REMEDIAL LAW (Atty.

Ferdinand Tan)
Evidence
Rule 131: Burden of Proof and Presumptions
I.
-

BURDEN OF PROOF/Onus Probandi (Rule

131, Section 1)
The duty of the parties
To present evidence
Of the facts in issue
Necessary to establish
His claims or defenses
By the amount of evidence
Required by law.

Burden of Evidence
- The duty of the party
- To go forward with the evidence
- To overthrow the prima facie evidence
against him. (Riano, Evidence, p. 408)
Distinctions between Burden of Proof
and
Burden of Evidence:
a. As to whether such burden shifts from one
party to another:
- Burden Of Proof does not shift because it
remains with the party upon whom it is
imposed; Burden Of Evidence shifts from
party to party depending on the exigencies
of the case.
b. As to how it is determined:
- Burden of proof is determined by the
pleadings filed by the party; while burden of
evidence is determined by the developments
at the trial, or by the provisions of the
substantive law or procedural rules.
Note: Do not be confused with burden of proof and
quantum of evidence. Quantum of evidence is a
different matter. It is the weight of evidence. While
burden of proof is the duty to present evidence to
prove his case according to the quantum of evidence
required.
Burden of Proof in Different Cases: (Be ready with
definition of terms)
1. In illegal dismissal employer has the burden
of proving that the dismissal is legal.
2. In payment of backwages it is the employee
that has the burden of proving that he is
entitled.

3. In civil cases it is always the the party that

alleges a fact.
4. In a complaint plaintiff
5. Counterclaim defendant
6. Cross-claim defendant against another
defendant.
7. Answer defendant
8. Reply plaintiff
9. Culpa-contractual cases against a common
carrier the common carrier has the burden
of proving that they observed extraordinary
diligence. Otherwise, their negligence will be
presumed; hence, they are liable.
10. Rule on payment
General Rule: He who pleads payment has
the burden of proving it.
Exception: When the pleader presented
evidence of such payment, the creditor has to
prove that there was non-payment.
11. In disbarment cases complainant
Equiponderance Doctrine/Equipoise Rule
- Where the evidence of the parties are evenly
balanced or there is doubt on which side the
evidence preponderates, the decision shall be
rendered against the person that has the
burden of proving.
- Constitutional Basis is the due process clause.
(Article III, Section 1)
II. PRESUMPTIONS
1. Definition
- It is an inference of the existence or
inexistence of a fact
- Which courts are permitted to draw from
proof of other facts. (Regalado, p. 775; Riano,
p. 427)
2. Kinds of Presumption
A. Rules of Court
a. Conclusive Presumption
- A presumption that is irrebuttable upon the
presentation of the evidence.
-

b. Rebuttable Presumption
A presumption that may be contradicted or
overcome by other evidence.

B. Other kinds of Presumption

a. Presumption of law
An assumption which the law requires to be
made from a set of facts.

b. Presumption of fact
- An assumption made from the facts without
any direction or positive requirement of a
law.
Conclusive Presumptions under the Rules of
Court:
(Note: These presumptions are based on the
principle of estoppel under the Civil Code. The 2
presumptions are kinds of estoppel in pais)
A. Whenever a party has, by his own declaration, act,
or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act
upon such belief, he cannot, in any litigation arising
out of such declaration, act or omission, be permitted
to falsify it:
B. The tenant is not permitted to deny the title of his
landlord at the time of commencement of the relation
of landlord and tenant between them.
Disputable Presumptions under the Rules of
Court
Notes:
1. Just
substantially
memorize
the
disputable presumptions under Rule 131,
Section 3. There are 37 disputable
presumptions under Section 3.
2. If you are asked as to what quantum of
evidence is needed to overthrow a
disputable presumption, it is by CLEAR
AND CONVINCING EVIDENCE. The only
exception here is that a person is innocent of
a crime.
RULE 132: Presentation of Evidence
Witness
I.
-

How is he examined?
It shall be done in open court
Under oath or affirmation
Examined orally, unless the witness is
incapacitated to speak or the question calls
for a different answer.

Note: Because of the enactment of the Judicial

Affidavit Rule, there is no more direct examination of
a witness. He will be required, in lieu of a direct
examination, a judicial affidavit.
II. Kinds of Witnesses
a. Expert witness a witness on a matter
requiring special knowledge, skill, experience
or training, which he is shown to possess.
b. Ordinary witness (see Section 50, Rule 130)
c. Competent Witness a witness that can
testify that is not excluded by the law or by
the Rules.
d. Credible Witness a witness whose
testimony is given weight by the court worthy
of belief.
e. Honest Witness a witness who tells the
truth to the questions being propounded to
him.
f. Perjured Witness a witness who is guilty of
swearing a false oath or of falsifying an
affirmation to tell the truth, whether spoken
or in writing.
g. Relevant Witness a witness testifying on a
matter that has a relation to the fact in issue
as to induce belief in its existence or nonexistence.
h. Hostile Witness a witness found by the
court of his adverse interest, unjustified
reluctance to testify, or his having misled the
party into calling him to the witness stand.
III. Obligation of a Witness (Rule 132, Section
3)
- He must answer questions, although his
answer may tend to establish a claim against
him.
- Note: the claim must be limited to a civil
claim. If criminal, Rule 132, Section 3 (4) may
be invoked.
IV. Rights of a Witness (Rule 132, Section 3
(1) to (5)
1. To be protected from irrelevant, improper, or
insulting questions, and from harsh or
insulting demeanor;
2. Not to be detained longer than the interests of
justice require;
3. Not to be examined except only as to matters
pertinent to the issue;

4. Not to give an answer which will tend to

subject him to a penalty for an offense unless
otherwise provided by law; or
5. Not to give an answer which will tend to
degrade his reputation, unless it to be the
very fact at issue or to a fact from which the
fact in issue would be presumed. But a
witness must answer to the fact of his
previous final conviction for an offense
V. Order of Examination of a Witness:
1. Direct Examination
- The examination-in-chief by the party
presenting him on the facts relevant to the
issue.
- Note again that you should refer to the
Judicial Affidavit Rule. There is no more direct
examination.
2. Cross-Examination
- An examination conducted by the adverse
party
- as to any matters stated in the direct
examination, or connected therewith,
- with sufficient fullness and freedom to test
his accuracy and truthfulness and freedom
from interest or bias or the reverse
- and to elicit an important acts bearing upon
the issue.
3. Re-Direct Examination
- A re-examination by the party calling him
- To explain or supplement his answers given
during cross.
- The court MAY ALLOW questions on matters
not dealt with during the cross.
- Note: This is optional on the party calling him.
4. Re-Cross
- An examination after re-direct on matters
stated in his re-direct, and also on other
matters as may be allowed by the court in its
discretion.
VI. Rule on Recalling Witness
- It can only be done after both parties have
examined the witness.
- It can only be done with leave of court.
- The party must make a motion to recall the
witness. The partys recalling of a witness is

subject to the discretion of the court, as the

interest of justice may require.
VII. Leading Question (Rule 132, Section 10)
- It is a question which suggests to the witness
the answer which the examining party
desires.
Example: questions answerable by yes or no.
-

General Rule:
It is not allowed.
Exceptions:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct
and intelligible answers from a witness who
is ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an
officer, director, or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party.

Misleading Question
A question that 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.

VIII.

Impeachment of a Witness

Notes:
1. Determine whether you are impeaching as an
adverse party or as a party who presented the
witness.
2. Distinguish the concept of laying the basis
and laying the predicate. Laying the
basis is a principle followed to present
secondary evidence in order for such kind of
evidence to be admitted by the court, as an
exception to the Best Evidence Rule. On the
other hand, laying the predicate is a
principle followed in impeaching a witness by
evidence of inconsistent statements, as per
Rule 130, Section 13.
A. Impeachment
Witness

of

an

Adverse

Partys

a. Contradictory evidence
b. Evidence that his general reputation for
truth, honesty, and integrity is bad
c. Evidence that he has made at other times
statements inconsistent with his present
testimony. (Inconsistent statements)
Notes:
1. The bad reputation, in impeaching a witness,
should refer only to the truth, honesty, or
integrity of his reputation. Example is that he
was once guilty of perjury.
2. There is no impeachment by evidence of bad
character; only bad reputation. (Rule 132,
Sections 12 and 14, in relation to Rule 130,
Section 51 c)
3. Doctrine of Laying the Predicate; How
made: (Rule 132, Section 13)
a. The statement must be related to him
b. The circumstances of the times and places
and the persons present must also be
related to him.
c. Ask the witness whether he made such
statement.
d. If so, allow the witness to explain them.
e. If the statements be in writing, they must
be shown to the witness before any
question is put to him concerning them.
4. A witness cannot be impeached by evidence
of particular wrongful acts except evidence of
his final conviction of an offense as disclosed
by his examination or by the record of
judgment. (Riano, p. 324)
B. Impeachment of Own Witness
General Rule: it is not allowed.
Exceptions:
1. Unwilling or hostile witness
2. A witness who is an adverse party.
DOCUMENTS
I. Classes of Documents
A. Public documents
a) The written official acts, or records of the official
acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;

b) Documents acknowledge before a notary public

except last wills and testaments; and
c) Public records, kept in the Philippines, of private
documents required by law to the entered therein.
B. Private Documents those that are not
considered public.
How to prove Private Documents
1. When offered as authentic, its due execution
and authenticity is proved either:
a. By anyone who saw the document
executed or written; or,
b. By evidence of genuineness of the
signature or handwriting of the maker.
2. Not offered as authentic, it need only be
identified as that which it is claimed to be.
II. Ancient Document Rule the effect is that
no other evidence of its authenticity need
be given.
a. A private document is more than 30 years old
b. Produced from a custody in which it would
naturally be found if genuine
c. It is unblemished by any alterations or
circumstances of suspicion
What is the principle of Irremovability of a
Public Record? (Rule 132, Section 26)
- 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.
How to Impeach Judicial Records:
- Present evidence of:
a. Want of jurisdiction in the court or judicial
officer
b. Collusion between parties
c. Fraud in the party offering the record, in
respect to the proceedings.

Notes:

1. Documentary evidence not written in our

official language is inadmissible if there is no
English or Filipino translation. (Rule 132,
Section 33)
2. In proving notarial documents, the certificate
of acknowledgment is a prima facie evidence
of the execution of the instrument or
document involved. (Section 30)
3. The party producing a document as genuine
which has been altered and appears to have
been altered after its execution, in a part
material to the question in dispute, must
account for the alteration. He may show that
the alteration was made by another, without
his concurrence, or was made with the
consent of the parties affected by it, or was
otherwise properly or innocent made, or that
the alteration did not change the meaning or
language of the instrument. If he fails to do
that, the document shall not be admissible in
evidence. (Section 31)
OFFER AND OBJECTION
Offer
- The court shall consider no evidence which
has not been formally offered. The purpose
for which the evidence is offered must be
specified. Hence, the offer shall be made
during trial.
When to Make an Offer:
A. Judicial Affidavit Rule
1. Under Section 6 of the JAR, instead of offering
the oral testimony of the witness, the party
using the judicial affidavit of his witness in
place of a direct testimony shall present such
affidavit and state the purpose of the
testimony contained therein at the start of the
presentation of the witness. (Riano)
2. Under Section 8 of the JAR, 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 for which he offers
the particular exhibit. Such offer shall be
made upon the termination of the testimony
of his last witness. (Riano)
B. Under the Rules of Court

1. As regards the testimony of a witness, the

offer must be made at the time the witness is
called to testify.
2. As regards documentary and object evidence,
they shall be offered after the presentation of
the testimonial evidence. Such offer shall be
done orally unless allowed by the court to be
done in writing.
Note: Notice the difference between the provisions of
the Judicial Affidavit Rule and the Rules of Court with
regard to offer of documentary and object evidence.
The JAR only allows oral offer; while the Rules of
Court allows either oral or written offer.
Objections
Kinds:
1. General Objection It does not go beyond
declaring the evidence as immaterial, incompetent,
irrelevant or inadmissible. In other words, it does not
specify the grounds for objection. (Also known as a
Broadside Objection)
2. Specific Objection It states why or how the
evidence is irrelevant or incompetent. Example:
Objection to the question for being leading.
3. Noted Objection an objection which shall be
marked by the court as noted and will be placed in
the stenographic notes for further consideration.
4. Continuing Objection when it becomes
reasonably apparent in the course of the examination
of a witness that the questions being asked are of the
same class as those to which objection has been
made, regardless of whether such objection was
sustained or overruled.
5. Sustained Objection an objection given merit
by the judge.
6. Overruled Objection an objection not given
merit by the judge.
7. Formal Objection an objection directed against
the alleged defect in the formulation of the question.
(Riano, p. 465)
8. Substantive Objection an objection made and
directed against the very nature of the evidence.
(Riano, p. 465)
9. Belated Objection - it is an objection not raised
on time. It is considered a waiver of the objectionable
ground.
When to Make an Objection:
A. Judicial Affidavit Rule

1. The presentation of the judicial affidavit and

the statement of the purpose of the testimony
contained therein will give the adverse party
the opportunity to object to the testimony.

objection is based on 2 or more grounds, a

ruling sustaining the objection on one or
some of them must specify the ground relied
upon.

Such party may, on the ground of

admissibility, move to:
a. Disqualify a witness
b. Strike out his affidavit
c. Strike out any of the answers found in the
judicial affidavit. (Section 6, JAR, from the
Riano annotations)

Motion to Strike Out; When Available:

(Riano, p. 467)
a. The answer is premature.
b. The answer of the witness is irrelevant,
incompetent or otherwise improper.
c. The answer is unresponsive.
d. The witness becomes unavailable for crossexamination through no fault of the crossexamining party
e. The testimony was allowed conditionally and
the condition for its admissibility was not
fulfilled.

2. As regards documentary and object evidence,

after each piece of evidence 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. (Section 8, from the
Riano annotations)
B. Under the Rules of Court
1. Evidence offered orally
- It must be made immediately after the offer
is made.
2. A question propounded in the course of
the oral examination of a witness
- Object as soon as the grounds therefor shall
become reasonably apparent.
3. Evidence in writing
- Objected to within 3 days after notice of the
offer unless a different period is allowed by
the court.
Ruling on the Objections:
- As a rule, the court must rule immediately
after the objection has been made. However,
the court may take a reasonable time to study
the questions raised by the objection, but a
ruling should always be made during the trial.
If no ruling is made during the course of the
trial, counsel would have no means of
knowing whether or not he would be
compelled to meet any evidence at all, hence
it would prejudice the substantial rights of his
client.
-

The reason for sustaining or overruling an

objection need not be stated. However, if the

Motion to Strike Out; When to Make (Rule 132,

Section 39)
- 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 to be stricken out of the record.
Tender of Excluded Evidence/Proffer of
Evidence/Offer of Proof (Rule 132, Section 40)
-

If documents or things offered in evidence

are excluded by the court, the offeror may
have the same attached to or made part of the
record. If the evidence excluded is oral, the
offeror may state for the record the name and
other personal circumstances of the witness
and the substance of the proposed testimony.

Rule 133: Weight and Sufficiency of Evidence

(Quantum of Evidence)
Evidence on motion (Rule 133, Section 7)
- When a motion is based on facts not appearing of
record, the court may hear the matter on affidavits or
depositions presented by the respective parties, but
the court may direct that the matter be heard wholly
or partly on oral testimony or depositions.
Proof Beyond Reasonable Doubt

A kind of evidence proving a moral certainty,

which is a degree of proof which produces
conviction in an unprejudiced mind.
Clear and Convincing Evidence
- An evidence which produces in the mind of a
trier of fact A FIRM BELIEF OR CONVICTION
as to the allegations sought to be
established.
Preponderance of Evidence
- Superior weight of evidence on the issue.
Substantial Evidence
- An amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion.
Circumstantial Evidence
- An evidence which proves a fact in issue
through an inference which the fact finder
draws from the evidence established.
How to Prove Conviction using Circumstantial
Evidence: (People v. Valiong)
a. There is more than one circumstance.
b. The facts from which the inferences are
derived are proven
c. The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt.
Notes:
1. If asked whether there is an instance of a
court proceeding that merely requires
substantial evidence: WRIT OF AMPARO, as
it is expressly provided under the rules on the
Writ of Amparo.
2. If asked whether there are instances in
crimpro that do not require proof beyond
reasonable doubt:
a. In a petition for bail, the quantum is
preumption great, meaning CLEAR
AND CONVINCING EVIDENCE.
b. Under the Rules of Environmental
Procedure, if you file a motion to
dismiss based on Strategic Lawsuit
Against Public Participation, the
movant shall prove the existence of
SLAPP by substantial evidence. The
person filing the action assailed as SLAPP

shall prove by preponderance of

evidence that the action is not a SLAPP.