EVIDENCE

General Rule - The rules of evidence

shall be the same in all courts and in all
trials and hearings

GENERAL PRINCIPLES
DEFINITION
EVIDENCE

AND

CONCEPT

OF

EVIDENCE is the means sanctioned by

the Rules of Court, ascertaining in a
judicial proceeding the truth respecting
a matter of fact (Section 1, Rule 128 of
the Rules of Court).
When Evidence is Required
There is a need for the introduction of
evidence when the court has to resolve
a question of fact.
When Evidence is NOT Required
1. When no factual issue exists in a
case or where the case presents only a
question of law;
2. When the pleadings in a civil case do
not tender an issue of fact;
3. When parties to the action have
agreed upon/stipulated to the facts
involved in the litigation (Section 6, Rule
30 of the Rules of Court); and
4. On matters of judicial notice (Section
1 to 3, Section 129 of the Rules of
Court); and
5.
On matters judicially admitted
(Section 4, Rule 129 of the Rules of
Court).
Waiver of the Rules of Evidence
General Rule The rules of evidence
may be waived. When an otherwise
objectionable evidence is not objected
to, the evidence becomes admissible
because of a waiver.
Exception When the waiver amounts
to a transgression of the law, principles
of morality, good customs and public
policy or when the rights of third
persons are violated, then there can be
no waiver.
SCOPE
Scope: Principle of Uniformity

Exception Except as provided by law

or by the Rules of Court (Section 2, Rule
128 of the Rules of Court).
1. Naturalization Proceedings
2. Insolvency Proceedings
3. Cadastral Proceedings
4. Land Registration Cases
5. Election Cases
6. Other cases as may be provided for
by law
(Section 4, Rule 1 of the Rules of Court)
Applicability
The rules on evidence, being part of the
Rules of Court, apply only to judicial
proceedings.
While the definition of evidence under
the Rules of Court makes reference only
to judicial proceeding, the provisions of
the Rules on Electronic Evidence apply
to all civil actions and proceedings, as
well as quasi-judicial and administrative
cases (Section 2, Rule of the Rules on
Electronic Evidence).
When Applicable
It is applicable to both civil and criminal
cases.
When NOT Applicable
It does not apply to administrative or
quasi-judicial
proceedings
as
administrative bodies are not bound by
the technical niceties of the rules
obtaining in the court of law. [El Greco
Ship
Maning
and
Management
Corporation
vs
Commissioner
of
Customs, G.R. No. 177188, December 4,
2008]
As evidence that they were being
prevented from cultivating the land, the
tenants presented affidavits but the
affiants were not cross-examined. The
Court held that the affidavits were

admissible because in Agrarian cases,

the Rules of Court are not applicable
even in suppletory character. [Reyes vs.
Court of Appeals, 216 SCRA 25]

EVIDENCE IN CIVIL CASES

versus CRIMINAL CASES
CIVIL
CASES
Attendance
in Court

Presumptio
n of
Innocence

Offer of
Compromis
e (Section
27, Rule
130)

Quantum of

Parties
attend by
accord

There is no
presumptio
n as to
either
party

An offer to
compromis
e does not,
as a
general
rule,
amount to
an
admission
of liability

Must prove

Proof
CRIMINAL
CASES
The
accused
attends by
compulsion
Presumptio
n
of
innocence
attends the
accused
throughout
the
trial
until
the
same has
been
overcome
by
prima
facie
evidence of
his guilt

Withdrawal
of Plea/
Admission

by
preponder
ance
of
evidence:
Reason is
that there
is
no
presumptio
n and due
to the fact
that
the
proof will
only result
in
a
judgment
of
pecuniary
damages
or
establish
civil right.

Judicial
admission
withdrawn
becomes
extrajudici
al
admission

An offer of
compromis
e
is
an
implied
admission
of guilt
Except:
1. In cases
involving
quasioffenses
2. Those
allowed by
law to be
compromis
ed
Guilt

Circumstant
ial Evidence

Not
applicable

DoctorPatient
Privileged
Communica
tion

Applicable

beyond
reasonable
doubt

A plea of
guilty later
withdrawn
or
unaccepted
offer of a
plea
of
guilty to a
lesser
offense is
not
admissible
in evidence
against the
accused
who made
the
plea/offer
Applicable
only to
criminal
cases
(Section 4,
Rule 133)
Not
Applicable
(Section
24(c), Rule
130)

Compulsion
of Witness

A party or
a
defendant
may
be
compelled
to be a
witness
provided
written
interrogato
ries
and
request for
admission
have been
served
upon him.
(Section 6,
Rule
25
and
Section 5,
Rule 26)

the
material
evidencing
the
proposition.

The
accused
cannot be
compelled
to testify

PROOF versus EVIDENCE

PROOF
The result or the
probative effect of
evidence.
When
the
requisite
quantum
of
evidence
of
a
particular fact has
been
duly
admitted
and
given weight, the
result is called the
proof of such fact.

EVIDENCE

The medium or
means by which a
fact is proved or
disproved.

These two elements correspond to the

Two Axioms of Admissibility:
1. Axiom of Relevancy - That none but
facts having rational probative value are
admissible.
2. Axiom of Competency - All facts
having rational probative value are
admissible unless some specific rule
forbids their admission.
If in doubt as to admissibility of the
testimony given in the court, the court
should favor admissibility. Otherwise, if
the trail court judge erred in ruling and
excluded the same, the appeals court
would be precluded from reversing the
ruling and taking such testimony.
RELEVANCY; COLLATERAL MATTERS

FACTUM PROBANS versus FACTUM

PROBANDUM
FACTUM
PROBANS
The probative or
evidentiary
fact
tending to prove
the fact in issue or
the
FACTUM
PROBANDUM. It is

Factum probandum does not include

matters of judicial notice, conclusive
presumptions and judicial admissions as
these matters need not be established
or proven.
ADMISSIBILITY OF EVIDENCE
Requisites
for
Admissibility
of
Evidence
The Evidence MUST Be:
1. Relevant Relevant to the issue
2. Competent - Not excluded by the
Rules on Evidence, the law and
the Constitution

FACTUM
PROBANDUM
The ultimate fact
to be proved or
proposition to be
established.

RELEVANCY Evidence is relevant if it

has such a relation to the fact in issue as
to induce belief in its existence or nonexistence (Section 4, Rule 128 of the
Rules of Court). The evidence adduced
should be directed to the matters in
dispute and any evidence which has
neither direct nor indirect relationship to
such matters must be set aside as
irrelevant. This is determined by logic,
common sense and human experience.
The matter of relevance is one that is
addressed to the discretion of the court.

(RIANO, Evidence:
Series (2013) p.19)

The

Bar

Lecture

The
components
of
RELEVANT
Evidence are:
1. MATERIAL evidence offered upon a
matter properly in issue. It is directed
toward a fact within the range of
allowable controversy.
2. PROBATIVE Tendency of evidence
to establish the proposition that it is
offered to prove
COMPETENCY Facts having rational
probative value are admissible unless
some rule or law forbids their admission.
If a rule or law excludes the evidence, it
is incompetent.
RULES OF EXCLUSION governed by
the Rules or by Statute
Examples:
1. Section 201, Tax Reform Act of
1997: A document required by law to be
stamped shall not be admitted or used
in evidence until the requisite stamp are
affixed thereto.
2. R.A. 1405, Law on Secrecy of
Bank
Deposits:
All
deposits
of
whatever
nature
are
absolutely
confidential and may not be examined,
inquired, looked into except upon
written permission of the depositor, or in
cases of impeachment, or upon order of
a competent court in cases of bribery or
dereliction of duty of public officials or in
cases where the money is the subject
matter of litigation
3. R.A. 4200, Wire-Tapping Act: Any
communication or spoken word or the
existence, contents, substance or any
information contained therein secured in
violation of the Act shall not be
admissible in evidence in any judicial,
quasi-judicial,
legislative
or
administrative hearing or investigation.
4. R.A. 9372, Human Security Act Any listened to, intercepted, and

recorded communications, messages,

conversations, discussions, or spoken or
written words, or any part or parts
thereof, or any information or fact
contained
therein,
including
their
existence, content, substance, purport,
effect, or meaning, which have been
secured in violation of the pertinent
provisions of this Act, shall absolutely
not be admissible and usable as
evidence against anybody in any
judicial, quasi-judicial, legislative, or
administrative investigation, inquiry,
proceeding, or hearing.
5. R.A. 9745, Anti-Torture Act - Any
confession, admission or statement
obtained as a result of torture shall be
inadmissible
in
evidence
in
any
proceedings, except if the same is used
as evidence against a person or persons
accused of committing torture.
THE
EXCLUSIONARY
RULE

Commonly used for evidence excluded

by the Constitution. It is applied to cases
where the challenged evidence is quite
clearly direct or primary in its
relationship to the prior arrest or search.
(Herrera , Remedial Law Vol V (1999)
page 37)
Examples:
1. Right against unreasonable search
and seizures (Section 2, Art. III of the
1987 Constitution)
2. Right to privacy of communication
(Section 3, Art. III of the 1987
Constitution)
3. Rights of the Accused under
investigation (Section 12, Art. III of the
1987 Constitution)
4.
Right
against
self-incrimination
(Section 17, Art III of the 1987
Constitution)
Admissibility
of
Electronic
Documents
An electronic document is 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 Rules on Electronic Evidence

(Section 2, Rule 3 of the Rules on
Electronic Evidence).
Admissibility Distinguished
Weight of Evidence:
ADMISSIBILITY
Has to do with
whether the item
of evidence meets
the
test
of
relevancy
and
competency so as
to be admitted in
evidence. It is an
affair
of
logic
(relevance)
and
law (competence).

from

WEIGHT
Has to do with the
effect
of
the
evidence admitted
or its tendency to
convince
and
persuade
the
court. It depends
on
judicial
evaluation.

The admissibility of the evidence

depends
on
its
relevance
and
competency, while the weight of
evidence pertains to its tendency to
convince and persuade. Tating v.
Marcella, [G.R. No. 15508, March
27, 2007]
While evidence may be admissible, it
may be entitled to little or no weight at
all. Conversely, evidence which may
have evidentiary weight may be
inadmissible because a special rule
forbids its inception. People v. Turco,
[G.R. No. 137757, August 14, 2000]
COLLATERAL MATTERS refers to
matters other than the fact in issue.
These
are
matters
outside
the
controversy,
or
are
not
directly
connected with the principal matter or
issue in dispute, as indicated in the
pleadings of the parties.
General Rule - Evidence on collateral
matters is not allowed.
Exception - Evidence on collateral
matters may be admitted if it tends in
any reasonable degree to establish the
probability or improbability of the fact in

issue (Section 4, Rule 128 of the

Rules of Court).
For instance, when a witness testifies
having seen the killing of the victim by
the accused, his testimony is direct
evidence for it tends to prove the fact in
issue without the aid of inference or
presumption; but when he testifies to
the conduct of the accused prior to the
commission of the crime or immediately
thereafter from which an inference may
be made as to the probability or
improbability of the fact in issue, his
testimony is circumstantial evidence for
it tends to prove collateral matters
which with the aid of inference may tend
to
establish
that
probability
or
improbability of the fact in issue.
(Herrera, supra at 63 64)
Multiple Admissibility
When a proffered evidence is admissible
for two or more purposes. It may be
admissible
for
one
purpose
but
inadmissible for another or vice versa. It
may also mean that it may be
admissible against one party but not
against another
Example: Admissions admissible against
the declarant but not against his coaccused under the res inter alios acta
rule.
Conditional Admissibility
When a piece of evidence appears to be
relevant as it is connected with other
pieces of evidence not yet offered nr
proved, such piece of evidence may be
conditionally admitted subject to the
condition that
its relevancy
and
competency be established at a later
time. If the condition is not met, the
evidence should be rejected.
Example: In an action by A against B for
recovery of a real property, plaintiff
offered a document showing that the
property belonged to X. On objection of
the defendant upon the ground of
irrelevancy, plaintiff stated that he

would prove later by other evidence that

X, the original owner sold the property
to Y and the latter sold it to Z from
whom
plaintiff
acquired
title
by
purchase. The Court may admit the
evidence conditionally until the other
facts mentioned by plaintiff are proved.
(Herrera, supra at 29)
Curative Admissibility
When a party is allowed to present
inadmissible evidence over the objection
of the opposing party, such opposing
party may be allowed to introduce
otherwise inadmissible evidence to
contradict the previously admitted
inadmissible evidence and to remove
any prejudice caused by its admission.
Example: At the trial, plaintiff testified
that defendant is a man who never pays
his debts as shown by his refusal to pay
his debts to other persons. This
evidence is inadmissible but was
admitted by mistake. In such case, in
fairness to the defendant, the Court may
allow him to explain his dealings with
such other persons. (Herrera, supra at
26)
OTHER
CLASSIFICATIONS
EVIDENCE
a) Direct
and
Evidence
DIRECT
EVIDENCE
That which proves
the fact in dispute
without the aid of
any inference or
presumption.

Example: Witness
saw the accused
inflict a blow which
caused the victims
death

OF

Circumstantial
CIRCUMSTANTIA
L EVIDENCE
Evidence
that
indirectly proves a
fact
in
issue
through
an
inference
which
the
fact
finder
draws from the
evidence
established.
Example: Witness
testified that he
saw the accused
with blood on his
shirt and hands

and running from

the scene of the
crime where the
victim was lying
dead. The next
day, the accused
was nowhere to be
found in his place
of residence. Taken
altogether,
inference of guilt
can be drawn that
the accused killed
the victim.
Direct and circumstantial evidence are
of the same probative value because no
greater degree of certainty is required
when the evidence is circumstantial
than when it is direct.
b) Positive
evidence
POSITIVE
EVIDENCE
When the witness
affirms that a fact
did or did not
occur.
Such
evidence
is
entitled to greater
weight since the
witness represents
of
his
or
her
personal
knowledge
the
presence
or
absence of a fact.
Example: X said he
drank liquor. Y says
X did not.
Note: They have
the same weight
because they are
both positive. It is
different from Y
saying
that
he
does not know that

and

Negative
NEGATIVE
EVIDENCE

When the witness

states
that
an
event did not occur
or that the state of
facts alleged to
exist
does
not
actually exist.

Example: Y said
that he does not
know that X drank
liquor.

X drank liquor.
c) Competent
Evidence
COMPETENT
EVIDENCE
One that is not
excluded by the
Rules, statutes or
Constitution.

and

Credible

CREDIBLE
EVIDENCE
When evidence is
not only admissible
evidence but is
believable
and
used by the court
in deciding a case.
Example:
School
teacher
who
passed by saw the
accused shoot the
victim.
His
testimony
is
credible. He is one
who practices a
noble
profession
and he is neutral
witness.

d) Corroborative and Cumulative

evidence
CORROBORATIVE
EVIDENCE
Additional
evidence
of
a
different character
to
the
same
proposition tending
to
be
supplementary in
confirming
or
strengthening
previously
given
evidence.
Example:
A
witness
to
the
signing
of
a
contract
testifies
that he saw Party A
sign the contract.
The testimony of a
handwriting expert

CUMULATIVE
EVIDENCE
Evidence of the
same
kind
and
character as that
already given and
that tends to prove
the
same
proposition.

Example: Witness
A testifies that she
saw accused run
out of the bank.
The testimony of
Witness B, who
also testifies that
he saw accused

stating that the

signature
appearing on the
contract
is
the
signature of A is
corroborative
evidence.

run out of
bank,
cumulative.

e) Prima facie
evidence
PRIMA
EVIDENCE

FACIE

That
which,
standing
alone,
unexplained
or
uncontradicted, is
sufficient
to
maintain
the
proposition
affirmed.
Example: Section
3, Rule 131 of the
Rules of Court

f) Primary
Evidence

and

the
is

Conclusive

CONCLUSIVE
EVIDENCE

The
class
of
evidence which the
law does not allow
to be contradicted.

Example: Section
2, Rule 131 of the
Rules of Court

and

Secondary

PRIMARY
EVIDENCE

SECONDARY
EVIDENCE

That which the law

regards
as
affording
the
greatest certainty
of the fact in
question.

That
which
is
inferior
to
the
primary evidence
and is permitted
by law only when
the best evidence
is not available.

It is not, however, necessarily a rule of

exclusion but merely affects the weight
in evidence, and should be distinguished
from the best evidence and secondary
evidence rule under Sections 3 and 4,
Rule 130 of the Revised Rules in Court.
(Herrera, supra at 15)

g) Relevant
evidence

and

RELEVANT
EVIDENCE

MATERIAL
EVIDENCE
Evidence directed
to prove a fact in
issue
as
determined by the
rules
of
substantive
law
and
pleadings.
The test is whether
the fact it tends to
prove is an issue or
not. As to whether
a fact is in issue or
not is in turn
determined by the
substantive
law,
the pleadings, the
pre-trial order and
by the admissions
or confessions on
file. Consequently,
evidence may be
relevant but may
be immaterial in
the case.

Evidence
having
any
value
in
reason as tending
to
prove
any
matter provable in
an action. The test
is
the
logical
relation
of
the
evidentiary fact to
the fact in issue,
whether the former
tends to establish
the probability or
improbability
of
the latter.

It is evidence that
is RELEVANT and
COMPETENT.

Material

The definition of Relevancy in the Rules

already incorporates the definition of
material evidence. In practice, these
terms are used interchangeably.
For example, testimony by the Accused
that the rape victim did not resist his
sexual advances may be relevant (the
probative component) to establish
consent, but if the victim is a minor,
such testimony is not material because
consent is not in issue.

BURDEN

PROOF; BURDEN
EVIDENCE

OF

OF

BURDEN OF PROOF (RULE 131 SEC.

1)
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.
Upon Whom the Burden of Proof
Rests
CIVIL CASES - the plaintiff has the
burden of proof to show the truth of his
allegations if the defendant raises a
negative defense.
The defendant has the burden of proof if
he raises an affirmative defense on the
complaint of the plaintiff.
NOTE:
In a civil case, the plaintiff is always
compelled to allege affirmative
assertions in his complaint. When he
alleges a cause of action, he must
necessarily allege that he has a right
and that such right was violated by
the other party. Thus, he has the
duty to prove the existence of this
affirmative allegation.
CRIMINAL CASES - The burden of proof
is on the prosecution by reason of
presumption of innocence.
The burden of proof as to the guilt of the
accused must be borne by the
prosecution. It is required that courts
determine first if the evidence of the
prosecution has at least shown a prima
facie case before considering the
evidence of the defense. If the
prosecution does not have a prima facie
case, it is futile to waste time in
considering the evidence presented by
the defense. Should the prosecution
succeed in establishing a prima facie
case against the accused, the burden is
shifted upon the accused to prove
otherwise.
Under the Speedy Trial Act, if the
accused was NOT brought to trial within
the time required, the information shall
be dismissed on the motion of the
accused. In this case, the burden of

proof of supporting such motion is with

the accused. (Section 13 of R.A.
8493)
Degree of Proof That Satisfies the
Burden of Proof
Civil Cases
evidence

Preponderance

of

Criminal Cases a) To sustain conviction Evidence

of guilt beyond reasonable doubt.
b) Preliminary
investigation

Engenders a well-founded belief

of the fact of the commission of a
crime.
c) Issuance of warrant of arrest
Probable cause (i.e., that there is
reasonable ground to believe that
a criminal offense has been
committed and that the accused
committed the offense).
Administrative Cases Substantial
evidence
Hierarchy of Evidence
1. Proof beyond reasonable doubt
2. Clear and convincing evidence
3. Preponderance of evidence
4. Substantial evidence
Burden of Evidence
Burden of evidence is the duty of a party
to go forward with the evidence to
overthrow any prima facie presumption
against him. (Bautista v. Sarmiento, G.R.
No. L-45137, September 23, 1985)
In both civil and criminal cases, the
burden of evidence lies on the party who
asserts an affirmative allegation.
Upon Whom the Burden of Evidence
Rests
1. Civil Cases - The plaintiff has to
establish his case by preponderance of
evidence. If he claims a right granted or
created by law, he must prove such

right. (Sps. Guidangen v. Wooden G.R.

No. 174445, Feb. 15, 2012)
2. Criminal Cases - The prosecution
has to prove its affirmative allegations in
the information (i.e., the elements of the
crime as well as the attendant
circumstances); while the defense has to
prove
its
affirmative
allegations
regarding the existence of justifying or
exempting circumstances, absolutory
causes or mitigating circumstances.
BURDEN OF
PROOF
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
The burden of
proof is fixed by
the pleadings

Does not shift

during the course
of the trial.

BURDEN OF
EVIDENCE
Duty of a party to
go forward with
the evidence to
overthrow any
prima facie
presumption
against him

Generally
determined by
the developments
of the trial or by
provisions of
substantive law or
procedural rules
which may relieve
the party from
presenting
evidence on the
facts alleged.
May shift from
one side to the
other as trial
unfolds.

Principle of Negative Averments

General Rule - Negative allegations
need not be proved, whether in a civil or
criminal action.
Exception - When such negative
allegations are essential parts of the
cause of action or defense in a civil
case, or are essential ingredients of the

offense in a criminal case or defenses

thereto.
Exception to the exception In CIVIL CASES, even if the negative
allegation is an essential part of the
cause of action or defense, such
negative allegation does not have to be
proved if it is only for the purpose of
denying the existence of a document
which should properly be in the custody
of the adverse party.
In CRIMINAL CASES, if the subject of a
negative averment inheres to the
offense as an essential ingredient
thereof, the prosecution has the burden
of proving the same. In view, however,
of the difficult office of proving a
negative allegation, the prosecution,
under such circumstance, needs to do
no more than make a prima facie case
from the best evidence obtainable.

PRESUMPTIONS
Presumption is an assumption of fact
resulting from a rule of law which
requires such fact to be assumed from
another fact
found
or otherwise
established in the action.
A presumption is an inference as to the
existence or non-existence of a fact
which courts are permitted to draw from
the proof of other facts.
Difference between Inference and
Presumption:
INFERENCE
A factual
conclusion drawn
from other facts
that is not
mandated by law
This does not
necessarily
establish a legal
relation between
or among the facts

PRESUMPTION
It is mandated by
law

This has legal

effect and
establishes a legal
relation between
or among the facts

Effect of Presumption

A party in whose favor the legal

presumption exists may invoke such
presumption to establish a fact in issue
and need not introduce evidence to
prove the fact for the presumption is
prima facie proof of the fact presumed.
A presumption shifts the burden of
evidence or the burden of going forward
with the evidence. It imposes on the
party against whom it is directed the
burden of going forward with evidence
to meet or rebut the presumption. It
does not, however, shift the burden of
proof.
Classification of Presumptions
1. PRESUMPTION JURIS OR OF
LAW is a deduction which the
law expressly directs to be made
from particular facts.
2. PRESUMPTION HOMINIS OR
OF FACT is a deduction which
reason draws from facts proved
without an express direction from
the law to that effect.
PRESUMPTION
OF LAW
Certain inference
must be made
whenever the
facts appear
which furnish the
basis of the
inference
Reduced to fixed
rules and form a
part of the
system of
jurisprudence

PRESUMPTION
OF FACT
Discretion is
vested in the
tribunal as to
drawing the
inference
Derived wholly and
directly from the
circumstances of
the particular case
by means of the
common
experience of
mankind

PRESUMPTION JURIS may be divided

into:
1. CONCLUSIVE
PRESUMPTION
(juris et de jure) inferences
which
the
law
makes
so
peremptory that it will not allow

them to be overturned by any

contrary proof however strong. (
2. DISPUTABLE PRESUMPTIONS
(juris tantum) is that which the
law permits to be overcome or
contradicted by proofs to the
contrary; otherwise, the same
remains satisfactory (Section 3,
Rule 131 of the Rules of Court)
Conclusive Presumptions (Rule 131
Sec. 2)
1. ESTOPPEL IN PAIS whenever a
party has, by his own declaration, act, or
omission, intentionally and deliberately
lead another to believe a particular thing
to be true and act upon such belief, he
cannot, in any litigation arising out of
such declaration, act or omission, be
permitted to falsify it. (Rule 131, Section
2(a))
Estoppel is effective only as between the
parties thereto or their successors in
interest. (Art. 1439 of the Civil Code)
Requisites as to the Party to be
Estopped:
1. Conduct amounting to false
representation or concealment;
2. Intent or at least expectation that
the conduct shall be acted upon;
and
3. Knowledge, actual or constructive
of the real facts
Requisites as to the Party CLAIMING
Estoppel:
1. Lack of knowledge of truth as to
the facts in question;
2. Reliance in good faith upon the
conduct or statements of the
party to be stopped; and
3. Action or inaction based thereon
led to his detriment or prejudice
2. ESTOPPEL against Tenant the
tenant is not permitted to deny title of
his landlord at the time of the
commencement of the land-lord tenant
relationship. Estoppel may attach even
if the landlord does not have the title at

the commencement of the relations. If

the title asserted is one that is alleged
to have been acquired subsequent to
the commencement of that relation, the
presumption will not apply (Rule 131
Sec. 2(b)).
DISPUTABLE PRESUMPTIONS (RULE
131, SEC. 3)
Disputable
presumptions
are
satisfactory if uncontradicted, but they
may be contradicted and overcome by
other evidence.
The
following
presumptions:

are

disputable

(a) That a person is innocent of crime or

wrong;
(b) That an unlawful act was done with
an unlawful intent;
(c) That a person intends the ordinary
consequences of his voluntary act;
(d) That a person takes ordinary care of
his concerns;
(e) That evidence willfully suppressed
would be adverse if produced;
(f) That money paid by one to another
was due to the latter;
(g) That a thing delivered by one to
another belonged to the latter;
(h) That an obligation delivered up to
the debtor has been paid;
(i) That prior rents or installments had
been paid when a receipt for the later
one is produced;
(j) That a person found in possession of
a thing taken in the doing of a recent
wrongful act is the taker and the doer of
the whole act; otherwise, that things
which a person possess, or exercises
acts of ownership over, are owned by
him;

(k) That a person in possession of an

order on himself for the payment of the
money, or the delivery of anything, has
paid the money or delivered the thing
accordingly;
(l) That a person acting in a public office
was regularly appointed or elected to it;
(m) That official duty has been regularly
performed;
(n) That a court, or judge acting as such,
whether in the Philippines or elsewhere,
was acting in the lawful exercise of
jurisdiction;
(o) That all the matters within an issue
raised in a case were laid before the
court and passed upon by it; and in like
manner that all matters within an issue
raised in a dispute submitted for
arbitration
were
laid
before
the
arbitrators and passed upon by them;
(p) That private transactions have been
fair and regular;
(q) That the ordinary course of business
has been followed;
(r) That there was a
consideration for a contract;

sufficient

(s) That a negotiable instrument was

given or indorsed for a sufficient
consideration;
(t) That an
instrument
instrument
place where

endorsement of negotiable
was made before the
was overdue and at the
the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and
mailed was received in the regular
course of the mail;
(w) That after an absence of seven
years, it being unknown whether or not

the absentee still lives, he is considered

dead for all purposes, except for those
of succession.
The absentee shall not be considered
dead for the purpose of opening his
succession till after an absence of ten
years. If he disappeared after the age of
seventy-five years, an absence of five
years shall be sufficient in order that his
succession may be opened.
The following shall be considered dead
for all purposes including the division of
the estate among the heirs:
1. A person on board a vessel lost
during a sea voyage, or an
aircraft with is missing, who has
not been heard of for four years
since the loss of the vessel or
aircraft;
2. A member of the armed forces
who has taken part in armed
hostilities, and has been missing
for four years;
3. A person who has been in danger
of
death
under
other
circumstances
and
whose
existence has not been known for
four years;
4. If a married person has been
absent for four consecutive years,
the spouse present may contract
a subsequent marriage if he or
she has well-founded belief that
the absent spouse is already
death. In case of disappearance,
where there is a danger of death
the circumstances hereinabove
provided, an absence of only two
years shall be sufficient for the
purpose
of
contracting
a
subsequent marriage. However,
in any case, before marrying
again, the spouse present must
institute a summary proceedings
as provided in the Family Code
and in the rules for declaration of
presumptive
death
of
the
absentee, without prejudice to

the effect of reappearance of the

absent spouse.
(x) That acquiescence resulted from a
belief that the thing acquiesced in was
conformable to the law or fact;
(y)
That
things
have
happened
according to the ordinary course of
nature and ordinary nature habits of life;
(z) That persons acting as copartners
have entered into a contract of
copartneship;
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of
marriage;
(bb) That property acquired by a man
and a woman who are capacitated to
marry each other and who live
exclusively with each other as husband
and wife without the benefit of marriage
or under void marriage, has been
obtained by their joint efforts, work or
industry.
(cc) That in cases of cohabitation by a
man and a woman who are not
capacitated to marry each other and
who have acquire properly through their
actual joint contribution of money,
property or industry, such contributions
and their corresponding shares including
joint deposits of money and evidences
of credit are equal.
(dd) That if the marriage is terminated
and the mother contracted another
marriage within three hundred days
after such termination of the former
marriage, these rules shall govern in the
absence of proof to the contrary:
1. A child born before one hundred
eighty
days
after
the
solemnization of the subsequent
marriage is considered to have
been conceived during such
marriage, even though it be born

within the three hundred days

after the termination of the
former marriage.
2. A child born after one hundred
eighty
days
following
the
celebration of the subsequent
marriage is considered to have
been conceived during such
marriage, even though it be born
within the three hundred days
after the termination of the
former marriage.
(ee) That a thing once proved to exist
continues as long as is usual with things
of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book,
purporting to be printed or published by
public authority, was so printed or
published;
(hh) That a printed or published book,
purporting contain reports of cases
adjudged in tribunals of the country
where the book is published, contains
correct reports of such cases;
(ii) That a trustee or other person whose
duty it was to convey real property to a
particular person has actually conveyed
it to him when such presumption is
necessary to perfect the title of such
person or his successor in interest;
(jj) That except for purposes of
succession, when two persons perish in
the same calamity, such as wreck,
battle, or conflagration, and it is not
shown who died first, and there are no
particular circumstances from which it
can be inferred, the survivorship is
determined
from
the
probabilities
resulting from the strength and the age
of the sexes, according to the following
rules:
1. If both were under the age of
fifteen years, the older is deemed
to have survived;

2. If both were above the age sixty,

the younger is deemed to have
survived;
3. If one is under fifteen and the
other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under
sixty, and the sex be different,
the male is deemed to have
survived, if the sex be the same,
the older;
5. If one be under fifteen or over
sixty, and the other between
those ages, the latter is deemed
to have survived.
(kk) That if there is a doubt, as between
two or more persons who are called to
succeed each other, as to which of them
died first, whoever alleges the death of
one prior to the other, shall prove the
same; in the absence of proof, they shall
be considered to have died at the same
time.
Some
Disputable
Presumptions
Explained:
1.
Presumption
of
innocence
Applies to both civil and criminal cases.
BASIS - founded on the principles of
justice and is intended not to protect the
guilty but to prevent the conviction of an
innocent person.
This presumption accompanies the
accused throughout the trial down to the
moment of conviction. This presumption
disappears after conviction and the
appellate court then will presume the
accused guilty.
By reason of this presumption, an
accused is not called upon to offer
evidence on his behalf for his freedom is
forfeited only if the requisite quantum of
proof necessary for conviction be in
existence.
EQUIPOISE RULE: Where the evidence
gives rise to two probabilities, one
consistent with defendants innocence,

and another indicative of his guilt, that

which is favorable to the accused should
be considered.
2. A person takes ordinary care of
his concerns
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. Courts operate not
because one person has been defeated
or overcome by another but because he
has been defeated or overcome illegally.
There must be a violation of law, the
commission of what the law known as
an actionable wrong before the courts is
authorized to lay hold of the situation
and remedy it.
3. Possession of stolen goods
This is not in conflict with the
presumption of innocence. At the start
of the criminal case, the court will apply
the presumption of innocence. But once
the prosecution is able to prove that a
certain object has been unlawfully
taken, that there is a crime of theft
committed and that the prosecution has
also proven that the accused is in
possession of this object unlawfully
taken, and then the presumption of
innocence
disappears.
The
new
presumption of guilt takes place.
4. A person acting in a public office
was regularly appointed or elected
to it
REASON - It would cause great
inconvenience if in the first instance
strict
proof
were
required
of
appointment or election to office in all
cases where it might be collaterally in
issue.
The burden of proof is on the adverse
party to show that he was not appointed
or designated.

5. An official duty
regularly performed

has

been

8. Private transactions have been

done with regularity and fairly

REASONS
1. Innocence
and
not
the
wrongdoing is to be presumed;
2. An official oath will not be
violated;
3. A republican form of government
cannot survive unless a limit is
placed upon controversies and
certain trust and confidence
reposed in each government,
department, or agent at least to
the extent of such presumption.

An individual intends to do right rather

than wrong and intends to only what he
has the right to do.

The presumption of regularity and

legality of official acts is applicable to
criminal as well as civil cases.

In the absence of proof to the contrary,

there is a presumption that all men act
fairly honestly, and in good faith.
9. Ordinary course of business has
been followed
Those who were engaged in a given
trade or business are presumed to be
acquainted with the general customs
and usages of the occupation and with
such other facts as are necessarily
incident to the proper conduct of the
business.

This presumption of authority is not

confined to official appointees. It has
been extended to persons who have
been appointed pursuant to a local or
special statute to act in quasi-public or
quasi-official
capacities
and
to
professional men like surgeons and
lawyers.

10. Evidence willfully suppressed

would be adverse if produced.
The natural conclusion is that the proof,
if produced, instead of rebutting, would
support the inference against him and
the court is justified in acting upon the
conclusion.

7. Regularity of judicial proceedings

The court rendering the judgment is
presumed to have jurisdiction over the
subject matter and the parties and to
have rendered a judgment valid in every
respect.

No presumption of legitimacy or
illegitimacy (Rule 131 Sec. 4)
A child born after three hundred days
following the dissolution of a marriage or
the separation of the spouses will not be
presumed legitimate or illegitimate.

Jurisdiction is presumed in all cases, be

it superior or inferior court.

Whoever alleges the legitimacy or

illegitimacy of such child must prove his
allegation.

However, jurisdiction to render a

judgment in a particular case or against
a particular case, or against persons
may not be presumed when the record
itself shows that jurisdiction has not
been acquired or there was something
on the record showing the absence of
jurisdiction.

LIBERAL CONSTRUCTION OF
RULES OF EVIDENCE

THE

These rules shall be liberally construed

in order to promote their objective of
securing a just, speedy, and inexpensive
disposition
of
every
action
and
proceeding. (Rule 1 Sec. 6)
Rules on Electronic Evidence shall be
liberally construed to assist the parties
in obtaining a just, expeditious, and

inexpensive determination of cases.

(Rule 2 Sec. 2 of A.M. No. 01-7-01-SC)

QUANTUM OF EVIDENCE: WEIGHT

AND SUFFICIENCY OF EVIDENCE
PROOF
BEYOND
REASONABLE
DOUBT (RULE 133 SEC. 2)
In a criminal case, the accused is
entitled to an acquittal unless his guilt is
shown beyond reasonable doubt.
Proof beyond reasonable doubt does not
mean such a degree of proof as
excluding the 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 EVIDENCE
Evidence is clear and convincing if it
produces in the mind of the trier of fact
a firm belief or conviction as to
allegations sought to be established.
(Blacks Law Dictionary, 5th ed., 596)
Clear and convincing evidence is
evidence indicating that the thing to be
proved is highly probable or reasonably
certain.
This
is
a
greater
burden
than
preponderance
of
evidence,
the
standard applied in most civil trials, but
less than evidence beyond a reasonable
doubt, the norm for criminal trials.
(Blacks Law Dictionary, 8th ed., 596)
PREPONDERANCE
(RULE 133 SEC. 1)

OF

EVIDENCE

In civil cases, the party having the

burden of proof must establish his case
by a preponderance of evidence. (Rule
133 Sec. 1)
In civil cases, the party having the
burden of proof must establish his case
by preponderance of evidence, or that

evidence which is of greater weight or is

more convincing than that which is in
opposition to it. (BPI v. Reyes, G.R.
157177, Feb. 11, 2008)
It does not mean absolute truth; rather,
it means that the testimony of one side
is more believable than that of the other
side, and that the probability of truth is
on one side than on the other. (Rivera v.
Court of Appeals, G.R. No. 115625.
January 23, 1998)
Factors which the court may consider in
determining where the preponderance
or superior weight of evidence lies:
1. All the facts and circumstances of
the case;
2. The witnesses

manner of testifying;

their intelligence;

their
means
and
opportunities of knowing
the facts to which they are
testifying;

the nature of the facts to

which they testify;

the
probability
improbability
of
testimony;

their interest or want of

interest;

personal credibility so far

as
the
same
may
legitimately appear upon
the trial.

or
their

3. The number of witnesses (though

preponderance is not necessarily
with the greater number.) (Rule
133, Sec. 1)
SUBSTANTIAL EVIDENCE (RULE 133
SEC. 5)
In cases filed before administrative and
quasi-judicial bodies, a fact may be
deemed established if it is supported by
substantial evidence.

Substantial evidence is that amount of

relevant evidence which a reasonable
mind might accept as adequate to
justify a conclusion.

JUDICIAL NOTICE; JUDICIAL

ADMISSIONS
WHAT NEED NOT BE PROVED
1. Facts which are subject to judicial
notice
2. Facts which are legally presumed
3. Facts which are admitted or which are
not denied in the answer, provided they
have been sufficiently alleged.
4. Allegations contained in the complaint
or answer immaterial to the issues
5. Those which are subject of an agreed
statement of facts between the parties
as well as those admitted by the party in
the course of the proceedings in the
same case
6. Facts peculiarly within the knowledge
of the opposite party (Gesmundo,
Evidence Basic Principles and Selected
Problems, 2011, page 1)
JUDICIAL NOTICE cognizance of
certain facts which judges may properly
take and act on without proof because
they already know them.
Object of Judicial Notice
Judicial notice is based on convenience
and expediency. It would certainly be
superfluous,
inconvenient,
and
expensive both to parties and the court
to require proof, in the ordinary way, of
facts which are already know to the
courts.
Direct Effect of Judicial Notice
Judicial notice relieves the parties from
the necessity of introducing evidence to
prove the fact noticed. It makes
evidence unnecessary.
The stipulation and admission of the
parties or counsel cannot prevail over
the operation of the doctrine of judicial
notice, and such stipulation and

admissions are all subject

operation of the doctrine.

to

the

Judges Personal Knowledge of the

Facts
Judicial notice is not judicial knowledge.
The mere personal knowledge of the
judge is not the judicial knowledge of
the court, and he is not authorized to
make his individual knowledge of a fact,
not generally or professionally known,
the
basis
of
his
action.Judicial
cognizance is taken only of those
matters which are commonly known.
(Spouses Omar And Moshiera Latip v.
Chua, G.R. No. 177809, October 16,
2009)
JUDICIAL
MANDATORY

NOTICE,

WHEN

MANDATORY- takes place at the courts

own initiative and it needs no hearing.
When Judicial Notice is Mandatory
(Section 1, Rule 129 of the Rules of
Court)
1. Existence and territorial extent of
states
The territorial extent of the nation
and of the several states and the
division of states into towns,
countries and other political
subdivisions
are
generally
regulated by public laws and also
matters of general notoriety.
Hence the courts do not require
proof of such facts. (Herrera,
supra at 78-79)
2. Their political history, Forms of
government and symbols of nationality,
3. The law of nations
The law of nations, as opposed to
foreign
law,
is
subject
to
mandatory judicial notice as the
Philippines adopts the generally
accepted
principles
of
international law as part of the
law of the land.

4. The admiralty and maritime courts of

the world and their seals
5. The political constitution and history
of the Philippines,
6. The official acts of legislative,
executive and judicial departments of
the Philippines,
7. The laws of nature,
Example: The
seasons

recurrence

of

8. The measure of time

Example: There are 24 hours in a
day
9. The geographical divisions
Example:
Certain
cities
divided into lots, blocks
streets.
JUDICIAL
NOTICE,
DISCRETIONARY

are
and

WHEN

DISCRETIONARY- may be at the courts

own initiative or on request of a party
and it needs hearing and presentation of
evidence.
Test of Notoriety
The Doctrine of judicial notice rests on
the wisdom and discretion of the courts.
The power to take judicial notice is to be
exercised by the courts with caution;
care must be taken that the requisite
notoriety exists; and every reasonable
doubts upon the subject should be
promptly resolved in the negative.
For a matter to be taken judicial notice
of by the courts of law, it must be a
subject of common and general
knowledge. In other words, Judicial
notice of facts is measured by general
knowledge of the same facts. A fact is
said to be generally recognized or
known when its existence or operation is
accepted
by
the
public
without
qualification or contention. The test is
whether the 'act involved is so
notoriously known as to make it proper

to assume its existence without proof.

The fact that a belief is not universal,
however, is not controlling for it is very
seldom that any belief is accepted by
everyone. It is enough that the matters
are familiarly known to the majority of
mankind or those persons f with the
particular matter in question (20 Am Jur
49-50; Martin, Rules of Court 37, Second
Edition). Furthermore, a matter may be
personally known to the judge and yet
tot be a matter of judicial knowledge
and vice versa, a matter may not be
actually known to an individual judge,
and nevertheless be a proper subject of
judicial cognizance. (Republic v. Court of
Appeals, G.R. No. L-54886 September
10, 1981)
Judicial notice is limited to facts
evidenced by public records and facts of
general notoriety. A judicially noticed
fact must be one NOT subject to a
reasonable dispute.
Thus, a court
cannot take judicial notice of a factual
matter in controversy.
When
Judicial
Notice
is
Discretionary
(Section 2, Rule 129 of the Rules of
Court)
1. The matter is one of public or
common knowledge
Commonly Known
Things of common knowledge, of
which courts take judicial notice, may be
matters coming to the knowledge of
men generally in the course of the
ordinary experiences of life, or they may
be matters which are generally accepted
by mankind as true and are capable of
ready and unquestioned demonstration.
Thus, facts which are universally known,
and
which
may
be
found
in
encyclopedias, dictionaries or other
publications, are judicially noticed,
provided they are of such universal
notoriety and so generally understood
that they may be regarded as forming
part of the common knowledge of every

person. .(Spouses Omar And Moshiera

Latip v. Chua, G.R. No. 177809, October
16, 2009)
2. The matter must be capable of
unquestionable demonstration
Matters
which
are
capable
of
unquestionable demonstration pertain to
fields of professional and scientific
knowledge. For example, in People v.
Alicante,[34] the trial court took judicial
notice of the clinical records of the
attending physicians concerning the
birth of twin baby boys as premature
since one of the alleged rapes had
occurred 6 to 7 months earlier. (People
v. Tundag, G.R. Nos. 135695-96. October
12, 2000)
3. The matter is one that is ought to
be known to judges because of their
judicial functions.
An example would be facts which are
ascertainable from the record of court
proceedings, e.g. as to when court
notices were received by a party. (Id.)
SEC. 3. JUDICIAL NOTICE,
HEARING NECESSARY

WHEN

Judicial
Notice,
When
Hearing
Necessary
Purpose -not for the presentation of
evidence but to afford the parties
reasonable opportunity to present
information relevant to the propriety of
taking such judicial notice or to the
tenor of the matter to be noticed.
Stages Where the Court May Take
Judicial Notice of a Fact
1. During trial;
2. After trial and before judgment;
3. Appeal
Distinction Between Judicial Notice
Taken During Trial and That Taken
After Trial but Before Judgment or
on Appeal:

1. During the trial -the Court, motu

proprio or upon request, may announce
its intention to take judicial notice of any
matter and may hear the parties
thereon.
2. After trial but before judgment
or on appeal - the Court, motu proprio
or upon request, 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.
DISTINCTION BETWEEN MANDATORY
JUDICIAL
NOTICE
AND
DISCRETIONARY JUDICIAL NOTICE
MANDATORY
JUDICIAL NOTICE
Court is compelled
to
take
judicial
notice
By own initiative of
the court
No hearing

DISCRETIONARY
JUDICIAL NOTICE
Court
compelled

not

At the courts own

initiative
or
on
request of any of
the parties
Hearing required

RULE ON FOREIGN LAWS

General Rule: Courts cannot take
judicial notice of foreign laws. Foreign
laws have to be proved like any other
fact.
Exceptions
1. When the said laws are already within
the actual knowledge of the court, such
as when they are well and generally
known or they have been actually ruled
upon in other cases before it and none
of the parties concerned do not claim
otherwise. PCIB v. Escolin, 56 SCRA 266
(1974)
2. Common Law (Herrera, supra at 84)
3. A published treatise, periodical or
pamphlet on a subject of history, law,
science, or art is admissible as tending
to prove the truth of a matter stated
therein if the court takes judicial notice,
or a witness expert in the subject

testifies, that the writer of the

statement in the treatise, periodical
or pamphlet is recognized in his
profession or calling as expert in
the subject. (Section 46, Rule 130 of
Rules of Evidence)
4. Stipulation by the parties - the parties
in a given case do not have any
controversy or are more or less in
agreement, the Court may take it for
granted for the purposes of the
particular case before it that the said
laws are as such virtual agreement
indicates, without the need of requiring
the presentation of what otherwise
would be the competent evidence on
the point. PCIB v. Escolin, 56 SCRA 266
(1974)
How foreign laws are proved
A written foreign law maybe proven by
an official publication or by a duly
attested and authenticated copy thereof.
When the foreign law is part of a
published
treatise,
periodical
or
pamphlet and the writer is recognized in
his profession or calling as an expert in
the subject, the court may take judicial
notice of the treatise containing the
foreign law. (Section 46, Rule 130 of
the Rules of Court)
DOCTRINE
OF
PROCESSUAL
PRESUMPTION If the foreign law is
not properly proved, the foreign law is
presumed to be the same as the law in
the Philippines.
RULE ON MUNICIPAL ORDINANCES
1.
MUNICIPAL TRIAL COURTS are
required to take judicial notice of the
ordinances of the municipality or city
where they sit.
2. REGIONAL TRIAL COURTS must
take judicial notice only
1. When required to do so by statute;
and
2. In a case on appeal before them and
where the inferior court took judicial

notice of an ordinance involved in said

case.
3. The COURT OF APPEALS may take
judicial notice of municipal ordinances
because nothing in the Rules prohibits
them from doing so if it is capable of
unquestionable demonstration.
Trial courts are required to take judicial
notice of the decisions of the appellate
courts but not of the decisions of
coordinate trial courts.
RULE ON COURT RECORDS
1. Courts Own Acts and Records
A court may take judicial notice of its
OWN acts and records in the SAME case.
2. Records of Other Cases
General Rule - Courts are not
authorized to take judicial notice of the
contents of the records of other cases,
even when such have been tried or are
pending in the same court and with the
same judge.
Exceptions
1. A party clearly makes reference to
the records of another case and there is
no objection by the other party;
2. Judicial notice is at the request or
with the consent of the parties; or
3. The original or part of the records of
the case are actually withdrawn from
the archives and are admitted as part of
the record of the case pending. Tabuena
v. CA, [196 SCRA 650, G.R. No. 85423,
May 6, 1991]
JUDICIAL
MATTERS

NOTICE

OF

OTHER

1. A court can take judicial notice of

banking practices.
2. A court cannot take judicial notice of
an administrative regulation or of a
statute that is not yet effective.
3. A court cannot take judicial notice of
the age of the victim without hearing
and presentation of proof.

4. A court has taken judicial notice of

the Filipinas inbred modesty and
shyness and her antipathy in publicly
airing acts which blemish her honor and
virtue.
JUDICIAL ADMISSIONS
JUDICIAL ADMISSIONS are admissions,
verbal or written, made by a party in the
course of the proceedings in the same
case.
Elements of Judicial Admissions
[PPP]
1. Must be made by a party to a case;
and
2. Must be made in the course of the
proceedings in the same case.
3. No particular form is required, thus a
judicial admission may be verbal or
written.
Forms of Judicial Admission
1. May be oral
Examples:
a. Verbal waiver of proof made in open
court
b. A withdrawal of a contention or a
disclosure made before the court
c. Admission made by a witness in the
course of his testimony or deposition
2. May be written
Examples:
a. Pleading
b. Bill of Particulars
c. Stipulation of Facts
d. Request for Admission
e. Affidavit used in the case
f. Depositions
g. Written Interrogatories
Judicial admissions may be made by
either a party or counsel.
When a defendant is declared in default
for having failed to answer the
complaint, such a failure does not
amount to an admission of the facts
alleged in the complaint.
To be considered a judicial admission,
the admission must be made in the

same case; otherwise,

extrajudicial admission.

it

is

an

Extra-Judicial Admissions are those

made out of court, or in a judicial
proceeding other than the one under
consideration.
Distinction
Admission
admissions

Between
Judicial
and
Extrajudicial

JUDICIAL
ADMISSIONS
(Section 4, Rule
129)
Admission must be
made in the course
of the proceeding
in the same case
Conclusive upon
the admitter
Does not require
proof

EXTRA-JUDICIAL
ADMISSION
(Section 26, Rule
130)
Out-of-courtdeclarations
Rebuttable
Requires proof

Effect of Judicial Admissions

An admission, verbal or written, made
by the party in the course of the
proceedings in the same case, does not
require proof. (Section 4, Rule 129 of
the Rules of Court)
General Rule: A judicial admission is
conclusive upon the party making it and
does not require proof
Exceptions:
Judicial admissions may be contradicted
ONLY by showing that:
1. The admission was made through
PALPABLE MISTAKE
2. NO ADMISSION was made.
When
Pleading
Superseded
or
Amended
Pleadings that are superseded or
amended disappear from the record
and cease to be judicial admissions. In
order that any statement contained
therein may be considered as evidence,
a party should formally offer the
superseded or amended pleading in
evidence.

Remedies of a Party Who Gave a

Judicial Admission
1. Motion to Withdraw: for written
judicial admissions, by filing a motion to
withdraw the pleadings, motion or other
written instrument containing such
admission.
2. Motion for Exclusion: for oral
judicial admissions, counsel in open
court may move for the exclusion of
such admission.
Admissions in Drafted Documents
An admission made in a document
drafted for purposes of filing as a
pleading but never filed, is not a judicial
admission. If signed by a party, it is
deemed an extrajudicial admission. If
signed by the attorney, it is not deemed
as an admission by the party.
An
attorney only has the authority to make
statements on behalf of his clients in
open court or in a pleading actually
filed.
Admissions in the Pre-Trial of Civil
Cases
In civil cases, pre-trial is mandatory.
Therefore, admissions in pre-trial, as
well as those made during the
depositions, interrogatories or requests
for admission are all deemed judicial
admissions because they are made in
the course of the proceedings of the
case.
Hypothetical Admissions
Not all allegations or admissions in civil
cases may be considered as judicial
admissions because the Rules on Civil
Procedure allow a litigant to make
hypothetical admissions in his pleading.
Examples:
1. When a defendant sets up affirmative
defenses in his answer (Section 6, Rule
6)
2. When defendanr files a motion to
dismiss based on lack of jurisdiction.

Admissions in the Pre-Trial of

Criminal Cases
An admission made by the accused in
the pre-trial of a criminal case is not yet
admissible against him.
To be
admissible, it must be reduced in writing
and signed by both the accused and the
counsel.
Admissions in Amended Pleadings
When a pleading is amended, the
amended pleading supersedes the
pleading that it amends and the
admissions in the superseded pleading
may be received in evidence against the
pleader as extrajudicial admissions
which must be proven.
Having been amended, the original
complaint loses its character as a
judicial admission which would require
no proof.
It is now an extrajudicial
admission which requires proof (Torres
v. Court of Appeals, [131 SCRA 24, G.R.
No. L-37420, July 31, 1984)
Admissions in Dismissed Pleadings
Admissions made in pleadings that have
been dismissed are merely extrajudicial
admissions.
Admissions by Counsel
Admissions by a counsel are generally
conclusive. However, in cases where
reckless or gross negligence of counsel
deprives the client of due process of law,
or when its application will result in
outright deprivation of the clients
liberty or property or when the interests
of justice so require, relief is accorded
the client who suffered by reason of the
lawyers gross or palpable mistake or
negligence.

RULES ON ELECTRONIC EVIDENCE

(A.M. NO. 01-7-01-SC)
Scope and Coverage
The Rules on Electronic Evidence (REE)
shall apply whenever an electronic
document or electronic data message as
defined in these rules is offered or used
in evidence. (Rule 1 Sec.1, REE)
These Rules shall apply to all civil
actions and proceedings, as well as
quasi-judicial and administrative cases.
(Rule 1 Sec.2, REE)
Applicability to Criminal Actions
As to the admissibility of the text
messages, the RTC admitted them in
conformity with the Courts earlier
Resolution applying the Rules on
Electronic Evidence to criminal actions.
(People v. Enojas, G.R. No.204894, Mar.
10, 2014)
Electronic Document - information or
the representation of information, data,
figures, symbols or other modes of
written
expression,
described
or
however represented, by which a right is
established
or
an
obligation
extinguished, or by which a fact may be
proved and affirmed, which is received,
recorded,
transmitted,
stored,
processed,
retrieved
or
produced
electronically.
It includes digitally signed documents
and any print-out or output, readable by
sight or other means, which accurately
reflects the electronic data message or
electronic document. (Rule 2, Sec. 1(h),
REE)
Electronic
Data
Message
information generated, sent, received or
stored by electronic, optical or similar
means. (Rule 2, Sec. 1(g), REE)
Note: For purposes of these Rules, the
term electronic document may be
used interchangeably with electronic
data message. (Rule 2, Sec. 1(h), REE)

Electronic evidence as functional

equivalent
of
paper
based
documents - Whenever a rule of
evidence refers to the term writing,
document,
record,
instrument,
memorandum or any other form of
writing, such term shall be deemed to
include an electronic document as
defined in these Rules. (Rule 3, Sec. 1,
REE)
Admissibility
An electronic document is admissible in
evidence if:
(i)

(ii)

It complies with the rules on

admissibility prescribed by the
Rules of Court and related
laws; and
is
authenticated
in
the
manner prescribed by these
Rules. (Rule 3, Sec. 2, REE)

Best Evidence Rule Under the REE

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. (Rule 4, Sec. 1,
REE)
When copies or duplicates of a
document shall be regarded as original:
(i)

(ii)

it is in two or more copies

executed at or about the
same time with identical
contents; or
it is a counterpart produced
by the same impression as the
original, or from the same
matrix, or by mechanical or
electronic re-recording, or by
chemical reproduction, or by
other equivalent techniques
which accurately reproduces
the original

Such copies or duplicates shall be

regarded as the equivalent of the
original. (Rule 4, Sec. 2, REE)

Note: Notwithstanding the foregoing,

copies or duplicates shall not be
admissible to the same extent as the
original if: (Rule 4, Sec. 2, REE)
a) a genuine question is raised as to
the authenticity of the original; or
b) in the circumstances it would be
unjust or inequitable to admit the
copy in lieu of the original.
Factors in Determining Evidentiary
Weight of Electronic Evidence (Rule
7, Sec. 1 and 2, REE)
In assessing the evidentiary weight of an
electronic document, the following
factors may be considered: (Rule 7, Sec.
1, REE)
(a) The reliability of the manner or
method in which it was generated,
stored or communicated, including but
not limited to input and output
procedures, controls, tests and checks
for accuracy and reliability of the
electronic data message or document, in
the light of all the circumstances as well
as any relevant agreement;
(b) The reliability of the manner in which
its originator was identified;
(c) The integrity of the information and
communication system in which it is
recorded or stored, including but not
limited to the hardware and computer
programs or software used as well as
programming errors;
In any dispute involving the integrity
of
the
information
and
communication system in which an
electronic document or electronic
data message is recorded or stored,
the court may consider, among
others, the following factors: (Rule 7,
Sec. 2, REE)
1. Whether the information and
communication system or other
similar device was operated in a
manner that did not affect the
integrity
of
the
electronic

document, and there are no other

reasonable grounds to doubt the
integrity of the information and
communication system;
2. Whether the electronic document
was recorded or stored by a party
to the proceedings with interest
adverse to that of the party using
it; or
3. Whether the electronic document
was recorded or stored in the
usual and ordinary course of
business by a person who is not a
party to the proceedings and who
did not act under the control of
the party using it.
(d) The familiarity of the witness or the
person who made the entry with the
communication and information system;
(e) The nature and quality of the
information which went into the
communication and information system
upon which the electronic data message
or electronic document was based; or
(f) Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document or
electronic data message.
Method of Proof
Affidavit Evidence - All matters
relating to the admissibility and
evidentiary weight of an electronic
document may be established by an
affidavit stating facts of:
(i)
(ii)

direct personal knowledge of

the affiant; or
based on authentic records

The affidavit must affirmatively show the

competence of the affiant to testify on
the matters contained therein. (Rule 9,
Sec. 1, REE)
Cross-Examination of Deponent
The affiant shall be made to affirm the
contents of the affidavit in open court
and may be cross-examined as a matter

of right by the adverse party. (Rule 9,

Sec. 2, REE)
Examination of Witness
Electronic
Testimony
After
summarily hearing the parties pursuant
to Rule 9 of these Rules, the court may
authorize the presentation of testimonial
evidence by electronic means. Before so
authorizing, the court shall determine
the necessity for such presentation and
prescribe terms and conditions as may
be necessary under the circumstances,
including the protection of the rights of
the parties and witnesses concerned.
(Rule 10, Sec. 1, REE)
Transcript of electronic testimony When examination of a witness is done
electronically, the entire proceedings,
including the questions and answers,
shall be transcribed by a stenographer,
stenotypist or other recorder authorized
for the purpose, who shall certify as
correct the transcript done by him. The
transcript should reflect the fact that the
proceedings, either in whole or in part,
had been electronically recorded. (Rule
10, Sec. 2, REE)
Authentication
of
Electronic
Documents (Rule 5, Sec. 1 to 3,
REE)
Burden of proving authenticity
The person seeking to introduce an
electronic document in any legal
proceeding has the burden of proving its
authenticity in the manner provided in
this Rule. (Rule 5, Sec. 1, REE)
Manner of authentication
Before any private electronic document
offered as authentic is received in
evidence, its authenticity must be
proved by any of the following means:
(Rule 5, Sec. 2, REE)
(a) by evidence that it had been
digitally signed by the person

purported to have signed the

same;
(b) by
evidence
that
other
appropriate security procedures
or devices as may be authorized
by the Supreme Court or by law
for authentication of electronic
documents were applied to the
document; or
(c) by other evidence showing its
integrity and reliability to the
satisfaction of the Judge.
Proof of electronically notarized
document
A document electronically notarized in
accordance with the rules promulgated
by the Supreme Court shall be
considered as a public document and
proved as a notarial document under the
Rules of Court. (Rule 5, Sec. 3, REE)
Authentication of Electronic
Signature
An electronic signature or a digital
signature authenticated in the manner
prescribed hereunder is admissible in
evidence as the functional equivalent of
the signature of a person on a written
document. (Rule 6, Sec. 1, REE)
An electronic signature may be
authenticated in any of the following
manner: (Rule 6, Sec. 2, REE)
(a) By evidence that a method or
process was utilized to establish a
digital signature and verify the
same;
(b) By any other means provided by
law; or;
(c) By any other means satisfactory
to the judge as establishing the
genuineness of the electronic
signature.
Electronic Documents vis--vis
Hearsay Rule; Business Records as
Exception to the Hearsay Rule (Rule
8, Sec. 1 and 2, REE)

A memorandum, report, record or data

compilation of acts, events, conditions,
opinions, or diagnoses, made by
electronic, optical or other similar means
is an exception to the hearsay rule
provided that the following are shown by
the testimony of the custodian or other
qualified witness:
a) That it was made at or near the
time of or from transmission or
supply of information;
b) That it was made by a person
with knowledge thereof;
c) That it was kept in the regular
course or conduct of a business
activity; and
d) That such was the regular
practice to make the
memorandum, report, record, or
data compilation by electronic,
optical or similar means (Rule 8,
Sec.1, REE)
This exception may be overcome by
evidence of the untrustworthiness of the
source of information or the method or
circumstances of the preparation,
transmission or storage thereof. (Rule 8,
Sec. 2, REE)
Audio, Photographic, Video and
Ephemeral Evidence
Ephemeral Electronic
Communication - refers to telephone
conversations, text messages, chatroom
sessions, streaming audio, streaming
video, and other electronic forms of
communication the evidence of which is
not recorded or retained. (Rule 2, Sec.
1(k), REE)
Text messages have been classified as
ephemeral electronic communication
under Section 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
personal knowledge thereof. (VidallonMagtolis v. Salud, A.M. No. CA-05- 20-P,
September 9, 2005)

Admissibility (Rule 11, Section 1

and 2, REE)
Audio, photographic
evidence

and

video

Audio, photographic and video evidence

of events, acts or transactions shall be
admissible provided: (Rule 11, Sec.1,
REE)
(i)
(ii)

it shall be shown, presented or

displayed to the court; and
it shall be identified, explained
or
authenticated
by
the
person
who
made
the
recording or by some other
person competent to testify
on the accuracy thereof

Ephemeral
communications

electronic

Ephemeral evidence shall be proven by

the testimony of a person who was a
party to the same or has personal
knowledge thereof.

In the absence or unavailability of

such witnesses, other competent
evidence may be admitted.

A
recording
of
the
telephone
conversation or ephemeral electronic
communication shall be covered by the
immediately preceding section.
Note: If the foregoing communications
are recorded or embodied in an
electronic document, then the provisions
of Rule 5 on authentication of electronic
documents shall apply. (Rule 11, Sec. 2,
REE)

AUTHENTICATION; PROOF
DOCUMENTS

OF

Meaning of Authentication
Authentication is the process of proving
the due execution and genuineness of
the document.
In order to be admissible in evidence,
the object sought to be offered must
authenticated, that is, it must be shown
to have been the very thing that is the
subject matter of the lawsuit or the very
one involved to prove an issue in the
case.
Classes of Documents
DOCUMENTS a deed, instrument or
other duly authorized paper by which
something is proved, evidenced or set
forth.
Documents may either be public or
private.
PUBLIC DOCUMENTS
1. 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;
2. Documents acknowledged before
a notary public except last wills
and testaments; and
3. Public records, kept in the
Philippines, of private documents
required by law to the entered
therein.
All other writings are PRIVATE. (Rule
132, Sec. 19)
PUBLIC
DOCUMENTS
Is
admissible
without
further
proof as to its due
execution
and
genuineness

PRIVATE
DOCUMENTS
Before admitted in
evidence
as
authentic, its due
execution
and
authenticity must

A
public
instrument
is
evidence
even
against
third
parties of the fact
which gave rise to
its due execution
and to the date of
the latter

be prove
Binds
only
the
parties and privies
to
the
private
writing as to the
due execution and
date
of
the
document

When Private Writing Requires

Authentication; Proof of Private
Writing
Before any private document offered as
authentic is received in evidence, its due
execution and authenticity must be
proved either:
1. By
anyone
who
saw
the
document executed or written; or
2. By evidence of the genuineness
of the signature or handwriting of
the maker.
Any other private document need only
be identified as that which it is claimed
to be. (Rule 132, Sec. 20)
Additional Modes of Authenticating a
Private Writing:
1. Doctrine of Self-Authentication
Where the facts in the writing
could only have been known by
the writer.
2. Authentication by Adverse Party
Where reply of the adverse party
refers to and affirms the sending
and his receipt of the letter in
question, a copy of which the
proponent is offering as evidence.
When evidence of authenticity of a
private writing is not required;
Ancient Documents
Where a private document is more than
thirty years old, is produced from the
custody in which it would naturally be
found if genuine, and is unblemished by
any alterations or circumstances of
suspicion, no other evidence of its

authenticity need be given. (Rule 132,

Sec.21)
How to prove the genuineness of a
handwriting
The handwriting of a person may be
proved by:
1. Any witness who believes it to
be the handwriting of such
person because he has seen the
person write, or he has seen
writing purporting to be his upon
which the witness has acted or
been charged, and has thus
acquired knowledge of the
handwriting of such person.
2. By a comparison, made by the
witness or the court, with
writings admitted or treated as
genuine by the party against
whom the evidence is offered, or
proved to be genuine to the
satisfaction
of
the
judge.
(Section 22, Rule 132 of the
Rules of Court)
Evidence
of
Genuineness
of
Handwriting
1. Testimony of the writer;
2. Testimony of a witness who
actually saw the person writing
the instrument whether the
witness
attested
to
the
instrument or not;
3. Testimony of a witness who is
sufficiently
familiar
with
handwriting such witness can
give an opinion or can make a
comparison
of
questioned
handwriting
and
admitted
genuine specimens.
NOTE:
Expert testimony on handwriting is
not mandatory.
Public Documents as Evidence
Public documents are admissible without
further proof of their genuineness and
due execution.

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.

The attestation must be under the

official seal of the attesting officer, if
there be any, or if he be the clerk of a
court having a seal, under the seal of
such court. (Rule 132, Sec. 25)

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. (Rule 132, Sec.
23)

Public
Record
Document

Proof of Official Record

The record of public documents referred
to in paragraph (a) of Section 19
(written official acts, or records of the
official acts), when admissible for any
purpose, may be evidenced by:
(a) an official publication thereof; or
(b) by a copy attested by the officer
having the legal custody of the
record, or by his deputy; and
(c) if the record is not kept in the
Philippines,
should
be
accompanied with a certificate
that such officer has the custody.
If the office in which the record is kept is
in a foreign country,
(a) The certificate may be made by a
secretary of the embassy or
legation, consul general, consul,
vice consul, or consular agent or
by any officer in the foreign
service
of
the
Philippines
stationed in the foreign country in
which the record is kept; and
(b) Authenticated by the seal of his
office.
Attestation of a Copy
What Attestation Must Contain
Whenever a copy of a document or
record is attested for the purpose of
evidence, the attestation must state, in
substance, that the copy is a correct
copy of the original, or a specific part
thereof, as the case may be.

of

Private

An authorized public record of a private

document may be proved by the original
record, or by a copy thereof, attested by
the legal custodian of the record, with
an appropriate certificate that such
officer has the custody. (Rule 132, Sec.
27)
Note: Any public record, an official copy
of which is admissible in evidence, must
not be removed from the office in which
it is kept, except upon order of a court
where the inspection of the record is
essential to the just determination of a
pending case. (Rule 132, Sec. 26)
Proof of Lack of Record
A written statement signed by an officer
having the custody of an official record
or by his deputy that after diligent
search no record or entry of a specified
tenor is found to exist in the records of
his office, accompanied by a certificate
as above provided, is admissible as
evidence that the records of his office
contain no such record or entry. (Rule
132, Sec. 28)

How a Judicial Record is Impeached

Any judicial record may be impeached
by evidence of:
(a) want of jurisdiction in the court or
judicial officer;
(b) collusion between the parties; or
(c) fraud in the party offering the
record,
in
respect
to
the
proceedings. (Rule 132, Sec. 29)
Proof of Notarial Documents
Every instrument duly acknowledged or
proved and certified as provided by law,
may be presented in evidence without

further
proof,
the
certificate
of
acknowledgment being prima facie
evidence of the execution of the
instrument or document involved. (Rule
132, Sec. 30)
How to Explain Alterations in a
Document
The party producing a document as
genuine which has been altered and
appears to have been altered after its
execution, in a part material to the
question in dispute, must account for
the alteration.
How a party may account for such
alteration
He may show that:
a) the alteration was made by
another, without his concurrence,
or
b) it was made with the consent of
the parties affected by it, or
c) it was otherwise properly or
innocently made, or
d) the alteration did not change the
meaning or language of the
instrument.
If he fails to do that, the document shall
not be admissible in evidence. (Rule
132, Sec.31)
Documentary
Evidence
in
an
Unofficial Language
Documents written in an unofficial
language shall not be admitted as
evidence, unless accompanied with a
translation into English or Filipino. To
avoid
interruption
of
proceedings,
parties or their attorneys are directed to
have such translation prepared before
trial. (Rule 132, Sec. 32)

EXAMINATION OF WITNESSES
EXAMINATION TO BE DONE IN OPEN
COURT

The examination of a witness shall be

done:
1. in open court and
2. under
oath
or
affirmation.
(Section 1, Rule 132 of the
Rules of Court)
The answers shall be given orally except
if:
1. the witness is incapacitated to
speak
2. the question calls for a different
mode of answer (Section 1, Rule
132 of the Rules of Court)
Note: However, check the Judicial
Affidavit Rule which now allows the
testimonies of witnesses to be in
affidavits.
OPEN COURT
It is a court formally opened and
engaged in the transaction of judicial
affairs.
Reason why Examination Should be
Done in Open Court
This method allows the court the
opportunity to observe the demeanor of
the witness and also allows the adverse
party to cross-examine the witness.
(Riano, p. 359, 2013)
OATH

A
solemn
declaration,
accompanied by a swearing to God or a
revered person or thing, that ones
statement is true or that one will be
bound to a promise. (Blacks Law
Dictionary, 7th Ed., p. 1176)
AFFIRMATION is a solemn pledge
equivalent to an oath but without
reference to a supreme being or to
swearing. (Blacks Law Dictionary, 7 th
Ed. P. 68)
Purpose of Rule Requiring Oath
To affect the conscience of the witness
and compel him/her to speak the truth
and to lay him/her open to punishment
for perjury in case he/she willfully
falsified.

No special wording is necessary for an

affirmation, provided that the language
used is designed to impress upon the
individual the duty to tell the truth. (U.S
v Kalaydjian, 784 F.2d 53 (2d Cir.1986]).
(Riano 2013, p. 361)
The witness must take either an oath or
affirmation, but the option to do so is
given to the witness and not to the
court. ( Riano 2013, p. 360)
Exceptions
to
Open
Court
Examinations:
1. Under the rule on Summary
Procedure when the affidavits of
the parties shall constitute the
direct
testimonies
of
the
witnesses who executed the
same. ( Sec 15, Rule on Summary
Procedure)
2. In civil cases, the parties are
merely required to submit the
affidavits of their witnesses and
other pieces of evidence on the
factual issues (Sec. 9, Rule on
Summary Procedure)
3. Depositions which may be taken
before a notary public (Sec. 10,
Rule 23, ROC) or before any
person authorized to administer
oaths (Sec. 14, Rule 23, ROC)
4. In a criminal case when a party
may utilize the testimony of a
witness who is deceased (Sec.
1[f], Rule 115, ROC)
5. Under the Judicial Affidavit Rule,
the judicial affidavit shall take the
place of direct testimonies of the
witnesses ( Sec. 2, Judical
Affidavit Rule) (Riano 2013, p.
360)
PROCEEDINGS TO BE RECORDED
The Entire Proceedings of a Trial or
Hearing
Shall
be
RECORDED,
including:
1. The questions propounded to
a witness and his answers
thereto.

2. The statement made by the

judge or any of parties, counsel
or witnesses with reference to the
case. (Section 2, Rule 132 of
the Rules of Court)
A transcript of record of the proceedings
made by the official stenographer,
stenotypist or recorder and certified as
correct by him shall be deemed prima
facie
correct
statement
of
such
proceedings. (Section 2, Rule 132 of
the Rules of Court)
RIGHTS AND
WITNESS

OBLIGATIONS

OF

Obligation of a witness
A witness must answer questions,
although his/her answer may tend to
establish a claim against him/her.
Rights of a Witness:
1.
To be protected from
irrelevant, improper, or insulting
questions, and from harsh or
insulting demeanor;
2. Not to be detained longer than
the interests of justice require;
3. Not to be examined except
only as to matters pertinent to
the issue;
4. Not to give an answer which
will tend to subject him/her to a
penalty for an offense unless
otherwise provided by law (Right
against self-incrimination);
5. Not to give an answer which
will tend to degrade his/her
reputation, unless it be the very
fact at issue or to a fact from
which the fact in issue would be
presumed. But a witness must
answer to the fact of his previous
final conviction for an offense.
(Right against Self-Degradation)
Scope
of
Right
Against
SelfIncrimination
1.
The right against selfincrimination is granted only in
favor of individuals. Therefore, a

corporation cannot invoke that

privilege as the questioned
testimony can come only from a
corporate officer or employee
who has a personality distinct
from that of the corporation.
2.
The right covers only
testimonial
compulsion
and
production
by
him/her
of
incriminating documents. It does
not exclude the body when it can
furnish relevant and competent
evidence.
Right Against Self-Incrimination of
an
Accused
and
an
Ordinary
Witness Distinguished:
ACCUSED
He cannot be compelled to testify or
produce evidence even by subpoena or
other process or order of the court.
He can refuse outright to take the stand
as a witness

He may be
having only
incriminatin
to him.
He does n
supoena, d
at the time
altogether.
subpoena
incriminatio
may refuse
No. 136051

Immunity Statutes
USE IMMUNITY
prohibits the use of the witnesss
compelled testimony and its fruits in
any manner in connection with the
criminal prosecution of the witness.

TRA
grants immu
prosecution f
compelled tes

Where the statute grants only use

immunity, merely testifying and/or
producing the evidence does not render
the witness immune from prosecution
despite his/her invocation of the right
against self-incrimination.
He/she is
merely saved from the use against
him/her of such statements or evidence
which he/she has been compelled to
produce notwithstanding his/her having
seasonably invoked said right. Galman v.
Pamaran, [138 SCRA 294, G.R. Nos.

L-71208-09 and L-71212-13, August

30, 1985]
Note:
Under R.A. 6981 (Witness Protection,
Security and Benefit Act), A witness
admitted into the witness protection
program cannot refuse to testify or give
evidence, produce books, documents,
records, or writings necessary for the
prosecution of the offense or offenses
for which he has been admitted on the
ground of the right against selfincrimination. (Sec. 14, R.A 6981) (Riano
2013, p. 363)
ORDER IN THE EXAMINATION OF AN
INDIVIDUAL WITNESS
The order in which an individual witness
may be examined is as follows:
a) Direct-examination by the
proponent;
b) Cross-examination by the
opponent;
c) Re-direct examination by the
proponent;
d) Re-cross-examination by the
opponent.
DIRECT EXAMINATION
DIRECT
EXAMINATION
is
the
examination-in-chief of a witness by the
party presenting him on the facts
relevant to the issue.
Scope of Direct Examination
All facts relevant to the issue
Purpose
To elicit facts about the clients cause of
action or defense. It is now subject to
the Judicial Affidavit Rule, which took
effect on January 1, 2013. (RIANO,
Evidence, p. 369)
CROSS-EXAMINATION; ITS PURPOSE
AND EXTENT
CROSS EXAMINATION

Cross examination is the questioning of

a witness at a trial or hearing by the
party opposed to the party who called
the witness to testify (Blacks Law
Dictionary, 7th Ed. P. 433)
Scope of Cross Examination
1. Any matter stated in the direct
examination,
or
connected
therewith
2.
All important facts bearing
upon the issue
Purpose of Cross Examination
1. To bring out facts favorable to
the
counsels
client
not
established
by
direct
testimony (Riano, EVIDENCE
at supra citing Jackson v
Feather River Water Co., 1859
14 C 18)
2. To enable counsel to impeach
or to impair the credibility of
the witness. (Riano, EVIDENCE
at supra citing Kelly v Bailey
1961 189 CA2d 728, 11 CR
448)
Rules on Cross-Examination
1. American Rule crossexamination must be confined to
matters inquired about in the
direct examination.
2. English Rule a witness may
be cross-examined not only upon
matters testified by him on his
direct examination but also on all
matters relevant to the issue. We
follow the English Rule.
NOTE:
But, where the witness is an
unwilling or hostile witness so
declared by the court or is an
adverse party, the cross-examination
shall only be on the subject matter of
his examination-in-chief. (Section
12, Rule 132 of the Rules of
Court)

Cross Examination is an Absolute

Right
Cross-examination is an absolute right.
The Constitution provides that the
accused shall enjoy the right to meet
the witnesses face to face. (Section 14
Art. III of the 1987 Constitution)
When Cross Examination Becomes a
Privilege
When the cross-examination in chief is
concluded and the attendance of the
witness is either dispensed with from
the stand or the re-examination, if any,
has begun.
The right is a personal one which may
be waived expressly or impliedly by
conduct amounting to a renunciation of
the right of cross-examination. Thus,
where a party has had the opportunity
to cross-examine a witness but failed to
avail himself/herself of it, he/she
necessarily forfeits the right to crossexamine and the testimony given on
direct examination of the witness will be
received or allowed to remain in the
record. [Fulgado v. CA, G.R. No. L61570, February 12, 1990]
Effects of death or absence of a
witness
1. Dies
before
his
cross
examination is over If the
witness dies before his crossexamination is over, his
testimony on the direct may
be stricken out only with
respect to the testimony not
covered
by
the
crossexamination. The absence of
the witness is not enough to
warrant
striking
out
his
testimony for failure to appear
for further cross-examination
where the witness has already
been
sufficiently
crossexamined, and the matter on
which the cross-examination
is sought is not in controversy.

(RIANO,
Evidence,
citing
People v Seneris 99 SCRA 92)
2. Witness
not
crossexamined If the witness
was
not
cross-examined
because of causes attributable
to the cross examining party
and the witness had always
made himself available for
cross examination, the direct
testimony of witness shall
remain in the record and
cannot be ordered stricken off
because the cross examiner is
deemed to have waived the
right
to
cross-examine
witness.
(RIANO, Evidence,
citing De la Paz v Intermediate
Appellate Court, 154 SCRA 65)
RE-DIRECT
EXAMINATION;
PURPOSE AND EXTENT

ITS

RE-DIRECT EXAMINATION
It is the further examination by a party
of his/her own witness after crossexamination.
Scope of Re-direct Examination
On matters dealt with during the crossexamination. Other matters may be
allowed by the court in its discretion.
Purpose
1. To allow the witness-in-chief to
explain or supplement his
answers given during the
cross-examination.
2. The
counsel
may
elicit
testimony to correct or repeal
any wrong impression
or
inferences that may have
been created in the crossexamination.
3. It may also be an opportunity
to rehabilitate a witness
whose credibility has been
damaged. (RIANO, EVIDENCE,
p. 370)
RE-CROSS-EXAMINATION

RE-CROSS EXAMINATION
It is the examination of a witness who
has finished his/her examination-inchief, cross-examination, and re-direct
examination, by the counsel who crossexamined.
Scope of Re-cross Examination
On matters stated in the re-direct
examination.
However, other
matters may be allowed by the
court in its discretion.
RECALLING WITNESS.
After the examination of a witness by
both sides has been concluded, the
witness cannot be recalled without leave
of the court.
The court will grant or withhold leave in
its discretion, as the interests of justice
may require.
Purpose
1. For the witness to correct or explain
his/her prior testimony.
2. Witnesses may also be recalled after
they have left the stand to lay the
proper foundation for impeachment but
this is within the discretion of the court.
LEADING
QUESTIONS

AND

MISLEADING

LEADING QUESTION
It is a question which suggests to the
witness the answer which the examining
party desires.
It is not allowed, EXCEPT
1. On cross-examination;
2. On preliminary matters;
3. When there is difficulty in getting
direct and intelligible answers from a
witness who is ignorant, or a child of
tender years, or is of feeble mind, or a
deaf-mute;
4. Of an unwilling or hostile witness; or
5. Of a witness who is an adverse party
or an officer, director, or managing
agent of a public or private corporation

or of a partnership or association which

is an adverse party.
Generally, leading questions are not
allowed in direct examination and
should
be
confined
to
crossexamination.
Rule on Questions in the Alternative
1. A question in the alternative is
not leading where it is not so
framed as to indicate which
answer is desired.
2. If so framed as to suggest the
answer, the question is improper
as leading and the mere use of
words whether or not does not
necessarily prevent it from being
leading.
MISLEADING QUESTION
It is one which assumes as true a fact
not yet testified to by the witness, or
contrary to that which he has previously
stated. It is not allowed.
Test Whether Question Leading or
Misleading
The test whether a question is leading or
not is the suggestiveness of its
substance and not the form of the
question. If the question suggests the
answer desired by putting words into the
mouth of the witness, it is leading.
Forms and Nature of Questions that
May be Propounded to Witnesses:
1.
Must not be indefinite or
uncertain.
2. Must be relevant.
3. Must not be argumentative.
4. Must not call for conclusion of
law.
5. Must not call for opinion or
hearsay evidence.
6. Must not call for opinion.
7. Must not call for an illegal
answer.
8.
Must not call for selfincriminating testimony.
9. Must not be leading.

10. Must not be misleading.

11. Must not tend to degrade
reputation of witness.
12. Must not be repetitious.
IMPEACHMENT
PARTY'S WITNESS

OF

ADVERSE

To impeach a witness means to call into

question the veracity of the witness or
by showing that the witness is unworthy
of belief.
Destroying credibility is vital because it
is linked with a witness ability and
willingness to tell the truth. (RIANO,
EVIDENCE, p. 373)
The Adverse Partys Witness May be
Impeached By:
1. Contradictory evidence;
2. Evidence that the witness general
reputation for truth, honesty, or integrity
is bad; or
3. Evidence that he/she has made at
other times inconsistent with his/her
present testimony.
General Rule: The adverse partys
witness cannot be impeached by
evidence of particular wrongful acts.
For example, a lawyer for the other
party cannot ask a witness the following
question on cross-examination: Isnt it
a fact that you shoplifted one week
ago?
Exception: It may be shown by the
examination of the witness or the record
of the judgment that the adverse partys
witness has been convicted of an
offense.
CONTRADICTORY EVIDENCE
The normal basis of this mode of
impeachement is a declaration made by the
witness in his direct testimony.
Other Modes of Impeachment:

1.
Impeachment
by
showing
improbability or unreasonableness of
testimony.
2.
Impeachment by showing bias,
prejudice, and hostility.
3. Impeachment by prior inconsistent
acts or conduct.
4.
Impeachment by showing social
connections, occupation and manner of
living.
5. Impeachment by showing interest.
6. Impeachment by showing intent or
motive.
PARTY MAY NOT IMPEACH HIS OWN
WITNESS.
General Rule: A party producing a
witness is not allowed to impeach
his/her credibility.
Exceptions:
1. If he/she is an adverse party.
2. If he/she has become an unwilling or
hostile witness.
ADVERSE PARTY
In order to be considered an adverse
party, the witness must be adverse to
the party calling him/her and be actively
seeking a recovery against, or opposing
a recovery by, such party, or a person
for whose immediate benefit the action
was brought or defended.
A Witness Will be Considered
Hostile or Unwilling Upon:
1. Declaration by the court;
2. Adequate showing of his/her
adverse
interest,
unjustified
reluctance to testify, or his/her
having misled the party into
calling him/her to the witness
stand
HOSTILE WITNESS
A hostile witness is one who manifests
so much hostility or prejudice under
examination-in-chief that the party who
has called him/her is allowed to crossexamine him/her, that is to treat him/her

as though he/she had been called by the

opposite party.
Methods of Impeachment of Ones
Own Witness
1. Evidence contrary to his testimony.
2. Evidence of prior inconsistent
statements
HOW
WITNESS
IMPEACHED
BY
EVIDENCE
OF
INCONSISTENT
STATEMENTS.
General Rule:
A witness cannot be impeached by proof
of inconsistent statements until the
proper foundation or predicate has been
laid.
Exception:
Failure to lay a proper foundation may
be waived by the failure of the adverse
party to object in proper form to the
instruction of the alleged inconsistent
statement.
A Witness is Impeached by Prior
Inconsistent Statements by Laying
the Predicate:
1.
By relating to him such
statements
with
the
circumstances of the times and
places and the persons present.
2. By asking him whether he
made such statements
3. By giving him a chance to
explain the inconsistency.
4. If the statements be in writing,
they must be shown to the
witness before any question is
put to him concerning them.
(Section 13, Rule 132 of the Rules
of Court)
Unless the witness is given the
opportunity to explain the discrepancies,
the impeachment is incomplete.
The Laying the Predicate Rule
Does NOT Apply:
1. If the prior inconsistent statement
appears in a deposition of the adverse
party, and not a mere witness, as such

statements are in the nature of

admissions of said adverse party.
(REGALADO, Evidence, p. 852)
2. Where the previous statements of a
witness are offered as evidence of an
admission, and not merely to impeach
him. (REGALADO, Evidence, p. 852
citing Juan Ysmael & Co. , Inc,v Hashim,
et. al. , 50 Phil . 132)
EVIDENCE OF GOOD CHARACTER OF
WITNESS
Evidence of the good character of a
witness is not admissible until such
character has been impeached.
Reason: The law presumes every
person to be reputedly truthful till
evidence shall have been produced to
the contrary.
JUDICIAL AFFIDAVIT RULE
(AM No. 12-8-8-SC)
What is the Judicial Affidavit Rule?
Sec 2[a][1]
The judicial affidavits of their witnesses,
which shall take the place of such
witnesses' direct testimonies;
The rule modifies the existing practice in
the conduct of a trial and reception of
evidence by doing away with the usual
oral examination of a witness in a direct
examination. (RIANO, Evidence, p. 418)
Effectivity of the Judicial Affidavit
Rule
It took effect on January 1, 2013
following
its
publication
in
two
newspapers of general circulation not
later than September 12,2012 (Sec. 12,
Judicial Affidavit Rule)
Application to Existing Cases
It shall apply to existing cases.
The application of the Rule to existing
cases is not barred by the fact that other
direct testimonies have already been
conducted orally before the effectivity of

the same.
The remaining direct
testimonies shall be done by means of
judicial affidavits. (RIANO, Evidence, p.
418)
What should be attached to a
judicial affidavit
1. Documentary or object evidence
of the parties (Sec 2[a][2],
Judicial Affidavit Rule)
2. Original document or object
evidence need not be attached to
the judicial affidavit, The party or
witness may keep the same in his
possession after exhibit has been
identified, marked as an exhibit,
and authenticated.
o He
must
however
warrant in his judicial
affidavit that the copy
or
reproduction
attached is a faithful
copy or reproduction of
the original. (Sec 2[b],
Judicial Affidavit Rule)
3. The party or the witness is
required to bring
the original
document or object evidence for
comparison with the attached
copy, reproduction, or pictures,
during
the
preliminary
conference.
o In case of failure to
bring the aforesaid, the
attached
copy,
reproduction,
or
pictures shall not be
admitted. (Sec 2[b],
Judicial Affidavit Rule)
Scope of the Judicial Affidavit Rule
This Rule shall apply to all actions,
proceedings, and incidents requiring the
reception of evidence before:
(1) The Metropolitan Trial Courts,
the Municipal Trial Courts in
Cities, the Municipal Trial Courts,
the Municipal Circuit Trial Courts,
and the Shari' a Circuit Courts but
shall not apply to small claims
cases under A.M. 08-8-7-SC;

(2) The Regional Trial Courts and

the Shari'a District Courts;
(3) The Sandiganbayan, the Court
of Tax Appeals, the Court of
Appeals,
and
the
Shari'a
Appellate Courts;
(4) The investigating officers and
bodies
authorized
by
the
Supreme
Court
to
receive
evidence,
including
the
Integrated Bar of the Philippine
(IBP); and
(5) The special courts and quasijudicial bodies, whose rules of
procedure
are
subject
to
disapproval of the Supreme
Court, insofar as their existing
rules of procedure contravene the
provisions of this Rule.
Applicability of the Judicial Affidavit
Rule to Criminal Cases
Sec. 9
The Judicial Affidavit Rule shall apply to
criminal cases.
Qualifications for application:
(1) Where the maximum of the
imposable penalty does not
exceed six years;
(2) Where the accused agrees to
the use of judicial affidavits,
irrespective
of
the
penalty
involved; or
(3) With respect to the civil
aspect of the actions, whatever
the penalties involved are.
Contents of a Judicial Affidavit (Sec
3)
1.
The name, age, residence or
business address, and occupation
of the witness;
2. The name and address of the
lawyer
who
conducts
or
supervises the examination of the

witness and the place where the

examination is being held;
3. A statement that the witness is
answering the questions asked of
him, fully conscious that he does
so under oath, and that he may
face criminal liability for false
testimony or perjury;
4. Questions asked of the witness
and his corresponding answers,
consecutively numbered, that:
a. Show the circumstances
under which the witness
acquired the facts upon
which he testifies;
b. Elicit from him those facts
which are relevant to the
issues
that
the
case
presents; and
c. Identify
the
attached
documentary and object
evidence and establish
their
authenticity
in
accordance with the Rules
of Court;
5. The signature of the witness over
his printed name; and
6. A jurat with the signature of the
notary public who administers the
oath or an officer who is
authorized by law to administer
the same.
A judicial affidavit shall be prepared in
the language known to the witness and,
if not in English or Filipino, it shall be
accompanied by a translation in English
or Filipino.
Effect of non-compliance with Sec 3
requirements:
The court will not admit it in evidence if
it does not comply with the content
requirements. (Sec 10[c])
However, the court may, allow only once
the subsequent submission of the
compliant replacement affidavits before
the hearing or trial provided:
1. The delay is for a valid reason
and would not unduly prejudice
the opposing party

2. that public or private counsel

responsible for their preparation
and submission pays a fine of not
less than P 1,000.00 nor more
than P 5,000.00, at the discretion
of the courts
Sworn Attestation of the lawyer
The judicial affidavit shall also contain a
sworn attestation by the lawyer who
conducted
and
supervised
the
examination, at the end. The sworn
aaaaaaa attest attestation shall attest:
attestation shall attest:
(1) He faithfully recorded or
caused to be recorded the
questions he asked and the
corresponding answers that the
witness gave; and
(2) Neither he nor any other
person then present or assisting
him
coached
the
witness
regarding the latter's answers.
Effect of false attestation by
lawyer:
The lawyer may be subjected to
disciplinary
action,
including
disbarment. (Sec. 4[b])
Filing and service of the judicial
affidavit and exhibits
1. The parties shall file with the
court and serve on the adverse
party, personally or by licensed
courier service, not later than five
days
before
pre-trial
or
preliminary conference or the
scheduled hearing with respect to
motions and incidents (Sec 2[a])
2. Filing of the judicial affidavit and
its attached exhibits shall be
done personally or by licensed
courier service. (Sec 2[a])
3. In criminal cases, the prosecution
shall submit the judicial affidavits
of its witnesses not later than five
days before the pre-trial, serving
copies if the same upon the
accused. (Sec 9[b])
4. If the accused desires to be heard
on his defense after receipt of the

judicial
affidavits
of
the
prosecution, he shall have the
option to submit his judicial
affidavit as well as those of his
witnesses to the court within ten
days from receipt of such
affidavits and serve a copy of
each on the public and private
prosecutor,
including
his
documentary and object evidence
previously marked. (Sec 9[c])
Effects of failure to submit the
judicial affidavits and exhibits on
time
A party who fails to submit the
required
judicial
affidavits
and
exhibits on time shall be deemed to
have waived their submission (Sec
10[a])
Remedy
in
case
of
late
submission
The court may, however, allow only
once the late submission provided
1. the delay is for a valid reason,
2. the delay would not unduly
prejudice the opposing party,
and
3. the defaulting party pays a
fine of not less than P
1,000.00 nor more than P
5,000.00 at the discretion of
the court.
Offer of testimony in Judicial
Affidavit
The party presenting the judicial
affidavit of his witness in place of direct
testimony shall state the purpose of
such testimony at the start of the
presentation of the witness. (Sec 6)
Objections to testimony in the
judicial affidavit
1. The adverse party may move to
disqualify the witness or to strike
out his affidavit or any of the
answers found in it on ground of
inadmissibility. (Sec 6)
2. The court shall promptly rule on
the motion and, if granted, shall

cause the marking of any

excluded answer by placing it in
brackets under the initials of an
authorized
court
personnel,
without prejudice to a tender of
excluded evidence under Section
40 of Rule 132 of the Rules of
Court.
Appearance of the witness at the
scheduled hearing
1. The rule still requires the
appearance of the witness at the
scheduled hearing. (Sec 10[b])
2. The adverse party shall have the
right
to
cross-examine
the
witness on his judicial affidavit
and on the exhibits attached to
the same. (Sec 7)
3. The party who presents the
witness may also examine him as
on re-direct. In every case, the
court shall take active part in
examining
the
witness
to
determine his credibility as well
as the truth of his testimony and
to elicit the answers that it needs
for resolving the issues. (Sec 7)
Effect of failure of a witness to
appear
1. The court shall not consider the
affidavit of any witness who fails
to appear at the scheduled
hearing of the case as required.
Counsel who fails to appear
without valid cause despite notice
shall be deemed to have waived
his client's right to confront by
cross-examination the witnesses
there present. (Sec 10 [b])
When issuance of a subpoena is
needed
The requesting party may avail himself
of the issuance of a subpoena ad
testificandum or duces tecum under
Rule 21 of the Rules of Court if:
1. the government employee or
official, or the requested witness,
who is neither the witness of the

adverse party nor a hostile

witness,
a. unjustifiably declines to
execute a judicial affidavit
b. refuses without just cause
to make the relevant
books,
documents,
or
other things under his
control
available
for
copying,
authentication,
and eventual production in
court
Oral offer and objections to exhibits
1. Upon the termination of the
testimony of his last witness, a
party shall immediately make an
oral offer of evidence of his
documentary or object exhibits,
piece
by
piece,
in
their
chronological order, stating the
purpose or purposes for which he
offers the particular exhibit. (Sec
8[a])
2. After each piece of exhibit is
offered, the adverse party shall
state the legal ground for his
objection, if any, to its admission,
and the court shall immediately
make its ruling respecting that
exhibit. (Sec 8[b])
SEC 35, RULE 132
Allows the offer to be
made in writing
(RIANO, Evidence, 2013)

JUDICIAL
AFFIDAVIT
RULE
Allows the offer to be
made orally

persons having no particular training are

incapable of forming accurate opinions
or of deducing correct conclusions.
EXPERT EVIDENCE
It is the testimony of persons who are
particularly killed, or experienced in a
particular art, science, trade, business,
profession, or vocation, a thorough
knowledge of which is not possessed b
man in general, in regard to matters
connected therewith.

OPINION RULE
GENERAL RULE
OPINION EVIDENCE
It is the statement by the witness of an
inference as to the existence or
nonexistence of a fact in issue based
upon other facts presented directly to
the senses of the witness.
General rule: The opinion of a witness
is not admissible.
Exceptions:
1. Opinion of expert witness (Section
49, Rule 130 of the Rules of Court)
2. Opinion of ordinary witness (Section
50, Rule 130 of the Rules of Court)
OPINION OF EXPERT WITNESS
The opinion of a witness on a matter
requiring
special
knowledge,
skill,
experience or training which he shown
to possess, may be received in evidence
EXPERT
A person who is so qualified either by
actual experience or by careful study as
to enable him to form a definite opinion
of his own respecting any division of
science, art, or trade about which

Rules on Examination of Expert

Witness
1. If opinion based on facts known
personally the expert witness must
first state the facts before giving an
opinion on the facts.
2. If opinion based on facts of which
expert has no personal knowledge
the facts should be given to the expert
hypothetically, that is, they must
assume facts upon which his opinion is
desired.
Scientific study and training are not
always essential to the competency of a
witness as an expert. A witness may be
competent to testify as an expert
although his knowledge was acquired
through the medium of practical
experience rather than scientific study
and research. Dilag v. Merced [45
O.G. 5536, (1949)]
Probative Value of Expert Testimony
The court is not bound by the opinion of
an expert such as a handwriting expert.
Expert opinion evidence is to be
considered or weighed by the court, like
any other testimony, in light of its own
general knowledge and experience upon
the subject of inquiry. (RIANO, Evidence,
p. 489 citing Dizon v Tuazon, 557 SCRA
487)
OPINION OF ORDINARY WITNESSES

The Opinion of a Witness for Which

Proper Basis is Given, May be
Received in Evidence Regarding:
1. The identity of a person about
whom
he
has
adequate
knowledge
2. A handwriting with which he
has sufficient familiarity; and
3. The mental sanity of a person
with whom he is sufficiently
acquainted.
The witness may also testify on his
impressions of the emotion, behavior,
condition or appearance of a person.
Proper Basis or Predicate Must First
be Established
1.
Adequate knowledge if
ordinary witness is to testify as to
identity.
2.
Sufficient familiarity if
ordinary witness is to testify as to
handwriting.
3. Sufficient acquaintance if
ordinary witness is to testify as to
mental sanity.
An ordinary witness cannot given an
opinion as to the mental sanity of a
person based in whole or in part upon
an abstract hypothetical question, but
must base his opinion solely upon his
own personal knowledge, observation,
or acquaintance.

CHARACTER EVIDENCE
CHARACTER
GENERALLY
EXCEPTIONS

EVIDENCE
NOT
ADMISSIBLE;

CHARACTER
The possession by a person of certain
qualities
of
mind
or
morals,
distinguishing him from others.
Distinguish
Reputation

Character

from

CHARACTER
Aggregate
of
the
moral qualities which
belong
to
and
distinguish
an
individual person

REPUTATION
Depends on attributes
which others believe
one
to
possess
(RIANO, Evidence, p.
491-492)

General Rule:
Character is not
admissible in evidence (Sec 51, Rule 30
of the Rules of Court)
Reason:
The rule is that the character or
reputation of a party is regarded as
legally irrelevant in determining a
controversy, so that evidence relating
thereto is not admissible. Ordinarily, if
the issues in the case were allowed to
be influenced by evidence of the
character or reputation of the parties,
the trial would be apt to have the
aspects of a popularity contest rather
than a factual inquiry into the merits of
the case. After all, the business of the
court is to try the case, and not the
man; and a very bad man may have a
righteous cause. (RIANO, Evidence, p.
492 citing People v Lee, 382 SCRA 596)
Exceptions:
a) Criminal Cases (Section 51(a),
Rule 130 of the Rules of
Court)
1.
As to the character of the
accused
a) The accused may prove his
good moral character, which is
pertinent to the moral trait
involved in the offense charged.
For example, the Accused in a
murder
case
may
present
evidence that he has a reputation
for being a peaceful person.
b) The prosecution may prove his
bad moral character pertinent to
the moral trait involved in the
offense charged in rebuttal.

In rebuttal, the prosecution may

present
evidence
that
the
Accused has a reputation for
being a quarrelsome person,
2.
As to the Character of the
Offended Party
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.
For example, in a murder case, the
Accused, invoking self-defense, can
present evidence that the offended
party (the victim) was of a quarrelsome
disposition.
b) Civil Cases (Section 51(b),
Rule 130 of the Rules of
Court)
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.
General Rule: the moral character of a
party to a civil case is not a proper
subject of inquiry.
Exception: in cases where, because of
the nature of the action, the character of
a party becomes a matter in issue.

RULE ON EXAMINATION OF A
CHILD WITNESS
(AM NO. 04-07-SC)
Applicability of the Rule (Section 1)
Unless otherwise provided, this Rule
shall govern the examination of child
witnesses who are:
1. victims of a crime
2. accused of a crime, and
3. witnesses to a crime.
It shall apply in all criminal proceedings
and non-criminal proceedings involving
child witnesses.

Meaning
of
(Section 2(a))

Child

Witness

A child witness is:

1. Any person who at the time of
giving testimony is below the age
of 18 years.
2. In child abuse cases, a child
includes one who is over 18 years
but is found by the court as
unable to fully take care of
himself/herself,
or
protect
himself/herself
from
abuse,
neglect, cruelty, exploitation, or
discrimination because of a
physical or mental disability or
condition.
Note:
Observe that whether or not a person is
a child witness is determined as of the
time of the giving of the testimony.
(RIANO, Evidence, p. 497)
Competency
(Section 6)

of

Child

Witness

Presumption of Competency
Every child is presumed qualified to be a
witness.
Competency Examination
Notwithstanding the presumption, 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
Conducts
Competency
Examination
Examination of a child as to his/her
competence shall be conducted only by
the judge.
Counsel for the parties,
however, can submit questions to the
judge that he/she may, in his/her
discretion, ask the child.

The court has the duty of continuously

assessing the competence of the child
throughout his testimony.
Who must Prove Necessity of
Competency Examination
A
party
seeking
a
competency
examination must present proof of
necessity
of
competency
of
examination. The age of the child by
itself is not a sufficient basis for a
competency examination.
To rebut the presumption of competence
enjoyed by a child, the burden of proof
lies on the party challenging his/her
competence.
Who
May
Attend
Competency
Examination
Only the following are allowed to attend
a competency examination:
1. The judge and necessary court
personnel;
2. The counsel for the parties;
3. The guardian ad litem;
4. One or more support persons
for the
child; and
5.
The defendant, unless the
court
determines
that
competence
can
be
fully
evaluated in his/her absence.
Nature of Questions Asked in the
Competency Examination
The questions asked at the competency
examination shall be:
1. appropriate to the age and
developmental level of the child;
2. shall not be related to the issues
at trial; and
3. shall focus on the ability of the
child to
a. remember,
b. communicate,
c. distinguish between truth
and falsehood, and
d. appreciate the duty to
testify truthfully.
Examination
(Section 8)

of

Child

Witness

Examination Done in Open Court

The examination of a child witness
presented in a hearing of any
proceeding shall be done in open court.
Unless the witness is incapacitated to
speak or the question calls for a
different mode of answer, the answers
of the witness shall be given orally.
The party who presents a child witness
or the guardian ad litem of such child
witness may, however, move the court
to allow the child to testify in the
manner provided in this Rule.
Live-Link TV Testimony of a Child
Witness (Section 25)
Live-Link TV Testimony
It is when the testimony of the child is
taken in a room outside the courtroom
and be televised to the courtroom by
live-link television.
Who May Apply
1. The prosecutor,
2. counsel or
3. the guardian ad litem
Need to Consult Prosecutor
Counsel

or

Before the guardian ad litem applies for

an order under this section, he/she shall
consult the prosecutor or counsel and
shall defer to the judgment of the
prosecutor or counsel regarding the
necessity of applying for an order.
In case the guardian ad litem is
convinced that the decision of the
prosecutor or counsel not to apply will
cause the child serious emotional
trauma, the guardian ad litem may
apply for the order.
Period to Apply
The person seeking such an order shall
apply at least five (5) days before the
trial date, unless the court finds on the
record that the need for such an order
was not reasonably foreseeable.

The court may motu proprio hear and

determine, with notice to the parties,
the need for taking the testimony of the
child through live-link television.
Where Live-Link TV Testimony Taken
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.
The judge may exclude any person,
including the accused, whose presence
or conduct causes fear to the child.
When it may be approved
The court may order that the testimony
of the child be taken 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/her 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.
Factors to Consider in Granting or
Denying a Request For Live-Link TV
Testimony
The court shall issue an order granting
or denying the use of live-link television
and stating the reasons therefor. It shall
consider the following factors:
1.
The age and level of
development of the child;
2.
His physical and mental
health, including any mental or
physical disability;
3. Any physical, emotional, or
psychological injury experienced
by him;
4.
The nature of the alleged
abuse;

5. Any threats against the child;

6.
His relationship with the
accused or adverse party;
7.
His reaction to any prior
encounters with the accused in
court or elsewhere;
8. His reaction prior to the trial
when the topic of testimony was
discussed
with
him/her
by
parents or professionals;
9. Specific symptoms of stress
exhibited by the child in the days
prior to testifying;
10. Testimony of expert or lay
witnesses;
11. The custodial situation of the
child and the attitude of the
members
of
his/her
family
regarding the events about which
he/she will testify; and
12. Other relevant factors, such
as
court
atmosphere
and
formalities of court procedure.
Rules in Taking Testimony by LiveLink Television
If the court orders the taking of
testimony by live-link television:
1. The child shall testify in a room
separate from the courtroom in the
presence of the guardian ad litem; one
or both of his/her support persons; the
facilitator and interpreter, if any; a court
officer appointed by the court; persons
necessary to operate the closed-circuit
television equipment; and other persons
whose presence are determined by the
court to be necessary to the welfare and
well-being of the child.
2. The judge, prosecutor, accused, and
counsel for the parties shall be in the
courtroom. The testimony of the child
shall
be
transmitted
by
live-link
television into the courtroom for viewing
and hearing by the judge, prosecutor,
counsel for the parties, accused, victim,
and the public unless executed.
3. If it is necessary for the child to
identify the accused at trial, the court
may allow the child to enter the
courtroom for the limited purpose of

identifying the accused, or the court

may allow the child to identify the
accused by observing the image of the
latter on a television monitor.
4. The court may set other conditions
and limitations on the taking of the
testimony that it finds just and
appropriate, taking into consideration
the best interests of the child.
Preservation of Childs Testimony:
The testimony of the child shall be
preserved on videotape, digital disc, or
other similar devices which shall be
made part of the court record and shall
be subject to a protective order.
Videotaped Deposition of a Child
Witness (Section 27)
Who May Apply for Videotaped
Deposition
The prosecutor, counsel or guardian ad
litem may apply for an order that a
deposition be taken of the testimony of
the child and that it be recorded and
preserved on videotape.
Before the guardian ad litem applies for
an order, he/she shall consult with the
prosecutor or counsel.
When
order
for
Videotaped
Deposition Issued
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.
Who Shall Preside Over Videotaped
Deposition
The judge shall preside at the
videotaped deposition of a child.
Rule on Objections to Videotaped
Deposition
Objections to deposition testimony or
evidence, or parts thereof, and the
grounds for the objection shall be stated

and shall be ruled upon at the time of

the taking of the deposition.
Persons Who May Be Permitted in
Videotaped Deposition
The other persons who may be
permitted to be present at the
proceedings are:
1. The prosecutor;
2. The defense counsel;
3. The guardian ad litem;
4. The accused;
5. Other persons whose presence
is determined by the court to be
necessary to the welfare and
well-being of the child;
6. One or both of his/her support
persons,
the
facilitator
and
interpreter, if any;
7. The court stenographer; and
8. Persons necessary to operate
the videotape equipment.
Rights of the Accused Not to be
Violated
The rights of the accused during trial,
especially the right to counsel and to
confront and cross-examine the child,
shall not be violated during the
deposition.
Exclusion of Accused in Videotaped
Deposition
If the order of the court is based on
evidence that the child is unable to
testify in the physical presence of the
accused, the court may direct the latter
to be excluded from the room in which
the deposition is conducted. In case of
exclusion of the accused, the court shall
order that the testimony of the child be
taken
by
live-link
television
in
accordance with section 25 of this Rule.
If the accused is excluded from the
deposition, it is not necessary that the
child be able to view an image of the
accused.
Best Interests of the Child Taken
Into Consideration
The court may set other conditions on
the taking of the deposition that it finds

just and appropriate, taking into

consideration the best interests of the
child, the constitutional rights of the
accused, and other relevant factors.

examination by the adverse party.

When the child is unavailable, the fact of
such circumstances must be proved by
the proponent.

Admissibility
of
Videotaped
Deposition When Child Unable to
Testify
If, at the time of trial, the court finds
that the child is unable to testify, the
court may admit into evidence the
videotaped deposition of the child in lieu
of his testimony at the trial. The court
shall issue an order stating the reasons
therefor.

2. In the ruling on the admissibility of

such hearsay statement, the court shall
consider
the
time,
content
and
circumstances thereof which provide
sufficient indicia of reliability. It shall
consider the following factors:

Motion for Additional Videotaped

Depositions
After the original videotaping but before
or during trial, any party may file any
motion for additional videotaping on the
ground of newly discovered evidence.
The court may order an additional
videotaped deposition to receive the
newly discovered evidence.
Preservation
of
videotaped
deposition
The videotaped deposition shall be
preserved and stenographically recorded
and be subjected to protective order.
Hearsay Exception in Child Abuse
Cases (Section 28)
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 the following
rules:
1. Before such hearsay statement may
be admitted, its proponent shall make
known to the adverse party the intention
to offer such statement and its
particulars to provide him a fair
opportunity to object. If the child is
available, the court shall, upon motion
of the adverse party, require the child to
be present at the presentation of the
hearsay
statement
for
cross-

a)
Whether there is a
motive to lie;
b) The general character
of the declarant child;
c) Whether more than one
person
heard
the
statement;
d) Whether the statement
was spontaneous;
e)
The timing of the
statement
and
the
relationship between the
declarant
child
and
witness;
f) Cross-examination could
not show the lack of
knowledge of the declarant
child;
g) The possibility of faulty
recollection
of
the
declarant child is remote;
and
h)
The circumstances
surrounding the statement
are such that there is no
reason to suppose the
declarant
child
misrepresented
the
involvement
of
the
accused.
3. The child witness shall be considered
unavailable
under
the
following
situations:
a)
Is deceased, suffers
from physical infirmity,
lack of memory, mental
illness, or will be exposed
to
sever
psychological
injury; or

b)
Is absent from the
hearing and the proponent
of his/her statement has
been unable to procure
his/her
attendance
by
process
or
other
reasonable means.
4. When the child witness is unavailable,
his/her hearsay testimony shall be
admitted only if corroborated by other
admissible evidence.
Sexual Abuse Shield Rule (Section
30)
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.
Exception:
Evidence of specific instance 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 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 for
filing or permits filing during trial;
and
2. Serve the motion on all parties
and the guardian ad litem at least
three days before the hearing of
the motion.
Before admitting such evidence, the
court must conduct a hearing in
chambers and afford the child, his/her
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/her consent.
Protective Orders (Section 31)
Any videotape or audiotape of a child
that is part of the court record shall be
under a protective order that provides
as follows:
1. Tapes may be viewed only by parties,
their counsel, their expert witness, and
the guardian ad litem.
2. No tape, or any portion thereof, shall
be divulged to any other person, except
as necessary for the trial.
3. No person shall be granted access to
the tape, its transcription or any part
thereof unless he/she signs a written
affirmation that he/she has received and
read a copy of the protective order; that
he/she submits to the jurisdiction of the
court with respect to the protective
order; and that in case of violation
thereof, he/she will be subject to the
contempt power of the court.
4.
Each of the tape cassettes and
transcripts thereof made available to the
parties, their counsel, and respective
agents
shall
bear
the
following
cautionary notice:
This object or document and the
contents thereof are subject to a
protective order issued by the
court in (case title), (case
number). They shall not be
examined,
inspected,
read,
viewed, or copied by any person,
or disclosed to any person,
except as provided in the
protective order. No additional
copies of the tape or any of its
portion shall be made, given,

sold, or shown to any person

without prior court order. Any
person violating such protective
order is subject to the contempt
power of the court and other
penalties prescribed by law.
5. No tape shall be given, loaned, sold,
or shown to any person except as
ordered by the court.
6.
Within 30 days from receipt, all
copies of the tape and any transcripts
thereof shall be returned to the clerk of
court for safekeeping unless the period
is extended by the court on motion of a
party.
7. This protective order shall remain in
full force and effect until further order of
the court.
The court may, motu proprio or on
motion of any party, the child, his/her
parents, legal guardian, or the guardian
ad litem, issue additional orders to
protect the privacy of the child.
OFFER OF EVIDENCE
The court shall consider no evidence
which has not been formally offered.
The purpose for which the evidence is
offered must be specified.
Exceptions:
1. Evidence not formally offered can
be considered by the court as
long as they have been properly
identified by testimony duly
recorded and
2. They have themselves been
incorporated in the records of the
case. (People v Libnao, G.R. No.
13860, January 20, 2003)
Purpose of Offer
Formal offer is necessary because it is
the duty of the judge to rest his findings
of facts and his judgment only and
strictly upon the evidence offered by the
parties at the trial.
The purpose for which the evidence is
offered must be specified because such
evidence may be admissible for several

purposes under the doctrine of multiple

admissibility, or may be admissible for
one purpose and not for another;
otherwise the adverse party cannot
interpose
the
proper
objection.
Evidence submitted for one purpose
may not be considered for any other
purpose.
NOTE:
A party who has introduced evidence
is NOT entitled as a matter of right to
withdraw it on finding that it does
not answer his purpose.
The Identification and Formal Offer
Distinguished:
1. IDENTIFICATION Identification of
the evidence is made in the course of
the trial and marked as exhibits. Any
objection made at this stage is
premature.
2. FORMAL OFFER it is only when the
proponent rests his case and formally
offers the evidence that an objection
thereto may be made.
NOTE:
A party has the option of not offering
into evidence the evidence identified
at the trial and marked as an exhibit.
The mere fact that a particular
document is identified and marked
as an exhibit does not mean it will be
or has been offered as part of the
evidence of the party. The party may
decide to formally offer it if it
believes this will advance its cause,
and then again it may decide not to
do so at all. Interspecific Transit v.
Aviles, [186 SCRA 385, G.R. No.
86062, June 6, 1990]
WHEN TO MAKE OFFER
TESTIMONIAL
DOCUMENTARY AND
EVIDENCE
OBJECT EVIDENCE
The offer must be
made at the time the
witness is called to
testify.

It shall be offered after

the presentation of a
partys
testimonial
evidence.

Such offer shall be2. As to evidence offered in writing

done
orally
unlessobjection shall be made within three (3)
allowed by the court todays after notice of the offer unless a
different period is allowed by the court.
be done in writing.
3. As to questions propounded in
the course of the oral examination
objection shall be made as soon as the
OBJECTION
grounds
therefor
shall
become
Purposes of Objections:
reasonably apparent.
1. To keep out inadmissible evidence
In any case, the grounds for the
that would cause harm to a
objections must be specified.
clients cause. The rules of
evidence are not self-operating
An objection to evidence cannot be
and hence, must be invoked by
made in advance of the offer of the
way of an objection.
evidence sought to be introduced.
2. To protect the record, i.e. to
present
the
issue
of
The right to object is a mere privilege
inadmissibility of the offered
which the parties may waive. And if the
evidence in a way that if the trial
ground for objection is known and not
court rules erroneously, the error
seasonably made, the objection is
can be relied upon as a ground
deemed waived and the court has no
for a future appeal;
power, on its own motion, to disregard
3. To protect a witness from being
the evidence. People v. Yatco, [97
embarrassed on the stand or from
Phil.
940,
G.R.
No.
L-9181,
being harassed by the adverse
November 28, 1955]
counsel
4. To expose the adversarys unfair
tactics like his consistently asking
WHEN
WHEN IT
obviously leading questions
OFFERED
MAY BE
5. To give the trial court an
OBJECTED
opportunity to correct its own
errors and, at the same time,
Object
When the Should
be
warn the court that a ruling
evidence
same
is made either
adverse to the objector may
presented
at the time it
supply a reason to invoke a
for its view is presented
higher
courts
appellate
or
in an ocular
jurisdiction; and
evaluation inspection or
6. To avoid a waiver of the
,
as
in demonstratio
inadmissibility of an otherwise
ocular
ns or when it
inadmissible evidence. (RIANO,
inspection is
formally
Evidence, p. 517-518)
or
offered
Purpose: to stop an answer to a
demonstra
question put to a witness or to prevent
-tions, or
the receipt of a document in evidence
when the
until the court has had opportunity to
party rests
make a ruling upon its admissibility
his
case
and
the
Rules on Objections (Section 36,
real
Rule 132 of the Rules of Court)
evidence
1. As to evidence offered orally
consists of
objection must be made immediately
objects
after the offer is made.
exhibited

and before
he
rests
his case.
in court.

WHEN REPETITION OF OBJECTION

UNNECESSARY
Rule on Repetition of Objection
General Rule:

Testimoni
al
evidence

Document
ary
evidence

When
witness is
called
to
the
witness
stand,
before
he/she
testifies

Formally
offered by
the
proponent
after
the
presentati
on
of
his/her
last
witness

As to the
qualification
of
the
witness

should
be
made at the
time he is
called to the
stand
and
immediately
after
the
opposing
party offers
his/her
testimony.
If otherwise
qualified
objection
should
be
raised when
the
objectionabl
e question is
asked
or
after
the
answer
is
given if the
objectionabl
e
features
became
apparent by
reason
of
such answer.
At the time it
is
formally
offered.

When it becomes reasonably apparent in

the course of the examination of a
witness that the questions being
propounded are of the same class as
those to which objection has been
made, whether such objection was
sustained or overruled, it shall not be
necessary to repeat the objection, it
being sufficient for the adverse party to
record his/her continuing objection to
such class of question.
RULING
When Ruling of Court Must be Given
The ruling of the court must be given
immediately after the objection is made,
unless the court desires to take a
reasonable time to inform itself on the
question presented; but the ruling shall
always be made during the trial and at
such time as will give the party against
whom it is made an opportunity to meet
the situation presented by the ruling.
When Reason For Ruling Must be
Stated
1.
The reason for sustaining or
overruling an objection need not be
stated.
2. If the objection is based on two or
more grounds, a ruling sustaining the
objection on one or some of them must
specify the ground or grounds relied
upon.
NOTE:
The rulings of the trial court on
procedural
questions
and
on
admissibility of evidence during the
course of a trial are interlocutory in
nature and may not be the subject of
separate appeals or review on
certiorari. These are to be assigned

as errors and reviewed in the appeal

taken from the trial court on the
merits of the case.

out of answers which

incompetent,
irrelevant,
otherwise improper.

are
or

STRIKING OUT ANSWER

TENDER OF EXCLUDED EVIDENCE

General
Rule:
An
objection
to
questions propounded in the course of
oral examination must be interposed as
soon as the ground(s) become evident.
Failure to interpose a timely objection
may be taken as a waiver of the right to
object and the answer will be admitted.

Where the court refuses to permit the

counsel to present testimony which he
thinks is competent, material and
necessary to prove his case, the method
to properly preserve the record to the
end that the question may be saved for
the purposes of review, is through the
making of an offer of proof.

Exceptions: A motion to strike out the

answer is available as a remedy where:
1. A witness answers a question
after an objection has been
sustained;
2. The irrelevance of the evidence
becomes apparent only after an
objection has been overruled;
3. Where a witness answers a
question before an attorney can
object.
An Answer May be Stricken Off the
Record By:
1. Upon the courts own
motion Should a witness
answer the question before the
adverse
party
had
the
opportunity to voice fully its
objection to the same, and such
objection
is
found
to
be
meritorious,
the
court
shall
sustain the objection and order
the answer given to be stricken
off the record.
2. On motion of party The
court may also order the striking

Purpose:
1. To inform the court what is
expected to be proved.
2. So that a higher court may
determine
from
the
record
whether the proposed evidence is
competent.
Rule
on
Tender
of
Excluded
Evidence
1.If the excluded evidence is
documentary or object - the
offeror may have the same
attached to or made part of the
record.
2. If the evidence excluded is
oral the offeror may state for
the record the name and other
personal circumstances of the
witness and the substance of the
proposed testimony.