matters which he/she
was presented. Failure to challenge will uphold the
qualification of the witness. Kaya nga daw PRELIMINARY
EXAMINATION ang tawag sabi ni Jara.

Yes, under certain conditions imposed under Section 29.

What is the Sexual Abuse Shield Rule?
Section 30. Sexual abuse shield rule. -

Distinguish the manner of taking the testimony of a

child witness from that of an ordinary witness.

2011-2012 [JARA POWER NOTES ON EVIDENCE]

With respect to the FIRST ELEMENT:
Child Witness

Ordinary Witness

Only the judge is

allowed to ask
questions to a child
witness during
p r e l i m i n a r y
examination.

Opposing counsels are

allowed to ask
questions during
p r e l i m i n a r y
examination.

Leading questions are Leading questions are

allowed.
generally not allowed.
Te s t i m o n y i n a Te s t i m o n y i n a
n a r r a t i v e f o r m i s narrative form is not
allowed.
allowed.
The child witness is An ordinary witness is
assisted by a facilitator. n o t a s s i s t e d b y a
facilitator.
What is the Dead Mans Statute?
Parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor
or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a
claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death
of such deceased person or before such person became
of unsound mind. (NOTE: CODAL. VERBATIM.
REQUIRED.)
What are the elements of the Dead Mans Statute?
1.
2.
3.
4.

The defendant in the case is the executor or

administrator or a representative of the deceased
or the person of unsound mind;
The suit is upon a claim by the plaintiff against
the estate of said deceased person or person of
unsound mind;
The witness is the plaintiff, or an assignor of that
party, or a person in whose behalf the case is
prosecuted;
The subject of the testimony is as to any matter
of fact occurring before the death of such person
or before such person became of unsound mind.

1.
2.

Witnesses who are neither parties the case, their

assignors, nor persons in whose behalf the case
is prosecuted;
A counterclaim has been interposed by the
defendant as the plaintiff would thereby be
testifying in his defense.

With respect to the SECOND ELEMENT:

1.

Defendant who is sued in his individual, rather in

a representative capacity.

With respect to the THIRD ELEMENT:

1.
2.

An administrator who brings an action in behalf

of the estate;
The action is brought by the heirs of a deceased
plaintiff who were substituted for the latter.

With respect to the FOURTH ELEMENT:

1.
2.

Negative testimony, that is testimony that a

did not occurring during the lifetime of
deceased;
Testimony on the present possession by
witness of a written instrument signed by
deceased.

fact
the
the
the

To whom does the rule apply?

To a witness of the plaintiff who attempts to testify on
matters of fact occurring before the death of such
deceased person or before such person became of
unsound mind.

What happened in the case of Icard v. Masigan?

Facts: For services rendered in connection with the
development and location of certain mining claims,
Joseph K. Icard filed a claim of P2,000 against the estate
of his deceased father George M. Icard. The claim having
been allowed by the commissioner on claims, the
administrator appealed to the Court of First Instance,
where it was likewise allowed.

No. The first element of the Dead Mans Statute is absent

in this case. The person who must have been disabled or
who must have died in this case is the defendant. The
defendant must be the one therefore being defended in
this case.

DOCTRINE: the Dead Mans Statute is designed to close

the lips of the party plaintiff when death has closed the
lips of the party defendant, in order to remove from the
surviving party the temptation to falsehood and the
possibility of fictitious claims against the deceased.
Where, as in the instant case, the purpose of the oral
testimony is to prove a lesser claim than what might be
warranted by clear written evidence, to avoid prejudice to
the estate of the deceased, the law has certainly no
reason for its application.

Under what instances does the rule not apply?

What is the latin maxim in that case?

A creditor filed a case against the debtor. In case the

creditor dies and the debtor is alive and of sound
mind, does the rule apply?

2011-2012 [JARA POWER NOTES ON EVIDENCE]

Ratione cessante, cessat ipsa lex.
Ong Chua vs. Carr?
Facts: Henry Teck and his wife, Magdalena Lim sold a
property to the plaintiff, Ong Chua. Chua executed a
public document granting to the spouses the right to for
the sum of P6, 500 within four years from the date of
purchase. Later, Edward Carr went to the office of a
practicing lawyer, Moore and sought the advice and
assistance of the latter in regard to purchasing coconut
lands. Moore then called Carr's attention to the lots
above-mentioned and told him that he could buy the lots
for P20, 000, the amount which Chua paid for them to
Teck and Lim. Moore informed Carr that Teck and his wife
had the right to repurchase the property in question from
Chua and that such rights would expire in June, 1927.
Both Chua and Carr requested Moore to draw the deed of
sale of the property from Chua to Carr. Before the drafting
of the deed, Chua stated to Moore that he consented to
sell the properties to Carr on the condition that the sale
should be subject to the rights of Teck and Lim to have
the property reconveyed to them and that said rights were
to be respected by the vendee. According to Moore's own
testimony, Carr was fully aware of those rights even
before the execution of the deed, December 14, 1925,
and that he consented to embody stipulations to the effect
in said deed.
Moore told Carr that the deed of sale could be made in
such a form that Carr's title to the property purchased
would appear to be absolute but that Carr was to bear in
mind that the rights of Teck and Lim still existed and that
the deed and other documents must be left in his,
Moore's, possession until the expiration of the term for
the right of repurchase and that, if the deed were made in
that form, the loan of P6,500 (Carrs deficiency in the
purchase price) could be obtained. The deed of sale was
prepared without including therein the condition that sale
was subject to Teck's and Lim's rights to repurchase. The
deed was signed by Chua and duly acknowledged before
Moore as notary public.
Carr paid only P13, 500 in cash and promised, in writing,
to pay to the vendor the balance of the purchase price. In
July, 1926, Teck offered to repurchase the property in
question from Chua who thereupon demanded of Carr the
reconveyance of the property to the spouses, but Carr
refused to do so, claiming that he had an absolute title to
said property, and Chua then learned, for the first time,
that the deed in question contained no reference to the
rights of Teck and Lim to repurchase the property. On July
23, 1926, this action was brought with the plaintiff
demanding that the deed in question be reformed in
accordance therewith. Subsequent to the filling of the
answer, Carr died, and the administrator of his estate was
substituted as defendant. Upon such facts the court
below ordered the reformation of the deed in accordance
with the plaintiff's demand. Hence, this appeal.

Issue: WON the court erred in permitting the plaintiff,

Chua, to testify, over the defendant's objections, to
fact occurring prior to the death of the defendant Carr
Held: The rules bar parties to an action or proceeding
against an executor or administrator or other
representative of a deceased person upon a claim or
demand against the estate of such deceased person from
testifying as to any matter of fact occurring before the
death of such deceased person. But it has generally been
given a liberal construction to promote justice, and it is
held that it never was intended to serve as a shield for
fraud. As stated in Jones on Evidence: The evidence of
an adverse party is absolutely excluded by an
independent, affirmative enactment making him
incompetent as to transactions or communications with a
deceased or incompetent person. These statutes,
however, do not render the adverse party incompetent to
testify to fraudulent transactions of the deceased, as the
statutes are not designed to shield wrongdoers but the
courts compel the adverse party to clearly establish the
alleged fraudulent acts before admitting such testimony.
In this case, a number of credible witnesses testified to
facts which conclusively showed that Carr's conduct was
tainted with fraud. The plaintiff did not take the witness
stand until after the existence of fraud on the part of Carr
and been established beyond a doubt and not by a mere
preponderance of evidence. In these circumstances, we
cannot hold that the trial court erred in not excluding the
plaintiff's testimony.
Important matters to discuss in the case:
1.
2.
3.
4.

Nature of the dispute

Whether or not the case fell under the parol
evidence rule.
The reasons why there was a need to reform
Would it have been different if fraud was proven
preliminarily?

What is Filial Privilege?

No person may be compelled to testify against his
parents, other direct ascendants, children, or other direct
descendants.
In relation to the Family Code?
Under the Family Code, the descendant may be
compelled to testify against his parents and grandparents,
if such testimony is indispensable in prosecuting a crime
against the descendant or by one parent against another.
Does this rule apply to both civil and criminal cases?
No. only in civil cases. See modifications made under the
family code.
Can modes of discovery be instead used if not
allowed to testify?
No. Not even depositions may be used as the same
constitutes testimonial evidence.

2011-2012 [JARA POWER NOTES ON EVIDENCE]

If the plaintiff makes use of the same depositions as

evidence, may it be admitted in court?

What if the same communication was overheard by a

third person?

According to Hans Morana, no. Because the same was

made in violation of the rules.

If a confidential communication made by one spouse to

the other is overheard by a third person, the
communication does not cease to be confidential
between the spouses, and neither of them can testify
without the consent of the other. But the legal prohibition
to testify is directed to the spouses only, and accordingly,
the third person overhearing cannot be prevented from
testifying. For the same reason, where a privileged
communication from one spouse to another comes into
the hands of a third party, the latter may testify. But if the
third party comes into possession of the communication
by collusion and voluntary disclosure on the part of either
of the spouses, he thereby becomes an agent of such
spouse and cannot testify without the consent of the
latter.

What are privileged communications found under the

Rules of Court?
Sec. 24 deals with types of disqualifications by reason of
privileged communication, to wit:
1.
2.
3.
4.
5.

Communication between husband and wife;

Communication between attorney and client;
Communications between physician and patient;
Communications between a priest and a
penitent;
Public officers and public interest.

Is the enumeration exclusive?

What is the reason for the privilege?

NO. there are other privileged matters not mentioned

under Sec. 130 such as:

Society has a deeply-rooted interest in the preservation of

peace of families and in the maintenance of the sacred
institution of marriage, and its strongest safeguard is to
preserve with zealous care any violations of those
hollowed confidences inherent in, and inseparable from
the marital status.

1.
2.
3.
4.
5.
6.
7.

Editors may not be compelled to disclose the

source of published news;
Voters may not be compelled to disclose for
whom they voted;
Trade secrets;
Information contained in tax census returns;
Bank deposits;
Statements made in labor conciliation
proceedings;
Communications of suspicious transactions to
AMLC under the AMLA.

What is the common element among such privileged

communications?
The core element in the said enumeration is the
confidence reposed by the person giving such information
to another who receives the same.
In marital privilege, what is the standard in
determining whether the utterance was given in
confidence?
The expression any communication means confidential
communications during marital relationship. The essence
of the privilege is to protect confidences only. And this
must be true, because there can be no reason arising out
from public policy, or otherwise, requiring that every word
spoken between the husband and wife shall be privileged,
irrespective of the presence in which spoken or the
subject or occasion thereof. The spirit of the rule is that
the privilege shall be construed to embrace only the
knowledge which the husband or wife obtains from the
other, which, but for the marriage relation and the
confidence growing out of it, would not have been
communicated, or which is of such nature or character as
that, to repeat the same, would tend to unduly embarrass,
or disturb the parties in their marital relations.

Can privileged communication be used to quash a

subpoena?
No. Sec. 4 of Rule 21 provides for exclusive grounds to
quash a subpoena:
Quashing a Subpoena Duces Tecum:
1.
2.
3.

The subpoena is unreasonable and oppressive;

The relevancy of the books, documents, or things
does not appear;
If the person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
the production thereof.

Quashing a Subpoena ad Testificandum:

1.
2.

Witness is not bound thereby;

Witness fees and kilometrage allowed by these
rules were not tendered when the subpoena was
served.

Furthermore, the marital disqualification rule does not

provide for an absolute disqualification. The witness may
still be summoned by the court but he is may be
prohibited only to testify on matters that are covered by
the marital privilege rule.
For whose benefit is the attorney client privilege?
It is a prohibition made against a counsel for the benefit of
his lawyer.

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What happened in the case of Regala vs.
Sandiganbayan?
PCGG want to build up their case against Eduardo
Coujuanco for the anomalies in the COCO LEVY FUNDS.
PCGG wants petitioners divulge that Cojuangco indeed
was a client of their firm, as well as other information
regarding Cojuangco.
Issue: Can the PCGG compel petitioners to divulge its
clients name?
Held: NO.
As a matter of public policy, a clients identity should not
be shrouded in mystery. The general is that a lawyer may
not invoke the privilege and refuse to divulge the name or
identity of his client.
1) the court has a right to know that the client whose
privileged information is sought to be protected is flesh
and blood.
2) the privilege begins to exist only after the attorneyclient relationship has been established. The attorneyclient privilege does not attach until there is a client.
3) the privilege generally pertains to the subject matter of
the relationship.
Finally, due process considerations require that the
opposing party should, as a general rule, know his
adversary. A party suing or sued is entitled to know who
his opponent is. He cannot be obliged to grope in the
dark against unknown forces.
Except:
1) Client identity is privileged where a strong probability
exists that revealing the clients name would implicate
that client in the very activity for which he sought the
lawyers advice.
2) Where disclosure would open the client to civil liability,
his identity is privileged.
3) Where the governments lawyers have no case against
an attorneys client unless, by revealing the clients name,
the said name would furnish the only link that would form
the chain of testimony necessary to convict an individual
of a crime, the clients name is privileged.
That client identity is privileged in those instances where
a strong probability exists that the disclosure of the
client's identity would implicate the client in the very
criminal activity for which the lawyers legal advice was
obtained.
The case was decided by a divided Supreme Court
and therefore could not be considered a doctrinal
pronouncement. What do you think was the big
problem?

The main contention of the dissenters was that the rule

on attorney-client privilege cannot be used to hide a crime
and the anomalies involving the coco-levy funds involved
a crime. However, the point was resolved by the majority
in this light: the client was still in the process of discussing
business matters with the law firm. No crime has yet to be
committed since the same was in an indeterminate stage.
Unless it becomes clear that the matters confided upon
the lawyers of the client constitute a crime, ACCRA had
no obligation to divulge information regarding the same.
ADMISSIONS AND CONFESSIONS
What is a self-serving statement?
It refers to one which has been made extra-judicially by
the party to favor his interest.
What is a disserving statement?
A disserving statement or an admission is any extrajudicial statement or conduct (act or omission) by a party
that is inconsistent with the position the party presently
takes.
Declaration that I am a tenant of this house. Is that
an admission?
It depends. See 2004 Jara Notes for a clearer discussion.
What are the requisites for an admission to be
admissible?
1.
2.
3.
4.

It must involve matters of fact and not of law;

Be categorical and definite;
Be knowingly and voluntarily made;
Be adverse to the admitters interest; otherwise it
would be self-serving and inadmissible.

Why is an admission admissible while a self-serving

statement not admissible?
Man cannot make evidence for himself. The reason for
the rule is that what a man says against his own interest
may be safely believed; but it is not safe to credit him
where he is advocating his interest.
If a statement favorable to the interests of the witness
is uttered in court, is it still self-serving?
Not anymore. Self-serving statements are allowed to be
made in court. Malamang kelangan mo ipaglaban yung
kaso mo.
Give an example of a self-serving statement
WARNING: make sure na kumpleto lahat ng elements
niyo kapag nagbigay kayo ng example. SHOTGUN
QUESTION ETO.
What happened in the case of Estrada vs. Desierto?

2011-2012 [JARA POWER NOTES ON EVIDENCE]

Doctrine: The Angara diary is admissible in evidence. It
partakes the nature of an adoptive admission. An
adoptive admission is a partys reaction to a statement or
action by another person when it is reasonable to treat
the partys reaction as an admission of something stated
or implied by the other person.
What happened in People vs. Holgado?
Facts: Sisenando Holgado and Filomeno Morales had
disputes about the occupation of certain land situated in
the municipality of Pinamalayan, Province of Mindoro. On
the morning of June 15, 1927, the two men happened to
meet. The argument was renewed, and they agreed to
fight. They did engage in a bolo duel with a fatal result for
Filomeno Morales, who was killed almost instantly.
Sisenando Holgado was also seriously wounded but was
able to proceed to a neighboring house. From there
Sisenando Holgado was taken to the municipal building
where he made a sworn statement before the municipal
president, in which he declared that only he and Filomeno
Morales fought. About one month later, Sisenando
Holgado died from the wounds received in the fight.
The disputable point is whether the accused Eugenio
Toledo intervened in the quarrel and dealt a mortal blow
to Filomeno Morales. For the prosecution, there was
presented the witness Justina Villanueva, the querida of
Filomeno Morales, who testified to the presence and
participation of Eugenio Toledo. Her testimony was
partially corroborated by that of the witness Justina Llave.
On the other hand, the theory for the defense was that
Toledo was in another place when the fight between
Morales and Holgado occurred and that his only
participation was on meeting Holgado, who was his
landlord or master, in helping him to a nearby house. To
this effect is the testimony of the accused and of Conrado
Holgado, the son of Sisenando Holgado. The defense
also relied upon the affidavit of Sisenando Holgado,
Exhibit 1, which was identified by the municipal president
of Pinamalayan.
Issue: WON the declaration of a third person against his
own penal interest is covered by the exceptions to the
hearsay rule.
Held: Yes. In the case of Pace vs. State ([1911], Court of
Criminal Appeals of Texas, 135 Southwestern, 379), the
appellant offered to prove in the trial court by the witness
Byron Kyle that on Saturday morning following the killing
of the deceased on the previous Sunday he had a
conversation with Dick Cain, one of the parties to the
homicide, in which Dick Cain admitted the he killed the
deceased. The court ruled:
. . . Wherever the state seeks to fasten criminality upon
the party on trial, the accused had a right to meet and
rebut any testimony which may be offered against him in
any legitimate way. If Cain had been upon trial, his
confession to the witness Kyle would have been
admissible beyond any shadow of doubt, and would have
been upon trial, his confession to the witness Kyle would
have been admissible beyond any shadow of doubt, and

would have been strong evidence to go before the jury.

The estate would have been seeking to introduce this and
with great earnestness, and correctly so. If appellant
could prove that another party or others committed the
homicide, it might prove his innocence, and would be
strong evidence to go before the jury in his favor. Any
legitimate fact or circumstance which would meet or tend
to meet the state's case and break the force of criminative
facts introduced against the accused is always
admissible. Appellant's contention was that he did not kill
the deceased, but that Cain did. The state's theory was
the appellant shot the deceased, and Cain did not shoot
him. Under the rules of evidence this testimony was
clearly inadmissible.
We would like finally to turn attention to what was said by
the editor of L. R. A. in his note in volume 37 hereinbefore
referred to, viz:
The purpose of all evidence is to get at the truth. The
reason for the hearsay rule is that the extrajudicial and
unsworn statement of another is not the best method of
serving this purpose. In other words, the great possibility
of the fabrication of falsehoods, and the inability to prove
their untruth, requires that the doors be closed to such
evidence. So long therefore as a declarant is available as
a witness, his extrajudicial statement should not be heard.
Where, however, the declarant is dead or has
disappeared, his previous statements, out of court, if not
inadmissible on other grounds, are the best evidence. But
they are not rendered inadmissible by the mere fact that
the declarant is unavailable, - something else is
necessary. One fact which will satisfy this necessity is
that the declaration is or was against the declarant's
interest, and this is because no sane person will be
presumed to tell a falsehood to his own detriment.
xxx

xxx

xxx

Again, if, seems indisputable, the desire to close the door

to falsehood which cannot be detected dictates the
exclusion of such testimony, the question as to the effect
to be given to such a confession is solely one of weight
and credibility. . . .
Any man outside of a court and unhampered by the
pressure of technical procedure, unreasoned rules of
evidence, and cumulative authority, would say that if a
man deliberately acknowledged himself to be the
perpetrator of a crime and exonerated the person
charged with the crime, and there was other evidence
indicative of the truthfulness of the statement, the
accused man should not be permitted to go to prison or to
the electric chair to expiate a crime he never committed.
Shall Judges trained and experienced in the law display
less discerning common sense that the layman and allow
precedent to overcome truth?
Adoptive admission vs. Admission by Silence
Adoptive Admission

Admission by Silence

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A partys reaction to a
statement or action by
another person when it
is reasonable to treat
the partys reaction as
an admission of
something stated or
implied by the other
person

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.

What is the principle of Res Inter Alios Acta?

The res inter alios acta rule ordains that the rights of a
party cannot be prejudiced by an act, declaration, or
omission of another. An extrajudicial confession is binding
onlyupon the confessant and is not admissible against his
co-accused. the reason for the rule is that, on a principle
of good faith and mutual convenience, a mans own acts
are binding upon himself, and are evidence against him.
So are his conduct and declarations. Yet it would not be
rightly inconvenient, but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized
strangers; and if a party ought not to be bound by the acts
of strangers, neither ought their acts or conduct be used
as evidence against him (People v. Raquel, G.R. No.
119005).
What are the two branches of the Res Inter Alios Acta
Rule?
1.
2.

The rule that the rights of a party cannot be

prejudiced by an act, declaration, or omission of
another;
The rule that evidence of previous conduct or
similar acts at one time is not admissible to prove
that one did or did not do the same act at another
time.

What are the exceptions to the rule?

1.
2.
3.

Admission by a co-partner or agent;

Admission by a co-conspirator;
Admission by privies.

If a person takes the witness stand and makes an

admission prejudicial to a third person, is the rule on
res inter alios acta still applicable?
NO. Statements made in open court by a witness
implicating a person aside from his own judicial
admissions, are admissible as declarations from one who
has personal knowledge of the facts testified thereto.
Who is a state witness?
He is one of two or more persons jointly charged with the
commission of a crime but who is discharged with his
consent as such accused so that he may be a witness for
the State

What are the requisites for one to be a state witness?

1.
2.
3.
4.
5.

There is absolute necessity for the testimony of

the accused whose discharge is requested;
There is no other direct evidence available for
the proper prosecution of the offense committed,
except the testimony of the said accused;
The testimony of said accused can be
substantially corroborated in its material points;
Said accused does not appear to be the most
guilty; and
Said accused has not at any time been convicted
of any offense involving moral turpitude.

Should a motion be filed?

Yes. A motion must be filed by the prosecution before it
rests its case.
Does it have to be heard ex-parte?
NO. before resolving such motion to discharge the
accused to be a state-witness, the court shall require the
prosecution to present evidence and the sworn statement
of the proposed state witness at a hearing of the motion
to discharge.
As prosecutor, how do you plan to convince the court
to allow the accused to testify?
You convince the court by complying with all the
requisites mandated by the law for one to become state
witness. More importantly, you have to prove that the
accused applying to become a state-witness must not be
the most guilty of the crime charged.
What assurance can you give the proposed statewitness in case he testifies?
If the court denies the motion for discharge of the
accused as state witness, his sworn statement shall be
inadmissible as evidence.
Discuss the procedure for one to become a witness
for purposes of RA 6981.
MEMAID WORK LANG ITO.
What is the assurance that the accused will testify for
the state?
Any witness admitted into the program of the Witness
Protection, Security and Benefit Act cannot refuse to
testify or give evidence or produce books, documents,
records or writings necessary for the prosecution of the
offense or offenses for which he has been admitted into
the Program on the ground of the constitutional right
against self-incrimination but he shall enjoy immunity from
criminal prosecution and cannot be subjected to any
penalty or forfeiture for any transaction, matter or thing
concerning his compelled testimony or books,

2011-2012 [JARA POWER NOTES ON EVIDENCE]

documents, records and writings produced (Sec. 14, R.A.
6981).
Who may be admitted to the Witness Protection,
Security and Benefit Program?
Any person who has witnessed or has knowledge or
information on the commission of a crime and has
testified or is testifying or about to testify before any
judicial or quasi-judicial body, or before any investigating
authority may be admitted provided that:
1.
2.
3.

4.

the offense in which his testimony will be used is

a grave felony as defined under the Revised
Penal Code, or its equivalent under special laws;
his testimony can be substantially corroborated
in its material points;
he or any member of his family within the second
civil degree of consanguinity or affinity is
subjected to threats to life or bodily injury or there
is a likelihood that he will be killed, forced,
intimidated, harassed or corrupted to prevent him
from testifying, or to testify falsely, or evasively,
because or on account of his testimony; and
he is not a law enforcement officer, even if he
would be testifying against the other law
enforcement officers. In such a case, only the
immediate members of his family may avail
themselves of the protection provided for under
the Act (Sec. 3, R.A. 6981).

If the person does not comply with the conditions,

may the sworn statement be used against him?
(Sworn statement of a person who refuses to testify
thereon)

At any time before the judgment of conviction becomes

final, the court may permit an improvident plea of guilty to
be withdrawn and be substituted by a plea of not guilty.
Can the prosecutor make use of the withdrawn plea
as an evidence against him?
No. a plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made
the plea or offer.
Is the same applicable in a civil case? If so, how can
you do it?
Yes. Such can be done by amending a partys pleadings.
Upon admissions made in an answer he can amend the
admissions in the answer into a specific denial.

RULE NO DNA EVIDENCE

What is DNA?
DNA (deoxyribonucleic acid) is the chain of molecules
found in every nucleated cell of the body (Sec. 3, Rule on
DNA Evidence). It is the fundamental building block of a
persons entire genetic make-up, which is found in all
human cells and is the same in every cell of the same
person (People v. Umanito, G.R. No. 172607, Oct. 26,
2007).
What is DNA evidence?
It constitutes the totality of the DNA profiles, results and
other genetic information directly generated from DNA
testing of biological samples (Sec. 3).

Yes, if he fails or refuses to testify or to continue to testify

without just cause when lawfully obliged to do so, he shall
be prosecuted for contempt. If he testifies falsely or
evasively, he shall be liable to prosecution for perjury. If a
State witness fails or refuses to testify, or testifies falsely
or evasively, or violates any condition accompanying such
immunity without just cause, as determined in a hearing
by the proper court, his immunity shall be removed and
he shall be subject to contempt or criminal prosecution.
Moreover, the enjoyment of all rights and benefits under
R.A. 6981 shall be deemed terminated. The witness may,
however, purge himself of the contumacious acts by
testifying at any appropriate stage of the proceedings
(Sec. 13, R.A. 6981).

What is DNA testing?

If in a criminal case the accused pleads guilty, can he

be convicted of the crime charged?

Yes. The Rules on DNA Evidence does not preclude a

DNA testing, without need of a prior court order, at the
behest of any party, including law enforcement agencies,
before a suit or proceeding is commenced (Sec. 4).

YES. No need to present evidence on the part of the

prosecution.
How may an accused change his plea?

It means verified and credible scientific methods which

include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the
information obtained from the DNA testing of biological
samples for the purpose of determining, with reasonable
certainty, whether or not the DNA obtained from two or
more distinct biological samples originates from the same
person (direct identification) or if the biological samples
originate from related persons (Kinship Analysis).
May DNA testing be conducted absent a prior court
order?

What are the requisites for the issuance of a DNA

testing order?

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In pending actions, the appropriate court may, at any time
issue a DNA testing order either motu proprio or upon
application of any person who has a legal interest in the
matter in litigation after due hearing and notice to the
parties and upon showing of the following:
1.
2.
3.
4.
5.
6.
7.

A biological sample exists that is relevant to the

case;
The biological sample:
was not previously subjected to the type of DNA
testing now requested; or
was previously subjected to DNA testing, but the
results may require confirmation for good
reasons;
The DNA testing uses a scientifically valid
technique;
The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case; and
The existence of other factors, if any, which the
court may consider as potentially affecting the
accuracy or integrity of the DNA testing (Sec. 4).

Is the order granting the DNA testing appealable?

No. An order granting the DNA testing shall be
immediately executory and shall not be appealable. Any
petition for certiorari initiated therefrom shall not, in any
way, stay the implementation thereof, unless a higher
court issues an injunctive order (Sec. 5).
During Alexis trial for rape with murder, the
prosecution sought to introduce DNA evidence
against him, based on forensic laboratory matching
of the materials found at the crime scene and Alexis
hair and blood samples. Alexis counsel objected,
claiming that DNA evidence is inadmissible because
the materials taken from Alexis were in violation of
his constitutional right against self-incrimination as
well as his right of privacy and personal integrity.
Should the DNA evidence be admitted or not?
Reason.
The DNA evidence should be admitted. It is not in
violation of the constitutional right against selfincrimination or his right of privacy and personal integrity.
The right against self-incrimination is applicable only to
testimonial evidence. Extracting a blood sample and
cutting a strand from the hair of the accused are purely
mechanical acts that do not involve his discretion nor
require his intelligence.
Is the result of DNA testing automatically admitted as
evidence in the case in which it was sought for?
No. The grant of a DNA testing application shall not be
construed as an automatic admission into evidence of
any component of the DNA evidence that may be
obtained as a result thereof (Sec. 5).
If a DNA test was conducted, what are the possible
results that it may yield?

1.

2.

3.

The samples are similar, and could have

originated from the same source (Rule of
Inclusion). In such a case, the analyst proceeds
to determine the statistical significance of the
similarity.
The samples are different hence it must have
originated from different sources (Rule of
Exclusion). This conclusion is absolute and
requires no further analysis;
The test is inconclusive. This might occur due to
degradation, contamination, failure of some
aspect of protocol, or some other reasons.
Analysis might be repeated to obtain a more
conclusive result (People v. Vallejo, G.R. No.
144656, May 9, 2002).

What should the courts consider in evaluating DNA

testing results?
1.
2.
3.

The evaluation of the weight of matching DNA

evidence or the relevance of mismatching DNA
evidence;
The results of the DNA testing in the light of the
totality of the other evidence presented in the
case; and
DNA results that exclude the putative parent from
paternity shall be conclusive proof of nonpaternity (Sec. 9)

To whom is post-conviction DNA testing available?

Post-conviction DNA testing may be available, without
need of prior court order, to the prosecution or any person
convicted by final and executory judgment.
What are the requisites for the applicability of the
Post-conviction DNA testing?
1.
2.
3.

Existing biological sample;

Such sample is relevant to the case; and
The testing would probably result in the reversal
or modification of the judgment of conviction
(Sec. 6).

What is the remedy of the convict if the postconviction DNA testing result is favorable to him?
The convict or the prosecution may file a petition for a writ
of habeas corpus in the court of origin. In case the court,
after due hearing, finds the petition to be meritorious, it
shall reverse or modify the judgment of conviction and
order the release of the convict, unless continued
detention is justified for a lawful cause.
What should the courts consider in determining the
probative value of DNA evidence?
1.

2.

The chain of custody, including how the

biological samples were collected, how they were
handled, and the possibility of contamination of
the samples;
The DNA testing methodology, including the
procedure followed in analyzing the samples, the

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3.

4.

advantages and disadvantages of the procedure,

and compliance with the scientifically valid
standards in conducting the tests;
The forensic DNA laboratory, including
accreditation by any reputable standards-setting
institution and the qualification of the analyst who
conducted the tests. If the laboratory is not
accredited, the relevant experience of the
laboratory in forensic casework and credibility
shall be properly established; and
The reliability of the testing result (Sec. 7).

What are the things to be considered in assessing the

probative value of DNA evidence?
1.
2.
3.
4.
5.
6.

How the samples are collected;

How they were handled;
The possibility of the contamination of the
samples;
The procedure followed in analyzing the
samples;
Whether the proper standards and procedures
were followed in conducting the tests; and
The qualification of the analyst who conducted
the tests. (Ibid.)

What are the things to be considered in evaluating

whether or not the DNA testing methodology is
reliable?
1.
2.
3.
4.
5.
6.

The falsifiability of the principles or methods

used, that is, whether the theory or technique
can be and has been tested;
the subjection to peer review and publication of
the principles or methods;
The general acceptance of the principles or
methods by the relevant scientific community;
The existence and maintenance of standards
and controls to ensure the correctness of data
generated;
The existence of an appropriate reference
population database; and
The general degree of confidence attributed to
mathematical calculations used in comparing
DNA profiles and the significance and limitation
of statistical calculations used in comparing DNA
profiles.

What Kind of Evidence is DNA Evidence?

It can be object, documentary, or testimonial, depending
on what you present in court. It is not exclusively
classifiable.
In post-conviction DNA testing, what does
conviction mean?
Conviction means a person has been convicted by final
judgment. Even if he is already sentenced by final
judgment, he may still avail of such remedy.
Does the rule on post-conviction DNA testing violate
the rule on immutability of judgment?

No. Once post-conviction testing turns out to be favorable

to the accused, it has the same effect as annulling the
courts judgment.
If that is the case, then why is the remedy a petition
for Habeas Corpus? Why not an action for annulment
of judgment under Rule 47?
An action for habeas corpus has the same effect as that
of an action for annulment of judgment. The difference is
that according to Jara, Rule 47 is only available to civil
cases. Habeas Corpus may be availed of in criminal
cases.
HEARSAY EVIDENCE
What is Sec. 36?
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.
Are there any exceptions to the hearsay rule?
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

dying declaration
declaration against interest
act or declaration about pedigree
family reputation or tradition regarding pedigree
common reputation
res gestae
entries in the ordinary course of business
entries in official records
commercial lists
learned treatises
testimony or deposition at a former proceeding
Sec. 28 of the Rules on Examination of a Child
Witness
13. Rule 8 of the Rules on Electronic Evidence
Can a documentary evidence be hearsay?
YES. The one who knows the contents of the document
must testify in court and must have personal knowledge
of the facts stated therein.
When a document is presented in court, there is a
presumption that someone has prepared the said
document. In order to properly submit the same, the
person who prepared it or who had a part in the execution
of the said document must testify as to the contents of the
same. If it the said document was merely presented to the
court without giving the adverse party any opportunity to
cross examine the person who prepared or who was part
of the preparation of the said document, then the same
document constitutes hearsay evidence.
Is hearsay evidence relevant? Why should we
exclude such relevant evidence?
Hearsay evidence is relevant because it may have a
reasonable tendency to prove the facts in issue. However,
it is not competent; it is expressly excluded by the Rules.

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The reason for its exclusion is the absence of the
opportunity to cross-examine the witness testifying before
the court. The veracity of the facts cannot be tested.
Opportunity to cross-examine

What is the Rule on Independently Relevant

Statements? Is it hearsay?

Testimonial evidence that was not derived from

personal knowledge;
Testimony of a witness that may be derived from
personal knowledge but did not give the adverse
party an opportunity to cross-examine the
witness.

The doctrine provides that a witness ma testify to the

statements made by a person if, for instance, the fact that
such statements were made by the latter would indicate
the latters mental state or physical condition. Such
statements are relevant since the statements made are
the very facts in issue or circumstantial evidence of the
facts in issue.
It is not hearsay evidence. It may have certain
characteristics of hearsay, but its application is not
hearsay. It is DIRECT EVIDENCE.

Can you not cross-examine the witness who offered

the hearsay evidence?

What are the different classifications of

Independently Relevant Statements?

What are the two aspects of hearsay evidence?

1.
2.

YES. OPINION (HPM): In fact, you can ask anything

during cross examination (generally, we follow the
ENGLISH RULE), therefore, there is nothing wrong if you
cross-examine the witness. You can cross-examine him
on how he acquired the hearsay knowledge, or those
independently relevant statements. See also the
purposes of cross-examination, and it does not only
include testing the truthfulness of the statement but also
to discredit the witness. Hence, even if the testimony is
hearsay, you can attack the credibility of the witness
during cross-examination. However, it is submitted that
once you cross-examine a witness who testified on
hearsay, the adverse party is deemed to have waived his
right to object on its admissibility. The objection must be
raised during the direct exam, hence, if the counsel was
able to object, then there is no necessity for him to crossexamine.
OPINION (IPL): You could cross-examine the witness
who offered the hearsay testimony. WHAT YOU CANNOT
CROSS-EXAMINE IS THE PERSON WHO MADE THE
OUT-OF-COURT STATEMENT. That is the problem the
hearsay rule wants to address.
It is because of the above reason that if the affiants of
affidavits do not take the witness stand to affirm their
averments in their affidavits, such affidavits must be
excluded from the judicial proceeding, being inadmissible
hearsay.

Supposing it is the other way around? If it is the

witness who testifies according to his own personal
knowledge? Is it possible that it can be hearsay?
(Jara 2004 Notes)
Yes. There is still hearsay evidence if the witness testifies
according to his own personal knowledge, BUT his
testimony was not subjected to cross-examination.
NOTE: If failure of the witness to return to court is due to
the act of the adverse party, then such testimony does not
become hearsay.

1.
2.

Those statements which are the very facts in

issue; and
Those statements which are circumstantial
evidence of the facts in issue.

Does the hearsay rule apply to summary procedure?

Is there an opportunity to cross-examine in summary
procedure?
YES. Although in both civil and criminal cases the direct
testimonies of the witnesses shall be contained in their
affidavits, the accused in criminal cases covered by
Summary Procedure has the right to cross-examine the
witnesses. However, no such right is available to the
parties in civil cases. But see Sec. 20 of the Rule on
Summary Procedure (which is applicable to both civil and
criminal) such that, hearsay statement shall subject
witness to disciplinary proceedings and expunge the
statements off the record.

People vs. Cloud

At around 11:00 oclock in the morning on August 2, 1988
while a certain Mrs. Josephine Aguilar was at the
emergency room of St. Lukes Hospital, Quezon City to
have some stitches removed from her daughters head
her attention was called by a limpid boy being carried by
a man followed by an old woman who was shouting
hysterically. The boy is John Albert Cloud. She noticed
that the face of the boy was swollen and bruised and his
body covered with dry blood. A nurse commented that
the little boy not more than three years old must have
been hit by a truck (tsn, J. Aguilar, June 21, 1993, pp.
7-10, 14-15, 33).
But the words of the old woman the lola - of the little
boy, showed the cause of the injury to be otherwise for
she was repeatedly saying in a potpourri of cries and
tears: Pinatay siya nf sariling ama! The old woman told
the people inside the Emergency Room that the boys
father Robert Cloud wouldnt allow John Albert to
come with her and when the boy started to cry and
wouldnt stop crying his father began to beat the boy
hard, tied his hands, and made tusok, tusok in his body.

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The father continued beating the boy even when
excrements were already coming out from the boys anus
(tsn. J Aguilar, June 21, 1993, pp. 12-13, 22).
The male companion of the boy said to the old woman:
Hoy, tigil ka na! Wag kang maingay. And told the
people at E.R.: Sira and ulo ng matanda, eh! (tsn, J
Aguilar, July 12, 1993, pp. 8-9). But the old woman
wouldnt stop and continued to say: Putang-ina ang ama
niya . . . Hayop siya!
When the doctor pronounced the boy dead the old
woman knelt before him and cried like (Ix)ion (tsn, J.
Aguilar, June 21, 1993, p. 10). His baptismal certificate
says that John Albert was born on October 2, 1987 to
Janet Villagracia and John Robert Cloud (Exh. 3).
The ear-piercing would probably have ended there but for
the fact that Mrs. Aguilars conscience was bothered by
what she saw and heard as narrated above and decided
to do something about it.
She approached Atty.
Remedios Balbin, Chairman in Quezon City of a civil
liberties organization. Atty. Balbin, after a few weeks of
research found out that Robert Cloud and family left his
house at No. 69 San Isidro Street, barangay Sto. Nio,
Quezon City[;] the boys body was brought to Rey Funeral
Homes[;] Dr. E. Cacas certified that the cause of death of
John Albert Cloud is broncho pneumonia with heart
complications (exh. D-48) [;] and that the autopsy on the
cadaver was waived by Natividad Calpito Cloud who
claimed to be the boys mother per her Affidavit dated
August 3, 1988 (Exh. D-47).
Atty Balbin thereafter
contacted the NBI and requested for the exhumation of
the boys cadaver.
Issue: WON the statements of Josephine Aguilar are
admissible as evidence.
Held: Yes. The trial court was of the opinion that what Ms.
Aguilar heard or saw does not merely constitute an
independently relevant statement which it considered as
an exception to the hearsay rule, only as to the tenor
rather than the intrinsic truth or falsity of its contents.[18]
We will clarify this. Insofar as the statements of Rufina
Alconyes are concerned, they are admissible as part of
the res gestae they having been caused by and did result
from the startling, if not gruesome, occurrence that she
witnessed; and these were shortly thereafter uttered by
her with spontaneity, without prior opportunity to contrive
the same. The report made thereof by Josephine Aguilar
is not hearsay since she was actually there and
personally heard the statements of Alconyes which she
recounted in court. Her account of said statements of
Alconyes are admissible under the doctrine of
Aindependently relevant statements, with respect to the
tenor and not the truth thereof, since independent of the
truth or falsity of the same they are relevant to the issue
on the cause of the death of the victim.
Who was the Ponente?
Justice Regalado

The decision made use of independently relevant

statements. How?
The witness in this case testified as to the fact that a
certain old lady was screaming invectives against a
person who allegedly killed his son.

Does that mean that the prosecution can convict a

person of a serious crime using only circumstantial
evidence?
YES, provided that:
1.
2.
3.

there is more than one circumstance;

the facts from which the inferences are derived
are proven; and
the combination of all the circumstances is such
as to produce a conviction beyond reasonable
doubt.

What do you mean by the term ante litem motam?

In cases applicable, the statement must be prior to the
controversy, but according to CJ Moran, it means that it
must not only be prior to the suit but prior to any
controversy even if a suit has not yet been instituted.
What is the concept of a 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.
Can we apply this to a criminal case? How about a
civil case (HOW)?
Commonly applicable to criminal cases since the subject
of the statement is the death of the declarant. However, it
is applicable to civil cases when the subject matter of the
cases involves the death of the declarant, or that the
death is a vital issue in the civil case.
As long as the relevance is clear, a dying declaration may
now be introduced in a criminal or a civil action and the
relevance is satisfied when the subject of the inquiry is
the death of the declarant himself.
Must a dying declaration be in writing?
NO. The Revised Rules on Evidence do not require that a
dying declaration must be made in writing to be
admissible. Indeed, to impose such a requirement would
be to exclude many statements from a victim in extremis
for want of paper and pen at the critical moment (People
v. Viovicente, G.R. No. 118707).
Why is it exempted?
Necessity and trustworthiness.

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What is the legal maxim that is usually quoted?

declaration, but nevertheless, it may be admissible as

part of a res gestae

Truth sits on the lips of the dying man.

What if victim dies only after three (3) months?

What if the defense presents evidence that the

declarant during his lifetime is a congenital liar? Is
that a good strategy on the part of the defense?

As long as he believed that he is going to die.

NO. That is not a good defense. It will not even have any
effect at all. The rule on dying declarations does not
require that the declarant be one of proven honesty. For
as long as the essential elements of a dying declaration is
present, the same may be admitted in evidence.

The declaration made by a person deceased, or unable to

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

Essential Elements/Requisites of a dying

declaration?
Requisites:
1.
2.
3.
4.
5.
6.

That death is imminent and the declarant is

conscious of that fact;
That the declaration refers to the cause and the
surrounding circumstances of such death;
That the declaration relates to the facts which the
victim is competent to testify to;
That the declaration is offered in a case wherein
the declarants death is subject of the inquiry (the
victim necessarily must have died);
That the statement is complete in itself (People v.
De Joya, G.R. No. 75028, November 8, 1991);
and
The declarant should have died.

How do you prove to the court that the statements

were made under the consciousness of an impending
death?
A declaration will be deemed as having been made under
the consciousness of imminent death, in consideration of:
1.
2.
3.

The words or statements of the declarant on the

same occasion;
His conduct at the time the declaration is made;
The serious nature of his wounds as would
necessarily engender a belief on his part that he
would not survive therefrom.

Can a dying declaration be used if the crime charged

is Rape with Homicide?
Only as to the death, i.e., the facts surrounding the death,
but not the facts surrounding the rape.
Jara: if the declarant says that he/she was raped, and
subsequently dies, that cannot be considered a dying
declaration.
What if the victim does not die?
Always remember DEATH IS AN ESSENTIAL ELEMENT.
Why? If the declarant is alive, he can testify in court
personally. It will not be considered as a dying

What is s declaration against interest?

Requisites?
1.
2.
3.
4.

That the declarant is dead or unable to testify;

That it relates to a fact against the interests of
the declarant;
That at the time he made said declaration the
declarant was aware that it was contrary to his
aforesaid interest; and
That the declarant had no motive to falsify and
he believed such declaration to be true.

Distinction of declaration against interest vs.

admission?
Admissions against interest are those made by a party to
a litigation or by one in privity with or identified in legal
interest with such party, and are admissible whether or
not the declarant is available as a witness. Declarations
against interest are those made by a person who is
neither a part nor in privity with a party to the suit, are
secondary evidence, but constitute an exception to the
hearsay rule, and are admissible only when the declarant
is unavailable as a witness.
Give an example of a declaration against interest.
Make sure to give an example both for a criminal case
and a civil case, and remember na dapat kumpleto lahat
ng elements.
What are the evidenciary Rules on Pedigree?
SEC. 39. Act or declaration about pedigree.The act or
declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him
by birth or marriage, may be received in evidence where
it occurred before the controversy, and the relationship
between the two persons is shown by evidence other
than such act or declaration. The word "pedigree"
includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces
also facts of family history intimately connected with
pedigree.

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SEC. 40. Family reputation or tradition regarding
pedigree. The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if
the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in family
bibles or other family books or charts, engraving on rings,
family portraits and the like, may be received as evidence
of pedigree.

Distinctions between Sec. 39 and Sec. 40.

Sec. 39

Sec. 40

A c t o r d e c l a r a t i o n Family reputation or
about pedigree.
tradition regarding
pedigree.
Declarant is deceased D e c l a r a n t i s t h e
or unable to testify.
witness himself.
Witness need not be a Witness is a member of
member of the family.
the family.
Relation of the
declarant and the
person subject of the
inquiry must be
established by
independent evidence

The witness is himself

the one to whom the
fact relates, it is not
necessary for him to
establish
by
independent evidence
his relationship to the
family.

Give an example.
Just give an example regarding your family, para mas
medaling idefend. He grills a lot of students in examples.
When were you born? Is that hearsay? So if it is
hearsay, when you state that in court, the court will
not believe you?
the fact that you know your date of birth does not come
from your own personal knowledge because at the time
you were born you were completely ignorant or innocent.
In fact, your information of your birth is derived from
another source. Nevertheless, the information regarding
your birth is admissible for the convenience of everybody.
It is a matter of necessity.
The birth certificate is also hearsay evidence, but
because it is a public document. 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.

Basis for admitting such evidence

Necessity and Trustworthiness

What is the rule on Res Gestae?

Statements made by a person while a startling
occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res
gestae. So, also, statements accompanying an equivocal
act material to the issue, and giving it a legal significance,
may be received as part of the res gestae.
Why are they hearsay?
Because the one testifying in court is not the one who
made the declaration.
Why do we admit them?
Necessity and Trustworthiness. There are other
declarations which are admitted as original evidence,
being distinguished from hearsay by their connection with
the principal fact under investigation. The affairs of men
consist of a complication of circumstances so intimately
inter-woven as to be hardly separable from each other.
They are trustworthy because the statements are made
instinctively, while the declarants mental power for
deliberation in concocting matters are controlled and
stilled by the shocking influence of a startling occurrence,
so that all his utterances at the time are the reflex product
of immediate sensual impressions, unaided by
retrospective mental action. Necessity, because such
natural and spontaneous utterances are more convincing
than the testimony of the same person on the stand.
Different classifications of Res Gestae Declarations
Verbal Acts

Spontaneous
Statements

The res gestae is the The res gestae is the

equivocal act.
startling occurrence.
Ve r b a l a c t m u s t b e
contemporaneous with
or must accompany the
equivocal act.

Statements may be
made prior, or
immediately after the
startling occurrence.

What are Spontaneous statements?

Statements made by a person while a startling
occurrence is taking place, or immediately prior or

2011-2012 [JARA POWER NOTES ON EVIDENCE]

subsequent thereto, with respect to the circumstances
thereof.

You thought that because sobrang bait ni boylaloo/

girlaloo sa iyo eh kayo na (ano yun caritas?)

What is the concept of a startling occurrence?

It is only when the thing done is equivocal that it is

competent to prove the declarations accompanying it as
falling within the cases of res gestae. What a person says
that is explanatory of an equivocal or ambiguous act
which he is then doing, or situation which he is then
occupying as that of a person in possession of property
may be proved as re s gestae.

As it is essential that the statements be natural and

spontaneous, unreflected and instinctive, it is also
essential that they should have been caused by
something startling enough to produce nervous
excitement, and to keept the will dormant so far as any
deliberation in concocting matters for speech or selecting
words is concerned.
Example?
A murder, a suicide, a railroad accident and the like.
What if the statements were made for some period
after the startling occurrence took place?
Experience shows that a startling occurrence may extend
its exciting influence over a subsequent period of time
which may be long or short according to the relative
gravity or seriousness of the startling occurrence. If the
statements were made while the nervous excitement was
still working on the declarants mind, they are admissible;
otherwise, they are not.
How does one determine the spontaneity of the
occurrence?
1.
2.
3.
4.

Lapse of time between the act and the

declaration relating to it;
Whether there was an opportunity for fabrication
or a likelihood of it;
The mental and physical condition of the
declarant and the character of the occurrence;
The nature and form of the declaration.

What are verbal acts?

Statements accompanying an equivocal act material to
the issue and giving it a legal significance. Statements
accompanying and explaining that act made by or to the
person doing it may be proved if they are becessary to
understand it.
What are the requisites for verbal acts to be
admissible?
1.
2.
3.
4.

There must be an equivocal act;

The equivocal act must be material to the issue;
The statement in question muset be necessary to
understand the equivocal act; and
The statement must accompany the equivocal
act.

What is an equivocal act?

JARA: it is an act that is capable of different
interpretations. In other words, pwedeng lagyan ng kulay
yung mga ginawa mo. Pwedeng may ibang kahulugan.

What are entries in Official Record?

Entries made 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 enjoyed by
law.
Are the items recorded in the birth certificate
considered hearsay?
YES, but they are considered as an exception.
Why is a birth certificate trustworthy?
Nobodys interested with the birth of a person. Jara: You
might just be another bitch in this world. Furthermore, the
law makes it clear that they are prima facie evidence of
the facts stated therein.
If a mother contradicts the date alleged in the birth
certificate, what should be given greater probative
weight?
Birth certificate. See Sec. 23, Rule 132.
When are business records excepted from the rule of
hearsay evidence under the rules on Electronic
Evidence?
The hearsay rule is inapplicable if the following requisites
are present:
1. A memorandum, report, record or data
compilation of acts, events, conditions, opinions,
or diagnoses,
2. Made by electronic, optical, or other similar
means,
3. At or near the time of or from transmission or
supply of information,
4. By a person with knowledge thereof,
5. And kept in the regular course or conduct of a
business activity,
6. And such was the regular practice to make such
memorandum or report,
7. All of which are shown by the testimony of the
custodian or other qualified witness (Sec. 1, Rule
8, REE).
OPINION AND CHARACTER EVIDENCE
What is the Opinion Rule?

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As a rule, the opinion of a witness is inadmissible
because when a witness testifies, a witness does so with
respect to facts personally observed by him and it is for
the court to draw conclusions from the facts testified to.
Are there any exceptions?
1.

2.

The opinion of a witness regarding a matter

requiring special knowledge, skill, experience or
training which he is shown to possess, 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;
c. The mental sanity of a person with whom
he is sufficiently acquainted;
d. Impressions of the emotion, behavior,
condition or appearance of a person.

What are the requisites for an Expert Opinion to be

admissible?
1.
2.

That the fact to be proved is one requiring expert;

That the witness is really an expert.

What are the Daubert and Frye standards?

Frye Standard
Frye involved the admissibility of opinion evidence based
upon the use of an early version of the Polygraph. The
D.C. Circuit Court held that scientific evidence was
admissible if it was based on a scientific technique
generally accepted as reliable in the scientific community.
Thus, Expert Testimony was admitted based on the
expert's credentials, experience, skill, and reputation. The
theory was that deficiencies or flaws in the expert's
conclusions would be exposed through crossexamination. This decision became known as the Frye
test or the general-acceptance test. By the 1990s, the
Frye test had become the majority view in federal and
state courts for the admissibility of new or unusual
scientific evidence, even in view of Federal Rule of
Evidence 702, passed in 1975, which some courts
believed to provide a more flexible test for admissibility of
opinion testimony by expert witnesses.
Daubert - Kumho Standard:
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S.
Supreme Court changed the standard for admissibility of
expert testimony. Under Daubert, a trial judge has a duty
to scrutinize evidence more rigorously to determine
whether it meets the requirements of Federal Rule of
Evidence 702. This rule states, "If scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is

based upon sufficient facts or data, (2) the testimony is

the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to
the facts of the case."
In Daubert, the Court stated that evidence based on
innovative or unusual scientific knowledge may be
admitted only after it has been established that the
evidence is reliable and scientifically valid. The Court also
imposed a gatekeeping function on trial judges by
charging them with preventing "junk science" from
entering the courtroom as evidence. To that end, Daubert
outlined four considerations: testing, peer review, error
rates, and acceptability in the relevant scientific
community. These four tests for reliability are known as
the Daubert factors or the Daubert test.
In 1999, the U.S. Supreme Court significantly broadened
that test and the trial court's gatekeeping role to include
expert testimony based on technical and other
specialized knowledge. Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed. 2d
238 (U.S. Mar 23, 1999) (NO. 97-1709). In Kumho, the
Court held that the gatekeeping obligation imposed upon
trial judges by Daubert applies to scientific testimony as
well as to expert opinion testimony. In order to meet its
gatekeeping obligation, a trial court may use the criteria
identified in Daubert only when they can be applied to
determine the reliability of either the underlying scientific
technique or the expert's conclusions. But inasmuch as
the Daubert gatekeeping function is meant to be a flexible
one, it must necessarily be tied to the particular facts of a
case. Thus, the factors identified in Daubert do not
constitute an exhaustive checklist or a definitive litmus
test.
Are the said standards important in our jurisdiction?
We do not apply these standards in this jurisdiction. In the
US, these standards are used with regard to the
admissibility of scientific evidence. See Rule on DNA
Evidence, which uses the standards to determine the
probative value of DNA evidence and not to its
admissibility, because in our jurisdiction admissibility is
determined by the axioms of admissibility. See also the
case of Rosendo C. Herrrera v. CA
How do you qualify an expert witness?
In Presenting an Expert Witness:
1.
2.
3.
4.

5.

Introduce and qualify the witness;

Let him give his factual testimony, if he has
knowledge of the facts;
Begin the hypothetical question by asking him to
assume certain facts as true;
Conclude the question, by, first asking the expert
if he has an opinion on a certain point assuming
that these facts are true and secondly, asking
him, after he has answered affirmatively, to give
his opinion on the point;
After he has stated his opinion, ask him to give
his reasons.

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What is the rule on Character Evidence?
SEC. 51. Character evidence not generally admissible;
exceptions:
(a) In Criminal Cases:
(1) The accused may prove his good moral character
which is pertinent to the moral trait involved in the offense
charged.
(2) Unless in rebuttal, the prosecution may not prove his
bad moral character which is pertinent to the moral trait
involved in the offense charged.
(3) The good or bad moral character of the offended party
may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense
charged.
(b) In Civil Cases:
Evidence of the moral character of a party in a civil case
is admissible only when pertinent to the issue of character
involved in the case.

Why is the accused allowed to prove his character

right away while the prosecution cannot avail of the
same privilege?
On the part of the prosecution, the purpose is to prevent a
pronouncement of guilt not because there exist sufficient
evidence of his guilt, but because he is a bad man.
The reason for the rule is that evidence of bad character
may create an unfair prejudice against the accused who
may be convicted not because he is guilty of the crime
charged, but because of his being a crooked man.
How is character evidence offered? In other words,
what are the evidences that may be used in order to
prove the character of a person?
The best rule founded on sound logic and wise
experience is that the character of a person may be
proved by:
1.
2.
3.

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

Evidence of reputation;
By witnesses who know him personally; and
In some instances by evidence of particular acts
of said person from which his character may be
inferred.

What is Character in the first place?

Can we use testimonial evidence?

Character means the peculiar qualities impressed by

nature or by habit on a person which distinguishes him
from others; these constitute his real character. In other
words, it means the aggregate of a persons traits,
including those relating to care and skill and their
opposites.

YES.

In a case for Estafa, is the character of the accused

relevant?
See Sec. 51(a). The good character of an accused is
admissible in evidence to show the improbability of his
doing the act charged. The principle upon which good
character maybe proved is, that it affords presumption
against the commission of a crime.
Why dont we just follow the axiom of relevancy?
Why do we exclude character?
The evidence of a persons character does not prove that
such person acted in conformity with such character or
trait in a particular occasion.
Even if it is merely circumstantial, cant we not admit
it based on the two axioms?
OPINION: The Rule provides for the instances where
character evidence may be presented. So think. When
are you going to admit character evidence?
What moral trait is involved in swindling?
Honesty.

Should the witness belong to the same community as

the accused?
YES. As Justice Berry said: As it is the fact of disposition
which is important and material, there can be no reason
why this fact may not be proved by any witness who
knows what it is. There is certainly no reason why general
repute is any better or more satisfactory evidence of
disposition than the testimony of one who knows that the
disposition is from his personal observation.
If a person is presented to prove the common
reputation, is he not offering a conclusion?
No. It is merely the opinion of the community.
Can the accused offer witness to prove that he has
not defaulted in his previous transactions, and
thereby prove that he did not commit estafa?
No. He cannot prove particular instances. What he must
prove is his reputation as perceived by the community.
BURDEN OF PROOF AND PRESUMPTIONS
Burden of Proof; Definition?
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.

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What are the two concepts of burden of proof?
1.
2.

Burden of going forward Partys obligation of

producing evidence.
Burden of persuasion The burden of
persuading the trier of fact that the burdened
party is entitled to prevail.

Distinguish Burden of Proof from Burden of

Evidence.
Burden of Proof

Burden of Evidence

It 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
(Sec. 1, Rule 131)

It is the duty of a party to

provide evidence at any
stage of the trial until he
has established a prima
facie case, or the like duty
of the adverse party to
meet and overthrow that
prima facie case thus
established. In both civil
and criminal cases, the
burden of evidence lies
on the party who asserts
an affirmative allegation.

Does not shift as it

remains throughout the
entire case exactly where
the pleadings originally
placed it

Shifts to the other party

when one party has
produced sufficient
evidence to be entitled to
a ruling in his favor

Generally determined by
the pleadings filed by the
party; and whoever
asserts the affirmative of
the issue has the burden
of proof

Generally determined by
the developments at the
trial, or by the provisions
of the substantive law or
procedural rules which
may relieve the party from
presenting evidence on
the fact alleged

It does not shift the

burden of proof. However,
the one who has the
burden of proof is relieved
from the time being, from
introducing evidence in
support of his averment
because the presumption
stands in the place of
evidence.

It creates a prima facie

case and thereby sustains
the said burden of
evidence on the point
which it covers, shifting it
to the other party. It
relieves those favored
thereby of the burden of
proving the fact
presumed.

Who has the burden of proof? With respect to the

defendant, is it possible that he has the burden of
proof?
General Rule: In civil cases, the plaintiff has the burden of
proof; and in criminal cases, it is the prosecution because
innocence is presumed.
Exception: In civil cases, burden of proof is on the
defendant if he raises affirmative defenses.

Why do we distinguish between negative and

affirmative defenses in a civil case? Can we apply the
same distinctions in a criminal case?
Because if the defendant raises affirmative defenses, he
has the burden of proof. In criminal cases, there is no
need to distinguish since the accused is always
presumed innocent.
Reverse order of trial is possible in both civil and
criminal cases. How can the reverse order of trial take
place if we do not allow the court to inquire as to the
defenses of the accuseds offer of a not guilty plea?
If the accused raises justifying or exempting
circumstances, the burden of evidence is shifted, and he
must prove the existence of these circumstances.
In civil cases, reverse trial is allowed when the party
raises an affirmative defense.
Reverse order of trial in civil cases can the
defendant stipulate in the pre-trial to change the
order of trial even if he raises mere negative defenses
in his pleading?
Generally no. However, see Sec. 5, Rule 30 wherein the
court may, for special circumstances, allow modifications
in the order of trial.
Can the same principle be applied in a criminal case?
NO. because such would violate his right to be informed
of the nature of the offense charged against him which is
contained in the information.
What happened in Barlin vs. Ramirez?
The defendant, Ramirez, having been appointed by the
plaintiff parish priest, took possession of the church on
7/5/01. He administered if as such under the orders of his
superiors until 11/14/02. His successor having been then
appointed, the latter made a demand on this defendant
for the delivery to him of the church, convent, and
cemetery, and the sacred ornaments, books, jewels,
money, and other prop. of the church. The defendant, by
a written document of that date, refused to make such
delivery, stating that "the town of Lagonoy, in conjunction
w/ the parish priest of thereof, has seen fit to sever
connection w/ the Pope at Rome and his representatives
in these Islands, and to join the Filipino Church, the head
of w/c is at Manila.
The plaintiff brought this action against defendant,
alleging in his amended complaint that the Roman
Catholic Church was the owner of the church bldg, the
convent, cemetery, the books, money, and other property
belonging thereto, and asking that it be restored to the
possession thereof and that the defendant render an
account of the property which he had received and which
was retained by him, and for other relief.

2011-2012 [JARA POWER NOTES ON EVIDENCE]

Issue: WON defendant has the right over the properties
mentioned.
Held: None. As to the defendant, Ramirez, it appears that
he took possession of the property as the servant or
agent of the plaintiff. The only right which he had to the
possession at the time he took it, was the right which was
given to him by the plaintiff, and he took possession
under the agreement to return that possession whenever
it should be demanded of him. Under such circumstances
he will not be allowed, when the return of such
possession is demanded by him the plaintiff, to say that
the plaintiff is not the owner of the property and is not
entitled to have it delivered back to him. The principle of
law that a tenant can not deny his landlords title, which is
found in section 333, paragraph 2, of the Code of Civil
Procedure, and also in the Spanish law, is applicable to a
case of this kind. An answer of the defendant, Ramirez, in
which he alleged that he himself was the owner of the
property at the time he received it from the plaintiff, or in
which he alleged that the pueblo was the owner of the
property at that time, would constitute no defense. There
is no claim made by him that since the delivery of the
possession of the property to him by the plaintiff he has
acquired the title thereto by other means, nor does he is
own behalf make any claim whatever either to the
property or to the possession thereof.

Important matters to discuss in the case:

1.
2.
3.

Why did the Court choose the estoppel by deed

presumption?
Why not estoppel in pais?
Was there a tenant-landlord relationship in this
case?

What happened in Vales vs. Villa?

Facts: This is an action to set aside certain transfers of
real estate from the plaintiff to one of the defendants and
to require that defendant to recover by good and sufficient
conveyance the title to such properties; to refund to the
plaintiff a certain sum paid by plaintiff for the recovery of
certain other real estate; and for an accounting by the
defendants of the rents, issues and profits of certain real
estate during a certain period; and for P25,000 damages.
The action has been erroneously described in appellant's
brief as one to annul a series of real estate transactions
on the ground of duress. More correctly this is an action
to compel the defendants to account unto the plaintiff for
the proceeds of a series of frauds practiced upon said
plaintiff.
Issue: WON there is existence of fraud.
Held: It is well recognized however, that a mere failure to
live up to a contract is not fraudulent or deceitful. The
furthest the authorities have gone along this line, and not
all have gone that far, is to declare that if, at the time a
contract is made, one of the parties has present in his
mind the purpose and intent to break it, after getting all he
can out of the other party, and that purpose and intent

enter into a the contract as the main element or

consideration thereof on his part, there is fraud and
deceit, the authorities holding that the state of mind of the
party is a fact entering into the consideration of the
contract without which it would not have been made; and
that, by virtue of that state of mind, the other party was
deprived of property. That fact however must be alleged
and proved and relied upon before it can be utilized by
the person asserting its existence. It was not alleged or
proved in this case and plaintiff does not rely upon it in his
brief in this court. His consent was not obtained by deceit
in any of the transactions. There did not exist in any one
of the transactions complained of a condition where "by
words and insidious machinations on the part of one of
the contracting parties the other is (was) induced to
execute a contract which, without them, he would not
have made."
Reduced to the lowest terms this action constitutes an
attempt on the part of the plaintiff to extricate himself from
a series of foolish transactions, if we may accept his
allegations respecting them. As we have said, the sales
were all made by the plaintiff with full knowledge of the
facts and there appears nothing in the record which
warrants a rescission of them from the standpoint of
fraud. The ultimate purpose of the action is the recovery
of the properties described in the deed of March 22,
1909, remaining unsold. But, as appears from the
evidence, the plaintiff has already recovered those
properties, having purchased them from the defendants
on April l4, 1913, for P6,800. Before this action was
begun, therefore, plaintiff had obtained the very thing
which he had been seeking to recover all through thus
dealings with defendants and to obtain which he claims
he had suffered so much. Having secured before this
action was begun precisely what defendants had
promised him and the very thing he sought, there remains
nothing further to be said or done in that connection.
Certainly the repurchase of the properties which he so
much desired was not procured by fraud or deceit; and it
was a complete termination of the relations existing
between the parties arising out of the properties which he
claimed were sold with a right to repurchase. After having
obtained the very thing he desired and having done so in
a manner which he deemed best and most suitable under
the circumstances, did he not thereby terminate all
relations between himself and defendants with respect to,
or growing out of those properties, and can he nor
repudiate not only the transaction by which he recovered
them but also every other transaction which he claims
related thereto? It is incomprehensible, from a legal point
of view, that plaintiff, having been deprived of property by
fraud and deceit, may recover that property through a
voluntary agreement between him and those who
deceived and defrauded him, and then repudiate not only
the transaction in which he was defrauded of that
property but also the very transaction by which he
recovered it.
Dealing with the case from the standpoint of intimidation,
it should be noted of March 22, 1909, was obtained in
that form by force or thereat. The validity of that
conveyance is admitted; as is also the fact that the verbal

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agreement to reconvey was omitted from the conveyance
knowingly. The claim is simply that there was a verbal
agreement to reconvey on the repayment of the
consideration named in the instrument and that
defendants made use of the fact that the agreement was
verbal and, therefore, difficult to prove, as clever by which
they forced him to convey to them additional properties
before they would comply with the verbal agreement.
According to plaintiff's contention, then, each one of the
conveyances between him and defendants subsequent to
the original conveyance was an extortion, using that word
in its popular and not in its legal sense, the defendants, in
order to intimidate him and thereby obtain the
conveyance, threatening him with a refusal to comply with
the verbal agreement to reconvey and the consequent
loss of his properties. At each conveyance the defendants
agreed, always verbally, as a consideration therefor, to
reconvey to him the properties remaining, but each time
refused to do so and proceeded, after each such
conveyance, to a fresh extortion. It is contended that
plaintiff, by not incorporating the verbal agreement to
reconvey in the instrument itself, placed himself in a
disadvantageous position; and that he executed and
delivered the subsequent conveyances for the purpose of
extricating himself from the unfortunate situation so
produced. The ultimate extortion, the payment of P6,800
to recover the remaining properties, was the last penalty
which he paid for his mistake in not incorporating the
verbal agreement in the conveyance itself.

not for that alone can the law intervene and restore.
There must be, in addition, a violation of law, the
commission of what the law knows as an actionable
wrong, before the courts are authorized to lay hold of the
situation and remedy it.

All men are presumed to be sane and normal and subject

to be moved by substantially the same motives. When of
age and sane, they must take care of themselves. In their
relation with others in the business of life, wits, sense,
intelligence, training, ability and judgment meet and clash
and contest, sometimes with gain and advantage to all,
sometimes to a few only, with loss and injury to others. In
these contests men must depend upon themselves
upon their own abilities, talents, training, sense, acument,
judgment. The fact that one may be worsted by another,
of itself, furnishes no cause of complaint. One man
cannot complain because another is more able, or better
trained, or has better sense of judgment than he has; and
when the two meet on a fair field the inferior cannot
murmur if the battle goes against him. The law furnishes
no protection to the inferior simply because he is inferior,
any more than it protects the strong because he is strong.
The law furnishes protection to both alike to one or
more or less than to the other. It makes no distinction
between the wise and the foolish, the great and the small,
the strong and the weak. The foolish may lose all they
have to the wise; but that does not mean that the law will
give it back to them again. Courts cannot follow one every
step of his life and extricate him from bad bargains,
protect him from unwise investments, relieve him from
one-sided contracts, or annul the effects of foolish acts.
Courts cannot constitute themselves guardians of
persons who are not legally incompetent. Courts operate
not because one person has been defeated or overcome
by another, but because he has been defeated or
overcome illegally. Men may do foolish things, make
ridiculous contracts, use miserable judgment, and lose
money by them indeed, all they have in the world; but

The same may be said with greater force of a case where

a person's own voluntary act, uninfluenced by another,
has put him in a disadvantageous position a position
which another may unjustly make use of to his injury. The
failure to reduce a contract to writing, or to have
witnesses present when a verbal agreement is made, or
to record an instrument, or to exclude from the operation
of its terms things verbally agreed to be excluded, etc.,
may place a person in a disadvantageous position with
respect to another; and the demand that he pay to secure
his extrication is not illegal, and a payment made
pursuant to such demand is not necessarily voidable. He
pays for his lack of foresight. While the demand may be
reprehensible morally, it is not illegal' and of itself is not
ground for relief.

Furthermore, even if an actionable wrong be committed in

such manner as to authorize the courts to intervene, the
person injured may renounce his right to take the matter
to the courts and may compromise with the wrong-doer.
Or, having been placed in a very disadvantageous
position by the wrong committed against him, he may be
offered by his adversary one or more avenues of escape.
He may be required to lose more property to his enemy or
go to the courts for redress. In such case the payment of
an additional sum as a means of escape is not
necessarily a payment voidable for duress. The act was
preceeded by an exercise of judgment. This much was
plain to him: he had either to let the matter stand as it was
with the loss already sustained, or go to the courts to be
relieved. His judgment, operating upon this condition, told
him to pay the additional sum rather than to suffer the
inconvenience and expense of an action in court. A
payment made under such conditions is not voidable. It is
the voluntary act of a sane and mature man performed
upon reflection. Not only this; it is a compromise of the
original wrong and a ratification of the relation which the
wrongful act was intended to establish between the
parties.

There must, then, be a distinction to be made between a

case where a person gives his consent reluctantly and
even against his good sense and judgment, and where
he, in reality, gives no consent at all, as where he
executes a contract or performs an act against his will
under a pressure which he cannot resist. It is clear that
one acts as voluntarily and independently in the eye of
the law when he acts reluctantly and with hesitation as
when he acts spontaneously and joyously. Legally
speaking he acts as voluntarily and freely when he acts
wholly against his better sense and judgment as when he
acts in conformity with them. Between the two acts there
is no difference in law. But when his sense, judgment,
and his will rebel and he refuses absolutely to act as
requested, but is nevertheless overcome by force or
intimidation to such an extent that he becomes a mere
automation and acts mechanically only, a new element

2011-2012 [JARA POWER NOTES ON EVIDENCE]

enters, namely, a disappearance of the personality of the
actor. He ceases to exist as an independent entity with
faculties and judgment, and in his place is substituted
another the one exercising the force or making use of
intimidation. While his hand signs, the will which moves it
is another's. While a contract is made, it has, in reality
and in law, only one party to it; and, there being only one
party, the one using the force or the intimidation, it is
unenforceable for lack of a second party.
From these considerations it is clear that every case of
alleged intimidation must be examined to determine
within which class it falls. If it is within the first class it is
not duress in law, if it falls in the second, it is.
But into whichever class it falls the party coerced may, as
we have seen, waive his right to annul the contract and to
recover damages. He may do this expressly or impliedly.
He may expressly accept the agreement as it stands, or
in a modified from, and live up to it as thus accepted. Or,
he may compromise by paying something to be relieved
from its effects or to have its terms changed. Or, he may
accept benefits under the contract. In any one of which
cases, and there are others not now necessary to
mention, he renounces and waives his defense of
intimidation and thereby eliminates that element as one
having any influence on the case thereafter.
Taking the case as a whole, we are therefore of the
opinion that there was no intimidation and that, if there
was, the plaintiff has placed himself in a position where
he was not entitled to urge it as a defense.
NOTE: You must discuss what disputable presumptions
were used in the case.
What are the conclusive presumptions under the
Rules of Court?
1.

2.

Whenever a party has, by his own declaration,

act, or omission, intentionally and deliberately led
another to believe a particular thing is 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.
The tenant is not permitted to deny the title of his
landlord at the time of the commencement of the
relation of landlord and tenant between them.

Is the enumeration of conclusive presumptions

exclusive?
No. There are many conclusive presumptions found in
substantive and other procedural laws. For example,
ignorance of the law excuses no one from compliance
therewith. Another is the conclusive presumeption of
non-filiation in DNA cases.
Review Tijam vs. Sibonghanoy. What were the
conclusive presumptions applied in the case?

Estoppel in pais after heavily participating in the case

knowing that that the court had no jurisdiction to try the
same.
Give example of estoppel in pais.
Note: give an example aside from Tijam

Is there a conclusive presumption under civil

procedure?
Yes. Under the Sec. 48 and 49 of Rule 39 (Res Judicata)
If a judgment is not yet executory/final, can there be a
presumption of regularity?
YES there is a disputable presumption of correctness of
judgment.
How can this be rebutted?
Upon appeal, ASSIGNMENT OF ERRORS.
PRESENTATION OF EVIDENCE
US vs. Baluyot
At the general election which was held on June 6, 1916,
Conrado Lerma was elected governor of the Province of
Bataan. One of his competitors upon this occasion was
the accused, Jose I. Baluyot, who came out third in the
race. As a result of this contest a feeling of personal
rancor was developed in the mind of Baluyot against his
successful competitor, and during the two years which
followed the accused became fully imbued with the idea
that Governor Lerma was persecuting him. Because of
this, Baluyot killed Gov. Lerma.
During the trial of the case, it appears that after the
witnesses had been examined in court for the
prosecution, they were turned over to the attorney for the
accused and were by him fully cross-examined. Later,
when the giving of testimony for the prosecution had been
concluded, the defense proceeded to introduce sundry
witnesses who were examined in due course. After four
had thus testified, and immediately before the accused
was placed upon the stand in his own behalf, his attorney
made the request that the declarations or statements
made by the witnesses during the preliminary inquiry
conducted by the fiscal preparatory to the prosecution of
the case should be produced. The attorney for the
prosecution objected on the ground that one party cannot
be compelled to produced evidence in favor of the other.
Issue: WON the prosecution may be compelled to
produce such declarations and statements made by the
witnesses in a preliminary inquiry made by the fiscal.

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Held: No. They were not original or independent evidence
of such a character as to give the accused an unqualified
right to compel their production, and no proper basis was
laid in the cross-examination of the witnesses who had
made those statements to justify their production with a
view to the impeachment of the declarants. The request
was of course based upon the supposition or expectation
that if the statements of the witnesses before the fiscal
were produced, they might be found to contain something
different from what was contained in their testimony given
in court.
We know of no rule of practice which sustains the
contention of the appellant. The statements in question
were not the sworn declarations of witnesses taken in
conformity with the requirements of section 13 of General
Orders, No 58, and which are commonly attached to the
"expediente" transmitted by the committing magistrate to
the Court of First Instance. In the case at bar the
preliminary examination before the committing magistrate
was waived by the accused, and the declarations of the
witnesses for the prosecution were therefore not taken
before the magistrate. The declarations referred to were,
on the contrary, taken in an investigation conducted by
the fiscal under the authority of section 1687 of the
Administrative Code. This section authorizes the fiscal, if
he deems it wise, to conduct an investigation into the
matter of any crime or misdemeanor for the purpose of
instituting or carrying on a criminal prosecution. It is
expressly declared that this section shall not be construed
to authorize a provincial fiscal to act as a justice of the
peace in any preliminary investigation. The proceeding
here contemplated is of an administrative character, and
the information thereby acquired is intended for the use of
the fiscal in the conduct of the prosecution. Such
declarations therefore pertain to the official file in the
office of the public prosecutor and are not subject to
production at the mere request of the attorney for the
accused where no ground therefor had been laid
Qrb4Fxm.
In order that we may not be misunderstood, as well as for
the purpose of clarifying the practice in such matters, a
few words may here by properly said in respect to the
proper mode of proceeding in a case where a party
wishes to get before the court contradictory statements
made by a witness who is testifying for the adversary
party. For instance, if the attorney for the accused had
information that a certain witness, say Pedro Gonzales,
had made and signed a sworn statement before the fiscal
materially different from that given in his testimony before
the court, it was incumbent upon the attorney when crossexamining said witness to direct his attention to the
discrepancy and to ask him if he did not make such and
such statement before the fiscal or if he did not there
make a statement different from that delivered in court. If
the witness admits the making of such contradictory
statement, the accused has the benefit of the admission,
while the witness has the opportunity to explain the
discrepancy, if he can. On the other hand, if the witness
denies making any such contradictory statement, the
accused has the right to prove that the witness did make
such statement; and if the fiscal should refuse upon due

notice to produce the document, secondary evidence of

the contents thereof would be admissible. This process of
cross-examining a witness upon the point of prior
contradictory statements is called in the practice of the
American courts "laying a predicate" for the introduction
of contradictory statements. It is almost universally
accepted that unless a ground is thus laid upon crossexamination, evidence of contradictory statements are not
admissible to impeach a witness; though undoubtedly the
matter is to a large extent in the discretion of the court.
We wish to add that in a case of this kind, if the accused
had, by affidavit or otherwise, made it appear to the
satisfaction of the court that the witnesses named had
made statements in their declarations before the fiscal
materially at variance with their statements in court and
that the production of said declarations was necessary or
even desirable, in the interests of justice, the court would
have had ample power to order their production. No such
showing, or intimation, was made in this case; and the
attorney who made the motion was merely angling at
random to discover something that might prove to be
favorable to his client. To put a court in error for refusing
to entertain such a motion would encourage frivolous
delays and tend to embarrass the speedy and proper
administration of justice.
Under the existing rules, can the accused compel the
production of the said evidence to be used in his
favor?
(Pwede: Right under the Constitution Compulsory process); See Rule 112, Sec. 7(b)

Right of

How can an accused seek the production of evidence

in court?
Rule 116, Sec. 10: Upon motion of the accused showing
good cause and with notice to the parties, the court, in
order to prevent surprise, suppression, or alteration, may
order the prosecution to produce and permit the
inspection and copying or photographing of any written
statement given by the complainant and other witnesses
in any investigation of the offense conducted by the
prosecution or other investigating officers, as well as any
designated documents, documents, papers, books,
accounts, letters, photographs, objects, or tangible things
not otherwise privileged, which constitute or contain
evidence material to any matter involved in the case and
which are in the possession or under the control of the
prosecution, police, or other law investigating agencies.
How do you lay the predicate?
By calling the attention of the witness to the former
contradicting statement. If the statement be in writing they
must be shown to the witness before any question is put
to him.
What if the witness states that he does not
remember? Or what if he denies making the said
statements?

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Offer the said evidence as an extrajudicial admission
(Regalado, citing Juan Ysmael & Co vs. Hashim, 50 Phil
132).
What is a leading question?
A leading question is one that is framed in such a way
that the question indicates to the witness the answer
desired by the party asking the question. It is a question
which suggests to the witness the answer which the
examining party desires.

What is a misleading question?

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.

YES, otherwise his right against self-incrimination may be

violated.
If the opponent decides not to conduct a crossexamination on the witness, will that be prejudicial to
the clients cause? Can a cross-examination cause
prejudice to a client?
The BOSTON LEGAL Rule: Kapag walang na-establish
sa direct, do not cross examine. Baka kapag nagcrossexamination ka e madale ka at maestablish ang claim ng
kalaban mo.
What is the Rule on Revival of past recollection/
present memory?
1.

Why is a leading question is disallowed in direct?

Why is it allowed in cross?
Leading questions are disallowed in direct examination
because the Rules need to avoid coaching the witness.
In cross, the witness is expected to be hostile to the
cross-examiner. OPINION: Again, remember the purpose
of cross, hence, the cross-examiner is allowed to lead the
witness or to suggest to the latter the answer the former
desires in order to test whether the witness is consistent
with his statement. However, the direct examiner, not
being adverse to the witness, must refrain from leading
his witness. The direct examiner must show that the
witness knows what he is saying not as suggested by the
direct examiner.
Example of leading question (Trial Court setting)
The Scope of Cross-examination?
English Rule: where a witness is called to testify to a
particular fact, he becomes a witness for all purposes and
may be fully cross-examined upon all matters material to
the issue, the examination not being confined to the
matters inquired about in the direct examination.

2.

A witness may be allowed to refresh his memory

respecting a fact, by anything written or recorded
by himself or under his direction at the time when
the fact occurred, or immediately thereafter, or at
any other time when the fact was fresh in his
memory and he knew that the same was
correctly written or recorded; but in such case the
writing 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.
A witness may testify from such a writing or
record, though he retain no recollection of the
particular facts,if he is able to swear that the
writing or record correctly stated the transaction
when made; but such evidence must be received
with caution.

Are we to assume every time that a memorandum is

available for reference?
Opinion: No. The same must be presented in court.
The memorandum from which the witness may be
permitted to refresh his memory need NOT be an original
writing. It is sufficient if it is shown that the witness knows
the copy to be a true one, and his memory refreshed
thereby enables him to testify from his own recollection of
the facts, independent of his confidence in the accuracy
of the copy.

American Rule: restricts cross-examination to facts and

circumstances which are connected with the matters that
have been stated in the direct examination of the witness.
What rule do we follow here?
It depends on the witness and the nature of the case
being heard. If the witness is an accused in the criminal
case, he/she may only be cross examined on matters
discussed in the direct examination.
Can an accused who testifies on his on behalf, be
examined using strictly the American Rule?

OFFER OF EVIDENCE
How do you offer an evidence?
1.
2.

The court shall consider no evidence which has

not been formally offered. The purpose for which
the evidence is offered must be specified.
As regards the testimony of a witness, the offer
must be made at the time the witness is called to
testify.

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3.

Documentary and object evidence shall be

offered after the presentation of a partys
testimonial evidence. Such offer shall be done
orally unless allowed by the court to be done in
writing.

Procedural steps?
For testimonial evidence, just follow the codal procedure.
For documentary or object evidence:
1.
2.
3.
4.
5.
6.

Call upon the witness;

Qualify the witness;
Ask the witness preliminary questions;
Present evidence to witness and ask him to
authenticate/identify the evidence if necessary;
Mark the evidence as an exhibit.
After all the witnesses have testified, offer the
exhibits in court, identifying each of them, and
stating their purpose.

Challenging the qualification of a witness?

Through voi dire examination.
Should you allow the witness to testify first before
you disqualify him?
No there are instances where a witness before he can be
allowed to testify, may be disallowed to testify.
Absolute disqualifications?
Those witnesses not identified in the pre-trial brief.
Are they disqualified?
Generally, YES.

If the witness is excluded prior to testifying, what is

the remedy?
The Court may be liberal. Kausapin mo lang daw sabi ni
Jara (in reference to Phoenix vs. Pratts).
If the witness is allowed to testify, questions will be
asked. In the course of propounding questions, there
are certain objectionable questions. How do you
classify objections? (General/Specific). Distinguish.
General Objection It does not go beyond declaring the
evidence as immaterial, incompetent, irrelevant or
inadmissible. In other words, it does not specify the
grounds for objection. (Also known as a Broadside
Objection)
Specific Objection It states why or how the evidence is
irrelevant or incompetent. E.g. Objection to the question
for being leading.

Formal Objection is one directed against the alleged

defect in the formulation of the question. E.g. ambiguous
question
Substantive Objection objections made and directed
against the very nature of the evidence, i.e., it is
inadmissible either because it is irrelevant or incompetent
or both. e.g. parol, hearsay evidence
What if there is a failure to object, can the court
prohibit the witness from answering the question?
Yes. If it involves an infringement of the right of the
witness.
Abrenica vs. Gonda
These proceedings were brought by the plaintiff to
compel the defendant to return to him the two parcels of
land described in the complaint which he alleges were
sold by him under right of repurchase to the defendant on
February 21, 1916, for the sum of P75 and for the period
of seven years. The plaintiff alleged that the defendant
refused to deliver said property to him when, upon the
expiration of the period mentioned, he endeavored to
redeem the same and tendered payment to the defendant
of the sum aforesaid.
During the trial, the plaintiff, having been placed on the
stand as a witness by his on attorney, testified at length
and answered all the questions asked him with respect to
the said contract, the details of the same, the persons
who witnessed it, the place where it was made, and
various other circumstances connected with its execution.
These questions and answers cover six pages of the
record, and yet the defendants' counsel raised no
objection to the examination, aside from challenging one
of the questions as leading and another of them as
irrelevant. It seems that only when the examination was
terminated did counsel for defendants move to strike out
all of the testimony given and statements made by
plaintiff in regard to the contract, on the ground that the
period for the fulfillment of the contract exceeded one
year and that it could not be proven except by means of a
written instrument.
Issue: WON the statements may be stricken out despite
not being objected to during the examination of the
witness.
Held: No. Now then, it has been repeatedly laid down as
a rule of evidence that a protest or objection against the
admission of any evidence must be made at the proper
time, and that if not so made it will be understood to have
been waived. The proper time to make a protest or
objection is when, from the question addressed to the
witness, or from the answer thereto, or from the
presentation of the proof, the inadmissiblity of the
evidence is, or may be, inferred.
A motion to strike out parol or documentary evidence from
the record is useless and ineffective if made without
timely protest, objection, or opposition on the part of the
party against whom it was presented.

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Objection to the introduction of evidence should be made

before the question is answered. When no such objection
is made, a motion to strike out the answer ordinarily
comes too late. (De Dios Chua Soco vs. Veloso, 2 Phil.
Rep., 658).
The fact that the defendants' counsel asked various
cross-questions, both of the plaintiff and of the other
witness, in connection with the answers given by them in
their direct examination, with respect to particulars
concerning the contract, implies a waiver on his part to
have the evidence stricken out.
It is true that, before cross-examining the plaintiff and one
of the witnesses, this same counsel requested the
permission of the court, and stipulated that his clients'
rights should not be prejudiced by the answers to those
witnesses in view of the motion presented to strike out
their testimony; buy this stipulation of the defendants'
counsel has no value or importance whatever, because, if
the answers of those witnesses were stricken out, the
cross-examination could have no object whatsoever, and
if the questions were put to the witnesses and answered
by them, they could only be taken into account by
connecting them with the answers given by those
witnesses on direct examination
As no timely objection or protest was made to the
admission of the testimony of the plaintiff with respect to
the contract; and as the motion to strike out said evidence
came to late; and, furthermore, as the defendants
themselves, by the cross-questions put by their counsel
for the witnesses in respect to said contract, tacitly
waived their right to have it stricken out, that evidence,
therefore, cannot be considered either inadmissible or
illegal, and court, far from having erred in taking it into
consideration and basing his judgment thereon,
notwithstanding the fact that it was ordered to be stricken
out during the trial, merely corrected the error he
committed in ordering it to be so stricken out and
complied with the rules of procedure hereinbefore cited.
In Re Aguas?
It appears from the record in this matter that on the 29th
of August, 1900, during the progress of a trial then being
held before the Court of First Instance at Bacolor, in the
Province of Pampanga, the court had occasion to caution
Angel Alberto, a witness in the case, not to look at the
attorney for the defendant but to fix his attention on the
judge who was at the time examining him. It seems that
the witness did not give heed to this warning, and the
judge thereupon arose from his seat and approaching the
witness, seized him by the shoulders, and using the
expression, "Lingon ang mucha" ("Look at me"), either
shook him, as insisted by the attorney for the defendant,
or only turned him about, as claimed by the judge and
others. Whether the witness was shaken or only turned
about, at all events "seizing him," brought the defendant's
attorney to his feet, who, protesting against the action of
the judge as coercive of the witness, demanded that a
record be made of the occurrence and that the further

hearing of the case be postponed. Two days afterward

the clerk entered in his record as recital of the incident
substantially as above, and also a statement that on other
and prior occasions the attorney, Marcelino Aguas, had
been wanting in respect to the court by making use of
"improper phrases," and by interrupting opposing counsel
in their examination of witnesses. The court on this record
adjudged the attorney to be in contempt of court and
suspended him from the practice of his profession for a
period of twenty days.
Issue: WON the counsel may be cited in contempt of
court.
Held: No. In our opinion the action of the judge in seizing
the witness, Alberto Angel, by the shoulder and turning
him about was unwarranted and an interference with that
freedom from unlawful personal violence to which every
witness is entitled while giving testimony in a court of
justice. Against such conduct the appellant had the right
to protest and to demand were respectfully made and
with due regard for the dignity of the court. The only
question, therefore in this case is, Was the appellant
respectful and regardful of the court's dignity in
presenting his objection and asking that it be recorded in
the proceedings? The witnesses say and the judge finds
that "his attitude was menacing" (bastante amenazadora)
in the moment of making his protest, but beyond that
there is nothing in the record which even tends to show
that he was disrespectful to the court or unmindful of its
dignity. In our opinion both testimony and finding state a
mere conclusion which, in the absence of the facts from
which it was deduced, is wholly valueless to support a
judgment of contempt. The statement that the attorney's
attitude was "menacing" tended no more to competently
establish the alleged offense of contempt than if the
witnesses had testified and the court had found that his
conduct was "contemptuous or lacking in respect." The
specific act from which it was inferred that his attitude
was menacing should have been testified to by the
witnesses and found by the court, and failing that, the
record does not show concrete facts sufficient to justify
the conclusion that he was disrespectful to the court or
offensive to its dignity.

US vs. Baluyot?
At the general election which was held on June 6, 1916,
Conrado Lerma was elected governor of the Province of
Bataan. One of his competitors upon this occasion was
the accused, Jose I. Baluyot, who came out third in the
race. As a result of this contest a feeling of personal
rancor was developed in the mind of Baluyot against his
successful competitor, and during the two years which
followed the accused became fully imbued with the idea
that Governor Lerma was persecuting him. Because of
this, Baluyot killed Gov. Lerma.
During the trial of the case, it appears that after the
witnesses had been examined in court for the
prosecution, they were turned over to the attorney for the

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accused and were by him fully cross-examined. Later,
when the giving of testimony for the prosecution had been
concluded, the defense proceeded to introduce sundry
witnesses who were examined in due course. After four
had thus testified, and immediately before the accused
was placed upon the stand in his own behalf, his attorney
made the request that the declarations or statements
made by the witnesses during the preliminary inquiry
conducted by the fiscal preparatory to the prosecution of
the case should be produced. The attorney for the
prosecution objected on the ground that one party cannot
be compelled to produced evidence in favor of the other.
Issue: WON the prosecution may be compelled to
produce such declarations and statements made by the
witnesses in a preliminary inquiry made by the fiscal.
Held: No. They were not original or independent evidence
of such a character as to give the accused an unqualified
right to compel their production, and no proper basis was
laid in the cross-examination of the witnesses who had
made those statements to justify their production with a
view to the impeachment of the declarants. The request
was of course based upon the supposition or expectation
that if the statements of the witnesses before the fiscal
were produced, they might be found to contain something
different from what was contained in their testimony given
in court.
We know of no rule of practice which sustains the
contention of the appellant. The statements in question
were not the sworn declarations of witnesses taken in
conformity with the requirements of section 13 of General
Orders, No 58, and which are commonly attached to the
"expediente" transmitted by the committing magistrate to
the Court of First Instance. In the case at bar the
preliminary examination before the committing magistrate
was waived by the accused, and the declarations of the
witnesses for the prosecution were therefore not taken
before the magistrate. The declarations referred to were,
on the contrary, taken in an investigation conducted by
the fiscal under the authority of section 1687 of the
Administrative Code. This section authorizes the fiscal, if
he deems it wise, to conduct an investigation into the
matter of any crime or misdemeanor for the purpose of
instituting or carrying on a criminal prosecution. It is
expressly declared that this section shall not be construed
to authorize a provincial fiscal to act as a justice of the
peace in any preliminary investigation. The proceeding
here contemplated is of an administrative character, and
the information thereby acquired is intended for the use of
the fiscal in the conduct of the prosecution. Such
declarations therefore pertain to the official file in the
office of the public prosecutor and are not subject to
production at the mere request of the attorney for the
accused where no ground therefor had been laid
Qrb4Fxm.
In order that we may not be misunderstood, as well as for
the purpose of clarifying the practice in such matters, a
few words may here by properly said in respect to the
proper mode of proceeding in a case where a party
wishes to get before the court contradictory statements

made by a witness who is testifying for the adversary

party. For instance, if the attorney for the accused had
information that a certain witness, say Pedro Gonzales,
had made and signed a sworn statement before the fiscal
materially different from that given in his testimony before
the court, it was incumbent upon the attorney when crossexamining said witness to direct his attention to the
discrepancy and to ask him if he did not make such and
such statement before the fiscal or if he did not there
make a statement different from that delivered in court. If
the witness admits the making of such contradictory
statement, the accused has the benefit of the admission,
while the witness has the opportunity to explain the
discrepancy, if he can. On the other hand, if the witness
denies making any such contradictory statement, the
accused has the right to prove that the witness did make
such statement; and if the fiscal should refuse upon due
notice to produce the document, secondary evidence of
the contents thereof would be admissible. This process of
cross-examining a witness upon the point of prior
contradictory statements is called in the practice of the
American courts "laying a predicate" for the introduction
of contradictory statements. It is almost universally
accepted that unless a ground is thus laid upon crossexamination, evidence of contradictory statements are not
admissible to impeach a witness; though undoubtedly the
matter is to a large extent in the discretion of the court.
We wish to add that in a case of this kind, if the accused
had, by affidavit or otherwise, made it appear to the
satisfaction of the court that the witnesses named had
made statements in their declarations before the fiscal
materially at variance with their statements in court and
that the production of said declarations was necessary or
even desirable, in the interests of justice, the court would
have had ample power to order their production. No such
showing, or intimation, was made in this case; and the
attorney who made the motion was merely angling at
random to discover something that might prove to be
favorable to his client. To put a court in error for refusing
to entertain such a motion would encourage frivolous
delays and tend to embarrass the speedy and proper
administration of justice.
What is the effect when there are inconsistencies
between a witness affidavit and his testimony in
open court?
Discrepancies and/or inconsistencies between a witness
affidavit and testimony in open court do not impair
credibility as affidavits are taken ex parte and are open
incomplete or inaccurate for lack or absence of searching
inquiries by the investigating officer. The general rule
that contradictions and discrepancies between the
testimony of a witness and his statements in an affidavit
do not necessarily discredit him is not without
exception, as when the omission in the affidavit refers to
a very important detail of the incident that one relating to
the incident as an eyewitness would not be expected to
fail to mention, or when the narration in the sworn
statement substantially contradicts the testimony in court
(Edwin Tabao v. People, G.R. No. 187246).

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Impeachment of a witness via contradictory evidence.
How is this done?
See Illustration made by Riano on page 325.
In case of dying declarations, can you impeach the
declaration of a deceased?
You can now use the adverse character of the deceased
declarant in impeaching the said testimony.
Is the impeachment limited on the person on the
stand?

That which is of greater weight or more convincing than

that which is offered in opposition to it.
Substantial evidence
That amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.
You always expect the mind of the judge to be
reasonable right?
Yes. Presumption of regularity of official functions.

No.

What is the concept of Demeanor Evidence?

Rule on Evidence on Motions

Whenever a witness testifies in court, the judge may be

allowed to determine his credibility by observing his
demeanor while he is testifying in court.

When a motion is based on facts not appearing of record,

the court may hear the matter on affidavits or depositions
presented by the respective parties, but the court may
direct that the matter be heard wholly or partly on oral
testimony or depositions.
Is there a need to present evidence when one files a
motion? How?
Yes. Attach the evidence on the motions.
Is there a motion that requires a full blown hearing
and presentation of evidence?
BAIL (Evidence of Guilt is strong quantum of proof)
How about in a civil case?
In cases of injunction
QUANTUM OF PROOF
Proof Beyond Reasonable Doubt
It does not mean such degree of proof as, excluding
possibility of error, produces absolute certainty. Moral
certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind.
Clear and Convincing
That degree of proof which will produce in the mind of the
trier of facts a firm belief or conviction as to the
allegations sought to be established.
Is there a definition given in the Rules?
No. such quantum of proof is defined by jurisprudence.
When do we use this?
In extradition proceedings and other cases as may be
defined by jurisprudence.
Preponderance of Evidence?

What is the importance of demeanor evidence as far

as the appellate court is concerned?
NONE. Appellate courts are not in a position to observe
the demeanor of a witness. Nevertheless, it does not
preclude them from entertaining questions of fact (opinion
lang po).
Quasi Judicial bodies are given authority to make
rules of procedure right? Are they allowed to make
rules as to the quantum of evidence that may be used
in their proceedings?
No. Quantum of proof is always determined by the
Courts. Sec. 5 Art.VIII of the Constitution is controlling.
Are there Court cases that only require substantial
evidence?
Yes. AMPARO. HABEAS DATA. KALIKASAN. (Jara: do
not make the mistake in stating that substantial evidence
is only available in administrative and quasi-judicial
cases.