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Chapter IV: Testimonial Evidence

Competency and Credibility

Bar 2004

Q: Distinguish: competency of the witness and credibility of the witness

A: Competency of a witness has reference to the basic 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 of the disqualifications imposed upon a witness.

Credibility of the 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.

In deciding the competence of a witness, the court will not inquire into the trustworthiness of the witness. Accordingly, a prevaricating witness of one who has given contradicting testimony is still a competent witness.

Bar 1994

Q: Al was accused of raping Lourdes. Only Lourdes testified on how the crime was perpetrated. On the other hand, the defense presented Al’s wife, son and daughter to testify that Al was with them when the alleged crime took place. The prosecution interposed a timely objection to the testimonies on the ground of obvious bias due to the close relationship of the witnesses with the accused. If you were the judge, how would you rule on the objection?

A: I would overrule the objection, interest in the outcome of a case which also includes close relationship is not a ground to disqualify a witness (sec. 20 R132)

Bar 1994

Q: Louis is being charged with frustrated murder of Roy. The prosecutions lone witness, Mariter, testified to having seen Louise prepare the poison which she later surreptitiously poured into Roy’s wine glass, Louise sought the disqualification of Mariter as witness on account of her previous conviction of perjury. Rule on Louise’s contention.

A: The contention of Louise has no legal basis. Basic is the rule that previous conviction is not a ground for disqualification of a witness, unless otherwise provided by law. Mariter’s conviction is not sufficient to have her disqualified to testify. Her situation is not one of the exceptions provided for by law.

Competency of a Child Witness

Q: May a person over 18 years old be sometimes considered as a child?

A: sometimes, he may. 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 (Rule on Examination of a Child Witness).

Bar 2005

Q: When may the trial court order that the testimony of a child be taken by live-link television?

A: The court may order that the testimony of the child be taken by live-link tv if there is a likelihood that the child would suffer trauma from testifying the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child (Examination of a child witness).

Survivorship Disqualification Rule of the Dead Man’s Statute


Mr. D approaches Mr. C one rainy Sunday morning to borrow one hundred thousand pesos to be paid exactly a year after. Without hesitation, c gives d the amount

requested. C does not require d to execute

a promissory note. They had been very

good friends for as long as they can remember. Years ago, when Mr. C’s small

business was on the verge of bankruptcy it was the generosity of the then wealthy Mr.

D that bailed him out. Exactly a day before

the agreed date for payment, Mr. D dies without paying the debt. What does Mr. C do? Well he does what every creditor would do under the circumstances. He goes to the executor of what remains of the estate of Mr. D, and tells him of the debt of Mr. D. he says: “Today is supposed to be the due

date of his debt. I cannot demand payment from him because his dead. You are the executor and alive.

What is the effect of the death of Mr. D?

Mr. C is rendered incompetent to testify as to the transaction he has with D. he is incompetent because of the possibility that his claim is fraudulent. If C were to be heard there would be a high risk of paying

a fraudulent or a fictitious claim. It is C who has the motive to lie. He is the survivor. D cannot lie. He is dead. He did not survive; he cannot answer back, nor disprove the claim of C. To level the playing field between the lucky survivor and the poor deceased our remedial law ancestors devised a rule that would seal the lips of the survivor by declaring him incompetent to testify on the transaction between him and the deceased the rule is definitely one that does not protect the survivor even at the risk of not paying a just and valid claim because it is the survivor who has the stronger reason to file a false claim. The

rule is for the protection of the guy who died. Hence the name, dead man’s statute.

The rule will not apply where the plaintiff is the executor or administrator as representative of the deceased or if the plaintiff is the person of unsound mind. So if the executor of the estate of Mr. C sues Mr. D to collect an unpaid debt incurred in favor of C by D before the death of C, D although a survivor, is not precluded from testifying as to the transaction he previously had with C because the case is not upon a claim against the estate of C but a claim by his estate against D.

Bar 2001

Q: Maximo filed an action against Pedro, the administrator of the estate of the deceased Juan, for the recovery of a car which is part of the latter’s estate. During the trial, Maximo presented witness Mariano who testified that he was present when Maximo and Juan agreed that the latter would pay a rental of P20000 for the use of Maximo’s car for one month after which Juan should immediately return the car to Maximo. Pedro objected to the admission of Mariano’s testimony. If you were the judge, would you sustain Pedro’s objection? Why?

A: The objection of Pedro should not be sustained. The testimony is admissible because the witness is not qualified to testify. Those disqualified under the dead man’s statute or the survivorship disqualification rule are parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted. The witness is not one of those enumerated under the rule (sec23 R 130).

Bar 2007

Refer more to pp266-267 (Riano)

True or False

Exceptions to Marital Disqualification Rule

Q: The surviving parties rule bars Maria from testifying for the claimant as to what


Bar 2000

the deceased Jose ad said to her, in a claim filed by Pedro against the estate of Jose.

Q: Vida and Romeo are legally married. Romeo is charged in court with the crime of serious physical injuries committed against

The rule bars only a party plaintiff, or his assignor or a person in whose behalf a case is prosecuted. Maria is merely a witness and is not one of those enumerated as barred from testifying.

Selmo, son of Vida, step son of Romeo. Vida witnessed the infliction of the injuries on Selmo by Romeo. The public prosecutor called Vida to the witness stand and offered her testimony as eyewitness. Counsel for Romeo objected on the ground

Marital Disqualification Rule

of the marital disqualification rule under


the rules of court. (a)Is the objection valid?

-The marital disqualification rule under sec. 22 of Rule 130 forbids the husband or the wife to testify for or against the other without the consent of the affected spouse except in those cases authorized by the rule. The prohibition extends not only to a testimony adverse to the spouse but also to a testimony in favor of the spouse. It also extends to both criminal and civil cases because the rule does not distinguish.

-In order that the husband or wife may claim the privilege, it is essential that they be validly married. If they are not, there is no privilege. Rule does not cover illicit cohabitation.

-Sec 22 r 130 requires not only a valid marriage but the existence of that valid marriage at the moment the witness- spouse gives the testimony.

(b) Will your answer be the same if Vida’s testimony is offered in a civil case for recovery of personal property filed by Selmo against Romeo?

A: (a) The obejection is not valid. While the rule provides that neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, the prohibition is merely the general rule. Said rule is subject to certain exceptions, one of which is in a criminal case committed by one against the direct descendant of the other. Romeo is accused of committing a crime against Selmo, the son of Vida and the latter’s direct descendant.

(b) The answer will not be the same. The rule in a criminal case is not the same as that in a civil case. In a civil case, for the marital disqualification rule not to apply, the case must be by one spouse against the other. In the case under consideration,

Testimony by the Estranged Spouse

- the rule applies whether the witness- spouse is a party to the case or not but the other spouse must be a party. That the other spouse must be a party is evident from the phrase “…neither the husband

the case is by the son of one spouse against the other spouse. Romeo may thus, invoke the marital disqualification rule against Vida’s proposed testimony.

nor the wife may testify for or against the other ”

Bar 2006

Q: Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was having an affair with Manuel, their neighbor. She was temporarily living with her sister in Pasig City.

For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the incident. Later, he was charged with arson in an Information filed with the Regional Trial Court, Pasig City.

During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed arson.

Can Leticia testify over the objection of her husband on the ground of martial privilege?

A: Leticia cannot testify. Sec22 of R130 bars her testimony without the consent of the husband during the marriage. The separation of the spouses has not operated to terminate their marriage.

Pls consider this!

Leticia may testify over the objection of her husband. Where the marital and domestic relations between her and the accused husband have become so strained that there is no more harmony, peace or tranquility to be preserved, there is no longer any reason to apply the Marital Disqualification rule.

Bar 2004

Q: XYZ, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual abuses under RA 7610. The principal witness against him was his Filipina wife, ABC. Earlier, she has complained that XYZ’s hotel was being used as a center for sex tourism and child trafficking. The defense counsel for XYZ

objected to the testimony of ABC at the trial of the child prostitution case and the introduction of the affidavits she executed against her husband as a violation of espousal confidentiality and marital privilege rule. It turned out that DEG, the minor daughter of ABC by her first husband who was a Filipino was molested by XYZ earlier. This, ABC had filed for legal separation from XYZ since last year.

May the court admit the testimony and affidavits of the wife, AB, against her husband XYZ, in the criminal case involving child prostitution?

A: If the testimony and affidavit of the wife are evidence of the case against her husband for child prostitution involving her daughter, the evidences are admissible. The marital privileged communication rule under sec 24 rule 130 as well as the marital disqualification rule under sec 22 of rule 130 do not apply to and cannot be involved in a criminal case committed by a spouse against the direct descendants of the other.

A crime committed by the husband against the daughter of his wife is considered a crime committed against the wife and directly attacks or vitally impairs the marital relations.

Bar 1995

Q: Allan and Narita were married on Aug 1 1989, after 2 months, Narita told Allan in confidence that the 10 year old Liza whom she claimed to be her niece was actually her daughter by a certain married man

In 1992, Narita obtained a judicial decree of nullity of her marriage with Allan on the latter’s psychological incapacity to fulfill his marital obligations. When the decree became final, Liza assisted by narita, filed 10 cases of rape against Allan committed in 1991. During the trial, Narita was called to the witness stand to testify as a witness

against Allan who objected thereto on the found of marital disqualification.

1. As a public prosecutor, how would you meet the objection?

2. Suppose Narita’s testimony was offered while the decision nullifying her marriage to Allan was pending appeal, would your answer be different?

3. Suppose Narita died during the pendency of the appeal, and soon ager, the legal wife of basilio sued for legal separation on sexual infidelity in view of Basilio’s love affair with Narita. At the trial Allan was called by Basilio’s wife to testify that narita confided to him during their marriage that liza was her love child by basilio. As counsel for Basilio, can you validly object to the presentation of Allan as witness for the plaintiff? Explain.


the objection. Under the marital disqualification rule, the objection to the testimony of one spouse against the other may be invoked only during the marriage. At the time the testimony of Narita was offered, the marriage was already

1. I would ask the court to overrule

dissolved, besides, the crime was committed against a direct descendant of Narita.

2. The answer would not be

different and the court may likewise be asked to overrule the objection. The marital disqualification rule may not be invoked in a criminal case for a crime committed against the direct descendant of the other spouse. Here, liza is the daughter of Narita.

3. Suggested answer: I could validly

object to the presentation of Allan as a

witness on the ground that the

communication of Narita was a privileged communication which could be invoked during or after the marriage. Moreover, the testimony of Allan would be hearsay.

Writers comment: it is submitted

that the testimony could not be validly objected upon by Basilio’s counsel on the

basis of the marital priv comm

Basilio does not own the privilege. The prerogative to object to a confidential communication between spouses is vested upon the spouses themselves, particularly the communicating spouse, not a third person. This is clear from the provision “cannot be examined without the consent of the other” the proper objection should be on hearsay grounds not on privileged communication.


Bar 1998

Q: C is the child of the spouses H and W. H sued his wife for judicial declaration of nullity of marriage under Art. 36 of the FC. In the trial, the ff. testified over the objection of W: C, H, and D, a doctor of medicine who used to treat W. rule on W’s objection which are the ff:

a. H cannot testify against her because of the rule on marital privilege

A: The objection should be overruled. The rule invoked by W, the rule o marital privilege does not apply to a civil case by one against the other. The suit between the spouses is a civil case against the other.

Attorney-Client Privilege

Bar 2008

Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the four (4)

survivors testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the five (5) victims filed an action for damages against SPS.

Plaintiffs' counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain.

A: The contention is not tenable. The documents and information sought to be disclosed are not privileged. They are evidentiary matters which will eventually be disclosed during the trial. What is privileged under sec. 24b of R 130 is (a) the communication made by the client to the attorney, or (b) the advice given by the attorney, in the course of, or with the view to professional employment. The information sought is neither a communication by the client to the attorney nor is it an advice by the attorney to his client.

Physician- Patient Privilege

Bar 1998

Q: C is the child of the spouses H and W. H sued his wife for judicial declaration of nullity of marriage under Art. 36 of the FC. In the trial, the following testified over the objection of W: C H and D, a doctor of medicine who used to treat W. Rule on W’s objection which are the ff:

(C.1.). D cannot testify against her because of the doctrine of privileged communication.

(c.2) C cannot testify against her because of the doctrine of parental privilege

A1: D cannot testify over the objection of W where the subject of the testimony is the advice or treatment given by him or any information which he may have acquired in attending to W in his professional capacity.

A2. W cannot invoke the privilege which belongs to the child. C may testify if he want to although he may not be compelled to do so.

Priest/Minister- Penitent Privilege


The privilege extends not only to a confession made by the penitent but also to any advice given by the minister or priest. The confession and the advice must have been made or given pursuant to the course of discipline of the denomination or sect to which the minister or priest belongs. Thus, the minister or priest must be duly ordained or consecrated by his sect.

Not every communication made to a minister or priest is privileged. The communication must be made pursuant to confession of sins. As clearly provided in the rule. The advice given as a result of the confession, must be made in the ministers processional character or in his spiritual capacity. Accordingly, where the penitent discussed business arrangements with the priest, the privilege does not apply.

Privileged Communication under the rules on electronic evidence

Priv. Comm apply even to electronic evidence. Under sec. 3 rule 3 of the rules on e-evid, the confidential character of a privileged communication is not lost solely on the ground that it is in the form of an e- document.

Other Privileged Communication not found in the Rules of Court

-editors may not be allowed to disclose the source of published news

-voters may not be compelled to disclose for whom they voted

-trade secrets

-info. contained in tax census returns; and bank deposits

-under Art. 233 Labor Code information and statements made at conciliation proceedings shall be treated as confidential. AMLA, institutions covered by the law and its officers and employees who communicate suspicious transactions to AMLC are barred from disclosure the fact of such report to other persons.

Examination of Witnesses

Examination of Witness and Record Proceedings

Bar 1978

Q: After the accused himself had testified in his defense in a murder case, the trial judge over the objection of the fiscal, allowed the defense counsel to file and merely submit the affidavits of the other witnesses of the accused in lieu of their direct testimony but subject still to cross examination by the prosecution. The fiscal thus filed with the SC a petition for certiorari and prohibition to nullify the order of the trial court judge allowing such a procedure.

Should said petition be granted?

A: The petition should be granted. The provisions of the Rules of Court require that the examination of the witnesses shall be done in open court and their answers be given orally, not in writing unless the exceptions mentioned therein apply to with

the witness is incapacitated to speak, or the question calls for a different mode of answer. None of the exceptions apply to the case under consideration. The court therefore, acted in excess of jurisdiction amounting to lack of jurisdiction when it allowed the presentation of the affidavits without an oral examination of the witness.

Rights and Obligations of a Witness

Bar 2005

Q: Under Republic Act No. 8353, one may be charged with and found guilty of qualified rape if he knew on or before the commission of the crime that he is afflicted with Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim.

Under Section 17(a) of Republic Act No. 8504 the court may compel the accused to submit himself to a blood test where blood samples would be extracted from his veins to determine whether he has HIV.

a) Are the rights of the accused to be presumed innocent of the crime charged, to privacy, and against self-incrimination violated by such compulsory testing? Explain.

A: The rights of the accused are not violated by such testing’s. This is a settled rule. There is no testimonial compulsion involved by extracting blood from the accused for testing purposes. There is hence, no violation of the right to privacy and the right to be presumed innocent.

Bar 2004

Q. At the scene of a heinous crime, police recovered a man’s shorts with blood stains and strands of hair. Shortly afterwards, a warrant was issued and police arrested the suspect. AA during his detention, a medical

tech extracted blood sample from his finger and cut a strand from his hair, despite AA’s objections

During AA’s trial for rape and murder, the prosecution sought to introduce DNA evidence against AA, based on forensic matching of the materials found at the crime scene and AA’s hair and blood samples, AA’s counsel objected, claiming that DNA evidence is inadmissible because the materials taken from AA 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?

A: The DNA evidence should be admitted. The right against self-incrimination applies only to testimonial evidence. Extracting blood samples and cutting strands of hair do not involve testimonial compulsion but purely mechanical acts which neither requires discretion or reasoning.

Bar 1998

Q: A was accused of having raped X. rule on admissibility of the ff. pcs. Of evidence:

- A pair of short pants allegedly left by A at the crime which the court, over the objection of A, required him to put on and when he did, it fit him well.

A: The pair of short pants may be considered as circumstantial evidence when taken with other circumstances. No valid objection may be interposed over the order of the court to put on the pair of pants. The right against self-incrimination does not apply to a physical and mechanical act. It applies only to testimonial compulsion which is not the case under the facts.

NOTE: if the witness is the accused, he may totally refuse to take the stand. A mere witness cannot altogether refuse to take the stand. Before he refuses to answer, he must wait for the incriminating question.

Leading questions

Q: The case is a collection case. The defendant contends that the debt has been paid. He calls a witness to testify to the fact of payment.

-while the plaintiff and the defendant were engaged in a conversation on the date and time you mentioned, did you see the defendant deliver 50k to the plaintiff?

Here, the question of objectionable on the ground that it is leading. Here the examiner obviously wants the witness to directly testify that money was delivered by the defendant to the plaintiff in his presence. The question could have been properly framed in this manner: “what have you observed if any, while the plaintiff and the defendant were engaged in a conversation”

Q. The fact situation is a robbery case. The accused claims innocence and that a couple of hours after the alleged robbery, he is arrested by the police while in the park with his children. The defense counsel calls the accused to the stand.

- What where you doing in the park? I was taking a stroll with my two adolescent children,

- While you were in the park with your children, the police officers arrived to arrest you, is that true.

The question is leading. It suggests the next event which the witness should testify to. The atty. Could convert the question into a non-leading one by taking the suggestive element our of the question.

Thus “What happened if any, while you and your children were at the park?”


Opinion Evidence

Open of an Ordinary Witness; When Admissible

Bar 2005

Q: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry and money. Dencio then brought Candida, Marcela’s maid, to a bedroom where he raped her. Marcella could hear Candida crying and pleading.”Huwag! MAawa ka sa akin!

After raping Candida, Dencio fled from the house with the loot. Candida then untied Marcela and rushed to the police station about a kilometer away and told Police Officer Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida also related to the police officer that despite her pleas, Dencio had raped her. The policeman noticed that Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape. During the trial, Candida can no longer be located.

b) If the police officer will testify that he noticed Candida to be hysterical and on the verge of collapse, would such testimony be considered as opinion, hence, inadmissible? Explain.

A: The testimony would be admissible even if it would be an opinion. The opinion of an ordinary witness is admissible when such testimony refers to his impressions of the emotion, behavior condition or appearance of person.



Q. What is the hearsay rule?

In relation to the hearsay rule, what do the following rules of evidence have in common?

1. The rule on statements that are part of

the res gestae;

2. The rule on dying declarations;

3. The rule on admissions against interest.

A: 1. Sec. 36 R.130

2. They are exceptions to the rule that hearsay evidence is inadmissible. They are in other words, admissible hearsay

Bar 2004

Q: Distinguish hearsay evidence and opinion evidence

A. Hearsay evidence is one that is not based on one’s personal perception but based on the knowledge of others to prove the truth of the matter asserted in an out-of-court declaration (sec36R130)

An opinion evidence is based n the personal knowledge or personal conclusions of the witness based on his skill, training or experience (sec. 49 R 130)

Independently Relevant Statements

Bar 2003

Q: The prosecution presented in evidence a newspaper clipping of the report to the reporter who was present during the presscon stating that X admitted the robbery. Is the newspaper clipping admissible against X?

A: The newspaper clipping is admissible as non-hearsay if offered for the purpose of showing that the statement of X was made to a reporter regardless of the truth or falsity of the statement. The admissibility depends now on whether the fact that the statement was made is relevant to the case. It is relevant, it is admissible as an independent relevant statement. It would

be hearsay if offered to prove the truth that

x was the robber.

Note: The statement of X to a reporter may be admitted as an admission under sec 26. of R130. This answer should also be considered by the examiner because it has

a clear legal basis.

Bar 1991

Q: What are the requisites to the admissibility of a dying declaration?

See sec 37 of Rule 130

Q: One evening at 9:00 just as he reached the gate of his house in Apas, Cebu city, and as soon as he alighted from his car to open the gate, Carlos was shot by tito, who had been waiting behind a coconut tree nearby, with a .38 caliber revolver, Carlos was hit at the sternum of the second rib. Hearing the shot, Marilyn, Carlos; wife ran out toward the gate and found Carlos lying on the ground, with blood splattered on his chest. With her son Y, she brought Carlos to the Cebu Doctors Hospital. In the car, although he was in a semi0conscious state, Carlos told Marilyn that it was Tito who shot him. Carlos was brought to the ER. However, two hours later, he expired. Tito was then charged with murder before the RTC of Cebu. Marilyn was presented as witness for the prosecution by her testimony regarding the above statement of Carlos was objected to under the hearsay rule. The court overruled the objection on the ground that the statement

may be considered as a dying declaration. Is the ruling correct?

A: The ruling is correct. While declaration of Carlos is hearsay evidence, the declaration is admissible as a dying declaration and hence, admissible as an exception. The declaration of Carlos contains all the elements of a during declaration (should enumerate the elements).

Bar 1985

Q: Fallen by a bullet upon being fired at, Santos before expiring told Romero, a passerby who came to his rescue, “I was shot by Pablo, our neighbor”

May Romero’s testimony o what was told him by Santos be offered and admitted in evidence in the separate civil action for damages brought by the heirs against Pablo Cruz? Discuss

A: The statement is admissible. A dying declaration, as in the facts in the case at bar, may be offered in a civil case provided that the cause and circumstances of the death of the declarant are the subjects of inquiry.

Res Gestae

Spontaneous Statement

Bar 2005

Q: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry and money. Dencio then brought Candida, Marcela’s maid, to a bedroom where he raped her. Marcela could hear Candida crying and pleading: “Huwag! Maawa ka sa akin!” After raping Candida, Dencio fled from the house with the loot. Candida then untied Marcela and rushed to the police station about a kilometer away and told Police Officer Roberto Maawa that Dencio had

barged into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida also related to the police officer that despite her pleas, Dencio had raped her. The policeman noticed that Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape. During the trial, Candida can no longer be located.

a) If the prosecution presents Police Officer Roberto Maawa to testify on what Candida had told him, would such testimony of the policeman be hearsay? Explain.

A: The testimony would be hearsay if offered to prove the truth of the statement of Candida, but an admissible hearsay as an exception to the hearsay rile. Under the rules of court, statements made by a person while a startling occurrence are taking place or immediately proper or subsequent thereto with respect to the circumstances thereof, maybe given in evidence as part of the res gestae. The statements made by Candida to the police officer falls within the res gestae rule.

If the statement of Candida is offered merely to prove the tenor of the statement, i.e. what Candida told the police officer without regard to whether the statement is true or not, it may be considered as an independently relevant statement and this not hearsay.


Chapter VI

Burden of Proof, Quantum of Evidence and Presumptions

Bar 2004

Q: Dist: Burden of proof and burden of evidence

A: Burden of proof is the obligation of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law.

Burden of evidence is the duty of a party to go forward with the evidence to overthrow any prima facie presumption against him.

Bar 1995

Q: Explain the equipoise doctrine in the law of evidence and cite its constitutional basis.

A: The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty or property without due process of law.

The doctrine refers to a situation where the evidence of the parties is evenly balanced or there is doubt on which side the evidence preponderates. In this case the decision should be against the party with the burden of proof. Hence, where the burden of proof is on the plaintiff and the evidence does not suggest that the scale of justice should weigh in his favor the court should render a verdict for the defendant.

Substantial Evidence

Bar 2003

Q: Dist preponderance of evidence from substantial evidence

A: The term “preponderance of evidence” applies to civil cases. It means the “greater or superior weight of evidence”. It is the evidence that is more convincing and more credible than the one offered by the adverse party. It means that the evidence as a whole adduced by one side is superior to that of the other.

“Substantial Evidence” applies to cases filed before administrative or quasi-judicial bodies and which requires that in order to establish a fact, the evidence should constitute that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion.


Chapter VII

Offer of Evidence and Trial Objections

When Formal Offer of Evidence is Not Required

A formal offer of evidence is not required in certain cases:

1. In a summary proceeding because it is a proceeding where there is no full blown trial

2. Documents judicially admitter or taken judicial notice of

3. Documents, affidavits and depositions used in rendering a summary judgment;

4. Documents or affidavits used in deciding quasi-judicial or admin. Cases

5. Lost objects previously marked, identified, described in the record and testified to by witnesses who had been subjects of cross- examination in respect to said objects

Bar 2003

Q: X and Y were charged for murder. Upon application of the prosecution, Y was discharged from the information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to state the purpose oof his

testimony much less offer it in evidence. Y testified that he and X conspired to kill the victim but it was X who actially shot the victim. The testimony of U was the only material evidence establishing the guilt of X. H was thorognly cross-examined by the defense counsel, after the prosecution rested its case, the defense filed a motion for demurrer to ecidence based on the following grounds:

a. The testimony of Y should be excluded because its purpose was not initially stated and it was not formally offered in evidence as required by s. 34 r 132 off evidence

Rule on the motion of the demurrer.

A: The demurrer to evidence should be denied.

While under the Rules of Court, the court shall consider no evidence which has not been formally offered this is true only when the failure to offer evidence has been objected to. The failure to object to the omission of the prosecutor and the cross-examination of the witness by the adverse party, taken together, constitute a waiver of the defect.

How an Offer of Evidence is Made

Bar 1983

Atty. Felipe Malang was the counsel for the plaintiff in an action to collect the alleged purchase price of a tractor. For his principal defense, the defendant alleged that the true transaction between the parties was only a lease of the tractor, not a sale thereof, and therefore the defendant, being a mere lessee, was not liable for the alleged purchase price

In the course of the trial, lawyer was asked his witnesses to identify certain

documents which he marked as: Exhibit A, the delivery receipt signed by the defendant acknowledging delivery of the


(toooooooooooo long)


refer to p461

Did Atty. Malang commit any error in the manner by which he made an offer of the documentary evidence made by the plaintiff? Reasons

A: Atty. Malang committed errors in the manner by which he offered is documentary evidence

Under the rules, when a party makes a formal offer of his evidence, he must state the nature or substance of the evidence, and the specific purpose for which the evidence is offered. Atty. Malang failed to do all these.

Bar 1997

Q: What are the two kinds of objections? Explain each briefly. Give an example of


A: Formal and substantive Objections

A formal objection is one directed against

the alleged defect in the formulation of the

question. Examples of defectively formulated questions: ambiguous question; leading and misleading questions; repetitious questions; multiply questions; argumentative questions

A substantive objection are objections

made and directed against the very nature of the evidence, i.e., it is in admissible either because it is irrelevant or incompetent or both. Examples: parol; not

the best evidence; hearsay privileged communication not authenticated; opinion; res inter alios acta

Bar 2004

Q: in a complaint for a sum of money filed before the MM RTC, plaintiff did not

mention or even just hint at any demand for payment made on defendant before commencing suit. During the trial, plaintiff dully offered Exh. A in evidence for the stated purpose of proving the making of extrajudicial demand on defendant to pay P500k the subject of the suit. EXh A was a letter of demand for defendant to pay said sum of money within 10 days from receipt, addressed to and served on defendant some 2 months before suit was begun. Without objection from defendant, the court admitted exh A in evidence.

A: The admission of the evidence was correct. There was no objection when Exh S was offered in evidence. It could have been objected to on the ground that is not related to an issue raised in the pleadings. However, it is a basic rule that inadmissibility of evidence may be waived.

Tender if Excluded Evidence (Offer of Proof)

Bar 1991

Q: Dist. Formal offer of evidence from offer of proof

A: Formal offer of evidence refers either to the offer of the testimony of a witness prior to the latter’s testimony, or to the offer of the documentary and object evidence after a party has presented his testimonial evidence

Offer of proof, is the process by which a proponent of excluded evidence tenders the same. If what has been excluded is testimonial evidence, the tender is made by stating for the record the name and other personal circumstances of the proposed witness and the substance of his proposed testimony. If the evidence excluded is documentary or of things, the offer of proof is made by having the same attached to or made a part of the record.