Pelaez Moot Court - Evidence Transcript Team 2015-2016

1. GETTING STARTED (DEFINITION OF TERMS AND GENERAL Violation of Anti-Wiretapping Act

PRINCIPLES) Conversation bet 2 criminals discussing a crime, without
consent of parties to the conversation, the police tapped their
I. PRELIMINARY MATTERS phones in violation of the Anti-Wiretapping Act, their voices
can be heard discussing the last details of the crime, its true,
A. Evidence as defined by the Wevised Wules on Evidence (like Pres. Arroyo talking to Garcillano, who would mistake the
fact that it was really Arroyo and Garcillano talking of an
Rule 128 election offense) but because of violation of the Anti-
Section 1. Evidence defined. Evidence is the means, sanctioned by Wiretapping Act, it may not be admitted and considered by the
these rules, of ascertaining in a judicial proceeding the truth court in a court proceeding
respecting a matter of fact.
All these emphasize the requirement that for evidence to
B. Evidence and Proof be considered as such, it must be sanctioned, or to put it in a
different light, it must not be excluded specifically by the Rules,
1. Evidence should be distinguished from proof the Constitution or any special law.
Evidence Proof
- A means, a tool to an - The end result of evidence 3. Evidence, by definition, only applies to judicial
end - Conviction or persuasion formed in proceedings.
- A means to establish the mind of a judge because of - Meaning court proceedings
proof evidence
- What establishes or - The conviction, the perception that TAKE NOTE: But not all are governed by the Rules on Evidence,
achieves proof; if your decides the case whether for or because ROC, Rule 1,
evidence passes the against the party formed after Section 4. In what case not applicable. These Rules shall not
test of admissibility, appreciating the means, the apply to election cases, land registration, cadastral,
weight and sufficiency, evidence naturalization and insolvency proceedings, and other cases
rest assured it will not herein provided for, except by analogy or in a suppletory
produce the desired character and whenever practicable and convenient.
proof
These proceedings are actually judicial in nature but the ROC do
2. Not all sources of information are considered evidence not strictly apply by express provision of the Rules.
because evidence is precisely a source of information,
knowledge, to be used by the court in disposing of the Rules on Evidence applied to Non-judicial Proceedings
issue What about non-judicial proceedings like administrative
proceedings, proceedings before quasi-judicial or quasi-
Only sources of information which are legislative bodies, those before various government agencies
sanctioned by the ROC, meaning a source of information like SSS, NLRC, Pollution Adjudication Board, DARAB, etc.? They
not excluded by the Rules (inadmissible), such as: also have their own proceedings.
Those before the Office of the Public Prosecutor where
Chismis you file your complaint, criminal case, for preliminary
This could be a very interesting, exciting source of investigation, also a proceeding. What rules of procedure,
information; can trigger a revolution; can destroy relationships, specifically on evidence, govern the proceedings before these
family; powerful source but under Rules, not sanctioned, cant non-judicial agencies? Since the rules on evidence dont strictly
be admitted for court proceedings, specifically excluded by apply, their own rules of procedure apply in their own
hearsay evidence rule as it is information provided by someone proceedings. These agencies have their own internal
who has no personal knowledge as to the truth or falsity of the procedures. But the rules on evidence may also apply to a
statement. certain extent by analogy or in a suppletory character
whenever practicable or convenient
Illustration when their rules are silent on the matter
Mr. Miralles bragging he was able to sleep with Ms. Yap when application of rules on evidence are not
last night, it was a very exciting, wild and wet night, and
contrary to their own rules
someone picked this up, Mr. P, who chismosa as SHE is,
when application of ROC would promote
spread the chismis like wildfire to everybody in the
convenience
campus
but again application should be justified by convenience and
practicability.
Coerced confession
Mr. Miralles accused of raping Ms. Cabardo; true that he
So primary rule: they are governed by their own prescribed
did and when he was arrested the police tortured him and so
rules.
he confessed to the truth of his involvement, he provided the
police with the gory details of the rape. Its true but because
info was obtained through force or torture prohibited under
the Constitution, excluded/not sanctioned by the Rules, it cant
be used as basis for any courts finding or resolution

1
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Proceedings in Preliminary Investigation
Lets go to the proceedings before the Office of the
City/Provincial Prosecutor or the DOJ in cases undergoing
preliminary investigation. This has been an ever recurring issue.
When you practice, its not uncommon for you to
experience a resolution issued by a public prosecutor who
conducted the PI saying the defense interposed by the
respondent is evidentiary in nature which is best threshed out
in a full-blown trial on the merits. Thats their easiest way out.
If the investigator doesnt like you, he can always deliver a one-
knockout-punch against you by invoking that oft-repeated,
over-abused resolution.
In the meantime, an Information is filed in court, a
Warrant of Arrest is issued, and your client goes to jail. So even
if your defense is really valid and meritorious, the prosecutor
can close his eyes and proceed with the case. In the meantime,
your client detained, the trial in court proceeds, after years of
litigation, eventually, because you really have a good, valid and
meritorious defense, your client gets acquitted. But at what
cost? Your client has been jailed for 5 years because your
defense is evidentiary in nature.
That has always been my complaint before the OPP
because in practice, you cant be friends with everyone. If the
prosecutor likes you, your face or your client, he would also
pass upon the merits of the defense and in the process apply
the rules on evidence. They would say that the evidence against
the respondent is hearsay and therefore it cant be a basis for
the finding of probable cause and thus it should be dismissed.
Good if thats the way the prosecutor resolves the case and
youre the respondent; bad if youre the private complainant. If
you are the private complainant, always hammer the principle
that the defense is evidentiary and therefore it should be
threshed out in a full-blown trial on the merits. Let the court
decide the admissibility, the credibility.
In other words, this reasoning common among
prosecutors is to the effect that evidentiary rules have no place
in preliminary investigation proceedings. Its the courts duty to
determine the admissibility or the weight or sufficiency of
evidence of the parties. Their (the prosecutors) only duty is to
determine probable cause, as if saying that the determination
of probable cause does not necessitate the application of the
rules on evidence.
But take note that the OPP performs a dual function: when
the prosecutor conducts PI, he assumes the duty of a judge.
Hes supposed to be neutral, not supposed to lawyer for either
of the parties because he is supposed to be a judicial officer in
that context. He is expected to observe the cold neutrality of a
judge. Thats precisely the essence of PI.
I always have this notion that when the public prosecutor
performs his function as a judge in a PI proceeding, then the
rules on evidence should be applied in the performance of that
function and the determination of probable cause. So I always
argue that the rules of hearsay evidence, res inter alios acta,
parole evidence, all these rules provided for under the ROC or
the rules on evidence, take effect in a PI proceeding. So the
prosecutors cannot turn their backs or close their eyes if the
2
evidence is really excluded by the rules. The prosecutor should
only resolve the case on the basis of what is admissible.
The Estrada Doctrine
But theres a new development now which I think does not
look kindly at me. Theres the case of Sen. Jinggoy Estrada vs.
Office of the Ombudsman decided January 2015.
You remember the torrent of controversy generated by
Napoles regarding the 10 billion PDAF dubbed as the mother of
all scams. As an offshoot to this, so many senators were
charged with plunder before the Office of the Ombudsman, one
of whom was Sen. Jinggoy Estrada.
FACTS
So two separate complaints for plunder were filed against
him and 18 other co-respondents under the charge of
conspiracy. Upon service of subpoena, Sen. Estrada through
counsel filed a counter-affidavit. The respondents were
represented by different lawyers. When Sen. Estrada learned
that some of his co-respondents, in their respective counter-
affidavits, made some incriminating allegations against him, to
protect himself, he moved that he be furnished with copies of
those counter-affidavits for him to know and controvert if
necessary.
ISSUE
But the Office of the Ombudsman denied his request
prompting him to go to the Supreme Court where he said that
denial of his request is a denial of his right to due process
because, basic, whatever damaging evidence, allegations or
statements against you, you should be given the fair
opportunity to know, to confront and to respond; but how
could Sen. Estrada do this if, in the first place, he is not given
copies of the counter-affidavits filed by the other co-
respondents?
RULING
And you know how the SC addressed this issue? It said
Estrada was wrong, that under the ROC, particularly the rules
on criminal procedure, and the Ombudsmans own rules of
procedure, the only right of the respondent is to be given a
copy of complaint as well as the affidavits of witnesses or
documents in support of the complaint. Theres nothing in the
rules which says that a respondent is entitled to be given copies
of the counter-affidavits of his co-respondents.
The SC went on to say that the only duty of a respondent
who files a counter-affidavit is to furnish the complainant with
a copy of his counter-affidavit. Theres nothing in the rules that
makes it the duty of a respondent to furnish his co-respondents
with a copy of his own counter-affidavit. So the SC said Jinggoy
has no right to be furnished with copies of the counter-
affidavits of the other co-respondents, the only right he has is
to be furnished a copy of the complaint and the supporting
affidavits and documents, no more, no less.
So there can be no violation of due process for not being
furnished copies of the counter-affidavits of the respondents
because the rules, in the first place, do not give such right.
Thats not so relevant for purposes of evidence; thats
relevant in your criminal procedure.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Because of the denial of the Court for Jinggoy to be
furnished copies with the counter affidavits of the other
eighteen respondents, Jinggoy argued: if you dont furnish me
copies with the affidavits that contain incriminating or
damaging allegations against me, it should not be used against
me or prejudice me. I was not given an opportunity to
controvert it, the affidavits are hearsay. It is basic that if an
affidavit of the party against who m it is offered is not given the
opportunity to confront and cross examine the affidavit, thats
hearsay.
But the Supreme Court said: For the second time you are
wrong. For purposes of preliminary investigation, hearsay
evidence may be a basis for a finding of probable cause. Unlike
in a judicial proceeding where hearsay is inadmissible and lacks
probative value. If objected to seasonably and timely, it may be
admitted by the court but even if it is admitted by court due to
waiver, the court is not supposed to give it credence. It is
completely unreliable.
But in this ruling of the Supreme Court, it makes the
difference between arrest and liberty. Supreme Court said that
for the purpose of determining probable cause in a preliminary
investigation proceeding, what is only required is opinion and
reasonable belief that a crime may have been committed and
respondent is probably guilty thereof. Any finding of probable
cause is temporary in character because the next logical step is
a case will be filed in court and trial ensues. During the trial, the
court will determine if the accused is guilty beyond reasonable
doubt. It is the temporary character of the finding of probable
cause that justifies this ruling of the Supreme Court. RULES OF
EVIDENCE DO NOT STRICTLY APPLY IN PROCEEDINGS BEFORE
THE PUBLIC PROSECUTOR IN RELATION TO PRELIMINARY
INVESTIGATION.
Sirs opinion: This defeats the purpose of preliminary
investigation because it is supposed to screen and separate the
unfounded cases from the meritorious ones. What would
prevent an unscrupulous complainant to file a case in the office
of the public prosecutor and flood it with hearsay evidence?
When there is finding a probable cause, a warrant of arrest will
be issued. The respondent goes to jail. Even if respondent is
acquitted, damage has already been done. This is the sorry
state of our justice system.
Cases where the rules of evidence were NOT strictly applied:
Reyes vs. CA
Bantolino vs. Coca-Cola Bottlers Philippine Inc.
Ong Chia vs. Republic of the Philippines
Sasan vs. NLRC
4. Truth
Truth here is not God-given. This is mans version of truth.
Universal truth or Moral truth-
The truth when a statement coincides with reality. If you
cheat on your girlfriend or your boyfriend, that is the Truth.
Legal Truth
That which the evidence says it is. Even if you are indeed
morally guilty because you actually and in reality cheated on your
girlfriend as in fact you were caught kissing with the other. But in the
3
context of legal truth, so long as you do not admit it, you are
innocent because the evidence says you are not guilty.
5. Respecting a Matter of Fact
Litigation is a contest of facts. Evidence is important
because they are issues of facts. The relevance of evidence comes
from factual issues, not legal issues which are solved by the court
without the need of evidence.
In every litigation, there are at least two versions. The
initiating partys version and the defending partys version. At times,
there is a third- the version: the courts version.
It can happen that in a controversy, there is no factual
issue.
The rules of civil procedure provides for the remedy if there is no
factual issue involved:
Judgment on the pleadings or Summary judgment
It allows the court to render judgment without having to
undergo trial where evidence is presented. The pertinent law is
applied and judgment is rendered because there is no more genuine
issue of facts.
Q: When is there an issue of fact?
A: The allegation of one party is DENIED by the other party.
Q: How is denial made?
A: It depends.
Criminal case: By a plea of not guilty
Civil case: Denial is done in two ways:
a. Specific denial- by stating that the allegations are not true.
truth being this one.
Illustration
If plaintiff says that defendant owes him 1 million. Defendant denies
it by saying he does not owe plaintiff anything.
If complaint is based on an actionable document, it must be
specifically denied under oath by saying the document (e.g.
promissory note) is a forgery.
b. Lack of knowledge sufficient to form a belief as to the truth or
falsity of the allegation
There are as many issues as allegations are denied by the
party. There is always a main issue but there are sub-issues.
C. Factum Probandum and Factum Probans
When we talk about factual issues, it signifies a relation
between two facts: Factum Probandum and Factum Probans
Factum Probandum: ULTIMATE FACT to be proved. It is proved by
employing factum probans
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Factum Probans: EVIDENTIARY FACTS- the material evidence used in
establishing factum probandum
Illustration
In an action for collection of sums of money, it is alleged
that defendant borrowed money from plaintiff in the amount of
100K, promising to pay in three months with interest. But despite
lapse of the time and repeated demands, defendant failed to pay.
That is the ultimate fact which is enough in preparing your
complaint. But to prove your cause of action, you need the factum
probans to substantiate your factum probandum. During the trial,
present evidentiary facts such as the testimony of a witness,
promissory notes, demand letters, etc.
GOMEZ vs. GOMEZ
FACTS
Consuelo had two brothers- Angel and Ariston Sr. Ariston Sr. has
three children. Angel has one. Consuelo passed away. The heirs
scrambled for a share of her estate. It was discovered that Consuelo
purportedly executed two separate deeds of donation over some
properties in favor of the children of her brother Ariston Sr. But
Angels son got nothing. Feeling left out in the estate of Consuela,
the child of Angel file d a case in court, claiming that the deeds were
forgeries.
He theorized that the signature of Consuelo was genuine in the
deeds but he alleged that these documents were signed in blank and
the body of the donation was intercalated on the document later on.
That is the factum probandum of the plaintiff. It was according to
him a forgery.
As for his factum probans, he adverted to a fact that the donors tax
was purportedly paid after the death of Consuelo, how could
Consuelo have paid the donors tax after her death? The document
must be falsified.
Supreme Court said: Factum probans is insufficient to prove factum
probandum.
Factum Probandum is forgery.
Factum Probans is the fact that the donors tax was paid after the
death.
SC eventually held that the payment of the tax after the death was
not established but assuming that it can be established, it does not
necessarily follow that the deeds of donation were falsified. As a
matter of fact, one of the witnesses testified that the donors tax
was paid in the form of a check and such check was issued by
Consuelo during her lifetime. It was only delivered to BIR for
payment after the death. Even if it can be established the check was
delivered to the BIR after the death, it does not prove forgery.
D. Classification of Evidence
1. Direct Evidence and Circumstantial Evidence
Direct Evidence
Evidence that directly proves the fact in issue without the need for
an inference from the other established facts
4
Illustration
The testimony of an eyewitness who directly saw the fact of killing
the victim (i.e. I saw X stab Y to death here, this proves the fact
in issue where it is X who killed Y and that there is no need for any
other evidence)
Circumstantial Evidence
This can also prove a fact in issue but, only indirectly because it
needs inference from another set of facts such that, without these
other facts, this canot prove the fact in issue
There are various forms/classifications:
i. Antecedent
These are circumstances that occurred or existed before the
incident, which is the matter at issue in the case
Examples:
Motive:
Illustration
Xs motive in killing Y is a circumstantial evidence to prove
that he killed Y BUT, motive alone will not be sufficient as
you need to establish another fact. Say for example, you
need to establish that a day before the killing, X and Y had
an altercation and X threatened to kill Y. Thus, from these
established fact of a heated altercation, you could
establish the fact the antecedent circumstantial evidence
of motive, which could be relevant to prove that X indeed
killed Y. Conversely, without proff of that alleged violent
altercation between X and Y, motive will not be
enough/relevant
Moral Character of the accused:
Illustration
There was a case of rape and there was no actual witness
of the commission of the crime but along the
neighborhood, Mr. Miralles is known to be a serial rapist.
In the past, he was even convicted of acts of lusciousness,
child abuse, adultery, and rape. The fact the he is known
to be a monstrous sexual offender is moral character, BUT
such does not directly prove that he was the one who
raped the victim.
ii. Contemporaneous
Facts/ circumstance that existed or occurred at the same time with
the incident
Examples:
Opportunity to commit the crime
Illustration
In a case of murder and someone saw Mr. Miralles running
away from the crime scene. This is contemporaneous
circumstantial evidence because he was at the crime scene
around the time that the incident happened. This can be
admissible that indeed, Mr. Miralles killed the victim
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Incompatibility
Illustration
Mr. Miralles is charged with rape and that the victim
claimed that it was a violent rape and that she suffered
multiple lacerations. With this, he can always prove that
he is impotent, he could not have committed such crime
as described by the victim
Alibi
Illustration
The killing took place in Cebu and that the accused can
prove that around the time that the crime was committed,
he was in Jolo, a hundred miles away. This does not
necessarily disprove that the accused is indeed guilty, but
it can indirectly prove that since he was a hundred miles
away at the time the crime happened, he could not have
committed the crime
iii. Subsequent
Facts or circumstances that occurred after the happening of the
event which is the subject at issue in the case
Examples:
Flight
Illustration
If after the commission of the crime, the accused suddenly
left the country. The Supreme Court has said that, the
guilty flees even if no one pursues him, but the innocent is
as bold as the lion.
Fingerprints lifted at the crime
Footprints
Presence of nitrates in the body of the suspect
When the suspect left the condom in a case of rape and
the condom perfectly fits
2. Negative and Positive Evidence
Positive Evidence
It is positive when a witness asserts that a certain set of facts exists
or that a certain event took place
Illustration
The witness testifies that: I saw Y stab X.
Negative Evidence
When a witness states that a certain set of facts do not exist or that
a certain event did not happen
Take note: between positive and negative evidence, all
things being equal, positive evidence is more favored by the court.
Thus, the one who asserts is favored than the one who denies.
The Supreme Court has reasoned out that: If a witness
says that a certain set of facts do not exist or that a certain event
didnt take place, it is possible that the witness may just have
5
forgotten that such facts exist. In other words, when someone says
that something did not happen, its possible that something really
happened but the witness just forgot about it. On the other hand, it
would also be impossible for a witness to remember something that
did not exist. Thus, if a witness testifies/affirms that a certain fact
exists, he would thus be compelled to provide certain details of the
event which would be very difficult to concoct. Thus, when a witness
asserts that an event happened, in the order of things, the
probability of it being true is higher than one who says that it did not
happen.
This is why when alibi is presented as a defense, it is rare
that the court would favor such, unless you have an airtight
evidence that say, it is very impossible for the accused to be at the
crime scene at the same the crime happened
3. Corroborative and Cumulative Evidence
Corroborative Evidence
An additional evidence, of different kind/nature BUT tending to
prove the same point.
Illustration
In a crime of rape, the testimony of the victim (testimonial evidence)
may be corroborated by the testimony of the attending physician
(expert/scientific evidence) that there was vaginal injury/laceration.
Here, the testimonial evidence of the victim and the scientific/expert
evidence of the attending physician are different kinds/nature of
evidence but they tend to prove the same fact that the crime of rape
happened
Cumulative Evidence
Also an additional evidence, BUT, they are of the same nature/kind
as with the other evidence earlier presented
Illustration
In a murder case, there were 5 witnesses who saw the actual killing,
the presentation of the 1st witness and then of the others are the
same eyewitness accountsso the same nature tending to prove
the same fact of murder
Take Note that there may be instances also that you may
be forced to dispense with your additional evidence priving the
same point, especially if the judge doesnt want to prolong the case.
Corroborative evidence, do not dispense with
Where supposing, you both have cumulative and
corroborative evidence, as a matter of practiceyou should not
dispense with corroborative evidence because this is evidence which
is different in kind than the one already presented beforehand. Such
that, altogether, your evidence is stronger as there are different
kinds of evidences from different perspectives (say the testimony of
the victim and the report of the attending physician- taken together
would be stronger).
Cumulative evidence, dispensable
On the other hand, cumulative evidence, so long as the
evidence you have is credible, they do not really add value to the
Pelaez Moot Court - Evidence Transcript Team 2015-2016
evidence already presented because they are just of the same kind.
Such that, the testimony of one witness is just as good as the
testimony of the other proving the same fact. It is not the quantity
BUT, what matters is the quality of your evidence. So, example, if
you have 3 available witnesses with the same testimonies, you can
dispense of the other 2 and present just 1. But, never dispense with
corroborative evidence, it will weaken your case
4. Prima Facie and Conclusive Evidence
Prima Facie Evidence
This is evidence which, standing alone is sufficient, UNLESS
controverted by a contrary evidence.
This is enough if not controverted.
Illustration:
In a collection suit, the testimony of the plaintiff who claims that, on
a said date, the defendant borrowed him money and executed a
promissory note.this type evidence, allowed to stand
uncontroverted would be sufficient to prove that indeed, the
defendant is indebted to the plaintiff
Conclusive Evidence
Something that cannot be controverted/ something that does not
allow a contrary evidence
Illustration
The evidence of non-paternity established by DNA test.
Thus, in a paternity suit where the issue of paternity is resolved in a
DNA test and such yielded a negative result. Then this negative
result is a conclusive evidence of non-paternity and that this
forecloses the introduction of any contrary evidence.
5. Relevant, Material, and Competent Evidence
a. Relevant Evidence
Whats a relevant evidence? An evidence is relevant if it induces
belief as to its existence or non-existence. There must be a
relationship between the two. The evidence must be related to the
proposition sought to be established. In such a way that it may
prove or disprove a fact in issue.
Test of Relevancy
What is the test of relevancy? It is logic, common-sense
and human experience. The test there is, is it logical to suppose that
evidence X is equal to Fact Y? Is it in accordance with common sense
that evidence X equals fact Y. Or Is it in accordance with human
experience that evidence X equals Fact Y? Its always about
reasoning.
Illustration
In a prosecution for reckless imprudence resulting in
homicide arising from a vehicular accident. Whats the issue there?
Whether or not the accused is guilty of fault or negligence causing
damage to the victim. Its about the existence or non-existence of
negligence on the part of the accused.
Thats the proposition sought to be established that the
factum probandum. Now what would be your factum probans to
6
prove that the driver is indeed at fault? One is maybe the drive was
drunk, so you need now to prove that he was drunk, you present the
device that can test the presence of alcohol in his system, witnesses
to prove that few minutes before the accident the driver attended
the party and consumed bottles of beer.
Question, is evidence that the drive was drunk at the time
of the accident relevant? Does the fact of his being drunk have any
relation to the issue of whether or not he was negligent? To answer
this you resort to logic. Is it logical to say that a drunk driver is likely
to be negligent? Logic and human experience would tell us yes, if the
answer is yes then the evidence of him being drunk is relevant
because it has a relation to the fact in issue as to induce belief in its
existence or non-existence.
b. Material Evidence
It is an evidence to prove a fact in issue. In other words if the
evidence, if the fact sought to be established by the evidence is an
issue in the case that evidence is material. Conversely if the
evidence is presented to prove a fact which is not an issue to the
case is immaterial.
Test of Materiality
What is the test for materiality? It is substantive law. You
look at the law if that fact is an issue. Or if not the law, the rules of
pleadings, is it an issue in the case based on the pleadings of the
parties.
Illustrations
Prosecution for statutory rape.
Mr. Miralles testifies that it was a consensual sex between him and a
grade 4 girl. You can always object to the testimony of Miralles
because substantive law has it that in statutory rape consent is not
an issue. You can say objection your honor, that evidence is
immaterial
Prosection for BP 22
The gravamen of the offense is the issuance of check which is not
sufficiently funded. The circumstances of issuing a check is not
material whether the check was issued for purposes of
accommodation or with/without consideration. What is punished is
the fact of issuance even if it is not funded. Now if prosecuted with
BP 22 and his defense he testifies that it was with no consideration
because it was issued as security for the loan. You can always object.
The purpose of the issuance is not material so long as issuance is
established and the fact that it was unfunded.
Now by their respective concepts, it is obvious that
relevance and materiality are different evidentiary concepts. They
are independent from each other, some authors suggest that there
are evidences which are considered as relevant but immaterial /
material but irrelevant.
Relevant but Immaterial.
In a complaint for sum of money, based on actionable
document i.e. the promissory note. Under the Civil procedure, the
defendant is required to specifically deny under oath the
genuineness and due execution of the note if that is his defense.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Failure to deny under oath results in an implied admission of the
genuineness and due execution of the note. Whats the effect? Any
defense that is inconsistent with the genuineness and due execution
is not allowed.
Because it ceases to be an issue so during the trial the
defendant in his answer failed to deny under oath, in his answer he
stated the note was a forgery. So there was no valid effective denial
so implied admission. During the trial, the defendant may not be
allowed to present an evidence say for example an NBI document
examiner testifying that the signature of the promissory note is a
forgery. Because forgery is not an issue when there was failure to
deny under oath.
Forgery is relevant because it tends to prove the allegation
of a loan. So for purposes of the issue of whether or not the
defendant is indebted to the plaintiff is relevant evidence. But it may
be objected to because it is immaterial because by the rules on the
pleadings whatever is admitted may not be controverted.
Material but Irrelevant
Mr. Miralles is charged with Robbery, the prosecution
theorizes that Mr. Miralles is very poor and his poverty is the
motivating factor that drove him to robbery. Mr. Miralles denied
that he is impoverished. He had enough daw, because for him life is
so simple. Here comes the prosecution presents the friend of Mr.
Miralles who will testify as to his financial state of being poor. If
Miralles denies this, then it becomes a factual issue. But is it
relevant? We have to test the admissibility of this evidence by the
parameters of relevancy.
So youd ask is it logical to say that the fact he is poor he
must be guilty of robbery. Is it common sense or consistent with
human nature that a poor man is driven to commit robbery. The
answer may be yes or no depending on the appreciation of the
judge.
Q: In our jurisdiction, what are the requisites of admissibility of
evidence?
A: Under our own ROC, there are only 2 requisites : 1. Relevancy 2.
Competency (not excluded by the rules or laws).
Conspicuous by its absence is materiality of evidence.
Does it mean therefore, so long as it is relevant or
competent even if it is immaterial it is admissible? But you may have
witnessed the impeachment proceedings where lawyers object to
the relevancy and materiality of evidence as if equating one for the
other.
So whats the rule in the Philippines? Justice Hererra in his
book is of the mind that the concept of relevancy has two
components: (1) Materiality and (2) Probative value
IOW, for evidence to be relevant it has to be material and
has probative value. Material if it is directed to prove a fact in issue.
Probative value means that it has a relation to the fact in issue as to
induce belief the existence or non-existence.
In the Philippines , materiality is subsumed in the context
of relevancy that is why in our rules the only require mentioned
there is relevancy and competency. So, for practical purposes, if the
7
evidence is immaterial, you object to the ADMISSION of evidence on
the ground that it is immaterial, or better still, on the ground that it
is irrelevant, in this context it is the same. So that is how to reconcile
the concept of relevancy and materiality vis--vis the rules on
admissibility. You might wonder there that materiality is not
mentioned there as a component of admissibility.
For cases illustrating the principle of relevancy, read Lopez
vs. Heesen and State of Missouri vs. Bull. These two cases
demonstrate the principle of relevancy.
LOPEZ VS. HEESEN
FACTS
This is about the gun, the hunting rifle where a hunter went to
hunting and it was claimed that the rifle suddenly discharged hitting
Mr. Lopez. So Mr. Lopez filed a suit against the hunter and later
impleaded the manufacturer of the rifle. It was claimed that the
safety device of the rifle is defective because it suddenly moved
from safety to fire. In support of the defense of the gun
manufacturer that the design of the safety device was not defective,
they tried to present the testimony of witnesses to prove the
reputation of two companies. One company was the manufacturer
of the device itself. The other company was the manufacturer of
similar guns that used the same safety device. The collective
purpose for introducing the evidence was established that this was
an isolated case. These companies were never sued at any time
involving complaint of defective safety device.
ISSUE
Whether or not to prove the reputation of the manufacturer of the
safety device and the manufacturer of similar guns was relevant and
therefore admissible.
RULING
The Supreme Court there ruled that the evidence was relevant. It
can prove that there are no other similar complaints at any other
time is logical. To say that the design of the safety device is not
defective otherwise they would have been sued for similar
complaints. LOGIC!
STATE OF MISSOURI VS. BALL
FACTS
This is about a robbery of a jewelry store. 3 weeks after the robbery,
one of the suspects got arrested and during the arrest some items
were recovered and among which were some cash from the pocket
of Mr. Ball. The prosecution theorized that cash recovered from Mr.
Ball were taken from the robbery.
ISSUE
It was claimed that Mr. Ball was recently released from penitentiary
and therefore could not have earned income from a legitimate
profession other than robbery. But the prosecution was not able to
prove that the money really came from the jewelry store.
RULING
The Supreme Court said it was not relevant. The presence of cash in
the pocket of Mr. Ball had no such relation to the fact in issue of
Pelaez Moot Court - Evidence Transcript Team 2015-2016
whether or not he was guilty of robbery because of the lack of
connection. It does not follow that just the fact that he had some
cash in his pocket, it doesnt necessarily follow that he was the one
responsible for the recent robbery. There was no evidence that the
same cash found in his pocket were the very same cash from the
jewelry store. This case demonstrates a situation where the
evidence is NOT relevant as opposed to Lopez vs. Heesen.
Q: How does evidence serve the purpose of ascertaining truth?
A: Evidence serve its purpose if it passes through the test of
admissibility and sufficiencyweight of sufficiency.
Weight of Sufficiency
Admissibility has something to do with being relevant and
competent. Therefore, weight of sufficiency is different. What do
you achieve regarding the proponent of evidence? What do you
achieve if your evidence is admitted because it passed through the
test of relevancy and competency? As a proponent, theres only a
little achievement that you get from your evidence being admitted.
But it doesnt stop there.
The admission of your evidence must be followed through
by passing the test of weight and sufficiency otherwise its useless
because what you only achieved if the evidence is admitted because
it passed through the test of relevancy and competency is the fact
that the court will consider your evidence. Thats the most
achievement that you can get there. You are assured that the court
theoretically---theoretically the judge is supposed to consider the
evidence. Because if the evidence is excluded because it failed to
pass through the test of relevancy and competency, then the court is
not even supposed to look at it. Its nothing! Its non-existing!
But if it is admitted, it is recognized that it is there. It is the
obligation of the judge to consider. But being admissible is one
thing. Being sufficient and credible is an entirely different thing.
Because the province of weight and sufficiency pertains to its
tendency to persuade or convince.
In other words, while your evidence is admissible because
it is relevant and competent, the question that you need to answer
after it is whether it is sufficient to convince the judge. Is it sufficient
to persuade the judge so the judge will make a finding on the basis
of the evidence? So thats the province of weight and sufficiency.
Weight and sufficiency pertains to the evidences capacity to
convince and persuade. Even if it is admissible, it does not
necessarily follow that the court will believe it.
Illustration
Say for example, the testimony of an insane. The rule on
testimonial evidence is that so long as the witness is sane at the time
of the giving of testimony, he is qualified even if he was insane at
the time of the incident that he claimed that he had witnessed but if
it is proven that at the time he is called to the stand, he is already
sane, he has regained his sanity, he is qualified to testify. Meaning,
his testimony is admissible.
But the problem there is on the weight and sufficiency
because no judge would give it credence. While the testimony is
allowed because it is not excluded, but the judge will never give it
8
credit. The court will not rely on it. The court will not believe in it
and therefore the court is unlikely to come up with a finding of fact
on the basis of the testimony of the insaneof the witness who is
insane at the time of the incident.
Admissible but lacks weight. Meaning, it does not
persuade. It does not convince the judge. So if the witness claims
that he saw Mr. Miralles rape Ms. Cabardo, that's admissible. But
whether or not the judge will convict Mr. Miralles on the basis of the
testimony of the witness who was insane at the time he supposedly
witnessed the rape, the judge under normal circumstances unless
the judge is more insane than the witness, will not give it any
credence.
Or suppose the witness is the wife of the accused. The
wife is testifying in favor of the husband. Under the Marital
Disqualification Rule, the wife may not testify in favor of the
husband unless the husband consents. Assuming the husband
consents because his wife is his star witness. Under the Marital
Disqualification rule, the wife may be allowed to testify because the
marital disqualification does not apply with the consent of the
husband being given.
So rule on admissibility, the testimony of the wife is
admissible. But whether the court will believe or give credence to
the testimony of the wife given her obvious bias in favor of the
husband, thats another thing. Weight and sufficiency is another
thing. For evidence to serve its purpose, it must not only be
admissible but just as important it must be sufficient and credible. If
you have this, you have great chance at winning. If your evidence is
sufficient and credible, the judge is likely to give it credence.
THREE KINDS OF ADMISSIBILITY
1. Multiple Admissibility
The court shall not consider any evidence unless it is
formally offered. Not all objects or documents you submitted to the
court may be considered by the court. Only evidence which are
formally offered that can be considered by the court. So it needs
formal offer.
In the offer, the proponent MUST SPECIFY the purpose for
which the evidence is being offered. Because an evidence is
admissible for one purpose but inadmissible for another purpose.
You have to specify. The court will not be able to rule on the
admissibility of the evidence if you will not specify. If the evidence is
offered but no specific purpose is indicated, the rule there is the
court will not consider the evidence at all. So what has it got to do
with Multiple admissibility? This was illustrated in the case of People
vs Yatco.
PEOPLE VS YATCO
FACTS
This involved the prosecution of murder against three accused. Mr.
Consunji, Mr. Panganiban, and third unidentified accused. During
the trial, the prosecution presented an NBI officer who testified that
Mr. Consunji made an extrajudicial confession when he was the one
who assisted him. While the NBI officer was testifying, the counsel
for accused Panganiban objected on the ground that the confession
of Consunji in so far as it implicates Panganiban is inadmissible
under the Res inter alios acta rule. It states that the right of a party
Pelaez Moot Court - Evidence Transcript Team 2015-2016
may not be prejudiced by the act, declaration or omission made by
another. So the confession of Consunji admitting their liability, their
participation in the crime including Mr. Panganiban violates the Res
inter alios acta rule which is an exclusionary rule. So it was argued by
the lawyer of Panganiban that in so far as Mr. Panganiban is
concerned, the extrajudicial confession of Mr. Consunji is not
admissible.
ISSUE
The court on the other hand excluded the testimony of the NBI
officer in so far as the extrajudicial confession of Mr. Consunji but
not on the ground invoked by the counsel of Panganiban but on an
entirely different ground. The judge said that under the rule, the
confession of the conspirator is inadmissible unless conspiracy is
established by evidence other than the confession itself. So the
testimony of the NBI officer in so far as it tries to establish the
extrajudicial confession of Consunji was cleared out. This prompted
the prosecutor to go to the Supreme Court.
RULING
It was error for the trial court to exclude the extrajudicial confession
of Mr. Consunji because under the principle of Multiple Admissibility
while the extrajudicial confession of Mr. Consunji is admissible in so
far as Panganiban is concerned under the res inter alios acta rule,
the same extrajudicial confession is admissible against the
confessant himself, Mr. Consunji. So it was error for the trial court to
totally exclude the extrajudicial confession of Mr. Consunji.
But the very least, the court should have allowed, should have
accepted, should have admitted the extrajudicial confession of Mr.
Consunji in so far as against himself although inadmissible as against
Panganiban. In other words, this is the kind of evidence which is
admissible for one purpose in so far Consuji, the admitter BUT
inadmissible for another purpose in so far as Panganiban is
concerned. That illustrates the principle of Multiple Admissibility.
UNIWIDE SALES VS. TITAN-IKEDA
FACTS
The testimony of a project engineer was admitted for purposes of
establishing the fact that the projects were completed but excluded
in so far as to prove the fact that the completion was delayed.
RULING
The testimony of the project engineer was intended to prove the
fact of completion. It was not offered to prove the fact of delay. So it
cannot be used to establish the fact that there was delay.
2. Conditional Admissibility
It is a rule of evidence which applies when the evidence is at first
appears to be irrelevant but the proponent intends to establish its
relevance eventually by presenting other evidence. Before the other
evidence is presented, the proponent is given the benefit of
conditional admissibility subject to the condition that he should be
able to establish the connection to make the evidence relevant. The
same principle is also applied in the case of People vs. Yatco.
9
People vs. Yatco
The reasoning or the justification for the trial court in
excluding the extrajudicial confession of Consunji was its thinking
that under the rules a confession made by a conspirator is not
admissible unless the conspiracy is established by evidence other
than the confession itself.
What the trial court should have done was to conditionally
admit the extrajudicial confession of Consunji subject to the
condition that the prosecution should be able to establish the
conspiracy between Consunji and Panganiban thereby giving the
prosecution to establish the relevancy of the extrajudicial confession
of Consunji as against the other.
So, if you are the proponent. And your evidence is
objected to by the other party for failure to comply with relevancy,
you can always apply/invoke conditional admissibility, and establish
the connection later. Otherwise, as a consequence if you cannot
establish the connection, your evidence will be stricken off.
3. Curative admissibility
Applies when the evidence otherwise inadmissible is erroneously
admitted by the court against a party In this rule, the other party is
given the same opportunity or is given the chance to make use of a
similar inadmissible evidence to counterbalance the damage cause
by the erroneous admission of the evidence of the party
Illustrations
Other party presented hearsay evidence and under the curative
admissible rule, you are given the opportunity to present an equally
inadmissible hearsay evidence to dispute the evidence presented by
the other party.
Examples:
Mr. M sued by his wife annulment ground is impotency
To prove the allegation, the wife testify that mr. M is
impotent together with the ex-girlfriend and both confessed that he
is hopelessly impotent. Thus, both hearsay evidence, so it is
inadmissible
Suppose the court admitted such evidence, mr. M should
be given the chance to dispute it with an equally inadmissible
hearsay evidence
Thus, Mr. M can present the testimony of his other ex-
girlfriends that he is a beast in bed. Also a hearsay evidence. Curing
the damage cause by the wrongful admission of an inadmissible
evidence.
But take note, this rule will apply only if Mr. M will object to the
admission of the hearsay evidence when it was offered.
If he did not object, it will amount to waiver. Thus, the
otherwise inadmissible evidence wrongfully admitted will become
admissible.
Thus, if there was failure to object, it will amount to
waiver and the inadmissible evidence will become admissible.
Curative admissibility. Mr. M will not be allowed to present a
hearsay evidence. Since it his fault for not objecting.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Note: the court cannot on its own exclude an evidence without the
objection of the party entitled to it. The rules of exclusion shall be
invoke by the party entitled to it. It is not self-executory.
Note: in essence, curative inadmissibility is fighting fire with fire.
Since you allowed the other party to do that, you should also allow
me to do it. As long as the evidence admitted was an inadmissible
evidence, you can present other inadmissible evidence to remedy
the damage done. The purpose is to remedy the damage cause of
the admission of an inadmissible evidence.
c. Competency
3 classifications of the rules of exclusions:
1. Under the Constitution:
a. Article 2 - Right against search and seizure evidence
obtained is inadmissible of any purpose in any
proceeding.
b. Article 3 - Right of Privacy
c. Article 12 - Miranda Rights
d. Article 17 - Right against self-incrimination
Evidence obtained in violation of these rules will be excluded for
being a fruit of poisonous tree.
Note: jurisprudence has it that these rights can only be invoked
against the government.
If the alleged party guilty of violating any of these rights is a
private person/entity and not the government, there is no
occasion to invoke any of these rights. As such, there may be
other remedies, but not this. Sue for damages.
Marti case: the rights under bill of rights can only be invoked
against state or against any state action.
Therefore, the conclusion is, proceedings involving private
parties. Like employee vs employer, admin proceedings,
disciplinary proceedings, where the employee is alleged to have
committed a violation of the company rules, and found guilty,
the employee cannot invoke any of these rights. Since his
employer is a private person and not the government.
If the employee is under investigation, (not initiated by
government) he cannot invoke the bill of rights since the
employer is a private entity.
2. Rules of Court
a. Best evidence rule
b. Parole evidence rule
c. Opinion rule
d. Character evidence rule
e. Authentication rule
f. Hearsay evidence rule
g. Res Inter alius act
If these rules apply, the evidence is deemed to be incompetent, thus
excluded.
3. SPECIAL LAWS
10
1. Under the Constitution
Right against unreasonable search and seizure
Right of privacy
Miranda rights / Rights during custodial investigation
Right against self-incrimination
As a rule, it can only be invoked against the State.
All these exclusionary rules being rooted on the bill of
rights by the doctrine laid down in the cases of pp v marti, pp v
maqueda, waterous, pp v boncarawan can only be invoked against
the state or when the rights are alleged to be violated by the
government or its agents.
Although you have the Zulueta v ca where the SC rendered
pcs of evidence inadmissible on the ground that these were
obtained in violation of right to privacy of husband. Other than
zulueta, this doctrine has never been reiterated in any subsequent
rulings. So as it is now the prevailing doctrine is the Marti doctrine.
Take Zulueta as an isolated case. It does not establish a
precedent, to me. Otherwise, Marti and the other cases would have
been superceded by Zulueta. But take note that after Zulueta, what
was reiterated was Marti and not Zulueta.
Prevailing judicial sentiment: The bill of rights may only be
invoked against the State or its agents.
Effect if violator of the Bill of Rights is a private citizen.
So that if the party alleged to have violated these rights is
a private citizen, do not apply the fruit of a poisonous tree doctrine.
Meaning the evidence obtained is admissible. Because the fruit of
the poisonous tree doctrine applies only if this (violation of the bill
of rights) is invoked against the government. So the evidence
obtained is admissible and the person whose rights have been
violated can avail of some other remedies but not under the
constitutional remedies. The party aggrieved may file for criminal or
civil action against the violator or offender or the person who
caused him injury or damage. But not on the context on the
constitutional law on the bill of rights.
Along this context, the right against self-incrimination,
which is in the bill of rights, does not apply to proceedings initiated
by a private entity or company, like administrative disciplinary
proceedings initiated by the employer against an erring employee.
Consistent with the Marti Doctrine, the employee under
investigation may not invoke the right against self-incrimination.
Question: What about the right to due process when due process is
also one those rights mentioned in the bill of rights?
Answer: There are two concepts of Due Process.
1. Constitutional
2. Statutory something that exists based on law that requires due
process.
Statutory Due Process
Often times required in the form of notice and hearing. In
the absence of a specific law, the only due process you can think of
is constitutional due process.
In an administrative proceeding instituted by private
company or employer against an erring employee, the due process
mentioned is statutory specifically provided by the labor code.
Termination for cause must be with the compliance of procedural
due process, the twin requirement of notice and hearing.
While Marti ruling on due process under the bill of rights
cannot be invoked against the private company, what the employee
Pelaez Moot Court - Evidence Transcript Team 2015-2016
can invoke in this kind of administrative proceeding is the statutory
due process under the Labor Code.
The other rights in the Bill of rights in the absence of
statutory basis cannot be invoked against a private citizen.
Self-study: The Right against unreasonable search and seizure
especially the EXCEPTIONS!
Self-study: The exceptions in Judicial warrant.
1. Search incident to lawful arrest
2. Plain view
3. Stop and frisk
4. Customs search
5. Search on Moving vehicles
6. Consented search
7. Checkpoint
8. Searches conducted during emergency (Pp v De Gracia)
Rights during Custodial investigation or Miranda Rights
1. Right to remain silent
2. Right to counsel
3. Right to be informed of these two rights
Waiver
The rights to remain silent and to counsel may be waived.
The waiver has to be in writing and with the assistance of a counsel.
But the right to be informed of these rights cannot be
waived. Because without the third wight, aww.. right, the two other
first rights would be rendered useless.
Miranda rights, when applicable
You take note of the instances where Miranda rights may
be invoked. Not all instances of extrajudicial confession Miranda
rights are available. It is only when the person is under custodial
investigation.
So if a person voluntarily and wilfully confesses to a police
before he was placed into custody or arrested, or restrained of his
liberty, that is a voluntary extrajudicial confession. Miranda rights do
not apply. So that even when he was not assisted by counsel, that
confession admissible.
So the CRITICAL FACTOR to consider is when the
confession was made. If the confession was made when the person
is already placed in custody or restrained of his liberty in any
significant way, the rights to custodial investigation commences.
Therefore, any confession made even if voluntarily done without the
assistance of counsel cannot be admitted.
Question: What about if the suspect is already placed in custody,
arrested, deprived of his freedom of action in a significant way, but
he was not being interrogated by the police but he voluntarily
confessed?
Custodial Investigation, defined
Custodial investigation has been defined as an
interrogation conducted by the police after placing the suspect into
custody.
Two things have to be considered: the arrest (the placing
of the suspect under custody) and the interrogation conducted.
So what if he was placed in custody but no interrogation
was conducted and the suspect under custody offers to provide
incriminating information to the arresting officer. Most of the
authorities of the opinion that it doesnt matter if he was not
interrogated. The critical factor was the fact that he was placed
under custody.
11
Why? Miranda rights is required during this proceedings
because of the intimidating environment a person arrested is
subjected to. Because of this intimidating environment, the law
presumes that the suspect may not willingly and intelligently supply
information but incriminate himself. Thats the evil sought to be
prevented by the Miranda rights. Because they are so pressured, the
environment is so intimidating, they may be compelled to provide
information against themselves. Thats the very evil sought to be
avoided.
So that any information to be given by the suspect must be
with the assistance of counsel who is supposed to explain the
consequences of any information the suspect may wish to give.
Regardless of the fact that the suspect is not being
interrogated, the fact is he is already being subjected to that
intimidating environment, the Miranda rights are already available
to the suspect.
Arrest, defined
When is a person deemed to be arrested for purposes of
determining whether the Miranda Rights is already available?
Arrest under rules on criminal procedure is the deprivation
of the persons liberty when he is restrained physically by the police.
That is the typical definition of an arrest.
Invitation deemed part of custodial investigation
But you have to understand this in the light of a Special
law: RA 7438?. Mere invitation by the police to a person for
investigation is deemed custodial investigation.
So if there is a crime committed and the police invites you
to come for the precinct for the purpose of shedding light in regard
to the incident that the police is investigating even if you are not
placed under arrest, under 7438, that is already custodial
investigation. Therefore any information incriminating to the you
obtained in violation of the Miranda rights is inadmissible.
In Pp v del Rosario, mere invitation in police investigation,
thats the practice of the police, a guise in inviting the suspect. That
has already been outlawed already in the sense that is already
considered custodial investigation. Therefore, it is incumbent upon
the police to observe the Miranda rights of the suspect under
custody.
Miranda rights available in Preliminary Investigation
Another thing, the Miranda rights do not only apply in this
typical investigation environment where the suspect is placed under
arrest and interrogated by the police.
Miranda rights extend as to cover instances where the
suspect is brought to the court for purposes of preliminary
investigation or hearing where the information against the suspect
has already been filed in court. Here the proceeding is being
initiated by the court or the prosecutor and not by the police
officers.
In Pp v bongkingko, SC said the atmosphere in a
preliminary investigation proceeding is no different in custodial
investigation conducted by the police. It is as intimidating
atmosphere.
So that the rights under Section 14 or the Miranda rights
are also available during preliminary investigation. Any admission
and confession made by the suspect during preliminary investigation
without compliance with the Miranda rights is not admissible.
Even if the information has already been filed in court, any
confession should comply with the Miranda rights.
So if he offers to confess to the crime, he should be
provided with counsel because an offer to confess is a waiver of his
Pelaez Moot Court - Evidence Transcript Team 2015-2016
right to remain silent. Waiver must be in writing and assistance of
counsel. Otherwise, inadmissible.
Right against self-incrimination
Confusion based on the recitation is on what kind of
proceedings the RASI may be invoked and when is a question
deemed incriminating.
What kind of proceedings where RASI may be invoked
criminal, civil, admin. So long these are initiated by the government
whether by the court or any administrative body. So, any
proceedings.
Only difference depending on the kind of proceedings, there is a
different rule on how to invoke RASI.
RASI in Criminal Proceedings
In Criminal proceedings, it can be invoked immediately by
the accused. In other words, the accused does not need to take the
witness stand. The moment the prosecution calls the accused to
take the stand, he can, right then and there, already object. Because
the obvious purpose by the prosecution of calling the accused to
take the stand is to incriminate himself. So because the purpose is so
obvious, the rules says there is no need to wait for the incriminating
questions.
Parties and witnesses can invoke the RASI. But if he is an
ordinary witness, even in a criminal case, he can only invoke the
RASI when he is asked the incriminating question. If he is a witness
and at the same time the accused in a criminal case, he may refuse
altogether to take the witness stand.
RASI in Civil and Administrative Proceedings
It is different when the right is invoked in Civil and
Administrative proceedings. Here, the purpose of calling the person
against whom the case is filed is not always to incriminate (that is
the reasoning of the SC), and therefore it cannot be presumed that
questions would be incriminating. The only way to determine it if
the question is incriminating is to wait for the question to be
propounded. Therefore, the respondent may not refuse to take the
stand when he is called. Otherwise it would be premature to invoke
the RASI. It is only when the incriminating question is propounded
that he/she may invoke the RASI.
Exception
Except that if the administrative proceeding or civil
proceeding partakes the nature of a criminal proceeding. Like in the
case Pascual v Board of Medical Examiners, Cabal v Capunan. While
these are administrative proceedings, they partook the nature of
criminal because of the penalty imposable should the respondent be
found guilty. In Pascual revocation of license. Cabal forfeiture of
property alleged to be illegally obtained.
The SC said these partakes the nature of a criminal
proceeding. Therefore, the respondent can right then and there
invoke the RASI. He may not be forced to take the stand.
Otherwise, if the proceedings do not partake the nature of
a criminal, they can only invoke the RASI when the incriminating
question is asked.
When is a question deemed to be incriminating?
If it tends to expose the party to criminal liability. What
makes a question incriminating is the possible criminal liability that
may attach should the party be compelled to answer the
incriminating question.
In Civil and Admin, the principle does not apply because
the liability that may be established is only civil in nature. Its not a
crime to incur obligations.
12
But if the question tends to ask whether the witness or the
party committed rape or murder, that is obviously incriminating.
Criminal liability meaning it is an existing criminal liability
that may be imposed on the witness or party.
If the punishment of the said act has already been
prescribed or served, there is no more criminal liability. There is no
more danger of exposure to criminal liability.
For example if the witness is asked if he was convicted of
crime in the past and the sentence of the offense has already been
served, the witness may not refuse to disclose the fact of his prior
conviction and fact of having already served the sentence because
that no longer incriminating. There is no more criminal liability to
speak of. The same rule applies in prescribed offenses.
Waiver, not self-executing
The RASI is an exclusionary rule. Like all other exclusionary
rules, it is not self-executing, therefore it must be invoked. Failure to
invoke at the proper time constitutes a waiver.
In so far as the RASI, there is that specific kind of a waiver.
That is when the accused himself voluntarily takes the stand. He
opens up himself to possible incriminating cross-examination
questions. He cannot refuse to answer the question about the crime
for which he is being prosecuted because he took the risk.
Limitation
BUT the waiver is limited only to the very crime for which
he is being prosecuted and as to which he is testifying.
For example he is charged for murder, and in his defense
he takes the stand as a witness for himself. He said he was in Jolo
when the crime was committed in Cebu. By taking the stand he
opens up himself to possible incriminating cross-examination. He
cannot refuse to answer. BUT if he is asked about another crime, for
example the prosecutor would establish the fact of the killing of
another victim, even he takes the stand the accused can still invoke
the RASI because the waiver is only limited to the crime for which he
is charged.
2. Special Laws
a. Ra 4200 Anti Wire Tapping Act (AWTA)
What is specifically prohibited here is the illegal recording,
overhearing, interception of private communication without the
consent of the parties to the communication.
While the law says private communication, obviously what
is covered here are spoken words. ORAL communication. And the
device prohibited is the device that purposely records oral
conversation. Cable, dictagraph, dictaphone, and similar other
devices. The most common tape recorder.
The recording of private conversation without the consent
of all the parties to the conversation makes it illegal under this law
and any evidence obtained in violation is inadmissible.
Applies to any person, even to parties of the conversation
Take note that even if the one who secretly recorded the
conversation is a party to the conversation, but the other party did
not consent, there is still a violation as ruled in Pp v Ramirez. Where
two parties argued and in the process of the conversation, one
allegedly defamed the other which prompted the defamed party to
file for an action for damages. One of the pieces of evidence
introduced was the tape recorded altercation.
The SC said it violates the provisions of AWTA. The accused
interposed the defense that the persons covered by the AWTA are
persons who are not parties to the conversation. SC disagreed and
said that even parties to the conversation who recorded the
Pelaez Moot Court - Evidence Transcript Team 2015-2016
conversation without the consent of the other party is covered by
the prohibition.
In Salcedo Ortanez it is where the SC applied the AWTA.
The recorded conversation of the alleged paramour and wife which
recording was made at the instance of the husband who had some
friends at the military. SC said violation of the AWTA. The recorded
telephone conversation between the wife and alleged paramour is
inadmissible.
Devices covered by AWTA
The AWTA describes and enumerates the specific devices
covered. Only those devices that fall under the category of
Dictaphone, dictagraph and the like, applying the rule on iyot dem
(ejusdem) generis.
Gaanan v ca - The use of an extension telephone line does
not fall in the category. These devices in the category are illegally
installed. These are not normal part of the telecommunication
system. Unlike in a telephone extension line which is accepted mode
of extending telephone lines. Therefore, any conversation overheard
by a third party using an extended telephone line is admissible.
When is a conversation private?
Not all conversations secretly recorded violate the AWTA.
Only private conversations. When is it private? Should it only be
between 2 parties in bed in a private room?
The privacy of the communication does not solely depend
on the place and the number of parties. Its on the purpose whether
the persons party to the conversation would not have proceeded in
the conversation had they known that others are listening. Thats
private. It doesnt matter if there are 3, 4 or 5 intended parties to
the conversation.
But if the conversation is given in a manner that it is
indiscriminately intended to everyone, that makes it a public
conversation. For example a candidate making a campaign speech in
a public plaza.
In Pp v navaro, two journalists who decided a night of fun
at the bar. Actually it is part of their job, but they took advantage of
the information they got that this particular bar allow striptease. Its
a show late at night where dancers are said to perform necked and
true enough, to their ecstasy the dancers showed up on stage
dancing. One of the journalists started to take pictures of the show.
It was at this time when the bouncer or I think the manager
approached them and asked them to leave. An altercation ensued
and the journalists are constrained to get out and proceeded to the
police station to report.
Unfortunately for them, obviously the police on duty was
in the pockets the owner of the bar. So, the journalist ended up
being in a heated altercation with the police which unfortunately
resulted in the killing by the police of one of the journalist.
Unknown to the parties, one of the journalists secretly
recorded the altercation between the victim and the police. And
when the police was prosecuted for the death of the deceased, one
of the pieces of evidence introduced was the recorded altercation.
This was objected to by the defense invoking AWTA.
But the SC disagreed and said that the AWTA applies only
if the conversation is private. Under the circumstances, the heated
altercation took place in a very public place, its a police station in
the presence of so many people. It is not a private conversation.
Human Security Act, exception to AWTA
The AWTA does not apply if the recording or surveillance is
done against judicially declared terrorist organizations or persons or
group of persons suspected to be terrorist under the provisions of
the Human Security Act. So, exceptions to AWTA, if the subject of
13
the surveillance whose communication is tapped or recorded is not
covered by the AWTA. Meaning, the recording is admissible even if
done without the consent of the parties to the conversation.
But the parameters governing the exception are so strict.
Any surveillance conducted pursuant to Human Security Act requires
court order, not just by any court but by the CA upon proper
application and hearing.
Exceptions to Human Security Act
The provision of the Human Security Act that allows
wiretapping does not apply to conversations between lawyers and
clients, physicians and their patients, journalists and sources, and
business correspondence.
Human Security Act, a funny law
In the effort of the government to balance State authority
and privacy, the came up with this funny law. Before any
surveillance can be conducted, (surveillance is supposed to be
secret) but under this law the police is required to notify the subject
of the surveillance. Oh Mr Miralles, please be informed that you are
under surveillance. You are suspected to be a member of a terrorist
organization. How can you expect a positive result of a surveillance if
the terrorist is served prior notice. It is like a thief informing the
victim that he is about to steal. The kind of Congress we have.
Conversation not necessary two-way
Conversation does not have to be two way. As long as one
is speaking and the other is listening, it is a private conversation.
The test of exclusivity is whether the conversation is not
intended to be heard by persons who are not parties to the
conversation.
When evidence obtained in violation of AWTA admissible
In AWTA, any evidence in violation is inadmissible against
the person whose right has been violated. But the recorded
conversation is admissible to prove the violation committed by the
accused.
For example Mr. Miralles and his cohorts conversed over
the telephone about the crime they just committed. Maybe they
gangraped Ms. C, and few hours after Mr. Miralles called up his
cohorts and savoured the crime and bragged about how they did it.
It was secretly tapped by a surveillance device. Their conversation
was captured vividly in the recording. Suppose Mr. Miralles and his
cohorts are prosecuted for the rape, and as evidence for the crime
the recorded conversation is presented in court. That is inadmissible
because it violates the AWTA.
Mr. Miralles may file a case against the police for the
violation of the AWTA and the recorded conversation is admissible
against the police who violated the law.
The same principle applies with violation against right
against unreasonable search and seizure. The evidence obtained is
inadmissible against the person whose right is violated. But it is
admissible against the person who violated the right.
Bar Question
You distinguish this with the Human Security Act, because
the inadmissible character of the evidence obtained is absolute.
Meaning, it is inadmissible against whose right has been violated
and the persons who violated the law. This came out of the bar.
Video recordings
Obviously, AWTA does not cover video recordings. While it
can be argued that body language is conversation nonetheless, you
make love conversation. Video recordings are covered by the Anti-
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Voyeurism Act or the Dr. Hayden Kho Law. You should thank him for
his antics. So video recording of sexual activity without the consent
of the parties is illegal.
Anti-Voyeurism Act
There are 2 acts punished. The (1) recording of any sex
activity between persons and the (2) capturing of the private parts
of an individual. The private parts are specific: womans breast. Only
womans breast. Not men. Now, Mr. Miralles if he wants, he can
strip naked and you can feast on him and take pictures of his breast.
That is not a violation of the AVA. Other parts are buttocks and
sexual organs.
Reasonable expectation of privacy
The person concerned whose sexual activity or private
part has been recorded must have reasonable expectation of
privacy.
If Ms. C, in the silence of her room, stripped naked. But
Mr. Miralles at the opposite window using a long range camera.
(Meg: DSLR). Zoom. Captured the naked body of Ms. C. That violates
AVA because obviously Ms. C when she stripped naked in the silence
of her room has a reasonable expectation of privacy. But if you are
at the beach strolling naked, topless and Mr. Miralles happened to
be there with his long range camera, there is no violation of AVA
because there is no reasonable expectation of privacy in doing it in
a public place.
So, the operative fact there is whether or not the photo or
video is taken under circumstances where the person concerned has
a reasonable expectation of privacy. It is case-to-case basis.
Persons punished
The one punished is not only the one who captured or
took the photo. The one who reproduces and distributes is also
punished.
TN: Even if the taking of the photo or recording was done
with the consent of the person concerned. There is no violation. But
the reproduction and distribution of the photos is in violation of AVA
if it is done without consent.
The consent must be per act basis because there are
various acts punished there. Selling, circulation, distribution, you
look at the law.
Rape Shield Rule
It is provided under RA 8565. This is a law giving assistance and
protection to rape victims.
In any prosecution for rape, the evidence of the victims of past
sexual conduct or opinion or reputation of the victim of rape is
inadmissible in evidence. Except up to the extent that the court
considers the evidence relevant and material for the case.
Character Evidence Rule
Under the Character Evidence Rule, the accused in a
criminal case can always prove his good moral character if the
character is relevant or pertinent to offense involved in the case.
But the prosecution may not prove the accuseds bad
character. Exception during rebuttal.
What about the good moral character of the complainant?
CER the bad mc of the complainant can always be proved
by the accused.
Reconcile CER with Rape Shield Rule
The inconsistency is more apparent than real.
14
RSR GR: Sexual behaviour of victim or complainant inadmissible.
EXC. Relevant
CER if character of the complainant is relevant and material.
There is no inconsistency.
Child sexual abuse.
Rule on examination of child witness. In all prosecution of
alleged child sexual abuse, the following pieces of evidence are not
admissible:
1. Evidence offered to prove that the victim engagnd in other sexual
conduct
2. Evidence to prove the victims sexual predisposition
Exception
To prove the accused is not the source of the semen,
injury or other physical evidence.
Bank deposits
There are 2 laws
1. RA 1405
This is an Act prohibiting disclosure or inquiry into bank deposits
These are deposits other than foreign.
2. Foreign Currency Deposit Act absolute confidentiality law.
Psb v senate impeachment tribunal disclosure not
allowed because of the absolute confidentiality of the FCDA.
Salvacion v central bank SC made an exception. Purpose
of FCDA is to encourage foreign investors to make our economy turn
around. The purpose is to protect investors. It applies to legitimate
investors only. Not to transient persons. The accused is not entitled
to protection because he is only a transient tourist.
There is only one exception under FCDA.
Written Consent of the depositor
Documentary stamp tax
Under the NIRC, any of the DST taxable documents
enumerated presented in court may only be admitted if DST is paid.
In other words, if you happen to offer in evidence a
taxable document and you failed to comply with the documentary
stamp tax requirement, the court cannot altogether exclude the
taxable document, what the court can do according to jurisprudence
it to require the proponent to pay the DST. It is only when the
opponent despite the order of the court, refuses to comply with the
DST, then the court can exclude the taxable document from its
record.
Failure to comply with the DST makes taxable document
inadmissible but only if you offered it in evidence.
What are the common taxable documents?
1. Deed of Sale
2. Mortgage
3. Insurance Policy
4. Shares of stocks
5. Credit
6. Promissory Notes
7. Others (in the NIRC)
Trial and Evidence
Trial is a contest of facts and the court being the referee,
the arbiter of facts is supposed to determine whose version of the
facts is to be believed or in some instances the court may come up
Pelaez Moot Court - Evidence Transcript Team 2015-2016

with their own version of the facts and how do the courts do this? RULING
Through EVIDENCE. SC: Best Evidence Rule applies only if the subject matter is
However not all the times that facts need to be in contest which does not apply here. It was established that the
established by evidence. original was lost.
And it is not even necessary to present the photocopy or
3 INSTANCES WHERE EVIDENCE IS DISPENSED WITH: even the original because the fact that is sought to be established
1. Judicial Notice is the proper anatomical location of the left and the right kidneys
2. Judicial Admission which can be established without presenting documents because
3. Legal Presumption these are matters that the court can take judicial notice as this is in
accordance with the Laws of Nature.
1. JUDICIAL NOTICE
Takes place when the matter in dispute is ought to be But distinguish this from the recent case of
known by the court or the judge by reason of the judges official
function like within the territory of Judicial Functions. DR. DE LA LLANA VS BIONG

Two (2) KINDS of Judicial Notice: FACTS

A. MANDATORY
Those 10 mentioned in sec 1 rule 129. In this, the court
does not need evidence to establish the facts, the court is supposed
to take judicial notice.
A doctor claimed that while she was driving her vehicle,
another vehicle bumped her from behind causing her to suffer the
so called whiplash injury. Since the driver was a mere employee and
no means to pay, so Dr De la Llana sued the employer herein Biong.
During trial, De la Llana testified about her injuries.

1. Existence and Territorial Extent of States (that the certain state RULING
exist and its territorial extent) SC: Against de la Llana. She failed to prove that the
2. Political History of States proximate cause of her injury was the negligence of the driver. She
3. Forms of Government testified as an ordinary witness, even if she is a doctor. The doctor
4. Symbols of Nationality who made the report did not testify. The court cannot take judicial
5. Admiralty and maritime courts notice that whiplash injury is caused by vehicular accidents. Courts
6. Laws of Nature have no expertise in the field of medicine.
7. Official Acts of branches of govt of Philippines
8. Measure of time WYCOCO VS CA (not sure sa spelling)
9. Philippine History and Constitution About just compensation of a property expropriated, no
10. Geographical Division judicial notice, it must be proved,

So, there is no need to present evidence that there are 24 B. DISCRETIONARY

hrs in a day, or that a law is passed by congress or that Lapulapu 1. Public Knowledge
killed Magellan. 2. Capable of unquestionable demonstration
If any of these issues is present in a given case, the parties 3. Ought to be known to judges by reason of their function
are not burdened to prove them because the court is supposed to
take judicial notice by reason of their judicial functions. HEARING IS REQUIRED.
So what happens if the judge is not personally aware of Purpose of the hearing is not intended to prove the facts within
one of those matters in rule 129? judicial notice but rather as to the
Then the court is burdened to make its own research. It
cannot burden the parties to find information. You can always PURPOSE
st
question on appeal by proving your own information. 1 purpose: PROPRIETY WON COURT SHOULD TAKE JUDICIAL
NOTICE.
nd
ATIENZA VS BOARD OF MEDICINE 2 purpose: to determine the specific tenor of the judicial notice.

FACTS
This involves a patient who consulted a physician about
her non-functioning left kidney, upon examination the doctor
recommended the removal of her left kidney but what after the
surgical operation, it was the right functioning that was removed.
(Icebreaker: story of sirs father)
So they filed a case against the doctor, malpractice was
the cause of action. The plaintiffs presented photocopies of the xray
before the board of medicine.
ISSUE
WON the photocopies are admissible?
While the court may take judicial notice, the specific tenor
still needs to be presented, Ex. Travel time, distance from USC
AYALA
Tenor: you provide your own information and the court
can present its own information then you agree on the tenor.
PEOPLE VS CABIGQUEZ
FACTS
Rape with Robbery. The culprits not satisfied with rape,
they also took some items from the sari-sari store. They were
ordered to pay 10,000 civil liability but they argued that the
prosecution has no basis of the civil liability because no receipts
were presented.

15
Pelaez Moot Court - Evidence Transcript Team 2015-2016
RULING
SC: Prices of common merchandise such as cigarette, salt,
coffee appliances are matters that the court can take judicial notice
as these are matters within public knowledge and capable of
unquestionable demonstration so no need to prove by official
receipts their value.
In cases involving rape, the SC would often say the court
finds that the testimony of the victim is credible. The court takes
judicial notice that oftentimes in the countryside, women are not
likely to come forward with their tale of rape unless they believe
that their accusation is true. Culture and Community.
FOREIGN LAW, NO JUDICIAL NOTICE
Take note: The court does not take judicial notice of a
FOREIGN LAW. If the foreign law involved is not alleged or even if
alleged is not sufficiently proven, the court will have to apply the
DOCTRINE OF PROCESSUAL PRESUMPTION as in the case of YAO KEE
VS GONZALES.
RECORDS OF OTHER CASES IN SAME COURT AND JUDGE
The court cannot take Judicial notice of the records of
another case even if that other case is filed or pending or decided by
the same court over the same judge.
So, if Mr. Miralles is charged with rape of Ms. Cabardo, the
Judge was Ms. Yap convicted overwhelming evidence of rape,
suppose the private complainant files a separate civil case, the same
case was raffled and pending before Judge Yap. In the previous case,
a definitive finding was already made that Mr. Miralles was guilty of
the rape and Ms. Yap dispense with trial and say I already decided
the first case, same story, guilty! Award damages, 1 million!
Judge Yap cannot do that because the rule is the Court
cannot take judicial notice of another case even if that case is
pending, filed or decided by the same Judge.
2. JUDICIAL ADMISSION
Another instance where the fact is deemed established
without the need of the introduction of evidence. A judicial
admission is an admission written or oral made by a party in the
course of the proceedings of the same case. If it is made in another
case, not a judicial admission.
So that if Mr. Miralles is prosecuted for rape in the first
case where he made an admission that there was really a sexual
intercourse except that it was consensual. Mr. Miralles was aquitted.
Five years after, another civil case was filed and this time around, for
recognition affiliation because the woman now claim that out of
that incident, a baby was born so an action to compel Mr. Miralles
to recognize the baby.
In the course of that second case, for recognition
affiliation, the complainant would make use of the admission that he
made in the previous criminal case that there was really a sexual
intercourse.
Is that a judicial admission in so far as the second case is
concern with the admission made in the course of a proceeding?
If that admission is use in the same case where the
admission was made, it is Judicial. Meaning, in the first case of rape,
if Mr. Miralles made an admission that there was a sexual
intercourse, he cannot prove otherwise any evidence that there was
no sexual intercourse should not be considered by the court because
that is a judicial admission, conclusive.
If that same admission is utilized not for the first case
where the admission was made but for purposes of another case,
this time in a civil case for Recognition, that is no longer considered
16
Judicial because that is an admission made in another case in the
course of the proceeding in another case.
Since it is no longer a judicial admission, it is now an
extrajudicial admission. It needs to be offered in evidence. In order
that the admission can be utilized in the second case, the
complainant in the second case should formally offer that
admission, the transcript of stenographic notes should be offered as
evidence in the second case because extrajudicial admission needs
to be offered.
That is the distinction between admission made in the
course of the proceedings in the same case and made in the
proceedings in another case. Two different legal scenarios.
It depends on which case the admission was made or
utilized. Utilize in the same case, no need for evidence, contrary
evidence is not supposed to be considered.
WHAT IS THE EFFECT OF A JUDICIAL ADMISSION?
A. NO NEED FOR EVIDENCE.
The admission takes the place of evidence. If a fact is admitted by
one party, the other party doesnt need to present evidence to
prove a fact already admitted.
In a collection suit, the defendant admits the existence
and genuineness of the promissory note, the plaintiff is no longer
required to prove the genuineness and existence because it is
already admitted. Except admissions made in deposition
proceedings.
IN WHAT FORM THAT A JUDICIAL ADMISSION TAKES PLACE?
Judicial admission may take place in the following instances
1. In pleadings filed by the party in the case, answered
complaint pleadings.
2. Testimonies of the parties in course of the trial, Oral
testimony, Manifestation made by lawyers in the course
of the proceeding.
The rule says admission made by a party but for purposes of the rule
on judicial admission, the lawyer is just an extension of a party. Any
admission made by the lawyer binds the agent, one and legal
personality. The lawyer is just an agent of the client. Coordination
between the lawyer and the client is really indispensable. Never
allow your lawyer to prepare pleadings without you reading the
facts. The law, you leave it to the lawyers but the facts, you should
be allowed to clear the facts before the lawyers file anything in court
because that it judicial admission.
Question: When the Judge says OFF The Record, can it be
considered extrajudicial? No. Off the record is supposed to be legally
non existent. That is the purpose of the Off the Record.
3. Judicial admission may take place in deposition
proceedings. The deposition where the deponent gives
testimonies before the deposition officer. This is done
outside of the court where the case is pending. This is still
part of the court proceedings made in the course of the
proceedings of the same case.
If your witness is from Manila who could not come here in Cebu and
under our civil procedure, witnesses have the so-called viatory
rights. If they are residing more than 100 kilometers away from the
trial, you cannot compel them to go to court by subpoena. If your
witness is based on Manila, you cannot compel him to come to Cebu
under subpoena. The witness can refuse to come without incurring
liability because of the so-called viatory rights.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Deposition
What is your option? Your option is to take deposition in
Manila. You choose a deposition officer who will act as a Judge. The
testimonies will be given before the deposition officer, the parties
are allowed to participate during the deposition taking. The
proponent will ask question, the other party will also be allowed to
cross-examine. It is like a court hearing except that the one presiding
is not the judge but a deposition officer and the place is not the
court but somewhere else, usually the office of the deposition
officer. Any admission made in the course of the deposition is a
Judicial admission.
FORMAL OFFER REQUIRED
Take note: While this is a judicial admission, this is the kind
of Judicial admission that needs to be offered in evidence. So the
rule that says that the fact that is already judicially admitted, no
need for evidence to prove it, the fact is deemed established, not in
the case of a deposition because for a deposition to be considered, it
has to be formally offered in evidence. The Rule specifically provides
that a deposition may be objected when introduced to evidence and
the objection could be based on grounds available as if the
deponent actually testifies in court.
HOW OBJECTIONS RESOLVED
Take note: The deposition officer cannot rule on the
objections interpose by the parties in the course of the deposition
taking. He just note the objections. It is the court who will rule on
the objection. If you are the proponent of the deposition, take note
that the party who causes the taking of the deposition does not
necessarily make the deponent his witness. Just because you take
the deposition, you are the one who initiated the deposition doesnt
necessarily follow that the deponent is already a witness. If the
deposition is taken and the testimony of the deponent is favorable
to you, you may decide to adopt it as your own and by that youre
making the deponent your witness. It is also possible that the
testimony of the deponent is adverse to you, you may decide to
dispense it, the testimony taken during deposition. Or if the
testimony of the deponent may be use to impeach the testimony of
the deponent, you can also make use of the deposition without
making it as your witness because the purpose is to impeach the
testimony of the deponent.
Anyway, the important rule here is a deposition to be
considered shall be formally offered and be subjected to the same
objections. If the depositions is not formally offered then any
admission and the entire testimony of the deponent may not be
admitted in court.
EXCEPTIONS
Take note of this exception on the rule that Judicial admission needs
no proof.
Any admission made pursuant to an answer to a request
for admission under Rule 26. Any admission made in the
answer to a request for admission pursuant to Rule 26 is
also like a deposition is a form of judicial admission. But
unlike deposition, this kind of admission doesnt need to
be formally offered because the other party who is
requested to make an admission is simply required to file
his answer to the request for admission directly with the
court where the request for admission is made.
B. BINDING AND CONCLUSIVE
A judicial admission is binding and more importantly
conclusive upon the party who made the admission. What is the
effect of the conclusive nature of the judicial admission? The effect
17
there is that it cannot be controverted by the admitter and in case
the admitter is able to present in evidence different from or
inconsistent with his earlier admission, the court is not supposed to
consider the evidence even if that evidence is not objected to by the
adverse party.
ELAYDA CASE
FACTS
It is about a complaint on collection of sum of money
where the plaintiff sought to recover 90, 000 against the defendant
but during the trial, the defendant were able to pay, that they
already paid even more than 90,000. Realizing the blunder, the
plaintiff during rebuttal tried to present the accountants
certification to the effect that actually the obligation exceeded
90,000. Trying to go around the evidence of the defendant that the
obligation has already been extinguished by payment.
RULING
The Supreme Court disallowed, excluded the evidence
tending to show the 186,000 as the total obligation invoking judicial
admission. The court said there that whether objected or not,
evidence contrary to or different from judicial admission in this case
made in the complaint should not be considered by the court.
However, you need to reconcile this with Rule 10 Section 5 the rule
on amendment to conform to evidence. Under this rule, when an
issue is litigated, an issue not raised in the pleadings is litigated,
whether objected or not, the court shall allow amendment of the
pleading to conform to evidence and even if no amendment is done,
no physical amendment is effected. The non-amendment will not
affect the result of the trial on the issues not raised.
Amendment of the pleadings
Rule 10 Section 5 governs a situation where the evidence
introduced during trial is different from the allegations contained in
the pleadings of the parties. There is a variance between what is
alleged and what is proved during the trial. According to this rule, if
there is a variance between evidence and pleadings, it should be the
evidence should prevail over the pleadings such that the pleadings
should be amended to conform to evidence or deemed amended to
conform to evidence. This is premise on the rule that allegations in
the complaints or pleadings are not proof.
SO how do you now reconcile?
Under Rule 10 Section 5, even if the evidence introduced
to prove a fact not introduced in the pleading is objected or not
objected, the court may still allow amendment. If doing so, would
serve the ends of justice.
If Elayda is to be the judge on the basis of Rule 10 Section
5, it would appear to be that the evidence of 186,000 introduced
during the trial should prevail over the allegations in the complaint
which only alleges 90,000.
A possible reconciliation would be that under Section 4 of
Rule 129 Judicial Admission, the exceptions to Judicial admission,
the exemption to its conclusive nature is palpable mistake. In other
words, if the admitter can prove that the admission was made to
palpable mistake, the admitter can controvert the admission.
Second is when the admitter can prove that no such
admission was made. The second exception where no such
admission was made may include a situation where an admission
was made but it was taken out of context as demonstrated in the
case of Atillo.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Exceptions to conlusiveness
In Judicial admission, general Rule is that it is conclusive.
Therefore, it cannot be controverted. The exceptions are:
1. Palpable Mistake
2. Proof that no such admission was made
On the other hand, Section 5 says that evidence prevails
over allegation. To reconcile the two, maybe Section 5 should be
applied in relation to Judicial admission rule should be applied if the
admitter can prove that there was palpable mistake. Because
palpable mistake is an exception to the conclusive nature of a
judicial admission. Maybe thats the way to harmonize Rule 10
Section 5. The pleadings shall only be allowed to be amended if the
admitter can prove that there was palpable mistake in the making of
the admission in the pleading which was contradicted by evidence.
Otherwise, conclusive nature of an admission should be respected.
Azolla Doctrine
FACTS
This was the case where the plaintiffs in the complaint
alleges that certain transactions took place and on the basis of the
pleadings, the plaintiffs appear to have recognize the validity of the
transaction but claim that the defendant violated the terms of the
agreement. The terms of the agreement on the basis of their
pleading on the complaint, the agreement itself was valid but they
allege that the defendant, the bank failed to comply with the terms
of the agreement. It is about loan. Azolla Farms was supposed to
undertake a project and to finance the project, they obtain a loan
but the bank instead of releasing the agreed entire amount, the
bank release the loan by tranche in violation of the agreement. The
bank tries to justify delay in the release of the other tranche of the
loan on the basis of the report that the plaintiff misuse the proceeds
of the loan. There were reports that the plaintiff made use of the
deposit of the loan to other projects different from what the loans
were applied for. So the bank delay the subsequent tranche.
ISSUE
Now, according to the plaintiff, because of the delay of the
whole amount, their project collapsed and did not succeed and so
they are filing a case against the bank. If you look at the pleadings,
obviously the plaintiff recognize the validity of the agreement
precisely because they are saying that the defendant violated the
terms and that they are seeking damages but during the trial, one of
the witness testified and under the basis of the testimony of the
witness, it was realized that the agreement itself was null and void
for certain reason and so the taking cue from the evidence
presented during the trial that the agreement was null and void, the
plaintiff sought to amend right away to conform to the testimony of
the witness.
RULING
The SC upheld the rule on amendment to conform to
evidence. The SC allowed the amendment pursuant to Rule 10
Section 5 Amendment to conform to evidence.
On the other hand, Elayda, I am not aware of another case
that supersedes Elayda and so Elayda is still a good law. There are
any two conflicting principles, Elayda on one hand and Rule 10
Section 5 the other hand. So lets see how the SC will reconcile this.
The best you can do there is argue on the provision that suits you.
18
3 Kinds of Evidence
1. Object
2. Documentary
3. Testimonial
OBJECT EVIDENCE
- Generally, anything addressed to the senses of the court;
full range of human senses: see, touch, taste, smell, hear
- Anything that is exhibited to the court or viewed or
examined by the court
- Example: rape case establish extent of injury suffered by
victim, exhibit injury itself; tort case extent of injury
suffered by victim, present scar on body or injury, stab
wound, gunshot wound; murder case weapon: baseball
bat, fan knife, butchers knife, firearm
2 KINDS OF OBJECT EVIDENCE
1. Real thing which is the very subject of the case
Example: tort case (action for damages
arising from tort) presentation of injury of
victim; murder weapon in murder case
2. Demonstrative not the real thing, just a substitute, a
replica, a representation of the real thing
Ex: a substitute for the real Makoy?
Knife used in murder is real object but a
photograph of the same is the substitute
REAL OBJECT EVIDENCE
REQUISITES FOR ADMISSIBILITY
1. Relevance you dont present object evidence
irrelevant to the case; something that tends to prove,
to establish the probability of the issue or the crime
charged, as applicable
Ex: rape case relevant: condom left at
crime scene, torn underwear, blood, injury;
irrelevant: check, book
2. Authenticated properly
3. Authenticated by a competent witness
4. Formally offered to court
AUTHENTICATION
Authentication process of establishing in court that the thing
presented or offered in evidence is the very same thing that the
proponent claims it to be; process of establishing connection
between the object presented in court and the object being
claimed by proponent
- Ex: if proponent claims that knife offered in evidence
is the very knife used in the killing, authentication
simply means that the proponent must be able to
prove that the knife being offered in court now is the
same knife recovered in the crime scene and used in
the commission of the crime
- Ex: Knife A which is claimed to be knife used in killing
but during trial you offered Knife B or gun with serial
no. 12345 but gun with serial no. 6789 is the one
offered in court, no authentication because the
thing/object evidence offered in court fails to be
established or shown to be the very same knife or
object the proponent claims it to be, that involved in
the crime
- Ex: drugs case authentication refers to establishing
that sachet of shabu presented in court is the very
Pelaez Moot Court - Evidence Transcript Team 2015-2016
same sachet recovered from suspect, could not be
anything else; hence stringent requirement of
authentication insofar as these types of object
evidence are concerned
3 CLASSIFICATIONS OF OBJECTS FOR PURPOSES OF
AUTHENTICATION
1. Easily identifiable objects which have distinguishing
markings
Ex: firearm with serial no., engine with serial
no., cellphone with serial no.
2. No identifiable marks but can be made identifiable by
placing distinguishing marks not inherently
distinguishable from each other but can be made so
by making marks
Ex: butchers knife normally of same brand,
size, type looks like others, one cannot
easily be distinguished from the other
Ex: knife found in crime scene police
inscribe his initials, or that of the suspect, to
make it identifiable
3. Non-distinguishable by nature so difficult, if not
impossible, to make a distinction
Ex: drugs shabu, 1 kilo owned by Miralles
looks perfectly the same as 1 kilo owned by
Servacio
Ex: blood of Miralles as red as that of
Servacio (unless his blood is green )
Ex: urine, poison
For purposes of offering these objects as evidence in court,
they need to be authenticated. The most difficult to
authenticate are those belonging to the third class. The most
important rule in authenticating these types is the so-called
chain of custody requirement. While these 3 require the same
process of chain of custody, the requirement is strictly
indispensable or necessary insofar as 3rd type is concerned.
CHAIN OF CUSTODY
- Evidence may pass from 1 custodian to another; from time
of recovery up to the time object evidence is presented in
court, this could pass through several temporary
holders/handlers/custodians
- Movements of evidence must be duly accounted for by
custodians, who happen to have taken possession or
custody of the items, from recovery up to presentation in
court
- Requires links, referring to temporary custodians, must not
be broken
- Obviously because you, as proponent, need to establish
connection that one recovered is the very thing presented
- If link is broken, there may be a doubt that the one
presented may not be the one recovered
RULES:
- Not necessary that each and every holder presented
st nd
in court if evidence belongs to 1 or 2 types
-
rd
But if under 3 type, like drugs, it is indispensable that
every movement of whatever nature must be duly
accounted for, necessitating presentation of each and
every link, each and every custodian
o If from the time of seizure up to the time of
presentation in court there were 5
custodians, all of them must be presented in
court
19
o Not only enough that these custodians testify
that at one time or another they happened to
have possession of the item, the most
important testimony of the link/custodian is to
establish the fact that while the item was in
their possession, there was no possibility
that someone else had access to the item
and there was no possibility of tampering,
substitution or alteration of the object
o To this effect, for this purpose, the
custodian/link must testify as to the condition
of the item when it was delivered to him,
steps/mechanisms applied/adopted to
prevent tampering, substitution, alteration,
and the condition of the item at the time he
turned this over to the next custodian
PURPOSE:
To establish to the satisfaction of the court that the integrity of
the item, while in the possession of the custodian, was
preserved
o Common mistake of prosecutors lies in just
establishing that 1 or 2 or 3 custodians took
temporary possession of the seized items
without specifying as to the specific
circumstances surrounding their temporary
possession/custody over item as mentioned
above
o Then next possessor will have to account for
his possession of item in same manner, all of
them, so as not to break the chain
o Very important procedure to authenticate
seized drugs for prosecution of drug cases,
RA 9165
Around 80% of cases filed in court are drug-related. Master
this if you want to venture in this field. Very reliable defense in
drug cases:
SEC 21, RA 9165
STEPS:
1. MARKING of seized illegal drugs by seizing officer
immediately upon seizure
To make it identifiable or distinguishable from the
rest of the illegal drugs of the same kind
Ex: If Mr. Miralles is arrested for illegal sale of
shabu and when he was arrested after the sale
and subjected to body search, several other
sachets of shabu were recovered from his
possession so we have 1 sachet for illegal sale
(non-bailable) and 50 others for illegal
possession (bailable). These are separate
offenses, normally charges to be filed include
illegal sale, illegal possession or if the police is
naughty about it, Sec 12 (drug paraphernalia:
lighter, aluminum foil), if police too malicious,
illegal possession of firearms (.45 caliber pistol
recovered during search). So normally, accused
or people who are charged with violations of the
Dangerous Drugs Law would face at the very
least 2 violations, sometimes 3, 4 or 5 lumped
together (sections 5, 11, 12, sometimes visiting
drug den then illegal possession of firearms,
st
explosives). So the first link or the 1 step is the
marking of the seized item. So to distinguish the
Pelaez Moot Court - Evidence Transcript Team 2015-2016
sachet recovered from the suspect Mr. Miralles
which was the subject of the sale, it has to be
distinguished from the 50 other sachets which
are subject of a separate case for illegal
possession. They cant be mixed together
otherwise there would be doubt as to the identity
of the subject sachets of shabu. So for a
successful prosecution, 1 sachet subject of the
sale must be distinguished from the other
sachets of shabu. To do this, you need marking.
Where must it be made?
The marking must be made at the place of
seizure immediately upon seizure unless not
practicable as when the suspect resisted, is
armed, a firefight ensued. You cannot expect the
police officer to mark despite such. So marking
can be done at the nearest police station/office.
But if practicable, it should be done at the place
of seizure. It is incumbent upon or the burden of
the police to establish that marking at the place of
seizure is not practicable.
2. PHYSICAL INVENTORY
Account for all items recovered
Must be evidenced by a document, an inventory
form listing all items recovered
Where conducted?
It depends:
- If result of implementation of search
warrant, at the place of seizure
- If without warrant as in buy-bust (in
flagrante delicto), at the place of seizure
if practicable or nearest police
station/office
The sooner made, the better, because rule says
immediately upon seizure; the logical
interpretation is that to be immediate, it should be
done where the items are seized
3. PHOTOGRAPH of seized item/s
Proof that items were seized and inventoried
Must be taken at place of seizure where
inventory was conducted, if practicable; if not, at
the nearest police station
What do you photograph?
Police has their way of circumventing rule of
taking photo at place of seizure and in presence
of witnesses by calling in witnesses after
supposed inventory and photo taking, several
hours after, they are merely asked to sign
afterwards even if not present during actual
inventory and photo taking
Advocates demand photo of witnesses while
inventory conducted
If photo only shows seized items placed on table
but no photo of witnesses present, it would create
doubt on whether these witnesses were really
present during inventory
Smarter policemen now, to avoid challenge on
this matter, would not only take photo of seized
items but include witnesses so now a group
picture (accused, witnesses and seized items)
to overcome any challenge that witnesses were
not present during the inventory
20
4. WITNESSES to inventory and photograph-taking
Accused himself or person from whom items
were recovered; in his absence, any member of
his family or any person acting as his
representative
Elected government official not appointed like
brgy tanod; at the very least, you have brgy
councilor or kagawad
Either representative of DOJ or of media
*Previous rule was elected official, DOJ
representative and media representative but
it was recently amended, the no. of
witnesses required has been reduced from 4
to 3. All 3 must be present, take note.
At what stage of entire police operation is their presence
required?
Sec 21 only provides during inventory and photo
taking
Inventory only comes after seizure, so is
presence required during seizure? Or just during
inventory after the seizure?
Jurisprudence has it that its enough that they are
present during inventory. They are civilian
personnel; you dont expect them to go along
with the raiding team in their police operation.
Thats risky because suspects would be armed
and in many instances would resist. SC
understands wisdom of law requiring presence
only during inventory where everythings under
control, theres no more risk to life and limb.
But SC also realized that if these witnesses are
not required during actual seizure then what
fruitful purpose will they serve when they are only
present after seizure, during the inventory? The
purpose of the requirement of the presence of the
witnesses is obviously to prevent planting,
tampering, substitution and alteration of
evidence. The possible planting, tampering,
substitution and alteration takes place during the
supposed seizure so if no one would witness the
actual seizure, theres no guarantee at all that the
evidence, the seized illegal items now subject of
the physical inventory, really came from the
suspect or were really recovered from the
possession of the suspect. At the end of the day,
its going to be he said, she said between the
polices words and the accuseds words.
Case: PP v. Larry Mendoza (2014) SC went on
further to require presence of witnesses during
actual seizure of illegal drugs because seizure is
the critical aspect of the police operation. Its
there that possible planting can be done by
raiding team. In order to prevent possible planting
of evidence and to isolate the police officers from
allegations of planting evidence, take note of dual
purpose, the presence of witnesses is required
during seizure and not only during inventory.
5. Every movement of the seized illegal drugs MUST BE
PROPERLY DOCUMENTED.
Document contemplated by law is the so-called
chain of custody form
Each possessor must accomplish a chain of
custody form: if there are 3, 4 or 5
custodians/possessors of the drugs from the time
Pelaez Moot Court - Evidence Transcript Team 2015-2016
these drugs were seized to safekeeping to
submission to laboratory for examination until
submission in court, all who had opportunity to
take temporary custody must accomplish form;
otherwise the chain/link is deemed broken
Also a common mistake/error/failure of police,
failure to accomplish required number of chain of
custody forms
EFFECT OF NON-COMPLIANCE WITH CHAIN
CUSTODY REQUIREMENT
- This does not render seized illegal drugs inadmissible.
Neither does it render seizure and arrest illegal.
- Effect: Failure to establish corpus delicti of crime charged,
meaning there is deemed failure to establish that drugs
submitted/presented in court are the very same drugs
seized from accused, if there is failure to establish corpus
delicti of the crime, there is doubt, and if there is doubt,
accused must be acquitted
- Take note: its a ground for acquittal, governed by rule on
weight, sufficiency and credibility; has nothing to do with
admissibility
- This ruling is corrosive to the rule on authentication. As we
have discussed earlier, one of the requisites for
admissibility of object evidence is authentication. Meaning
if there is failure to authenticate, evidence is not
admissible. And sec 21: chain of custody requirement is
an authentication requirement. Yet, SC said failure to
comply with sec 21 doesnt render evidence inadmissible.
- Effect: Since the evidence is not inadmissible, you cannot
object to the admission of the seized illegal drugs when
formally offered by prosecution on the ground of failure to
comply with sec 21. But you can always argue that
because of failure to comply with sec 21, the prosecution
failed to establish the corpus delicti and therefore this
creates doubt as to identity of evidence presented in court,
doubt whether these sachets of shabu, for example, are
the very same sachets of shabu claimed to have been
recovered from the possession of the suspect. So
acquittal.
- You cannot also move for the suppression of these illegal
drugs. If it were an ordinary seizure of evidence like
evidence obtained in a search without a valid search
warrant, your remedy there is to file a motion to suppress
the evidence illegally seized without a search warrant for
being fruits of a poisonous tree. So that this evidence will
not be presented against your client, you move that it be
suppressed. Chances are when the prosecution and the
police have no more goods on your client, the police will
not pursue the case as when the courts declare them to
have been illegally obtained and suppress them, theres
no more basis for the court or police to pursue that. At that
level, you can nip the case in the bud.
So when you happen to handle a case for the violation of
the Dangerous Drugs Law and you go over the affidavits
of the police and its obvious that the police failed to
comply with sec 21, you cannot avail of this remedy, you
cannot short circuit the proceedings by filing a motion to
suppress because this is premised on the theory that the
evidence to be suppressed are not admissible. But as I
said, failure to comply with sec 21 does not render the
seized illegal drugs inadmissible.
- Remedy: Go to trial. During trial, you establish non-
compliance with sec 21 and if the non-compliance with sec
21 is so gross that the court cannot possibly ignore it, you
just have to file your demurrer to evidence. As I said,
failure to comply renders doubt as to the identity of the
corpus delicti. So you cannot do away with trial. At least
you have the demurrer or you can opt for a full-blown trial
by presenting also your own evidence, you can present
witnesses that there was actually no buy-bust, that your
OF client was just picked up by the road, that the police just
barged into the house of your client and they arrested your
client because most of the time the police would just knock
at your door, barge into your house and just pick you up,
thats according to my client. Thats common. You know
its so difficult to arrest peddlers of drugs; theyre smarter
than the police. Buy-bust doesnt work now; the peddlers
of illegal drugs know that buy-bust is the common practice
of the police in going after them. Its unbelievable that the
drug peddlers would transact with someone they do not
know. That renders buy-bust operation an incredible police
story. That will not happen. Its not like a ballot vendor who
would peddle his wares outside; thats illegal contraband.
So because of the difficulty of catching peddlers in the
very act of possession of shabu, they have no choice but
to produce results and just pick up someone notorious,
known to be engaged in the illegal activity of peddling of
drugs, and come up with the story of buy-bust operation.
Thats their common story. So you will realize the affidavit
used by the police in one case is the same one used in
another case. They just change the specifics of the name,
the place and the time but the modus operandi is the
same. There is no buy-bust. The peddlers would not buy
it; they would only deal with people they know. Thats why
when you cross-examine the police when they testify, its
really a mess. You cross-examine 2 or 3 of the police who
claim to have conducted the buy-bust, its just like 6 blind
men made to touch the parts of an elephant and made to
describe what the world looks like. When something does
not happen, its very difficult to come up with a uniform
story. When asked who marked this item, one would say it
was police officer so and so. And so when it was the turn
of this police officer to testify and he was asked who
marked this item, he would also say police officer so and
so. Who conducted the inventory? I was the one. When
the other police testified and is asked the same question,
he would say I was the one. Thats the reality of the
problem of illegal drugs in this country. So most of the
crimes or drug cases are dismissed.
Who Can Authenticate Real Object Evidence?
- Someone who has personal knowledge of object
itself; not just anyone
- Ex: police officer who recovered murder weapon at
crime scene must be the one to authenticate I am
very sure that this is the weapon/firearm/butcher knife
recovered from the crime scene because when I
recovered it I placed some distinguishing marks.
DEMONSTRATIVE OBJECT EVIDENCE
- Refers to just the substitute or replica of the real thing
How do you authenticate Demonstrative Evidence?
- Unlike Real Object Evidence where Personal Knowledge
is required, here, it is not required that the one who
took the photograph or the recording authenticate the
21
Pelaez Moot Court - Evidence Transcript Team 2015-2016
demonstrative evidence (while it may be ideal to really
present the photographer to authenticate the photograph)
- Thus, anyone familiar with the person, place or event
depicted in that demonstrative evidence can authenticate
Examples:
a photo of Mr. Miralles shown in courtit is
not required that the one who took the photo
will be the same person who would
authenticate the said picture, it could be
anyone so long as that person is familiar with
him and is shown Mr. Miralles picture, he
could attest to the court that the one in the
picture is indeed Mr. Miralles will be
sufficient
A picture of the house where the rape was
committed- anyone who is familiar of that
said place, even if he is not the one who took
the picture could authenticate
US vs Tatum
- Prosecution for illegal encashment of a welfare check
belonging to the private offended party. This check was
stolen and enchased by someone else. However,
investigation revealed that the suspect enchased the
check and he transacted with a convenience store.
Unknown to the suspect, when he was transacting with the
personnel of the convenience store, he was captured by a
Regis cope machine (a machine installed to capture the
image of people they transact with and in the machine, the
suspect was captured in still photograph from his waist up.
Thus, the print out was presented and the one
authenticating the picture was not the one who developed
the photograph.
- Held: It is not required that the one who took the picture
should be the only one to authenticate, thus anyone
familiar could do so.
People vs Sison
- Murder of a supporter of Cory Aquino during those
tumultuous political times. There was a rally by the Marcos
supporters, however, a supported or Cory Aquino was
mauled to death. One of the pieces of evidence that they
presented were photographs of the mauling incident
showing the image of the suspects. The witness who
authenticated wasnt the photographer, but attested in
court that he was familiar with the incident as it took place
and that he was there.
- Held: this is to be considered sufficient authentication so
long as he was familiar with the person, the places and the
incident that took place.
Scientific Evidence (another form of Demonstrative Evidence)
- These are evidences which are the hander work of some
persons equipped with expertise, skills and experience.
- In this jurisdiction the common forms of Scientific
Evidence include:
1. DNA
- Relatively new in our jurisdiction but our courts opened the
door to the use of DNA Evidence in Tijing vs Court of
Appeals
- Now applies to all kinds of proceedings (civil, criminal,
special proceedings)
- Premised on the Universal Truth that there are no 2
persons that are of the same DNA, except identical twins.
Thus, DNA is unique for every individual
22
TAKE NOTE: for purposes of filiation, DNA testing is not a
matter or right. The proponent has to establish a prima
facie case of paternity before DNA test can be ordered by
the court. The Supreme Court held in the case of Lucas
vs Lucas that this is to protect anyone from any
indiscriminate claim of filiation. It is the burden of the
proponent to establish a prima facie case of paternity
before the court can order or resort to any court ordered
DNA testing (akin to probable cause in the application for
a search warrant, this is not a matter of right)
Tijing vs Court of Appeals
- A habeas corpus proceeding filed by the parent of the
child who was stolen by the employer of the parents which
they claimed to be their own. The parent was a
laundrywoman who was sent to do an errand and left the
child with the care of the employer, but when she returned,
the employer together with the child were nowhere to be
found. For several years, they never recovered nor seen
the child. Fortunately, when someone died, an obituary
was placed in a newspapers which led the parents to
know the whereabouts of the employer who stole the child.
Thus they attended the wake and true enough, they found
the employer and the child. But, the employer insisted that
the child was hers so they went to the court to file for
habeas corpus.
- A critical issue there was on the parentage or filiation of
the childthe petitioners claim that the child was stolen
by the defendant.
- Held: One of the critical evidence that the Supreme court
considered in deciding/holding that the child belongs to the
petitioner was the traditional way of establishing filiation
and that is by taking into consideration the physical
features of a child vis--vis the features of the parents.
Here, the child possessed the feature of the parents. BUT
it was in this case the SC acknowledged DNA as a
means of ascertaining disputes involving paternity/
filiation. The SC encouraged courts to not hesitate in
admitting DNA evidence in resolving issues relating to
filiation
- Thus, taking cue from this case the SC eventually
promulgated our Rules on DNA Evidence not only as to
disputes involving paternity/filiation, but also as to any
other kinds of disputes.
When can you apply for DNA tests?
a. Even before filing a case
- Without need for court order, anyone can resort
to DNA testing including Government
Enforcement Officers
- Since theres no case yet, then there is no need
for court intervention.
b. When there is already a pending case
- There is an issue that needs to be resolved by
DNA evidence
- Any interested party who has an interest in the
subject matter of the litigation can always move
for the conduct of a DNA test. However, this time
around, leave of court is necessary
- The court on its own, may also move to conduct
a DNA test
c. Post-Conviction DNA test
- This is one of the breakthroughs in cases of DNA
evidence in our jurisdiction
Pelaez Moot Court - Evidence Transcript Team 2015-2016
- Here, even if the person is already convicted,
acquittal can still be achieved by the result of a
post-conviction DNA test
- Thus, this presupposes that there was already
conviction by a final judgment (in the sense that
there is no more appeal but executory (not
executed or judgment not fully served)
Who can avail of the post-conviction DNA test?
- It is the accused or the convicted
- Even the prosecution who obtained a conviction but
subsequently, they have reason to believe that the
convict is not responsible for the crime
- And in here, if the post-conviction DNA test
results warrant the acquittal of the accused,
then the judgment of conviction must be
reversed and the convict must be released
from confinement
- But if the convict has already served his
sentence, by express language of the rule, this
cannot anymore be availed of because the
sentence has already been served. Theres not
point reversing the judgment when the sentence
has already been served
What then is the value of a DNA test result in so far as the
issue on paternity is concerned?
a. If the DNA test yields a NEGATIVE result
(there is no probability that the child is indeed the
child of the purported parent)
- This is CONCLUSIVE AS TO NON-PATERNITY
- Thus, no amount of contrary evidence can
controvert this result
b. If the result is POSITIVE (meaning there is a
probability that the child is the child of the
purported parent)
- Follow these rules:
- if the probability of paternity is less
than 99.9% (the DNA test result is
CORROBORATIVE EVIDENCE OF
PATERNITYmeaning, it is not
sufficient, standing alone, to establish
paternity but taken in tandem with
another piece of evidence can establish
now paternity)
- if the probability of paternity is 99.9%
or more (this DNA test result is a
DISUPUTABLE PRESUMPTION OF
PATERNITYthis is a presumption of
paternity but it can be overcome by
contrary evidence)
2. Lie Detector Test
- Could yield to a positive or negative result
- Premised on the scientific theory that one who is lying is
likely to exhibit physiological changes in his body which
could be monitored through sensors that touch the body
(ex. Your heartbeat goes fast, you perspire, etc.)
What is the evidentiary value of Lie Detector tests in this
jurisdiction?
- They are not admissible because according to the
Supreme Court, this has not been accepted by the
scientific community as a reliable means of ascertaining
23
the truth but it may have practical value in law
enforcement (the police can conduct investigations in the
use of lie detector or polygraph tests prompting them to
wither proceed, pursue a lead or back off depending on
the result)
3. Paraffin test
- Test that determines the presence of absence of nitrates
- Commonly used in cases involving the firing of firearms
(i.e. homicide, murder in establishing that the accused is
the one who killed the victim)
What is the evidentiary value of paraffin tests in this
jurisdiction?
- The result could either be positive or negative
- Positive (it simply proves that nitrates are found
in the body of the person subjected to the test
no more, no less. It however does not
conclusively show that he was the one who fired
the firearm as the presence of nitrates in the
body does not mean that he was the one who
fired the firearm as nitrates could come from
other sources other than firing the gun like from
fertilizers, eating leguminous plants, etc.)
- Negative (when no niutrates are found but the
absence of nitrates is not also a conclusively
evidence that the one subjected to the test did
not fire the firearm as it is possible that he did fire
the firearm but because of some factors, nitrates
couldnt be found like when the suspect washed
his hands after firing, he was perspiring, or
because of wind direction)
- Thus the results could be CORROBORATIVE
EVIDENCE (not sufficient when standing alone, but taken
with other evidences could be sufficient)
Question: what if there are identical twins and there is a
dispute as to the paternity of the child?
Sir: DNA test could not be reliable here as they have the
same DNA profile. If the purported fathers DNA (the
identical twins) would match the DNA of the child would
not, as it is alone cant determine the paternity. This will
only be corroborative and there is thus a need for another
evidence say a testimony of the mother as to whom she
had a relationship with. So the court cannot just rely on
the result of the DNA evidence
DOCUMENTARY EVIDENCE
- This is the second classification of evidence on
matters of form
What is a document?
- Under the rules: it is any writing or
material containing words, figures,
numbers, symbols or other forms of
written expressions offered as proof
of its contents
- Take note: what makes a writing or
material containing words, figures, etc.
documentary evidence is the fact that it
is offered as proof of its content. The
operative fact then here is the purpose,
such as when its offered other than as
proof of its contents, then that writing or
material containing words, figures, etc.
is not to be considered as documentary
evidence but can be object evidence.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
- Example: A criminal law book is offered
in evidence as a murder weapon used in
the killing of victimit is a material
containing words or figures. But if the
purpose of offering it is not to prove its
contents, then that book is not be
considered as documentary evidence
but simple object evidence (like when its
presented so the court can examine the
physical condition of the book)
Common Exclusionary Rules as to
Documentary Evidence:
- Parole Evidence Rule
- Best Evidence Rule
BEST EVIDENCE RULE
- When the subject of inquiry is the contents of
a document, no evidence is allowed to prove
its contents other than the original writing
itself
- If the subject of inquiry is the material containing
words, symbols, figures, etc. then the original
writing itself, not a copy nor a testimony of a
witness must be produced
- Example: issue on the contents of a deed of sale
as the plaintiffs say that the deed of sale involves
Lot A, but the defendant insists that its lot B so
obviously, there is a dispute as to the contents of
the deed of sale. Thus the test/issue here is that
what does the document say?
What is an original document? (Sec. 4,
Rule 130, Rules of Court)
a. An original document is the document the contents of
which is the subject of inquiry
- Here, it does not matter that the document is the first
document produced or created or whether it a photocopy.
- So long as the contents of the document are the subject of
inquiry even if its just a photocopy so long as the contents
of such document is the subject of inquiry then, that is to
be considered as original
- Examples:
A case for falsification and what was
falsified was a photocopy. Here, say,
theres a deed of sale saying Lot A but Mr.
Miralles produced a photocopy, but
superimposed the photocopy making it
appear that the subject lot is Lot B. thus, if
you look at the first Deed of Sale, it would
say Lot A, but the photocopy containing the
superimposed figure Lot B is the falsified
copy.
The subject of inquiry here is the contents of
the falsified photocopy. But you also need to
establish the genuine document for
purposes of falsification. Thus you also have
to present the first copy as you have to
compare. So, you present the original to
establish the genuineness of the document
and also present the falsified photocopy for
purposes of falsification which is also an
original document like the first document.
In cases of telegram when the message
delivered is different from the message
received and the message receives
24
contains libelous remarks. Thus, you
present the original message which is a very
friendly message and also the second
message, the one different from what was
sent. Both are considered as original
documents.
b. When the Document is in two or more copies
executed at or about the same time, with identical
contents, all such copies are regarded as originals
- This contemplates of a situation when the document is
made of 2 or more copies.
- Made possible by using carbon paper where you prepare
one document, and by using it, you have several copies
- Thus, all those copies produced are also considered
original and for purposes of the Best Evidence Rules,
either of them could be presented in court without
accounting for the others because they are equally
regarded as originals.
- People vs. Hon. Tan- prosecution for anti
graft and corrupt practices act
- Here is a government official accused of
purchasing supplies purportedly to be
delivered to some recipients but he
malversed these. During trial, the
prosecution presented the triplicate copy
of the receipts showing that some
medical supplies were purchased.
However, this was disallowed by
the lower court under the Best
Evidence Rule as what was
presented was only the triplicate
copy
- Held: For purposes of the best evidence
rule, when a document is made up of
two or more copies, with identical
contents, executed at or about the same
time, all the copies are considered
original. Thus it was proper for the
prosecution in presenting the triplicate
copy of the receipt as it is just as original
as with the first or the second copy.
c. When the entry is repeated in the regular course of
business, one being copied from another at or about
the same time of the transaction; all the entries are
likewise equally regarded as originals
-
nd
Difference with the 2 kind of original Document (In the
nd
2 , the originals are all the copies, but here, what are
considered as original are all the entries)
- Example: Mr. Miralles is running a high end Sari-sari store
and as a meticulous owner, he keeps three journals (1 for
nd
him, 1 for his wife and 1 for his 2 wife). Thus, to keep the
balance of power, he needs to accomplish the entries of
the journals to reflect the transactions of the day. So he
st
records in the 1 journal say, the number of amounts
purchased, the prices, etc. for a given period; now using
this first journal, he copies the entries here and records
nd rd
them in the 2 and then in the 3 journals. So there are 3
journals prepared at or about the same time of the
transaction containing the same entries
Say, a dispute arises where the subject of inquiry is
the dispute of the journal, for purposes of the best
evidence rule, the presentation of any of the 3
st
journals is okay. The entries in the 1 journal are just
nd rd
the same as the entries as that of the 2 and the 3
journals. So the entries in either of the three journals,
for purposes of the best evidence rule could be
Pelaez Moot Court - Evidence Transcript Team 2015-2016
presented in court without having to account for the
other two.
Take note: the Best Evidence Rule
establishes a rule of preference.
- Meaning, as a General rule, if the original is available,
then you present the original and no other evidence is
admissible. The so called reproduced copies of original
will not be admissible.
However, there are situations which do not call for
the application of the Best Evidence Rule (thus,
not all disputes relating to documents call the
operation of the best evidence rulejust because the
dispute involves writings, it would not follow that the
best evidence rule is applicable):
1. as it is, the best evidence rule applies when the
subject of inquiry is the contents of a document;
conversely, when the writing or material
containing words, figures, numbers, etc. are
offered not to prove its contents but its
existence or some extraneous condition, then
the best evidence rule would not apply and thus,
any evidence offered will do like the testimony of
a witness without accounting for the original
- People vs Tandoy
- This is for prosecution for violation
of the Dangerous Drugs Law. During
the trial, the prosecution presented a
policeman who claimed to have
conducted the buy-bust operation where
he used a marked money which was
paid by the poseur-buyer to the suspect.
They did not present the actual money,
but only the photocopies of the money.
Thus the defense object on the
photocopied marked money on the
ground of best evidence rule.
- Held: this is not a case calling for the
operation of the best evidence rule. The
purpose of presenting the marked
money is to prove that a buy bust
money was used in the operation. It
never intended to prove the contents of
the marked money as theres no dispute
on the letters, numbers, figures found on
the marked money.
2. When the document is only collateral to the
fact in issue
- Meaning there is a dispute involving the
document but this is only collateral.
- Collateral Fact Rule
- Air France vs Carrascoso
- Carrascoso was a business class
passenger and he was bumped off while
on board an aircraft in favor of a white
man, a Filipino victim of racial
discrimination. Thus he filed a case for
damages against the airline. In support
of this, he testified by narrating the
incident and part of his narration, he
testified that an employee recorded the
incident in his notebook. So theres a
reference to a document (a notebook).
The airline argued however that such
was inadmissible as the notebook itself
25
should have been presented under the
best evidence rule, it being the original.
- Held: The Supreme Court said that the
reference to the notebook was only
collateral to the fact in issue. The fact in
issue being the bumping off of Mr.
Carrascoso/ the altercation he had when
was asked to leave his accommodation.
The reference to the notebook was only
incidental or collateral to the fact in
issue. Thus it was perfectly okay to
present such evidence.
3. When the writing or the material containing
words, symbols or expression are offered to
establish a fact which has an existence
independent from the document although that
fact may have been produced or evidenced
into writing.
- There are facts, the existence of which may be
proved by other evidence even if this can also be
proved by some documents
- Example: the fact of deathso in prosecuting a
case for murder, you need to establish death but
the death certificate is not the only evidence of
death. You can also present the testimony of the
embalmer attesting to the fact of death. This
testimony of the embalmer cannot be objected to
under the best evidence rule and you cannot
insist that the death certificate should be
presented.
US V. Meyers
This involves a prosecution for perjury. There was someone
who testified before a committee conducting a Senate Hearing
about certain activities of a businessman. His testimony was
alleged to be perjured testimony given before the senate
committee. During the trial and in order to prove the accused
committed injury, the prosecution presented the hearing officer
who testified that during the hearing the accused testified on
this and that which claimed to be perjurious.
It was objected by the defense contending that the testimony
should have been proven by the Transcript of Stenographic
Notes taken during the hearing which was in writing.
The SC said the issue here was whether the accused perjured
himself under oath when he testified during the hearing. The
existence of these statements can be established 1) by
persons who heard the accused testifying or by the
2)Transcript of Stenographic Notes. It may happen that the
testimony given before the investigating committee was
reduced into writing but it is not the only evidence to prove that
indeed the accused committed perjury. Any person who heard
him, that testimony is admissible. So the fact to be established
has independent existence apart from the document although it
happens that it is evidenced in writing.
3. BER does not apply if the defendant or the party
admitted the genuineness and due execution of an
actionable document.
What is the effect if the party admits expressly or impliedly
the genuiness and due execution of a document?
This was the ruling in Consolidated bank v. Del monte
motorworks
Pelaez Moot Court - Evidence Transcript Team 2015-2016
The bank filed a collection of sum of money against a
defendant on the basis of a promissory note executed in favor
of the bank. Upon the receipt of the summons the defendant
filed its answer and in their answer they alleged the defense
that they never received anything from the bank, meaning
there was no consideration.
During the trial the bank failed to present the original PN so
they presented the photocopy signed by the defendant so they
objected on the ground that it violates BER.
The SC said, under the rules when a complaint is based on an
actionable document like a PN, the defendant is required to
deny under oath the genuineness and due execution of it
otherwise it will result in the implied admission the its
genuineness and due execution and therefore he cannot
anymore assail the genuineness or claim the PN is a forgery.
What is the effect of this implied admission? According to
the sc, when the defendant impliedly admits the genuineness
and due execution, it does not include only the admission of its
genuineness but also includes THE ADMISSION THAT ALL
THE CONTENTS FOUND ON THE ACTIONABLE
DOCUMENT ARE NOT DISPUTABLE MEANING THEY
WERE THE CONTENTS AS THEY WERE SIGNED BY THE
PARTIES. And when the party does not dispute the contents
then there is no occasion to apply the BER because as I said
the BER ONLY APPLIES WHEN THERE IS A DISPUTE AS
TO THE WRITINGS OF A DOCUMENT.
When does the writings of a document become the subject
of inquiry?
In the same case, the SC said the contents of a document or
material becomes a subject of inquiry if there is a dispute as to
the precise terms or precise tenor, figures, words found in the
document or material. Absent a dispute as to the terms, words,
tenor, symbols, there is no occasion to think of BER. This is
exactly what happens in this case when they failed to deny
under oath therefore they cannot object to the admission of the
photocopy because BER does not apply.
Do not confuse these with the EXCEPTIONS TO THE BER.
EXCEPTIONS
Exceptions: (in these instances the original is not
presented but the secondary evidence)
RULE 130, Sec. 3. Original document must be produced;
exceptions. When the subject of the inquiry is the contents of
the document, no evidence shall be admissible other than the
original document itself, except in the following cases:
(a) When the original has been lost, or destroyed,
or cannot be produced in court, without bad
faith on the part of the offeror;
(b) When the original is in the custody or under the
control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous
accounts or other documents which cannot be
examined in court without great loss of time and
the fact sought to be established from them is
only the general result of the whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a
public office.
26
Whats the difference between a situation where it does
not call the application of the BER from an EXCEPTION to
the BER?
If the problem or dispute does not call for the application of the
BER, then the result is you dont need to present the original or
the first, you can present anyone even the witness, you can do
this without accounting for the original.
If the problem calls for the exception, you have to account for
the original before you can present the SECONDARY copy,
recital, testimony.
st nd
If it falls under the 1 and 2 exception, you can only present
the secondary if you are able to account for the original, this
accounting for the original is not required when the situation is
one which does not call for the application of the BER, this is
the ruling in the case of HEIRS OF MARGARITA PRODON v.
ALVAREZ
1. WHEN THE ORIGINAL HAS BEEN LOST, OR
DESTROYED, OR CANNOT BE PRODUCED IN COURT,
WITHOUT BAD FAITH ON THE PART OF THE OFFEROR;
- cannot be produced includes when the original is still
existing but physically cannot be brought to court like the
subject of inquiry is the writings of a tombstone or subject of
inquiry is the writings over a female breast or the male organ.
Requirements:
Before presenting the secondary, you must account for
the original but how do you account for it?
1. Proponent must establish the existence and
genuineness and due execution of the original.
How do you do this?
You need to present testimonial witnesses.
a) Parties to the original document
b) If not available (ex. Dead), witnesses to the execution
of the document
c) If not available, notary public before whom the
document was acknowledged.
d) If not available, any person, witness not a party, not a
witness to the execution, not the notary public before
whom the document was acknowledged, but
someone who is familiar with the signatures or the
handwritings found on the document and can attest
that these signatures or handwritings are those of
persons who purportedly signed these.
e) If not available, someone to whom the parties to
whom the parties to the contract confided the
execution of the document. He is not a party, not a
witness to the execution, not the notary public before
whom the document was acknowledged but qualifies
because after the execution of the document the
parties confided to him that they executed the
document. Now under in DE VERA V. AGUILAR but
I have my reservations for this because the testimony
of these witnesses are hearsay but thats the ruling in
De Vera, I dont think it can pass the test of hearsay
evidence rule.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
2. The fact of loss, destruction or unavailability.
How do you establish the fact of loss?
a) You can present a witness who has personal
knowledge of the fact of loss (example the original
was destroyed, the person who had personal
knowledge of that fact)
b) You can present a witness who has no personal
knowledge but he is qualified as a witness to testify as
to the fact of loss because he conducted an
investigation or effort to locate the original in place
where such kind of document if original is likely to be
kept by its custodian
c) Witness who exerted effort to locate the original but
the originals could not be found, these are witnesses
who made investigation in places other than those
places that that documents of that nature are normally
kept.
3. Establish the contents of the missing original
document
How do you establish this? (MUST BE IN ORDER according to
the Rule, BUT according to literature on the matter, this is not
an absolute rule -sir)
1. You present a copy
2. Recital of the contents in some authentic records
(example is your birth certificate/ marriage certificate)
3. Testimony of a witness
TN: Part of the accounting of the original is if its in two or more
copies, you need to establish how many original copies are
there, it is not enough you prove the existence of the original,
you also have to establish the number of the copies of the
original as espoused in De vera(only 2 out of 3 were
accounted for, SC said not enough) AND Country Bankers
v. Lagman, if there are two or more originals, the proponent
can only present the secondary if the proponent is able to
account for all the original copies.
2. WHEN THE ORIGINAL IS IN THE CUSTODY OR UNDER
THE CONTROL OF THE PARTY AGAINST WHOM THE
EVIDENCE IS OFFERED, AND THE LATTER FAILS TO
PRODUCE IT AFTER REASONABLE NOTICE;
REQUIREMENTS:
1. Proponent must serve notice to the other party and
request to the other party to produce the original
How do you do it?
1. Proponent must prove that the original is in
possession of the other party and despite notice the
other party fails to serve despite notice.
How do you serve notice?
a) Motion for the production of documents (modes
of discovery)
b) Resquest for issuance of Subpeona Duces
Tecum
c) Manifest in open court through oral motion asking
the other party to produce it in court.
(EX. SHANGRILLA vs. BF corporation)
-in that case, the counsel for the other party
manifested that the original was in the
27
possession of the other party, and requested the
other to produce it in court, the lawyer said that
they would relay the request to their client and
inform the court about it which he did not so
when the unavailability of the original, the propent
produced the photocopy, objected, SC said there
was sufficient compliance of the rule, so it
justified in supplying for the secondary evidence.
2. When the other party fails to produce the original, and
you believe that it is in possession with the other party,
you consider the original as lost, destroyed or cannot be
produced. By considering as lost, you may now comply
with the requirement of presenting secondary evidence in
the case of loss, destroyed or unavailability. So you go
back to the requisites of loss.
1. Proponent must establish the existence and
genuineness and due execution of the original.
2. The fact of loss, destruction or unavailability
(possession with the other party but cannot produce
it)
3. Establish the contents of the missing original
document
(WITH THE SAME SUBREQUIREMENTS)
3. WHEN THE ORIGINAL CONSISTS OF NUMEROUS
ACCOUNTS OR OTHER DOCUMENTS WHICH CANNOT BE
EXAMINED IN COURT WITHOUT GREAT LOSS OF TIME
AND THE FACT SOUGHT TO BE ESTABLISHED FROM
THEM IS ONLY THE GENERAL RESULT OF THE WHOLE;
AND
- the secondary evidence here is the summary lifted from all
the original numerous accounts or records. TN for this purpose
the fact to be established is the general result of the whole and
TN as enunciated in the case of COMPANIA MARITIMA, for
this exception to apply the proponent mas be able to prove that
the adverse party was given the access to all the original but
numerous accounts or records to enable them to intelligently
conduct their cross-examination of the witness who is testifying
on these accounts using the summary. Establish the
voluminous nature, and present the summary. This practice is
commonly adopted in cases involving ESTAFA where estafa is
perpetrated by an employee of a corporation and the crime
was committed over a long period, documented this would
usually involve voluminous records, covering transactions over
a period of time, so instead of presenting all the receipts, just
present the summary of these records.
4. WHEN THE ORIGINAL IS A PUBLIC RECORD IN THE
CUSTODY OF A PUBLIC OFFICER OR IS RECORDED IN A
PUBLIC OFFICE.
-the certified true copy of the original is the secondary
evidence. Generally official records of some public office are
not supposed to be removed from their custody. Only by
subpoena or court order that these official records may be
taken out and brought outside.
So its not possible legally to get the original in the possession
of the custodian. Now what happens when the subject of
inquiry is the contents of that original record but you cannot
bring it to court? You may now present the secondary evidence
which is the certified true copy issued by the legal custodian.
AGAIN THE NEED TO ACCOUNT FOR THE ORIGINAL
APPLIES ONLY TO THE FIRST TWO.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
BER like any rules of exclusion is not a self-executing
mechanism it has to be invoked timely and seasonably.
Objection to admissibility of documentary evidence should be
done at the time the document is formally offered.
So that, during the trial where the documentary evidence was
only identified by the witness and marked for identification
purposes, its premature for the adverse party to object if what
is being identified and marked is a photocopy. You can only
object to the admission of a photocopy on the ground that it
violates BER when it is formally offered.
Many lawyers commit the mistake of interposing this objection
prematurely. If you are the proponent and the other party
objects, you can say I have not yet formally offered the
document your honor! Its premature to object , but thats
common in practice. It would be to your advantage if youre the
adverse party to keep silent and object when it is formally
offered. So that its too late for the other party to present the
original.
RULES ON ELECTRONIC EVIDENCE (E-COMMERCE ACT)
It is been said that law while it is permanent, cannot stand still.
Law also keeps on changing as society evolves over time. So
does rules, jurisprudence. The Rules on Electronic Evidence is
relatively new in our jurisdiction. In the absence of modern
technology, we are now in the cybereverything is cyber. So
rules have to adopt to the changing time. Before the
promulgation and enforcement of the Rules on Electronic
Evidence, there are already some electronic evidence that
found their way in our courts but the way to present them was
the traditional way. This figured in the case of People vs.
Burgos.
People vs. Burgos
This involves a criminal prosecution to the crime of sedition
filed by the state against Burgos. The apartment of Burgos was
searched by the police operatives and found some allegedly
subversive materials including some diskettes which allegedly
contain subversive materials. So when the case went to court
to trial, the prosecutor presented or moved that he be allowed
to present the contents of the diskette which were claimed to
be subversive in character and for this purpose the prosecutor
moved that he be allowed to bring the diskette as well as the
computer and demonstrate the contents by displaying or
printing it out in the presence of the court. That was the
traditional way of presenting electronic evidence at that time.
This was objected to by the defense contending that all the
while after the seizure of the diskette and other materials, the
police have been in full control and custody of the materials so
the possibility that this material has been tampered with or
contaminated is grey. But the SC overruled the objection
contending that the allegation, that just because the state has
full control and custody of these materials is no argument to
prohibit the presentation of the electronic evidence. Meaning,
the contents of the diskette that are alleged to be subversive in
character. So you see, even before we formally adopted,
enacted the Rules on Electronic Evidence, the court already
recognized the probative value of electronic evidence. In this
case, documents stored in the computer diskette.
Now, we have the USB but it serves the same purpose.
COMMON TYPES OR FORMS OF ELECTRONIC EVIDENCE
Electronic images
28
-sourced out from digital cameras, digital images captured
by the camera and stored in your cellphone or digital images
sourced from digital video presentation (ppt presentation) or
scanned documents
Email messages (the most common)
Text messages
Voice messages (Most telephones are now equipped
with voice mail)
Facsimile messages
How does the Rule on Electronic Evidence impact on the
Rules of Court?
One of the salient features of the rules on electronic evidence
deals with documents and therefore it impacts on exclusionary
rules relating to documentary evidence like the best evidence
rule.
Whats our Rules on Electronic Evidence as applied to the
Best Evidence Rule as ordinarily applied to paper based
documents?
Take note that as it is now, electronic evidence is admissible
as ordinary paper based document.
Electronic Document
This is interchangeably used with the term Electronic Data.
For purposes of the Best Evidence Rule, electronic data
message or electronic document, the same!
If you look at the definition, it is more or less the same as how
the rules of court define an ordinary paper based document for
purposes of the best evidence rule. And under both rules
(electronic and rules of court) on ordinary paper based, the
application of the best evidence rule is limited only to situation
where the contents of an electronic document or an ordinary
paper based document is the subject of inquiry. The same!
What may differ from the other is in the form of the original
documents and the treatment on the reproduced
acts(acts?facts?dili kaayo klaro.)
Definition
RULE 2, SECTION 1(h)
Electronic document refers to 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. For purposes of these Rules, the
term electronic document may be used interchangeably
with electronic data message.
It refers to information or representation of information. Data,
figures, symbols or other modes of representation however
described or represented by which a right is established,
obligation is distinguished or by which a fact may be proved or
affirmed which is (critical part of the definition) received,
recorded, transmitted, stored, processed, retrieved, or
Pelaez Moot Court - Evidence Transcript Team 2015-2016
produced electronically. It includes digitally signed document
or outputs readable by sight shown to reflect the data
accurately. Its basically the literal definition of electronic
document as found on the rules on electronic evidence.
What makes it electronic?
It is in the process by which it is produced, retrieved, received,
recorded, transmitted, so on and so forth. The common
denominator of these processes is electronic process.
So the transmission, the recording, the storage, the production,
the receipt, and so on and so forth must undergo an electronic
process. If any of these processes is supervened by non-
electronic procedure like manual process, the document is
taken out from the context of electronic document. It cannot be
considered electronic document. All these processes
mentioned in the rules must be done electronically. Thats what
makes it electronic, the process itself.
NPC vs Codilla
Action for damages filed by NPC against the shipowner which
damaged the power barges of NPC at sea. During the trial and
in order to support the claim for damages, NPC presented
certain documents, letters and correspondents, computations
for damage caused. These documents were only in their
photocopies when presented and offered formally to the court.
So the other party(the defendant) objected to their admission
on the ground that documents being photocopies are violative
of the best evidence rule. Their exclusion was sought by the
defendant. For its part NPC argued that with the effectivity of
the rules on electronic evidence, there is no more distinction
between an original and just photocopy because all copies are
considered or regarded as functional equivalent of the original.
The SC was confronted for the first time with the issue as to
whether the photocopies of these documents are admissible in
evidence under the best evidence rule.
SC: Before we would even determine if photocopies are
admissible under the best evidence rule, because it was
alleged that these are electronic documents alleged to be the
functional equivalent of the original, there is a need first to
determine if the documents are electronic in the first place.
So the SC has to determine whether the documents presented
are electronic documents as defined by the rules. The SC
noted that these documents contain some manual
signatures of the purported senders or responsible authors of
these documents. I assume all the documents there are all
computerized but what makes it NOT electronic is the
presence of manual signature. SC said we cannot see how a
manual signature can be considered as electronic. Its the
manual intervention that negates the electronic character of the
document. SC emphasized that as defined by the rules on
electronic evidence, a document to be electronic must undergo
all these processes or any of these processes electronically. It
is the presence of manual signature which is not an
electronic process that negates the electronic character of
the document.
So if you want your official communications or contracts to be
considered electronic, to do away with objections under the
best evidence rules, make sure that the signatures are
electronically accomplished. There is so called digital
signature! Using digital signature will make the document fully
electronic, NOT manual. So even if your document is a
computer generated document (you prepared it through the
computer and print it out)if you sign the document manually,
that will NOT make the document electronic.
29
Original Electronic Document
RULE 4, SECTION 1. Original of an electronic document.
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.
If an output originated from an ordinary paper based
document, you have an output originated from an ordinary
paper based document, like for ex.: Mr. M has a photograph of
his beloved wife. Using a scanner, the paper based
photograph of his wife is now transformed into digital image as
stored in the computer and then he displays it proudly. The
output there is the image of Mr.Ms wife as displayed in the
computer screen used as a screensaver. Look at the entire
process. It started with a paper based document (the
photograph). Using the scanning process, its now converted
into digital image as stored in the computer and then the
output, when the image is displayed in the computer screen.
So what is the original electronic document here?
So if the output is generated from a paper based document,
there three possible original documents there.
1. Photograph(paper based)
2. Digital image as stored in the hard drive of the
computer(original electronic document)
3. Retrieved and displayed in the computer screen
(original electronic document)
The first original is the paper based (photograph).Its an
original document but ordinary, not original electronic. Its an
ordinary paper based. When it is scanned, the digital image
resulting from the scanning process as it is stored in the hard
drive of the computer, thats another original. Its an electronic
documentoriginal electronic document. And then if it is
retrieved and displayed in the computer screen, thats an
output readable by sight which reflects the data accurately.
Thats another original. Actually, its regarded as original under
definition of an original document pursuant to Section 1, Rule 4
of the Rules on Electronic Evidence. Its regarded as the
original electronic document. Print out or output readable by
sight shown to reflect the data accurately. So you have three
original documents there. One paper based, two electronic.
What if the output originated from electronic document
like Email?
Mr. M emailed to his wife, sent it to the wife, wife stored it in
the hard drive of the computer, either display it or print it out.
Thats also the process of email. The output there is the print
out or the data as displayed in the computer screen. Thats the
output but it came from the original electronic document (the
email as produced by Mr. M). So whats the original electronic
document there?
The original electronic documents are: the email as produced
and sent by Mr. M and stored in the hard drive of his wifes
computer as stored inside. Its digital data. And then the
output is when it is retrieved, displayed, its output
readable by sight or the print out of the email. Thats the
original. All these are regarded as original electronic
documents. So for purposes of the best evidence rule, you
dont need to bring your laptop, diskette and have it printed in
front of the court for demonstration purposes. Thats not
necessary because under the rules, the print out is regarded
as original. So instead of bringing your computer device, just
Pelaez Moot Court - Evidence Transcript Team 2015-2016
bring the print-out of the electronic document. Thats regarded
as original for purposes of the best evidence rule.
Sec. 2, Rule 4 of the Rules on Electronic Evidence
RULE 4, SEC. 2. Copies as equivalent of the originals.
When a document is in two or more copies executed at or
about the same time with identical contents, or 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 is accurately
reproduces the original, such copies or duplicates shall be
regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall
not be admissible to the same extent as the original if:
(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 a copy in lieu of the original.
There are certain copies or counterparts which are equally
regarded as originals. Take note: COPIES,
COUNTERPARTS, regarded as ORIGINALS. This is where
the rules on electronic evidence differ from paper-based. So
we have now a reproduced copy of the original electronic
document but under Sec. 2, rule 4 regarded as functional
equivalent of the original and therefore, can be presented in
court without having to account for the original. So what these
copies or counterparts regarded as original?
1. When the electronic document is in two or more
copies executed at or about the same time with
identical contents, all the copies are regarded as
original. The same concept of original document as
provided for under the rules of court relating to
ordinary paper based document.
Ex.: Mr. M prepared an email for his beloved wife,
sent it to the email account of his wife. Mr. M wanted
to let the whole world know. And so, other than
sending the love letter email to the email account of
the wife, he also sent Cc to all his friends in his
directory. So there was only one original electronic
document, the email prepared by Mr. M but there
were so many copies as there are accounts to which
he sent the copies.
If theres dispute involving the contents of the love
letter, because this calls for the application of the best
evidence rule, the proponent can present any of
those hundred copies without having to account
for the one sent by Mr. M to his wife supposed to
be the original. It was the copy intended for the
addressee. The rest are only Ccs. But under this
definition, all these other copies executed at or
about the same time with identical contents are
regarded as original.
2. A copy is considered or regarded as original if it is a
counterpart produced by the same impression as
the original, or produced by the same matrix or
produced by mechanical or electronic rerecording
or produced by mechanical or chemical
30
reproduction or produced by any equivalent
technique that accurately reproduces the original.
So the copies or counterparts falling under the second
type are all reproductions. The reproductions that
undergo the process mentioned in the rules
electronic, mechanical, chemical or other equivalent
technique that reproduces the original accurately. So
under this second category, all reproduced copies of
the original electronic document are regarded as
original electronic. True enough under the rules on
electronic evidence, there can hardly be any copy
because copies are regarded as originals. So taking
cue from this concept and definition of originals as
defined under the rules on electronic evidence, it
would appear that your books, newspapers,
magazines, these are reproductions of one original
electronic document as produced by the author.
These are just counterparts, copies reproduced
through either mechanical, electronic or other
equivalent technique of reproduction.
So you prepare a pleading for example, you only have
one electronic document as stored in your computer.
Thats original, the digital copy of your pleading as
stored in the hard drive of your computer. Thats
original. But pursuant to Sec. 1 of rule 4 of the rules
on electronic evidence, the print out of that pleading
or the output readable by sight is regarded as original.
So you have a print out now. Thats regarded as the
equivalent of the original electronic document. Now
what happens if out of this one print out, you have it
reproduced a hundred or thousand times by
mechanical, chemical or other equivalent technique of
reproduction. Under Sec. 2 of Rule 4, all these
reproduced copies undergoing the processes
mentioned are also regarded as equivalent of the
original.
MCC Industrial Sales vs. Ssanyong Corporation
One of the leading cases in electronic evidence particularly
electronic document. This involves a transaction between MCC
sales and Ssanyong. One is based in Korea. MCC is based in
the Phils. MCC sales entered into contract with Ssanyong.
Ssanyong would supply steel materials to MCC Sales.
In the past and as always been their practice, their transactions
were done through facsimile communication. The practice was
for MCC Sales to send a fax copy or fax transmission of the
order and then in turn, Ssanyong would send facsimile
transmission indicating acceptance. So everything was done
through exchange of facsimile messages.
Alleging breach of contract, one party filed a suit against the
other. In order to prove the existence of their transaction,
plaintiff presented a photocopy of the facsimile copy of
the purchase orders issued in relation to the transaction in
question. The admission of the photocopies of the facsimile
copy.
Take note: there was a facsimile copy as received. This
facsimile copy is photocopied. The photocopies are presented
as evidence in court. Objected to under the best evidence rule,
the proponent argued that its under the rules on electronic
evidence these photocopies are regarded as functional
equivalent of the original electronic document.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Again, consistent with NPC vs. Codilla, the SC had to first
determine if the documents in question were in the first place
electronic in character. In this case, SC said that the facsimile
copy of the purchase order involved is NOT an electronic
document. Its a copy resulting from the process called
facsimile transmission. Facsimile transmission is a process
that involves an ordinary paper based document or data or
information which is scanned and then transmitted using a
telephone line to the receiving party and printed at the
receiving end, and then resulting in a facsimile copy.
In other words, SC said the process of facsimile transmission
involves two paper based documentsthe paper based
document or data as sent from the sending party and another
paper based facsimile copy as received. So thats the scenario
painted by the SC describing the process of a facsimile
transmission. So how did the SC address the question of
whether the facsimile copy of the purchase order can be
considered as electronic?
SC said it is NOT electronic because of the following two
justifications:
1. Document in question is not electronic by
invoking the definition of electronic document
or electronic data message. And in doing so,
the SC went on so far as to trace the history of
our law or rules on electronic evidence.
The SC said that our concept of electronic
evidence, which is interchangeably used in the
same manner as electronic data message, traced
its origin in the UN CITRAL (United Nations
Commission on International Trade Law) Model
law. According to the UN CITRAL Model law,
electronic data message or electronic documents
has been defined in such a manner that it
includes the process known as telecopy. Their
own definition of electronic data message or
electronic document includes process known as
telecopy. Telecopy means the transmission of
messages from one place to another using
facsimile machine. So fax machine. When we talk
about telecopy, the machine involved there is
FAX MACHINE.
The SC noted that, while our own rules on
electronic evidence basically patterned from the
model law adopted, our own definition is NOT
really perfectly or totally the same as it is being
defined under the UN CITRAL Model law. In our
own definition of electronic data message or
electronic document, the framers of the law
omitted that portion which includes the
process of telecopy. It is no longer found in our
own definition of electronic data or electronic
document.
So how does the omission impact on the SCs
interpretation of the rule? SC said the omission
of telecopy as part of the definition of
electronic data or electronic document
indicates the intent of the framers to exclude
facsimile copies or to exclude documents
produced by facsimile transmissions from the
concept or context of electronic document or
electronic data. So its a simplistic interpretation.
SC in resolving that the facsimile copy is not
an electronic document because facsimile
31
machine or facsimile process is not included
in the definition of electronic data message or
electronic document.
2. The whole purpose of the E-commerce Act or
the Rules on Electronic Evidence is to
promote paperless writings as functional
equivalent of ordinary paper based document.
So its the promotion of paperless environment.
Now this purpose can hardly be achieved if
facsimile copy is to be considered as electronic
because the facsimile transmission involves a
process where there is an original paper based
document as sent and another paper based
facsimile copy as received.
So the presence of these two paper based
documents, the sent and the received copies,
negates the purpose of the electronic
evidence rules. It is NOT paperless. It is
paperFULL(hehehe). So the SC justified its ruling
that the facsimile copy cannot be considered as
electronic. But take note, in that very same case,
the SC made a distinction between a computer
generated fax machine from the ordinary
traditional fax machine. The one involved in this
case is the traditional (the obsolete, the earlier
generation of fax machine) where it involves two
paper based documents, the first paper based
document as sent and another paper based
facsimile copy as received.
The way the SC described a computer generated
fax machine is that this is a kind of a facsimile or
fax machine which would not originate from a
paper based document but electronic. So its a
process that starts with electronic. The SC made
mention of this specific type of fax machine.
So obviously there, it refers to a computer
generated data or document sent from one end
to the other. So if copy of the fax machine
originated from a computer generated fax
machine, SC said that is electronic. So the
scenario painted by the SC is so long as the
source document is not paper-based, the
resulting facsimile copy is electronic.
Question: Received an email, printed it out and the print out is
sent through fax
Sir: So it involves scenario similar in Ssanyong. There are two
paper based documents there.
Q: Not necessary that it originates in handwriting?
Sir: If you look at Ssanyong, the SC merely said that the
source document there is paper based (the purchase order).
The SC mentions the facsimile transmission process there.
And the circumstance that prompted the SC to conclude that
its not electronic is the fact that the document started with
paper based and ended with another paper based.
In Ssanyong, it is not indicated there whether the purchase
order was manually prepared or also computer print out. Its
possible that its computer print out. You dont do manual P.O.
now. If that P.O. was manually signed then its obvious that its
paper based. But what if it was a computer print out and then
Pelaez Moot Court - Evidence Transcript Team 2015-2016
sent to the other end using ordinary fax machine? Because the
SC did not dwell on the nature of the original, the first
document sent. It only said that its paper based. It did not
indicate why it concluded or it considered it paper based. Is it
paper based because it was physically a paper without regard
to the technical definition of print out as electronic document?
We can understand that the source document is electronic
because the data, information is prepared through computer.
But what Im asking is whether this is transmitted now to the
other receiving end, will this result in facsimile copy which is a
physical paper.
(Another question dili madungog kay saba.Something to do
with photocopied ID.)
Sir: This is what the Ssanyong doctrine is trying to establish
that if document starts with a paper-based(something physical,
paper) and ends with another physical paper, thats NOT
electronic because this negates the concept of paperless
writing. But if you look at Sec. 2, Rule 4 where copies or
counterparts are regarded as original, this speaks of copies or
counterparts which are results of reproduction process.
Mechanical or electronic rerecording, chemical reproduction
and other equivalent technique that reproduces the original
accurately. So if the electronic document is reproduced
through this processes, the resulting copy is regarded as
original.
So what happens now if you prepare a letter for example or a
document through your computer and then you print it out,you
have a print out. Under Sec. 1 Rule 4, this is regarded as
original. Now what happens if you fax this? What happens to
the resulting facsimile copy printed at the other end( receving
end)? If you look at Sec. 2 of Rule 4, its regarded as original
because its a reproduction. But again, if you use facsimile, the
old one, the traditional one, then we will have a problem with
the first justification of the SC which is the exclusion of
facsimile transmission in the definition of electronic document.
Because the process there is singled out. The facsimile
transmission process is being singled out. So maybe, if it is
scanned (scanning is different from facsimile), you have a print
out of the document, you scan it, you store it in the computer
and then you print it. This is scanning. And based on Sec. 2 of
Rule 4, this is a counterpart, a copy, a reproduction of the print
out. Thats regarded as the original. All the print out
reproduced into a hundred times using photocopying machine.
Its still a reproducing technique. Chemical reproduction. Under
Sec. 4, the reproduced copies of the print out are considered
or regarded as the original.
You read the cases of Maliksi, Chato, all those cases
involving election protest. The SC made a definitive ruling
there that print outs(the ballots) captured by the PCOS
machine(PCOS involves scanning process). PCOS captured
the digital image of the ballots. Take note: The ballots are
paper based, fed to the PCOS machine, converted into digital
image stored in the PCOS. In case of dispute that requires
recount, print out. You have another paper based. Meaning,
paper based in the sense that it is physically paper. According
to the SC, the print outs of the ballots coming from the PCOS
are electronic documents. Yet, this started with a paper based
ballot that went through the process of scanning. So this is now
in contrast to Ssanyong. Only that in Ssanyong, the process
involved there was facsimile. This time, scanning. I dont know
how scanning process differ from facsimile transmission
process. And I dont know if there be difference at all. I dont
know if that difference is relevant at all in the determination of
whether the document is electronic or not.
32
Just to be safe(this is far from being settled), for our purposes,
our approach is to answer questions on a case to case
depending on the facts involved. If the process involves
facsimile, then Ssanyong ruling. If scanning, you invoke
Chatu, Maliksi and other cases because the process there
is specifically scanning, NOT facsimile. But if you look at
Sec. 4(Sec. 4 iya ingon but I think RULE 4 iya pasabot), it is an
all-encompassing provision. It includes any and all copies or
counterparts reproduced from the original using these
techniques.
If you look at Sec.2 of Rule 4,newspapers and books are
regarded as original.
Question about photocopying(hinay tingog)
Sir: You argue under Sec. 2. It says there copy or counterpart
of the original electronic document. That is an original
electronic document It is broad enough to include any form
of reproduction so long as the reproduction is accurate.
Authentication of Electronic evidence.
If you fail to authenticate, the court may likely exclude or
disallow your evidence.
The rule on authentication of electronic evidence depends on
what kind of evidence the proponent presents in court. If
offered as electronic document, follow the rule on electronic
document. If it is an object, exhibit it to the court to be viewed,
examined by the court and if offered as object electronic
evidence, should accordingly follow the rule in authenticating
electronic object evidence.
How do you authenticate evidence offered as electronic
document?
3 Modes of Authentication
1. That the electronic evidence is digitally signed by the
person purporting to have signed it.
-relevance of the digital signature
2. By evidence that some other security procedure or devices
as may be allowed by the SC or by law for authentication of
electronic document have been applied to the document.
-prove that a particular security procedure was duly
applied
3. By any other means so long as it is established to the
satisfaction of the court that the electronic document, the
reliability and integrity are preserved.
-The third mode is a general mode of authenticating. Just
make sure you are able to convince the court that the reliability
and integrity of the document are intact.
Authentication of Object Electronic Evidence
(ex. Audio recording, video recording)
If these are offered to the court the purpose of the court to
view or hear it. These pieces of evidence are considered
object. Electronic evidence can either be electronic or object.
Ephemeral Electronic Communication
Pelaez Moot Court - Evidence Transcript Team 2015-2016
So how do you authenticate digital images or audio recording.
This can be authenticated by a competent witness being the
one who took the recordings or by any person familiar with the
event or transaction captured in the recording. More or less
similar to demonstrative evidence. Not only by the one who is
responsible for taking the photograph or recording but also by
any witness who can attest to the fact or veracity of the image
depicted or the recording.
Ephemeral electronic communication- refer to telephone
conversations, now under this rule considered of a special kind
which is ephemeral electronic communication. Because by
their very nature because evidence of these kind are not stored
or retained.
Ex. Text messages, chat session, streaming video/audio
How do you authenticate?
By a witness who is a party to the communication and anyone
who is competent who has personal knowledge of the
communications.
CASE: People v Noel Enojas
TN: Expected to come out in the bar!
Involves authentication of text messages.
First doctrine: SC made a ruling that rules on electronic
evidence apply to criminal cases.
Second doctrine: Procedure in authenticating ephemeral
communication like a text message.
This involve a robbery where one of the participants was a taxi
driver. After the robbery the taxi driver got caught along with
his cellphone. The police took possession go the cellphone
and the police who has custody of the cellphone noticed that a
text message came in. It turned out that the text message
came from the other co-conspirators.
So the police who was in possession of the cellphone,
pretended to be the owner of the cellphone and proceeded to
exchange messages with the other party. This led to the police
setting up an entrapment operation which eventually led to the
capture of the other party.
During the trial, one of the pieces of evidence presented was
the text messages saved/stored in one of the cellphones of the
suspects. But this was authenticated by the policeman who
took possession of the cellphone and who exchange
messages with the other suspects. His testimony, in so far as
to authenticate the text messages found in the cellphone on
the ground of lack of authentication because according to the
accused, he(policeman) was not the owner of the cellphone
where the text messages are found.
SC ruled that for ephemeral electronic communication like a
text message, authentication can be done by a party to the
conversation or by anyone who has personal knowledge of the
communication. The policeman very well, falls either. He was a
party to the communication and in fact pretended to be the
owner of the cellphone. SC said, there was proper
authentication and therefore, admissible.
Question: If there was a print out then signed, is it still
considered electronic document?
(Codilla case) If there was manual intervention in a printed
document, no longer electronic. According to Codilla, to be
33
considered electronic, all processes must be electronic.
However, what differentiates an electronic document from a
paper-based document is the manner by which the information
is processed; clearly, the information contained in an electronic
document is received, recorded, transmitted, stored,
processed, retrieved or produced electronically.
Attune yourself with the changing times, learn how to sign
digitally to avoid difficulty in authentication of electronic
evidence.
For our purposes, to be safe, take cases as they are, the basis
the existing jurisprudence. If the facts are more or less in one
decided case, you just have to tailor your answer in
accordance with the SC decisions.
So the rules on the decided cases, you cant be wrong with
decided cases daw!
If involves scanning: Malik and Chato case
If fax: Sangyong case
If neither: Rely on the provisions, Rule 4, Section 1 and 2
PAROL EVIDENCE
Applies to documentary evidence. This rule is irrelevant to
object and testimonial. Before applying PER, you need to
determine first if the document or writing offered is offered as
documentary evidence.
Spelled as P-A-R-O-L, without an E.
Under the rules, when the terms of an agreement have been
reduced into writing, it is considered to be containing all the
terms agreed upon and there can be the parties and the
successors-in-interest no evidence of the such terms other
than the terms in the written agreement.
PER comes into operation when there is dispute as to the
terms and conditions of a written agreement.
BER v. PER
More or less the same with BER. BER applies when the
subject of inquiry is the content of the document. Do not
confuse one with the other. Do not invoke PER when the
proper ground for objection is BER. Although in most cases, if
not all cases, when the question calls for PER, chances are it
also calls for the application of the BER because PER
presupposes the BER. Before you apply the PER you have to
pass the test of BER.
PER prohibits the admission of evidence other than the writing
on the agreement itself. BER prohibits any other evidence
other than the original. So the line is so thin between the two.
In the actual real time, these two interplay in a given situation.
Example:
There is a contract of sale involving Lot A, the Plaintiff say the
property sold is LOT A, but defendant says the subject of the
contract is Lot B. There is a dispute as to the terms of the
contract of sale. The contents of the contract are the subject of
inquiry as there is a dispute as to the precise contents of a
writing. So this calls for the application of both.
Under BER, the original contract of sale, not photocopy or
testimony. Under the PER, no other evidence is admissible
other than the contract itself, not other document or testimony.
You need to submit the original that will answer the question
Pelaez Moot Court - Evidence Transcript Team 2015-2016
on what really is the content of the document and what is the
agreement. Almost all cases they interplay but applied in a
different sense.
Not only oral evidence is prohibited
TN: Parol, literally means oral. For purposes of parol evidence
rule, what is prohibited is not only oral but any form of evidence
outside the four corners of the written agreement, be it oral or
otherwise.
Reason behind the rule: When there is conflict between a
writing and a testimony of a witness.The law presumes the
document is more reliable than the testimony of a witness who
is testifying only on the basis of his memory. Its a universal
fact that human memory fails/treacherous, unlike a written
contract which do not lie.
Presupposes written contracts
PER presupposes the existence of a written contract or
agreement. What is excluded under PER, whether an oral or
otherwise, which would vary, contradict or modify the terms of
the written agreement. Anything that would change the terms
are not admissible.
Not even a testimony of a witness who claims he was present
in the execution of the contract.
The basis here is the nature of agreements. Agreement
presuppose certain stages called as the negotiating stage
where parties propose, offer and the other counter-offer,
counter-propose. There may be some terms and conditions
agreed upon, others rejected until they come up with the final
agreement. This final agreement is embodied in that written
contract or agreement. So that any other terms and conditions
which could have been discussed in the negotiation but is not
included in the final contract, those were all considered
rejected and abandoned by the parties. So the agreement
should be tested on what is found in the four corners of the
contract.
CASE: Yu Tek and Co. v Gonzales
This involves a contract between Yu Tek and Co. and Mr.
Gonzales where Mr. Gonzales undertook to deliver to Yu Tek
and Co. piculs of sugar for stipulation and within a stated
period but Mr. Gonzales failed to comply.
So Yu Tek and Co. Demanded for the return of the money it
paid to Mr. Gonzales, for breach of contract. In his defense,
Mr. Gonzales tried to prove in court that the sugar that Mr.
Gonzales undertook to deliver should be sourced from his own
sugar plantation.
Unfortunately, the contract does not specify the source of the
sugar that he is to deliver. It merely states that Mr. Gonzales
for a certainn consideration promises to deliver to Yu Tek and
Co. Certain piculs of sugar within a stipulated period. Nothing
is mentioned about the source of the sugar.
SC said, the testimony of Mr. Gonzales, to the effect that the
sugar should be sourced from his own sugar plantation tends
to vary, contradict and modify the terms of their written
contract. And this is precisely what is prohibited by the PER.
INSTANCES THE RULE DOES NOT APPLY:
34
(TN: PER applies only if the document contains or constitutes
a contract or agreement as distinguished from mere statement
of facts. The BER applies to all forms of writing containing
words, symbols, figures or other forms of written expression
offered as proof of their contents whether this writing or
material constitute a contract or mere document that contains
writing, not necessarily contract. But PER specifically applies
only if that document constitutes a contract. There are parties,
subject matter and obligations.
1. If it merely contains statement of facts, PER cannot be
invoked to disallow evidence to explain, clarify or modify
the contents of the document.
CASE: Cruz v CA
Mr Cruz was sued by Salonga for sums of money arising from
alleged loan obligation. The loan transaction according to
Salonga was purpotedly evidenced by a receipt signed by Mr.
Cruz stating that received the amount of P35,000 from Mr.
Salonga. I promise to pay within this period. Signed Mr. Cruz.
During the trial, Mr. Cruz tried to introduce evidence that while
he may have signed the acknowledgment receipt appended to
the appendix of the complaint of Mr. Salonga, it was not
actually a loan. The amount that he received, as evidenced by
the acknowledgment receipt was not a loan obtained by him
from Mr. Salonga but on the contrary, it was a payment from
Mr. Salonga arising from their other contract.
Two contracts,the first was for the purchase of fish products
which were produced by the fishpond leased by Mr. Cruz and
the second, was their sublease agreement where Mr. Salonga
sublease from Mr. Cruz the fishpond from Mr. Cruz the Mr.
Cruz leased from a certain Mr. Yabut. The testimony of Mr.
Cruz to establish this elleged transaction was objected to
under PER because accordingly this would tend to vary the
terms of the acknowledgment receipt.
But SC rejected the argument contending that PER applies
only if the extraneous evidence tends to vary, contradict or
modify the terms of a written agreement, meaning a contract.
The acknowledgment receipt simply contained a statement of
fact that certain amount was received by someone from
another. So the testimony tending to explain was allowed there
being no application of the PER.
2. PER is premised on the rule that contracts are only
binding upon the parties thereto. Consequently, PER
applies only to the parties. It cannot be invoked against a
non-party to the contract.
CASE: Victory Lechugas v CA
Vicky Lechugas filed a case for ejectment which was
dismissed. Lechugas appealed it to the RTC and during the
pendency of the appeal, Vicky Lechugas filed a suit for the
recovery of the same piece of land against the same
defendants. Eventually these two cases were consolidated.
During the trial, presented Leoncia Lasangue who testified in
court that she was the one who sold properties to the
predecessors-in-interest of the defendants as well as to the
plaintiff Vicky Lechugas. But Leoncia clarified that while the
deed of sale executed in favor of Vicky Lechugas mentions lot
A, what she actually sold to Vicky Lechugas was Lot B. So
that, Vicky Lechugas is claiming a different lot. The one
occupied by the defendants is not the lot that Vicky Lechugas
bought from Leoncia Lasangue. Obviously, the testimony of
Lasangue tends to vary the terms of the deed of sale. The
Pelaez Moot Court - Evidence Transcript Team 2015-2016
deed says Lot A, she says Lot B which was objected to
pursuant to the BER.
But SC overruled the objection holding that PER is applicable
only to the parties, can be invoked only against the parties to a
written agreement. So that when atleast one of the parties to
the suit is is not a party to the written agreement, PER cannot
be invoked to prohibit introduction of evidence that would tend
to vary, contradict or modify the terms of the written
agreement. In this case, the defendants were not parties to the
sale between Lechugas and Lasangue. Therefore, PER cannot
be invoked by Lechugas against the defendants to introduce
evidence.
What makes a party a party to the written agreement?
Does his name need to be stated in the contract? Does her
signature be found to the contract?
No, does not only refer to those who signed and participated in
the execution of the written agreement but parties in
contemplation of PER includes those who are not directly
participants in the execution of the written agreement. But
either, they based their claim on the document or agreement or
assert a right originating in the document or the stand to
benefit from the stipulation or conditions of a contract -
stipulation pour autrui. Stipulation pour autrui is a stipulation in
favor of a third party. According to SC, a beneficiary of a
stipulation pour autrui is deemed party to the contract and
therefore bound by PER.
CASE: Heirs of Pacres v Cecilia Ygona
TN: Expected to come out in the bar!
This illustrates the principle that a party who claims benefit
under a stipulation pour autrui is deemed to be a party and
therefore cannot resist the application of PER.
This case involves a piece of land originally owned by the
parents. When the parents died, the property was inhered by 6
children. Subsequently, 4 of the children sold their shares to
Cecilia Ygona, the 2, Mario Pacres included, did not sell their
shares. Some time later, Mario and his sister died, as well as
Cecilia Ygona died. The heirs of Cecilia Ygona succeeded her.
Claiming that Cecilia Ygona during her lifetime, failed to
comply with the conditions agreed upon during the time when
she purchased the shares of the 4 children of the original
owner. The heirs of Mario Pacres and his sisters heirs filed a
suit for specific performance to compel heirs of Ygona to
comply with the alleged oral conditions.
The oral conditions were supposedly agreed upon by Cecilia
Ygona and the heirs who sold their shares to her. These
alleged conditions or undertakings include to cause the survey
of the entire lot, pay the present and the past taxes due, obtain
separate titles over the respective shares of the heirs and
deliver the title to the respective heirs. These conditions
according to the heirs of Pacres, the plaintiff, were not
complied with by Ygona so they now ask the court to heirs of
Ygona to comply.
The problem was these conditions were not included in the
deed of sale between the 4 children who sold theirs shares to
Ygona. The deed of sale simply conveys their shares to the
buyer Cecilia Ygona. The conditions allegedly agreed upon
were not included. Evidence were introduced to establish to
these alleged oral conditions were objected to on the ground of
35
parol evidence. These would vary, contradict or modify the
terms of the deed of sale. According to the heirs of Mario
Pacres, they are not parties to the deed of sale. The deed of
sale was only executed by the 4 children who sold their
respective shares and Ygona as the buyer. Mario, their
predecessors-in-interest did not sell his interest.
But SC said, by filing the action for specific performance to
compel the heirs of Ygona to comply with the alleged
conditions, they are in effect claiming to be the parties of the
Stipulation Pour Autrui. Third party who stands to benefit from
a stipulation agreed upon by other parties and therefore,
according to SC, being beneficiary of Stipulation Pour Autrui,
then they are deemed parties to the written deed of sale and
therefore, they cannot resist the application of the PER simply
because their names are not found in the written agreement.
Gaje vs. Vda. De Dalisay
This involves a piece of land owned by the father, Desiderio
Dalisay Sr. (Senior). During his lifetime, he bought a parcel of
land from a third party but the name of the buyer in the deed of
sale was indicated to be Desiderio Dalisay, Jr.(Junior) , not the
Senior, who was the real buyer.
After execution of deed of sale, Senior took possession of the
property and cultivated it until he died. Junior sold the property
to another. The buyers now are the defendants of the case.
The widow, Patricia Vda. De Dalisay, as administratix of her
late husband Senior, filed an action to recover the property that
Junior sold.
During the trial, testimony of Patricia (that the real buyer is
Senior, and that the name of Junior as buyer was only resorted
to for convenience) was objected to pursuant to the Parol
Evidence Rule because it tends to vary, modify and contradict
the terms in the written deed of sale showing Junior as the
buyer.
SC overruled the objection. Parol Evidence Rule applies only
between parties to the contract. In this case, the deed of sale is
between the sellers and Junior. Patricia, is not a party to the
written deed of sale. Therefore, Junior cannot invoke Parol
Evidence Rule to prevent Patricia from introducing evidence to
modify, explain, and vary the terms of the written agreement.
3. If the parol evidence is offered to establish the
existence of a prior or contemporaneous agreement which
is independent or separate from the written agreement,
Parol Evidence Rule does not apply to prevent the
introduction of evidence to establish such prior or
contemporaneous agreement. (Collateral Agreement Rule)
Parol Evidence Rule prohibits extraneous evidence that would
tend to vary, contradict, or modify the terms of the written
agreement. So that if evidence does not vary, modify, or
contradict the terms, the rule does not apply.
Robles vs. Lizzaraga-Hermanos
Supreme Court enunciated the Collateral Agreement Rule
This involves a contract involving Hacienda Nahalinan
originally owned by the father, Zacarias Robles Sr. (Senior).
When Senior died, his estate was succeeded by the heirs and
administered by the widow, Anastacia de la Rama.
During her administration, the widow leased the property to her
son, Zacarias Robles Jr, (Junior) for a period of six years. The
hacienda was already in its dilapidated state. They agreed that
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Junior would introduce improvements on the property and
install farm equipments on the property at his expense.
During this time, Lizzaraga-Hermanos offered to buy Hacienda
Nahalinan and all the estate left by Senior and Anastacia
(Robles couple) who also died, leaving the estate to their
children. A contract was entered into by three of the six
children including Junior, selling the all the properties forming
part of the estate of the Robles couple to Lizzaraga-Hermanos.
But it was alleged that at the time of the transaction, the lease
contract between Anastacia and Junior had still a remaining
period of three years, so to sweeten the offer of Lizzaraga-
Hermanos, it was agreed that he would compensate Junior for
the value of the improvements and the farm equipments and
implements that he installed. This alleged oral agreement was
not embodied in the written deed of sale between the heirs of
the Robles couple and Lizzaraga-Hermanos.
Contending that Lizzarag-Hermanos failed in his undertaking to
compensate Junior for the value of the improvements, he filed
a suit. Junior tried to prove during the trial that Lizzaraga-
Hermanos agreed to reimburse him the value of
improvements. This oral extraneous evidence was objected to
based on the Parol Evidence Rule since such agreement was
not embodied in the written contract of sale.
SC overruled the objection. Parol Evidence Rule applies if it
tends to vary, modify, or contradict the terms of a written
agreement. If the parol evidence tends to establish an
independent and separate oral agreement which was agreed
upon prior to or contemporaneous to the execution of the
written agreement, the Rule does not apply because if that
prior or contemporaneous oral agreement is independent from
the written agreement then it cannot be expected to produce
the effect of varying, modifying, and contradicting the terms of
the written agreement.
In this case, the written deed of sale only involves the
properties that the children inherited from their parents
meaning it was by reason of succession but the oral
agreement which was entered into contemporaneously with the
written agreement involves the property that Junior own in his
own capacity, not inherited from his parents because such
improvements were introduced at his own expense when he
leased the property.
The doctrine here is: If the parol evidence is offered to
establish the existence of a prior or contemporaneous
agreement which is independent or separate from the written
agreement, Parol Evidence Rule does not apply to prevent the
introduction of evidence to establish the other prior or
contemporaneous agreement.
EXCEPTIONS TO THE PAROL EVIDENCE RULE
Apart from instances when Parol Evidence Rule does not
apply, the rule itself provides for exceptions to the application
of Parol Evidence Rule.
1. Intrinsic ambiguity, mistake or imperfection in the written
agreement
2. Written agreement does not express the true intention of the
parties
3. Validity of the written agreement
36
4. Existence of another term agreed upon by the party after the
execution of the written agreement
Rule on Materiality
The exceptions can only be invoked if the parties seeking to
introduce the parol evidence by way of exception properly
plead these exceptions as issues in the pleading so that
court acquires jurisdiction and evidence will be allowed to
prove or disprove the issue raised in the pleadings.
Remember the rule of materiality. If evidence is offered to
prove a fact not in issue, it is immaterial. If you are the plaintiff
and want to vary the terms of the written agreement, for
example, you have a deed of sale and you believe that it does
not reflect the true intention of the parties because the true
intention was only a simple loan agreement. In order to invoke
the exception and introduce parol evidence to establish the
real agreement, you need to allege it in your complaint. You
are now making it as an issue since the other party will deny it.
During the trial, you can now present testimony or other
extraneous evidence that will establish that the deed of sale
does not reflect the true intention of the parties. So even if the
testimony of the witness will vary, contradict or modify the
terms of the deed of sale, which is allowed.
If you are the defendant, and plaintiff files an action on the
basis of and deed of sale and you believe that it does not
reflect the true intention of the parties. In you answer, alleged
that the deed of sale is not reflective of the true intention of the
parties. Parol evidence may be introduced during the trial.
1. Intrinsic ambiguity, mistake or imperfection in the
written agreement
Intrinsic ambiguity- an ambiguity that cannot be determined on
the face of the written document
Palanca vs, Wilson & Co.
Palanca was the manager of Song Fo & Co, a business
enterprise engaged in manufacturing of liquor. In pursuit of its
business, Song Fo & Co, through Palanca entered into a
contract with Wilson & Co. for the supply and installation of a
distilling apparatus. In the contract, it was agreed that Wilson &
Co. had to deliver distilling apparatus with a capacity of 6K
litres per day. True enough, Wilson & Co. delivered and
installed a distilling apparatus.
But when it was tested, Song Fo & Co realized that the
apparatus did not produce 6K litres of alcohol per day. For its
part, Wilson & Co. argued that it would not produce 6K litres of
alcohol per day because the agreement was for a distilling
apparatus with a capacity of 6K litres per day, meaning a
apparatus which has a TREATING capacity of 6K litres per day
of raw materials. The plaintiff says 6K litres of finished product,
alcohol. The supplier says 6K litres of raw materials. But the
contract only plainly says a distilling apparatus with a capacity
of 6K litres per day, without reference whether it pertains to
treating capacity or producing capacity.
Obviously, this involves intrinsic ambiguity in the written
agreement. Because looking at the face of the contract, you
cannot ascertain the true intention of the parties.
SC had to rely on extrinsic evidence, evidence other than the
terms of the contract:
Pelaez Moot Court - Evidence Transcript Team 2015-2016
1) SC resorted to the dictionary. Capacity normally refers to
capacity to contain or treat. On this score, the 6K litres
stipulated in the contract must refer to capacity of the
apparatus to treat 6K litres per day of raw material.
2) SC took note of the evidence introduced in the trial that the
prevailing rate for distilling apparatus with a producing capacity
of 6K litres per day of finished product range from 35K to 40K.
The contract between Song Fo & Co. and Wilson & Co. only
involved 10K. SC said that the parties could not have agreed to
a producing capacity of 6K litres per day. It is beyond the
prevailing market price.
2. Written agreement does not express the true
intention of the parties
Land Settlement and Development Corporation
(LASEDECO) vs. Garcia Plantation
Lasedeco filed an action for the collection of the unpaid
balance of the purchase price of two tractors purchased by
Garcia Plantation. Garcia Plantation interposed the defense
that the filing of the action was premature because they were
granted a grace period within which to pay the balance. In
support of its defense, the defendant submitted to the court a
copy of the letter signed by the manager of the board of
liquidators (since Lasedeco was under liquidation). In that
letter, the manager stated that the defendant is given a grace
period to pay the balance of the purchase price, pursuant to a
meeting between Lasedeco and the Garcia husband.
In their reply Lasedeco pleaded it as an issue that the letter
does not reflect the true intention of the parties in so far as the
grace period in concerned. During the trial, Lasedeco
presented the manager and legal counsel of the board of
liquidators to prove that while it is true that the board granted a
grace period, this period was premised on a condition that the
defendant should pay a substantial downpayment, which the
defendant failed to comply. Therefore, the grace period was
not granted. That was the true agreement but such agreement
was not embodied in the letter. The testimonies of the two
witnesses were objected to under the Parol Evidence Rule
since it would vary, contradict and modify the terms of letters.
SC said the Parol Evidence Rule provide for exceptions such
as when it is pleaded as an issue that the written agreement
does not reflect true intention of the parties. By filing the reply
and pleading it in the reply that the letter does not reflect the
true intention of the parties, Lasedeco was invoking the
exception. They cannot now be prevented from introducing
parol evidence to modify or vary the terms of the written
agreement.
Enriquez vs. Ramos
Socorro Ramos, the owner of National Bookstore, purchased
hundred pieces of land from Enriquez. The twenty parcels of
land were intended to be converted into subdivision lots. Since
Ramos did not pay the entire purchase price, they entered into
an agreement that the remaining balance be paid when
Enriquez would be able to construct feeder roads that would
provide access to the subdivision lots.
As security for the payment of the balance, the parties entered
into a written agreement denominated as a contract of sale
with mortgage where Ramos, the buyer would mortgage the
same parcels of land to guarantee payment of the purchase
price. Alleging that Ramos failed to pay the balance, Enriquez
instituted an action to foreclose the mortgage. Ramos
37
objected, arguing that foreclosure is premature. It is premature
because the payment of balance is conditioned upon the
construction of feeder roads which was not complied by
Enriquez. This was pleaded in the answer of Ramos as his
defense.
During trial, Ramos presented parol evidence to establish the
existence of such pre-condition. This was objected to since
such condition was not incorporated in the written contract of
sale with mortgage although Ramos insisted that it was due to
the insistence of the lawyer for Enriquez that the condition was
be omitted from the contract.
The issue was whether or not the testimony of Ramos tending
to establish the existence of a condition precedent before
obligation to pay would arise is admissible in the light of the
Parol Evidence Rule.
SC said the Parol Evidence Rule has exceptions such as when
the party pleads it as an issue in the pleading that the written
agreement does not reflect the true intention of the parties. In
the answer, the party pleaded it as an issue that there was a
condition precedent and therefore the Parol Evidence Rule
cannot be invoked to exclude extraneous evidence.
3. Validity of the written agreement
The Parol Evidence Rule presupposes the existence of a valid
written agreement so that if it is alleged by the parties that the
written agreement is not valid, then Parol Evidence Rule
cannot be invoke to exclude extraneous evidence that would
show precisely the fact the written agreement is invalid.
Heirs of Ureta vs. Heirs of Ureta
A prolific father, Alfonso Ureta, sired 14 children. One can only
admire the industry of this man. Anyway, he had a meeting
with 4 of his children. One was an MTC judge. They discussed
how one could avoid from paying sizeable estate taxes. Maybe
Alfonso was already anticipating imminent death. Upon the
suggestion of his son who was a judge, they resorted to
simulated deeds of sale purporting to show that some of the
properties were sold o some of the children. Six of these
properties were made to appear as having been sold to
Policronio for purposes of avoiding payment of taxes.
Alfonso and Policronio died. Heirs of Alfonso executed an
extrajudicial partition of the estate including the six parcels of
land subject of the simulated deeds of sale in favor of
Policronio. The children of Policronio found that in the records
in the city assessor, the tax declarations covering the six
parcels of land were in the name of their father, Policronio.
Insisting that they are the owners, they asserted their right over
the property.
They contend that the properties should not be included in the
extrajudicial settlement of the heirs of Alfonso. A suit was filed.
It was alleged in the pleadings of the heirs of Alfonso that the
deed of sales were made only to avoid payment of taxes, this
was never meant to transfer ownership to Policronio.
During the trial, one of the children of Alfonso, testified that the
deeds of sale executed by Alfonso to Policronio was simulated.
This was objected to on the ground of Parol Evidence Rule
because this alleged agreement to avoid payment of estate
taxes was not incorporated in the deeds of sale.
SC said that the Parol Evidence Rule provides for exceptions
among which is when the parties pleads it as an issue in the
pleading the validity of the written agreement which the
Pelaez Moot Court - Evidence Transcript Team 2015-2016
children of Alfonso did in the case. Being an exception, the
testimony tending to prove the existence of the agreement to
avoid payment of estate taxes may be allowed without violating
the Parol Evidence Rule.
4. Existence of other terms agreed to by the parties
after the execution of the written agreement
Mariano vs. Canoto (Not sure of the name)
A contract of sale with right to repurchase was entered into by
two parties. Two days before expiration of the period given to
exercise the right to repurchase, the seller claimed that she
was granted a grace period by the buyer. And before expiration
of the grace period, she exerted effort to exercise such right
but the buyer did not allow seller to buy back the property.
This prompted the seller to go to court to compel the buyer
allow repurchase and execute the deed of repurchase. That
was alleged in the complaint of the seller. During the trial,
seller testified that she was given grace period. This was
objected to under the Parol Evidence Rule because the
agreement was not found in the deed itself.
SC overruled the objection noting the exception to the Parol
Evidence Rule that the existence of such terms agreed to by
the parties or their successors-in-interest after the execution of
the written agreement. Obviously, the agreement granting the
seller the grace period was a term subsequent to the execution
of the contract of sale with right to repurchase.
PAROL EVIDENCE RULE AND THE STATUTE OF FRAUDS
Article 1403 of the Civil Code or the so called Statute of Frauds
is also a kind of evidentiary rule. Under Art. 1403, there are
certain kinds of contract which cannot be proved by oral
testimony for purposes of enforceability. This means that these
contracts cannot be proved because of its oral existence. The
only way to prove its existence is by written memorandum. For
enforceability, this contracts mention in 1403 must be
evidenced by writing. So that if their existence is established by
a witness, any testimony to that effect cannot be admitted
except when the contract is partially executed. This is a form of
evidentiary rule.
nd
Relate this to 2 exception of the Parol Evidence Rule under
the Rules of Court- when the written agreement does not
reflect the true intention of the parties.
What happens when a party pleads it as an issue in the
pleading that the written agreement does not reflect the true
intention of the parties and that the real agreement is one
covered by the Statute of Frauds. Under the Rules of Court,
since it falls under the exceptions and is pleaded as an issue, a
party may introduce parol evidence to show the the true
intention of the parties. But if the real agreement is one of
those covered by the Statute of Frauds which cannot be
proved by parol evidence, is oral testimony offered to prove the
real intention of the parties admissible?
In the book of Paras, he said that one of the exceptions to the
Parol Evidence Rule is when it is pleaded that the written
agreement does not reflect the true intentions of the partes,
parol evidence may be allowed to prove the real agreement as
long as the agreement is not covered by the Statute of Frauds.
IOW, parol evidence tending to prove the real agreement, even
if allowed under the Rules of Court as exception, the evidence
nonetheless may not be allowed under the Statute of Frauds.
TESTIMONIAL EVIDENCE
38
rd
The 3 classification of evidence on the matter of form is
testimonial evidence.
Testimonial evidence is loosely defined as evidence lifted from
the mouth of the witness. But this is not the accurate definition.
Section 1 of Rule 132, generally mentioned that the witnesses
should testify orally, but also provides for the exceptions to
the oral form of giving testimony:
1. If the witness is incapacitated to speak
o You cannot expect him to give his testimony
in a parol form.
o Being a witness is not a privilege of those
who can speak, even a deaf mute can testify
in court.
o Under the rules, they are not excluded from
testifying. They can very well testify thru sign
languages. The rule allows itself as an
exception.
2. The rule itself allows for a different kind of action like
when the witness is asked to demonstrate something.
This will require overt acts which will constitute as a
mode of communication or giving testimony.
Example: Private offended party is asked
how the rape was actually perpetrated. How
else to demonstrate that? No words are
enough to describe. The best way to let the
judge know how it was done. As such,
demonstrate how the rape was done through
body language. Thus, by way of exception,
that testimonial evidence is allowed even if
not done orally
3. It is allowed by the Rules to have the testimony
through affidavits which is contained in some writings
o But do not commit a mistakes that classifying
affidavits as documentary evidence. They
are considered as testimonial evidence.
THUS:
Closest definition of testimonial evidence is simply a
reconstruction of past events s as perceived by witness,
which is recollected in court and made known to the court.
It is actually a narration of facts made by the witness
in relation to past events that he claimed to have
witnessed. It is the reconstruction of past events.
3 elements of testimonial evidence:
1. Process of Perception
2. Process of Recollection
3. Process of Communication
As such, if a witness recollect past events and is
communicated to the court, that is considered as testimony
evidence. It doesnt matter in what way he communicated it to
the court. It could be done orally, in body language or in
writing, such as in affidavits.
The reference to oral testimony is only as to the form
how the communication is being conveyed.
But essentially, testimonial evidence relates to the
fact that a witness recollects past event
Pelaez Moot Court - Evidence Transcript Team 2015-2016
What qualifies one to be a witness?
1. Witness must have the capacity to perceive.
o Perception presupposes the witnesses
human senses. The knowledge acquired
through his own senses (sense of smell,
sight, taste, etc.)
2. The capacity to remember or recollect the perception
of past events.
o It is useless if he has the capacity to
perceive but cannot remember.
3. The capacity to make known his percept or
recollection to others or the ability to communicate.
o It is useless if has the ability to perceive and
recollect, but cannot communicate.
NOTE: qualifications from number 1 to 3
refers to the substantive aspect.
4. The witness must take an oath of affirmation.
o This is a procedural requirement.
o What is the relevance? To make sure that
the witness is conscious of his duty to tell the
truth and nothing but the truth under pain of
some punishment either form someone high
above or under the law.
o Distinction between oath and affirmation:
The purpose is the same.
But different as to the context from
which it is derived.
Oath relates to the recognition of
something high almighty or a
Supreme Being or ultimate judge or
ultimate punisher. If someone
makes an oath, it is always
associated with consciousness of
an almighty god. As such, the
witnesses promises that he will
testify truthfully under pain of
punishment from his god if he
testify falsely.
Other religion cannot
excuse themselves from
witnesses, instead of
taking an oath, result to
just a mere affirmation.
Affirmation is an undertaking
where the witness is conscious of
his duty to testify truthfully with a
knowledge that if he is caught lying
or if he falsely testify, he can incur
some punishment and liability under
the law such as perjury.
o Either oath or affirmation, which is a
requirement. If the witness is caught to have
testified falsely, some adverse punishment
may be incurred, divine punishment or
human justice.
5. The witness must have the all the qualifications
mentioned and he must not possess any
disqualifications imposed by law.
By the way, the disqualifications imposed by law are
exclusive
39
Disqualification due to mental insanity
Disqualification by mental immaturity
Disqualification by reason of marriage or spousal
immunity
Disqualification by reason of death or survivorship
Disqualification by reason of privilege communication
Specific exclusive disqualification. Any other form will not
constitute as a disqualification.
Examples:
Political affiliation is not a disqualification as provided
under the law
Religious belief is also not a disqualification.
o If Mr. P happened to be a chairman of a cult
which consider lying as a virtue, that will not
make Mr. P disqualified from testifying since
religious belief is not a disqualification
imposed by law.
As well as the interest in the outcome in case is not
considered as a disqualification.
o If Mar Roxas will testify in the disqualification
case of Grace Poe, his interest will not
disqualify him but his testimony may not be
credible. (If Grace Poe is disqualified from
the presidential race, Roxas will stand to be
benefited, he has all the interest in the
world). Not a ground for disqualification (rule
on admissibility)
Generally, conviction of a crime is not a disqualification to
testify.
Example: If Mr. P was convicted with rape or murder,
it will not make him disqualified from testifying as a
witness. That is the rule.
Except when a conviction of a crime is made a disqualification.
Specific crimes where conviction makes a witness
disqualified from being a witness.
o Conviction of the crime of perjury or false
testimony makes a witness disqualified from
being a witness in probate proceeding.
o People convicted here are disqualified from
being an instrumental witness in a will.
Prohibition on being a state witness:
If a witness offers himself to be a state witness, conviction of a
crime involving moral turpitude closes the possibility of him
being a state witness.
These cases involving moral turpitude mala in se.
Exclusive and specific disqualifications as provided under
the rules:
1. INSANITY
o An insane person may be disqualified from
being a witness but only if insanity exist at
the time of production as a witness
Pelaez Moot Court - Evidence Transcript Team 2015-2016

o Specific reckoning point: disqualified from is in favor of competency. If no competency hearing,

being a witness if insanity exist at the time the court will proceed with the hearing.
he is called to test in court.
o It is possible that he is insane at the time of 3. DEAD MANS STATUTE (VERY INTERESTING
incident but is still qualified to be a witness: DISQUALIFICATION)
Example: Mr. P is an insane man o Also known as the survivorship
who happened to have witnessed disqualification rule
the rape by Mr. S. He was insane at o BUT make no mistake, this rule does not
the time he witnessed the rape. 2 only apply where a party is dead but it
years after, he was called to be a equally applies if one of the party is insane.
witness and was already not insane Thus, calling this rule as dead man statute
(therapeutic effect? Hahaha.) may not be accurate. Maybe we can also call
Mr. P is now sane or maybe in a this as the insane man statute.
lucid interval. He may not be o What is contemplated by this rule?
disqualified from taking the witness One man dies and another survive.
stand since he is already not When someone dies, the truth dies
insane, thus, not suffering any with him.
disqualification at the time of In order to prevent the temptation of
production of his testimony. the surviving party taking
advantage of the death of the other,
o Effect of being insane at the time of the surviving party is disqualified
incident. It will affect the credibility of the from testifying as to the matter of
witness since being an insane diminishes the facts occurring before the death of
mental faculty. The perception is inherently the other party. Since dead man
unreliable. It may be disregarded for being tells no tales.
unreliable. Still, he cannot be disqualified This is on the basis of the strong
from taking the witness stand. temptation on the part of the living
o For purpose of qualifications of a witness, to come forward with a false claim
what is only needed is the ability to recollect against the estate of deceased. The
and communicate and not the ability to law seeks to level the playing field
perceive. and to put the parties on equal
position on the matter of opportunity
Note: Every witness is presumed sane. It is up to the to present evidence.
party claiming insanity to prove it, a party who claimed The deceased party on his own
otherwise, has the burden of proof that indeed, the cannot rebut the testimony of the
witness is insane. As such, to prove insanity, move for surviving since death seals his lip.
a competency hearing to prevent the witness from Thus, the law finds it prudent to
taking the stand. also seal the lips of the living party
in order to level the playing field
2. MENTAL IMMATURITY and to avoid the temptation of false
o This is a disqualification short of insanity claims or perjury.
where the witness is not insane but just
immature. o Requisites for dead mans statute to
o This consist in the inability to perceive the apply:
facts and to relay the perception truthfully.
o Refers to witnesses who could not give a. This rule is applied in a situation where
significance to the event they perceived. As the defending party is the executor,
such, an immature person has no capacity to administrator or the representative of
distinguished truth from falsity. the estate of the deceased or of the
o It is noted that this disqualification is person with an unsound mind.
addressed to child witnesses. This applies to a civil case
Age could be to be taken into 2 or special case where the
contexts: chronological age or defending party is either
mental age. executor, administrator or
A child of 3 years old may be the representative of the
disqualified of immaturity since he estate of the deceased or
could not to distinguished truth from of the person with an
falsity. This pertains to the unsound mind.
chronological age. The estate should be the
But a 20 year old may also fall defendant. It is the party
under this disqualification if he has against whom the claim is
a mind of a 3 year old. Mental age. directed. Against whom
the suit is filed.
Note: Every child witness is presumed qualified. The defendant is executor,
Under the rules of examination of a child a witness, it administrator or the
is the burden of the party who claims otherwise, prove representative of the
through a competency hearing. But the presumption estate of the deceased or
of the person with an
40
Pelaez Moot Court - Evidence Transcript Team 2015-2016
unsound mind, meaning
the defending party must
be sued in his
representative capacity
and not on his personal
capacity.
One may act on his own
capacity or may act as a
representative of another.
What is contemplated
under this rule is that the
defendant is only acting as
a representative and not
on his own.
Case: Guerrero vs St. Claire Realty
- A piece of land owned by Andres Guerrero which he
acquired from parents. When the parents of Andres
died, he took possession, cultivated the land and
enjoyed it. Years after, he allowed his sister,
Christina, to enjoy and took possession of the land, as
such, she also enjoyed the harvests of the land.
- When Andres died, his heirs where were surprised
and devastated to learn that some people approached
them and negotiated for the purchase of the property.
And the property was title under the name of Manuel
Guerrero (another sibling). As such, they conducted
investigation. They discovered that Manuel acquired
the land from Christina. It was said that Christina sold
it to Manuel, and on the basis of the deed of sale,
Manuel obtained title over the property.
- Thereafter, Manuel sold the land to his other relatives,
also named Guerreros, and they in turn sold the land
to a partnership, St. Claire Realty. And in turn, it
entered into a joint venture agreement with United
Housing.
- The heirs of Andres sought the recovery of the
property from the Guerreros, St. Claire, and United
Housing.
- During trial the children of Andres presented witness
(Laura and Jose Cervantes, a child of Christina) to
testify that during lifetime of Christina, she obtained a
loan from Manuel and offer as a security the land to
Manuel. As such they confirmed in court, she never
sold it to Manuel. Further, they knew that Christina
was not the owner of the land since it was owned by
Andres, her brother.
- The testimonies were objected to on the ground of
dead mans statute saying that since Manuel has
already died, he could no longer controvert and
contradict or clarify the testimony of Laura and Jose.
Issue: Whether or not the witnesses presented are
disqualified to testify as to facts that occurred prior to the
death of Manuel Guerrero.
SC Ruling:
That dead mans statute applies only to a situation
where the defending party is the executor,
administrator or the representative of the estate of a
deceased person. SC noted that the Guerreros are not
the executor, administrator of the representative of
Manuel. So as with St. Claire and United Housing.
41
Obviously these party were sued as party defendants in
their individual and personal capacity and not in a
representative capacity of the estate of Manuel.
As a matter of fact, the property was no longer part of the
estate of Manuel when the suit was filed
So the ruling in this case, if the defendants are sued
on their personal capacity and not as representative
of the estate of the deceased, dead mans statute does
not apply.
2. Dead Mans Statute applies in a case or a suit involving
an estate of the deceased.
It must be a claim against the estate or directed
against the estate and not the other way around. It is
always against the estate because this rule is
intended to protect the interest of the estate. If the suit
involves a claim initiated by the estate against
another. It is the reverse. DMS does not apply.
TIONGCO V. VIANZON
FACTS: There was a husband and a wife and during
the lifetime of the husband, he filed a claim in a
cadastral proceeding for ownership over a parcel of
land. He declares in his claim that the properties are
owned by him and his wife, their conjugal properties.
During the pendency of the Cadastral proceeding, the
husband died and shortly after the death, the claim
was granted and accordingly the title was issued in
favor of both spouses.
The wife filed a motion in the same cadastral
proceeding to modify the order to reflect her name as
the sole exclusive owner of properties covered by the
title. The niece of the husband who is the
administrator knew about this and filed an action to
recover the property against the widow. During the
trial, the widow testified that the properties were really
acquired by her and therefore these properties is her
exclusive properties to the exclusion of the husband.
This testimony was objected by the estate
represented by the administrator on the ground that
the husband is already not around, cannot be
expected to controvert, disclaim or clarify the
testimony of the widow.
HELD: Under the DMS, the widow is disqualified from
testifying on any matter that occurred prior to the
death. This rule applies only to a situation where a
claim or a suit is directed against the estate of the
deceased. In this case, its the estate represented by
the administrator that instituted the action against the
widow for the recovery of the estate. It is the reverse.
The SC said it is not covered so the testimony of the
widow purporting to establish an event that occurred
prior to the death of the husband could not exclude
under this rule.
RAZON V. IAC
FACTS: This involves 1,500 shares of stocks in
E.Razon Inc. This shares of stocke covered by a
certificate in the name of Chudian. When he died,
settlement of estate was instituted and represented by
Pelaez Moot Court - Evidence Transcript Team 2015-2016
one of his children, Vicente. Knowing that the late
father Chudian owned 1,500 stocks, they demanded
for the delivery of the certificate of stocks.
It was learned that the certificate was kept by Razon
who refuse to deliver it to the administrator. E.Razon
claimed that although the certificate was in the name
of Chudian, the truth of the matter was he was the
one who paid for the value of the stocks and therefore
he was the real owner of the stocks. He refuse to turn
over the stocks.
The estate was forced to file an action for E.Razon to
deliver the certificate and for the Corporation to effect
the change. During the trial, E.Razon testify as to his
agreement with Chudian during Chudians lifetime
that the shares of stock was actually belonged in legal
ownership to E.Razon but only made to appear in the
name of Chudian who was given an option to take it
from E.Razon if he decides to reimburse E.Razon of
the value of the stocks which Chudian never did.
The testimony of E.Razon was sought to be excluded
under the DMS since Chudian was already dead, he
is not around and cannot be expected to controvert,
disclaim or clarify the testimony of E.Razon.
HELD: DMS applies to a situation where a suit
against the estate of a deceased person and not the
estate which initiates the action or assert a claim
against the other. It is not a situation covered under
the DMS.
3. Not all witnesses are disqualified from testifying under
DMS. The Rule specifically enumerates the kind of witness
or witnesses who are typically disqualified under the rule
Who are the witness disqualified?
The plaintiffs, the parties asserting a claim against the
estate or
The assignor of the plaintiff, the predecessor of the
plaintiff or
The person on whose behalf the action is prosecuted,
the principal party who is represented by a
representative in such case.
If the witness is not any of the three, being an ordinary witness,
that witness is not disqualified under the DMS.
CASE: LICHAUCO V. ATLANTIC GULF
FACTS: Atlantic Gulf is a corporation doing business
in the PH. Its president is Mr. Fitzsimmons who made
some cash advances from the corporation.
Fitzsimmons died and so there was a settlement of
the estate represented by the administrator, Mr.
Lichauco. In the settlement proceeding, the
Corporation which has a pending claim against Mr.
Fitzsimmons involving cash advances made by him
filed a claim against the estate of Fitzsimmons. In
support of its claim, the corporation presented as
witnesses its corporate officers and employees. All
these witnesses purported to establish that during the
lifetime of Fitzsimmons, he obtains cash advances
from the corporation.
Their admissions of their testimonies was challenged
under the DMS because Fitzsimmons is already
42
dead. The testimonies relate to facts that occurred
prior to the death of Fitzsimmons.
HELD: The SC said, not all witnesses are disqualified
from testifying under the DMS. In this case, the
plaintiff was Atlantic Gulf, the corporation. The
witnesses were just the employees of the corporation.
The Corporation has distinct personality different from
the stockholders, the officers and the employees.
In legal contemplation, although these witnesses were
employees of the corporation, are not the plaintiff,
neither the assignor or the person on whose behalf
the action was prosecuted. An ordinary witness is not
disqualified.
PRINCIPLES AND DOCTRINES IN CONNECTION TO DMS:
When the estate while originally the
defending party interposes a
counterclaim against the initiating party.
The rule here is that the initiating
party, the plaintiff is no longer
disqualified from testifying because
when the plaintiff takes the stand
and testify, he is not only testifying
as an ordinary plaintiff witness but
at the same time, he was testifying
as a defendant witness. He was a
defendant in so far as the
counterclaim concerned.
It is as if the action was initiated by
the estate and DMS does not apply
to a situation where estate is the
complaining, initiating party.
CASE: GONI V. CA
FACTS: There was these three haciendas owned by
Tabacalera. A certain Villanuevaca came forward to offer to
buy the three haciendas from Tabacalera. The problem was
that Villanueva has no sufficient cash to pay the purchase price
in full. Villanueva convinced Tabacalera the he be only allowed
to pay partial payment and the balance be paid out of the
proceeds of the sale of one or some of the fields forming part
of the entire haciendas.
One of the fields of a hacienda which Villanueva intended to
sell to Mr. Villegas. Tabacalera agreed on the condition that
the obligation of Villegas be guaranteed by a third party. Mr.
Vicente came into the picture, he acted as a guarantor of Mr.
Villegas in favor of Tabacalera.
The whole transaction is for the benefit of Villanueva who
stood to be owner of the entire three haciendas. Vicente,
coming now to act as a guarantor, a contract was entered
between him and Villanueva denominated as contract of
Promise to sell or Contract to sell involving the three fields
forming part of the haciendas in favor of Vicente. The contract
to sell was entered into by Villanueva thru his agent Mr.
Gunye.
Villanueva died and so the settlement of his estate was
instituted. In the inventories of the property of the estate, the
three fields which were the object of the contract to sell were
Pelaez Moot Court - Evidence Transcript Team 2015-2016
included as part of the estate. This prejudice Vicente and
invoking the contract, filed an action to recover the properties.
During the trial, Vicente testified that during the lifetime of
Villanueva, the latter entered into a contract in favor involving
the three fields and so taking cue from that transaction, Vicente
now claims ownership over the three fields.
The testimony of Vicente tending to establish this fact that
occurred prior to the death of Villanueva was objected to under
the DMS because Villanueva here is already dead and already
not around to dispute, refute or contradict, controvert the
testimony of Vicente.
HELD: The SC overruled the objection on the ground that the
purpose of the DMS is to put the parties, both the surviving and
the deceased in the position of equality on the matter of
presenting evidence. This reason behind the rule does not
exist in the situation because while Villanueva was already
deceased and unable to contradict the testimony of Vicente, it
was established that the contract was entered into by
Villanueva thru his agent Gunye. Since the agent, a
representative is still alive, he can very well defend the estate
and as a matter of fact Gunye testified in the case that while
the contract was initially entered into by the parties was that of
a contract to sell, the contract was later on novated into a
contract of lease.
First Justification. The SC said that the presence and the
testimony of Gunye negates the evil sought to be avoided by
the DMS. There was no disadvantage on the part of the estate
of Villanueva because a witness as competent as Gunye was
able to testify in behalf of the estate.
Second Justification. It was noted by the SC that in their
answer to the complaint of Vicente, the estate interposes a
counterclaim. The estate demanded that Vicente be ordered to
make an accounting for fields that he cultivated. The SC said,
by interposing a counterclaim for accounting, the estate
became a complainant itself, the complaining or initiating party.
The defending party, so far as the counterclaim is concern,
Vicente cannot be prevented to testify to controvert or to
protect himself against the counterclaim. Mr. Vicente while he
testifies, he was testifying as both the plaintiff and as a
defendant as the counterclaim is concerned.
These are the two important doctrines that the SC enunciated
in the case of Gunye vs. CA.
Not all witnesses are disqualified, not all
matters covered by the testimonies of the
witnesses are covered.
In other words, even if the witness
is one of those expressly prohibited
to testify but just because he was
disqualified it does not mean that
everything that he is to testify is
covered. There are only specific
matters of fact or matters that
cannot be testified on by the
witness. Under the rules, the
witness is only disqualified from
testifying as to any matter of fact
that occurred prior to the death of
the deceased or prior to the person
becoming of unsound mind. The
word is in affirmative sense,
occurred prior so that the testimony
of the witness seeks to establish
43
that something did not occur, in a
negative sense, that is not covered
by the disqualification.
MENDEZONA V. VDA. DE GUITIA
FACTS: This involves a claim of two partners in a partnership.
During the existence of the partnership, these two ladies
appointed a manager in the partnership, Benigno de Guitia.
The authority given to him was for him to collect their shares in
the profit of the partnership and return to the principal their
shares which obligation Benigno de Guitia faithfully complied
until he stop doing his function and then he died. An estate
proceeding was instituted on the estate of Benigno
represented by his wife VDA. De Guitia. The two partners who
were base in Spain filed their claim against the estate of
Benigno claiming that Benigno owed them their shares in the
profit of the partnership which Benigno collected.
The testimony was taken in Spain thru deposition and in
accordance with the rule, the deposition was submitted to the
court and offered as evidence. This was objected to by the
DMS because Benigno is already dead and the ladies were
testifying on matters that relates to the transaction before the
death of Benigno.
HELD: At the first glance, the objection appears to be with
merit but the SC saw it the other way. The SC said that what is
prohibited in the DMS is the testimony relating to a matter of
fact that occurred prior to the death of the decedent. The
testimony of these ladies taken in a deposition only seeks to
establish that during a certain period, Benigno did not remit to
them theirs shares in the business of the partnership, so it is in
a negative sense. In other words, their testimony seeks to
establish that something did not occur so the reverse on what
is covered under the disqualification rule.
Sir: Very amusing ruling. A very old case but still a good law. I
have not yet known a subsequent jurisprudence abandoning
this doctrine.
1. DISQUALIFICATION BY REASON OF MARRIAGE
This is a kind of disqualification imposed on married
couple by simply because of the relationship.
The purpose or the reason behind the disqualification:
To preserve marital relation and domestic peace.
Neither the husband or the wife can testify
against the other so as to avoid
breaching/straining marital relation.
To prevent perjury.
That is why neither the husband or the wife
can testify for or in favor of the other. This is
a recognition of human experience that
relationship like that of a husband and a wife
may cause one to commit perjury for the
benefit of the other.
REQUISITES:
There must be a valid marriage
This does not apply to anomalous,
scandalous marriages. The existence of a
Pelaez Moot Court - Evidence Transcript Team 2015-2016
valid marriage is not enough for this
disqualification to apply. It is equally
important to establish that at the time the
testimonies were offered, the relationship of
the husband and wife is not strained so that
if the relationship between the spouses is
already strained as when they are already
separated de facto, the reason for the rule as
to preserve marital relations or domestic
peace is not present and therefore the rule
does not apply.
Alvarez vs Ramirez:
FACTS: A prosecution for arson filed
against Alvarez, the complainant was his
sister-in-law, Susan Ramirez. During the
trial, the first witness for the prosecution
was the wife of Alvarez who testified that he
saw Alvarez pouring gasoline to the house
of her sister and set it on fire. The defense
sought the disqualification of the wife or
otherwise they sought to exclude the
testimony of the wife on the ground of
spousal immunity or marital disqualification.
Neither the husband or the wife can testify
against the other without the consent of the
affected spouse. There was no consent of
Alvarez.
HELD: The SC disagreed. The SC look into
the rationale behind the marital
disqualification rule and declared that the
parties relationship was already strained.
As a matter of fact, they were already
separated for six months prior to the
incident. The purpose of Alvarez in setting
the house on fire was really to harm the
wife, not the sister-in-law. The wife was
also living in her sisters house. The SC
said that there was no marital peace to
preserve and even the marriage is still
legally intact, the absence of marital peace
relation to preserve, the rule does not
apply.
In marital disqualification, the witness spouse
may or may not be a party to the case but the
other spouse for whom or against whom the
testimony of a witness spouse is offered must be
a party to the case.
Neither spouse, neither the husband or the
wife can testify for or against the other
without the consent of the affected spouse.
The affected spouse refers to the spouse
who is a party in a case. So, the husband or
the wife testifies against the other but that
other is not a party to the case, this
disqualification does not apply. If he is not a
party to the case, then he cannot be affected
by the testimony.
44
This disqualification rule is coterminous with the
existence of the marriage.
In other words, the disqualification subsists
so long as the parties are still legally
married. If the marriage is already dissolved
by death or by court order where the marital
bonds are dissolved, then the disqualification
rule ceases.
PRIVILEGED COMMUNICATIONS
There are certain individuals who are disqualified from
testifying as to any matter learned in confidence in any of the
following instances:
1. The husband or the wife during or after marriage
cannot without the consent of the other be
examined on any matter learned by one in
confidence with the other except in a civil case by
one against the other or in a criminal case
involving a crime committed by one against the
other or against the latters direct ascendants or
descendants.
Privilege communication rule between the
spouses unlike marital disqualification which
is a disqualification attached to the
relationship itself. This privilege
communication rule between spouses is a
disqualification and this is not attached to the
relationship itself but attached to the
communication which is confidential.
While the purpose the marital disqualification
is to preserve marital disqualification or to
preserve domestic peace and to avoid
perjury, the purpose of the privilege
communication rule between spouses is to
protect confidential information to encourage
the free flow of communication between the
spouses so they can perform their respective
rights and obligations towards the other
otherwise, neither of them can be expected
to be totally honest and forthright with each
other. In the absence of full transparency,
neither of them can be expected to fully and
completely discharge their obligation towards
the other.
This disqualification survives the death of either. It
survives the existence of the marriage. The law says
the husband or the wife during or after the marriage,
none of them can disclose confidential information
even after the death or the dissolution of the
marriage, the confidential nature of the
communication remains protected.
Its another distinction between marital
disqualification and privilege communication
because marital disqualification subsists only
during the existence of the marriage.
The communication must be given in confidence. It
must be intended only for the benefit of the two of
them and not meant to be shared with someone else.
CASE: PEOPLE V. CARLOS
Pelaez Moot Court - Evidence Transcript Team 2015-2016

FACTS: This is a story of a couple, the wife underwent a other). This privilege is obviously for his own benefit and
surgery and as expected in a major surgery, the wife was protection.
required by the surgeon to go back to the clinic for post
operation check-up. The husband, always made it sure to
accompany the wife during her visits to the clinic and the
2. LAWYER-CLIENT PRIVILEGED COMMUNICATION
doctor would send him for errands. The doctor sends a
statement of account to the couple who refused to pay the bill. RULE 130; Section 24. Disqualification by reason of privileged
The husband went to see the doctor and killed him. It was communication. The following persons cannot testify as to
learned by the husband that during the visits to the clinic and matters learned in confidence in the following cases:
when he was asked to make an errand, the doctor allegedly
ravaged the wife. The husband was prosecuted for murder and XXX
was convicted.
(b) An attorney cannot, without the consent of his
During the appeal before the Supreme Court, the defense
client, be examined as to any communication made
argued that if ever the accused was to be convicted, it be for
by the client to him, or his advice given thereon in the
just homicide and not murder because there was no evident
course of, or with a view to, professional employment,
intimidation. The issue was whether the accuse can be
nor can an attorney's secretary, stenographer, or clerk
convicted of a murder or a homicide. The SC had to examine
be examined, without the consent of the client and his
the very crucial evidence presented during the trial consisting
employer, concerning any fact the knowledge of
of the letter sent by the wife to the husband prior to the incident
which has been acquired in such capacity;
which letter was ceased by the police while the husband was
arrested. In that letter, the wife expresses her fear that the PURPOSE:
husband may resort to violence in dealing with the doctor.
To encourage free flow of information between the lawyer and
The defense objected to the admission of the letter presented
the client, the objective being, to enable the lawyer to
by the prosecution, the police in the ground of privilege effectively perform his official function as counsel.
communication, the letter was sent by the wife to the husband
in confidence. And what better way to achieve this purpose than assuring that
whatever information, however incriminating, given by the
HELD: The SC said, when a privilege communication legally or
client to the lawyer is protected by the rule on confidentiality.
illegally comes into the possession of a third party, the
confidential nature of the communication ceases to be
confidential therefore anyone who comes into possession of
that communication maybe examined as to the contents of the WHO OWNS THE PRIVILEGE?
communication.
The interest sought to be protected is the interest of the client.
Take note: Legally or Illegally so if the letter was stolen, it Therefore, the privilege belongs to the CLIENT.
does not matter. If the recipient spouse voluntarily shares
with someone else, that it is legally given, does the The lawyer may not be examined without the consent of the
confidential nature of the communication ceases to be client on any information that the lawyer obtain or may have
confidential? The SC said in the case of People vs. Carlos obtained from the client as well as any advice that the lawyer
that whether legally or illegally so long as there is no may give to the client in the course of or with the view to
collusion, it was not voluntarily release by the spouses to professional employment.
the third party otherwise the privilege can be easily
Take Note: The one disqualified from being examined is the
circumvented. The spouse is prohibited from disclosing
LAWYER.
any confidential information received from the other which
the act of disclosing violates the rule. It would be absurd to It is the CONSENT OF THE CLIENT that Is needed to be able
excuse the application of the rule if precisely the act of to disclose (not the other way around)
sharing it is the very act prohibited by the rule. Legally or
Illegally with no collusion because the spouse voluntarily So if the client consents, the lawyer may not refuse, can be
shares the information with another, that another person is compelled.
deemed to be the extension of the sharing spouse so he is
equally covered. But if the client does not consent, the lawyer cannot be
examined.
The one disqualified from disclosing is the RECEPIENT
SPOUSE (the one who received the confidential information HOLDER of the privilege = CLIENT.
from the other spouse).
WITNESS DISQUALIFIED = LAWYER.
So if the COMMUNICATING SPOUSE gives the confidential
rd
information to a 3 party, it is not anymore confidential and he Take Note: The privilege survives the death of either
obviously did not give it in confidence so it is not covered. Lawyer/Client.

But if its the RECEPIENT SPOUSE who shares the
rd
confidential information to a 3 party then the privilege
communication rule will apply.
Take Note: the one who can invoke the privileged
communication rule is the COMMUNICATING SPOUSE (the
spouse who gave the confidential information to the
So even if client dies, the lawyer cannot divulge.
REQUISITES:
1. There must be a Client-Lawyer Relationship
2. The information relayed by the client to the lawyer
or the advice of the lawyer given to the client in

45
Pelaez Moot Court - Evidence Transcript Team 2015-2016
the course of or in the view of professional
employment respecting a PAST CRIME/ACT
3. Advice or information given must be given in
confidence
THERE MUST BE A CLIENT-LAWYER RELATIONSHIP
This includes the scenario where the client relayed information
to the lawyer or the lawyer gives an advice to the client with the
view for professional employment; meaning, preliminary to the
actual perfection of the contract. What is important is that it is a
communication between a client and a lawyer.
TN: not only the information given during the lawyer-client
relationship but any information that the client may relay to the
lawyer or any advice that the lawyer may give to the client
even before the relationship is formalized is covered, by virtue
of the phrasewith the view for professional employment.
Information must be made by the client to the lawyer and the
advice must be given by the lawyer to the client
OPERATIVE FACT = Lawyer-client relationship
If the advice is given by someone who is not the client, it can
be disclosed.
(US vs GORDON-NIIKKAR)
This is a prosecution for illegal possession of cocaine. One
accused testified against the accused. During the trial, the
witness testified that he had meetings with the lawyer and in
those meetings she was present along with other persons in
the lawyers office. During the meeting, the lawyer advised his
client to lie and commit perjury and deny having possession of
the cocaine. Lawyer suggested that the accused go to
Venezuela.
This was objected to by the lawyer under the lawyer-client
privilege rule.
HELD: There is no client-lawyer relationship. And other parties
were present during the meeting so, lawyer-client privilege
cannot be invoked. The absence of L-C Relationship prevents
the privileged communication rule from applying.
Moral Lesson: before you could even give advise you make
sure that everybody in the office are your clients. I dont know
how the lawyer could have missed this.
EXCEPTION: even if the communication is made not between
a client to a lawyer or made between a lawyer to a non-client,
the privilege/rule still applies
Ex. Lawyer of Client A interviews Client B
There is really no L-C Relationship BUT under the
Principle of Common Defense or Joint Interest,
any information that one party may relay to the lawyer
of another party with respect to matters of common
interest or joint defense is still covered by the privilege
even absent the client-lawyer relationship between
them. Two or more clients are represented by their
lawyer individually but one lawyer interviews the client
of the other.
This is the doctrine enunciated in the case of US v. McPartlin:
Facts:
46
This involves a criminal prosecution for conspiracy to
commit fraud against the government of US and
obstruction of justice. Filed against some government
officials, one of those is congressman Mcpartlin by
certain private individuals. This involves a government
contract for sludge hauling project with a private
corporation, Ingram Corporation.
The star witness for the prosecution was the former
VP of the contractor of a private corporation, Mr.
Benton. Mr. Benton was part of the series of
negotiation where the conspiracy took place.
In the course of these negotiations and series of
meetings, Benton claim that he keep a diary of all the
meetings specifying the details which includes
incriminating information-- the conspiracy between
mcpartlin and ingram corporation.
To the best interest of mcpartlin and ingram, they
came up with a common defense against Benton--to
their mutual interest to destroy the testimony of
Benton. In pursuit of their common defense, the
lawyer of ingram engaged services of investigator
who interviewed mcpartlin, hoping that mcpartlin
could provide significant information that can be used
to destroy testimony of Benton--divulged information
beneficial to ingram, where lawyer of ingram tried to
introduce this information.
Mcpartlin objected to this, under lawyer/client
privileged communication.
Held: Privilege covers instances where the common/joint
defense exists. This is a situation where the clients and
lawyers come together to work for a common defense. These
accused are considered as one and the lawyer representing
them are considered as one. Under the law they are
considered as one so that any information given in confidence
by one accused to the lawyer of the other accused is covered
by the privilege. When a client communicates with the lawyer
of the other party pursuant to a common defense, the lawyer of
the other party is deemed the lawyer of the other.
As in this case, but when there is no client-lawyer relationship
between the accused and the lawyer of the other accused who
hired the services of the investigator who interviewed the
accused it is obvious that the interview was contracted
pursuant to a matter of common defense--to discredit the
testimony of Mr. Benton and his diary; where it not for this
common purpose, the interview would not have been
conducted. SC called this as the Common Defense or Joint
Interest Privilege. SC said that any communication that one
party disclose to another party on matters of common interests
covered/protected by the client-lawyer privilege communication
rule. This US case has persuasive effect in our jurisdiction.
It was also argued that the one who interviewed was the
investigator and not the lawyer so how come there is L-C
Relationship?
HELD: The investigator was only hired by the lawyer for Mr.
Ingram. The investigator was deemed to be an agent, who is
considered as an extension of the principal.
THE INFORMATION RELAYED BY THE CLIENT TO THE
LAWYER OR THE ADVICE OF THE LAWYER GIVEN TO
THE CLIENT IN THE COURSE OF OR IN THE VIEW OF
PROFESSIONAL EMPLOYMENT RESPECTING A PAST
CRIME/ACT
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Meaning, it must be for:
A legitimate purpose; and
Related to a past crime-NOT an ongoing or future
crime.
The information regarding an ongoing or future crime are not
covered by the privilege on two grounds:
No longer in the course/ with the view of professional
employment because the employment there must be
in the course of/ with the view of a lawful employment.
The legal profession is intended for a lawful or
legitimate purpose.
Reckoning point to be considered as communication
in relation to a PAST CRIME:
- At the time when the information was learned in
confidence by the lawyer.
People v. Sandiganbayan
The case that involves a prominent politician
in Mindanao, Paredes, who was formerly the
provincial attorney, then governor, and
congressman.
During his stint, Paredes was able to acquire
a free patent over a vast tract of land in
Mindanao.
Fast-forward, someone came forward and
accused Paredes of committing fraud in his
application for titling. The Bureau of lands
even move for cancellation of the title on the
ground of misrepresentation. Because of
this, someone filed a case of perjury against
Paredes which was then dismissed. After,
another case was filed in court against
Peredes for violation of the provisions of the
anti-graph and corrupt practices act, a
special law.
By way of defense, Paredes contended that
the second complaint filed in court arose
from the same incident subject, same act or
omission, of the earlier perjury case which
was already dismissed. They alleged that
double jeopardy has already attached. For
double jeopardy to attach: there must be
arraignment and the case was dismissed
without the consent of the accused.
To support such defense the accused
presented court records and transcripts as
proof that he was arraigned in the perjury
case.
Unfortunately, such documents were
discovered to be falsified. It was done in
conspiracy with the lawyer of Paredes and
clerk of court where the perjury case was
filed. Because of this, another case was filed
against the three for falsification of judicial
records.
The lawyer then offered to testify against his
client. He was suggested by the prosecution
to be a state witness against Paredes but the
Sandiganbayan denied the motion on the
ground of client-lawyer privilege since lawyer
could not testify against his own client.
47
Held: SC said that there is no privileged communication rule to
talk about; the privilege applies only if the information was
relayed by the client to the lawyer respecting a past crime.
Here, the information was given in contemplation of a future
crime.
Paredes argued that it is past crime because when Sansait
testified, the crime has long been committed.
SC said reckoning point is when communication was given, not
when the lawyer was made to testify. SC also said that the
communication referred in the rule does not only cover oral or
written communication but even PHYSICAL ACTS.
Here: Sansait testified to a crime where at that time has yet to
be committed or at the very least in the process of committing.
Doctrine: L-C Privileged Communication Rule only applies
when it relates to a past crime.
Will NOT APPLY if relates to a FUTURE/PRESENT crime.
And must be made in the course of or in the view of
professional employment (meaning it should be for a
lawful purpose)
But here it involves commission of the crime.
The obvious purpose of this privilege is to promote justice and
it would be a perversion of this privilege to allow this to cover
an information which is intended to frustrate justice.
Example in class:
Mr Servacio told his lawyer I kidnapped Ms Yap and she
is in my house now
-this is a past crime. Kidnapping is a continuing crime.
ADVICE OR INFORMATION GIVEN MUST BE GIVEN IN
CONFIDENCE
Any information/communication that the client give must be
intended for the lawyer alone.
It is meant not to be shared to other parties other than the two
of them.
Under the privileged communication between L-C, when an
rd
information otherwise privileged, comes into possession of 3
party or even to the adverse party, that communication
rd
otherwise confidential, ceases to be privileged and tHat 3
party who is in possession of the communication may be
examined, may testify and may disclose the information. This
was the ruling in the case of Leyte Asphalt.
If communication is given in the presence of any other person,
the communication is not intended to be confidential, and
therefore, not covered by the privilege.
The same also if the advice of the lawyer is given in the
presence of a third party (not the client), it cannot be deemed
given in confidence. This was the ruling in the case of US v.
Gordon-Nikkar (US jurisprudence):
Facts:
Conspiracy to possess and traffic cocaine, where
several accused were present, who were charged as
conspirators.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
One of the accused pleaded guilty to the charge and
testified for the prosecution.
The snitch testified that she attended two meetings
with the lawyer and Nikkar, where the lawyer advised
the snitch to go to Venezuela and suggested to
perjure themselves and deny possession of cocaine,
and that they were only there to attend a party. In
short, the lawyer conspired with client to commit
perjury.
Testimony of snitch was objected to under lawyer-
client privilege. However, the snitch was not a
client of the lawyer.
Held: lawyer-client privilege does not apply since the advice
was not given in confidencegiven in the presence of a
third party, the snitch, who is not the lawyer of the client.
rd
Another is when the communication is intended for a 3 part,
was conveyed to the lawyer--it is not under the privilege. The
lawyer only becomes the messenger of the
communication/agent of the client. This cannot be a
communication in confidence.
CASE: Uichico V. Union Assurance Life
This is a case of recovery of proceeds of fire
insurance policies over the inventory of a certain
business which was managed by the father. when the
father died, the business who was taken over by the
two sons.
During effectivity of the insurance policies, their
inventory was lost by fire, entitling them to claim
proceeds. The administrator, who instituted
settlement of estate of the father, included insurance
proceeds of burned inventory.
The son disagreed, claimed he was the owner of the
business, and was therefore entitled to the proceeds
of insurance. It was established that the son who
instituted action to recover insurance proceeds
instructed his lawyer to negotiate with insurance
company to obtain its proceeds.
Insurance policy was given to lawyer, who gave it to
the administrator of the estate of the father, who in
turn entered into a compromise with the insurance
company at half the value. The son, displeased, now
disowned the compromise, saying that he is not
bound. He said that the lawyer compromised without
his authority.
The insurance company tried to prove that the
compromise was authorized by the son, who even
presented the lawyer as witness claiming he was
instructed by the son to effect the compromise, giving
the policy to him, to deliver them to the administrator
of estate. This was objected to under lawyer/client
privilege.
Lawyer testified as to the instruction given to him
which was objected to by the client.
Issue: WON the compromise entered into by the lawyer is
binding upon the client who now disclaims authority of the
lawyer to enter into compromise in his behalf.
Held: Privilege does not apply because the communication is
not given in confidence by the client to the lawyer. In this case,
it was intended for a third party as the client instructed the
lawyer to convey to the insurance company his intention to
compromise. In effect, the lawyer mere acted as the agent of
the client because ultimately the information was intended for
48
the third party but using the lawyer as a intermediary. The
element that the information must be given in confidence is
lacking. So, if a communication is given not in confidence but
intended to be given to a third party, then it is not covered by
the Privilleged Communication Rule.
TN: once an otherwise privilege communication comes into the
hands of a third party, it ceases to be confidential. And so, it
can be divulged without violating the rule as illustrated in the
case of Barton V. Leyte Asphalt--letter between lawyer and
rd
client who fell into hands of a 3 party. SC: whether the
rd
communication is obtained by a 3 party, legally/illegally, it is
taken out of the privilege and party who has this information
may testify and disclose the information.
HOW FAR CAN A LAWYER PROTECT THE PRIVILEGE
COMMUNICATION? WHAT HAPPENS IF DISCLOSING AN
INFORMATION IS THE ONLY DEFENSE OF THE LAWYER?
It is not uncommon that the lawyer gets sued along with the
client when the lawyer get involve with the clients
case/dealings, and the lawyers only defense is the disclosure
of communications between the client and the lawyer to the
detriment of the client [Bailey v Department of Land and Water
Conservation (2009) NSWCA 100] or there is a case between
the client and his lawyer.
This is a grey area our jurisdiction. In America and other
jurisdiction, there is this school of thought that recognizes an
exception to this privilege communication rule between the
client and the lawyera case between the client and his/her
lawyer.
3. PHYSICIAN-PATIENT PRIVILEGED COMMUNICATION
RULE 130; Section 24. Disqualification by reason of privileged
communication. The following persons cannot testify as to
matters learned in confidence in the following cases:
XXX
(c) A person authorized to practice medicine, surgery
or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice
or treatment given by him or any information which he
may have acquired in attending such patient in a
professional capacity, which information was
necessary to enable him to act in capacity, and which
would blacken the reputation of the patient;
Purpose:
1. To encourage patient to divulge all information
regarding his illness
2. For the physician to be able to perform his duty
effectively
If not, the client might not disclose everything under the fear
that it will blacken his reputation.
Ex. Mr Servacio has gonorrhea and syphilis, his physician
cannot be expected to administer proper treatment if the
patient will not be candid to the physician.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
REQUISITES
1. Applies only in a CIVIL CASE
2. Any information/treatment/advice given should
be made in the course of a professional
employment
3. Information must be given in confidence
4. May only be invoked against a person
authorized to practice medicine, surgery, or
obstetrics
5. Treatment must be given in the doctors
professional capacity
APPLIES ONLY TO CIVIL CASES (as distinguished from
other privileged communication)
Reason: criminal prosecution is more paramount than
the interest of the patient. Interest of the State first.
Qualification: covers only information:
In the course of the duty of the physician
if disclosed, will BLACKEN
REPUTATION OF THE PATIENT
(therefore, if beneficial to the clientit is not
covered)
ANY INFORMATION/TREATMENT/ADVICE GIVEN SHOULD
BE MADE IN THE COURSE OF A PROFESSIONAL
EMPLOYMENT
Take Note: Not all communication between PH-PT are
covered. Only those communications made in the course
of professional employment.
professional employment
Interpreted as PREVENTIVE OR CURATIVE
TREATMENT.
For example: Autopsy is neither preventive nor
curative, it is only a fact finding procedure--not
covered.
Report by the medico-legal officer is not covered
because it is not curative nor preventive.
CASE: Lim V. Ca
SC: what is prohibited by the rule is the disclosure of the
specific informationthe treatment given or procedure
administered, the diagnosis, the information relayed by the
patient to the physician but NOT THE FACT OF
CONSULTATION. So the physician may disclose that
indeed a certain patient is under my care or under my
medical treatment.
Physician may not be EXAMINED
covers not only the testimony of the physicianwhen the
physician is called to be examined.
CASE: Chan V. Chan (if mockbar examiner is updated, this is
a good case)
A wife filed a case for nullity of marriage under art.
36the husband is mentally deficient due to his
incessant alcoholism and excessive drug use. To
prove such, the wife moved for the issuance of
subpoena duces tecum for the submission of the
medical records of the husband, who was once
confined in the hospital for drug rehabilitation. It was
objected under physician-patient privilege rule. The
wife argued that the privilege will not apply it only
applies when then the physician is examined or the
testimony of the physician, not the records.
SC disagrees. When a physician attends to a patient,
the former would obviously put into writing his/her
findings/diagnosis/treatment into the latters medical
record. These medical reports serve as repository of
all the findings/diagnosis/treatment administered by
the physician to the patient. So, producing this
medical record in court is not different from the
physician testifying therefore, covered by the
privilege. It applies to all forms of communication.
INFORMATION MUST BE GIVEN IN CONFIDENCE
If the advice is given in the presence of a third party, not
exclusively in the presence of the patient, it is not covered.
THE
CASE: Lim V. CA
The wife objected to the production of her medical
record based on the interview conducted by her
psychiatrist.
SC SAID:
1. What is prohibited by the rule is the disclosure of
specific information, not the fact of consultation.
2. Even if the disclosure is of specific information
regarding the treatment of the advice, it will not
be covered by the privilege if it is established that
during the interview the patient was always
accompanied by third party.
Relate this ruling to Rule 28
Mode of discovery called mental and physical examination
The court, upon motion of adverse party, may order the
submission to physical examination of a party. Sec. 4 in
relation to Sec. 3 the effect is when a party examined
request for the copy of the result of the report of the
examination caused to be conducted by the adverse party/at
the instance of the adverse party, the party subjected to the
physical examination is deemed to have waived any
confidential information relating to any other examination
conducted relating to the same mental condition. So, if there is
other examination conducted, he cannot anymore object to the
disclosure of the results of the other examinations because he
has deemed to have waived his right to the confidential nature
of his other reports related to the same mental condition
subject of the examination contemplated in rule 28.
MAY ONLY BE INVOKED AGAINST A PERSON
AUTHORIZED TO PRACTICE MEDICINE, SURGERY, OR
OBSTETRICS
This cannot be invoked against a person who is neither of
those practicing: MEDICINE
SURGERY
49
Pelaez Moot Court - Evidence Transcript Team 2015-2016

OBSTETRICS XXX

TN: the communication must be between the physician and the
patient and if such communication was made with the
presence of a third party, it ceases to be confidential or
privileged.
rd
Any 3 party in possession of that communication, may
disclose without violating the rule.
(d) A minister or priest cannot, without the consent of
the person making the confession, be examined as to
any confession made to or any advice given by him in
his professional character in the course of discipline
enjoined by the church to which the minister or priest
belongs;

But what about the physician? XXX

(Lim vs CA)

Facts: Action for Nullity of Marriage. Wife is suffering from This SEAL OF CONFESSIONis absolute (bomb in the
Schizophrenia. Husband presented the psychiatrist to testify building scenario).It is intended to promote justice.
but the wife objected to this claiming Patient-Physician
Privilege Rule. REQUISITE

SC: It was established during the trial that during the
consultations and interviews with the psychiatrist, she was
always accompanied by her father who heard all of the
interviews.
This is not confidential anymore because it was heard by
another person. Thus, the physician may testify due to the
rd
presence of 3 person.
rd rd
So, once in possession or known to 3 party, the 3 party or
physician may testify.
CASE: Krohn v. CA
An action for nullity of marriage was filed by the husband
against the wife. This involves psychological assessment
report prepared by the physician of the wife. The husband
testified on the obtained report (not known how he got it).
The wife objected to under patient-physician privilege.
SC: the privilege only covers person authorized to practice
medicine, surgery or obstetrics. The husband is not a
physician, therefore, not covered by the privilege.
The proper objection should have been hearsay, not
privileged communication rule because the husband will
be testifying on the matters contained in the psychological
evaluation report. Findings were not made by him but by
the physician so, he has no personal knowledge of the
report.
QUESTION: ARE PERSONS SUCH AS NURSES WHO
WERE PRESENT DURING THE COMMUNICATION BE
COVERED BY THE PRIVILEGE, LIKE IN THE CASE OF THE
ATTORNEYS SECRETARY OR STENOGRAPER OR
CLERK?
1. Information must be given or received during
confession.
Minister must be duly ordained by the church
Past crimes only
Same as the lawyer, the rule on confession does not apply to
future crimes.
5. NEWSMAN PRIVILEGE
Publishers, editors and reporters may not be examined to
disclose the identity of their sources.
Liability
Under the latest amendment, while they may not be compelled
to disclose the identity of their sources, they are always liable
for libel or any applicable crime if it is established that the
disclosure of the information constitutes the crime. They ran
the risk of criminal or civil liability if it turns out that their
sources are not accurate. They may not reveal but they can be
liable. That is the responsibility that they assume.
6. PUBLIC OFFICIALS OR OFFICERS
During or after their term cannot be examined as to any
information given to them in confidence if the court finds that
public interest will suffer from that disclosure.

MAYBE IT SHOULD BE INTERPRETED IN ITS GENERAL

SENSE.

Consistent with principle of agency, anyone who worked in the

doctors office are considered as agents and should therefore
be covered by the privilege.

(4) PRIVILEGE COMMUCIATION RULE BETWEEN PRIEST

AND PENITENCE

4. PRIVILEGE COMMUNICATION BETWEEN THE PRIEST-

PENITENCE

RULE 130; Section 24. Disqualification by reason of privileged

communication. The following persons cannot testify as to
matters learned in confidence in the following cases:
50
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Court finding, necessary
TAKE NOTE. This rule is worded in the opposite compared to
the other privileged communication rules. They may not be
examined if the court makes a finding. There must be a court
finding that the disclosure will cause prejudice to the public
interest. Without the courts finding, public officers can be
examined.
Executive privilege
Common doctrine or principles involving public officials is the
executive privilege or the presidential communication privilege.
Applied in the famous or infamous case involving Richard
Nixon. The Watergate scandal.
During the incumbency of President Nixon, some of his aid or
supporters planted bugging device inside the headquarters of
the other party, the Democrats. The HQ of the Democrats was
located in Watergate building. When the intruders got caught, a
massive investigation was initiated. Some of the closest
advisors and supporters of Nixon were implicated. A special
prosecutor was appointed to pursue the investigation.
There was allegation that President Nixon tried to cover up to
save his advisors. To determine if Nixon was guilty of cover up,
the special prosecutor applied for issuance of subpoena duces
tecum for the production of the tape recordings of the
Presidents conversation with his aides and advisers. Every
conversation in the White House is tape recorded. Nixon
vigorously opposed the production of the tapes knowing that
this could implicate him cause he really tried to cover up. He
invoked executive privilege.
But the SC of the US overruled Nixon. The SC said that while
there is that such animal presidential communication or
executive privilege, this privilege cannot be invoked on the
basis of a mere generalized interest in confidentiality without
justifying it with a need for protecting military, diplomatic and
national secrets. Any invocation of the presidential privileged
communication should be justified which Nixon failed to do.
His invocation of the doctrine was rather general. SC said it
cannot be invoked on the basis of merely invoking it.
The smarter president
Our own president GMA was smarter than Nixon.
ZTE-NBN controversy. Dubbed as the Mother or Grandmother
of All Scams.
When the Republic of the Philippines entered into a contract
for this National Broadband Network to computerize the whole
government facilities, because it was so huge, it was proposed
to be financed by Peoples Republic of China. Allegations of
bribery and corruption surfaced. The Senate initiated
investigation hearings and invited officers involved in the
project. One of whom was the NEDA Director Romulo Neri.
Neri disclosed that the then chairman of the COMELEC
Benjamin Abalos offered him 200M just to approve the
contract. When he was pursued by the Senators if he disclosed
to the president the attempt of bribery, he answered in the
affirmative but when he was asked if the president followed up
the project after he told the president about the attempted
51
bribery and when he was asked if the president instructed him
to prioritize the project after he was told about the attempted
bribery, or when he was asked if whether the president
instructed him to approve the project, Neri refused and the
Executive department refused invoking executive privilege.
Learning the lesson too well from the Nixon case, the
Executive invoked executive privilege on the diplomatic
relations. They said that the disclosure of the information
sought to be obtained will strain the diplomatic relations
between Republic of the Philippines and Peoples Republic of
China. They were sustained there.
ADMISSION
ADMISSION AGAINST INTEREST
Section 26. Admission of a party. The act, declaration or
omission of a party as to a relevant fact may be given in
evidence against him.
This is called as admission against interest. This admission is
extra-judicial and against the interest of the declarant not in
favour of the declarant.
Admitter not in court testifying
Extrajudicial contemplates of a situation where the party made
an admission to another and the one who heard the admission
is in court testifying.
So if Mr. Pol admitted to Mr. Servaction that they really raped
someone. Outside of court the admission was made. Mr.
Servacio is in court testifying that in one time in such place Mr.
Pol made such admission. The testimony of Mr. Servacio is
admissible under Section 26 because it involves an
extrajudicial admission by a party who is Mr. Pol the accused
in the case. Take note that it is not Mr. Pol who is in court,
otherwise, his admission is judicial. Not covered by Section 26
but covered by Section 4 of Rule 129.
Witness has no personal knowledge
Take note that the one testifying has no personal knowledge
as to the truth or falsity of the admission.
So if Mr. Servacio has no personal knowledge whether it is
really true that Mr. Pol raped the victim. But by express
provision of Section 26 even if it is obviously hearsay because
he has no personal knowledge as to the truth or falsity of the
admission, it is admissible hearsay. It is hearsay yet
admissible.
Why is it admissible even if it is hearsay?
This was explained in the case of Extrada v. Disierto.
SC said that admission against interest is by its very nature
hearsay but it is admissible hearsay. Hearsay evidence is
inadmissible because of absence of cross-examination. The
right to cross-examine is a fundamental against whom an
evidence is offered. If an evidence is offered against a party,
that party has the right to confront the evidence. So if a witness
comes forward with a testimony adverse against a person
against whom the testimony has been offered, that person has
Pelaez Moot Court - Evidence Transcript Team 2015-2016
the right to cross-examine the source of that information.
Without the cross-examination, evidence is hearsay. In this
case of Section 26, there is really no cross-examination there
because the source of the information is the declarant himself.
The normal situation is if someone accuses another say for
example Mr Servacio accuses Mr Miralles of a crime, Miralles
has a right to cross examine Mr Servacio. So if Mr Servacio
confides to Mr pol that he saw Mr Miralles raping Ms Yap and
Mr Pol now is in the stand in a prosecution for rape against Mr
Miralles, the witness is Mr Pol, not the one who was the source
of the information. While he is in the stand, Mr Miralles cannot
cross examine Mr Pol as to the falsity or truthfulness of the
statement of Mr Servacio implicating Mr Miralles. That is why
the testimony of Mr Pol as to the statement of Mr Servacio is
hearsay, not admissible, for lack of cross examination.
But in Section 26, the scenario is different. The one who made
the admission is Mr Miralles himself and the admission made
by Mr Miralles outside of court was heard by Mr Sercvacio. Mr
Servacio here takes the witness stand. But the testimony of Mr
Servacio is not based on his personal knowledge but Servacio
will only reiterate to the court what he heard from Mr Miralles.
So Mr Miralles who has the right to confront the source of the
information in the first situation is not expected to cross-
examine himself in the situation presented by Section 26
because he is the very source of the information.
This is why if the lack of cross-examination is the reason for
the inadmissibility of hearsay, in admission against interest,
cross-examination is not available or possible and therefore
the reason for the rule is not applicable. Therefore, even if it is
hearsay, it is admissible.
The need to cross examine is not possible. You cannot cross-
examine yourself. You can present evidence to controvert the
statement of the witness who imputed the admission to you.
But cross-examining yourself is not physically possible. That is
the justification.
You distinguish this from section 28.
ADMISSION MADE BY A THIRD PARTY
Section 28. Admission by third party. The rights of a party
cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Res Inter Alios Acta, First branch
An act declaration or omission by party is not admissible
against another.
So in the example, the testimony of Mr Servacio implicating the
crime to Mr Miralles, this statement of Mr Servacio is being
testified by Mr Pol in the witness stand. That testimony cannot
be admitted because an act or omission made by someone
should not prejudice the right of another. It is res inter alios
acta of the first branch.
Again like Section 26, Section 28 is extra-judicial admission.
The rule in admission here all refer to extra-judicial. Take note
of that.
There are exceptions of course to res inter alios acta of the first
kind:
52
1. Admission made by a partner or agent
2. Admission by co-conspirator
3. Privies
4. Admission by silence
Two persons involved in Section 26
The res inter alios acta of the first branch is premised on the
fact that the admission made someone should not prejudice
the rights of another. In other words, this involves two persons.
And the admission is being offered in evidence through the
testimony of someone who heard the admission made by
another. So in Section 28 as opposed to Section 26, in section
26 there are only two persons involved there.
The declarant and witness who heard the declaration who is
now in the witness stand.
In the example, Mr Miralles admitted to Mr Pol that he indeed
raped the victim. Mr Miralles is the declarant Mr Pol is the
witness who now testify as to the admission made by Mr
Miralles. There are two persons involved. The declarant and
the witness. The witness is not the declarant.
Three persons in Section 28
In Section 28, there are three persons involved. The declarant,
the witness who heard the declaration, and the person to
whom the declaration is imputed.
So in the example, Servacio, Pol and Miralles, Mr Servacio
admitted to Mr Pol that together with Mr Miralles they raped Ms
Yap like beast. The declarant is Mr Servacio. The witness who
heard the declaration is Mr Pol is now in the stand. Mr Pol will
now testify that in one time in a certain place, Mr Servacio
admitted to him that Mr Servacio and Mr Miralles raped Ms
Yap. Mr Miralles is the person against whom the admission is
imputed because his liability is now being established by the
admission made by Mr Servacio.
Three persons are involved under Section 28, Res Inter Alios
Acta of the first branch. This testimony of Mr Servacio which is
now being testified on by Mr Pol is not admissible against Mr
Miralles.
In the exceptions mentioned, the admission made by a partner
is admissible against the other partners. The admission made
by one conspirator is admissible against the other conspirators.
The admission of the predecessor is admissible against the
successor. Literally there are different persons involved. The
declarant and the person bound by the declaration.
But why are these considered exceptions?
Take note that the main characteristics, the common
denominator of these exceptions is the fact that they have
common interest.
Partners have identical interests in so far as the partnership.
Conspirators have identical interests in so far as the
conspiracy. Predecessor and the successor have identity of
interests in so far as the property.
In other words, even if they are physically different individuals
or parties, because of their identity in their interest, the law
considers them as one and the same so that the admission
Pelaez Moot Court - Evidence Transcript Team 2015-2016
made by a partner is deemed as an admission of all the
partners. Admission made by one conspirator is deemed to be
an admission of all conspirators.
So that it is as if the admission was made by oneself. Like
Section 26, and therefore admissible against the declarant.
EXCEPTIONS
Lets go to the first exception
1. Partners, agents
Applies only when the admission is made by a partner or an
agent. By the way, an agent is considered as an extension of
the personality of the principal, considered as one.
a) Not all admissions are covered. Only admissions
made within the scope of the authority of the
partner or the agent.
b) It must relate to the partnership or the agency, and
while the agency or the partnership exists.
c) The partnership or the agency is shown by evidence
other by the declaration or admission.
Example
There is a partnership between Mr Servacio and Mr Pol in a
massage clinic. The admission of Mr Servacio that they
allowed prostitution in their massage clinic is admissible
against Mr Pol because it relates to the partnership but if Mr
Servacio makes an admission as the personal life of Mr Pol
that is not covered even if they are partners. The need for
independent evidence is also required not just the declaration
or the admission.
2. Co-conspirators
The same requirements. The admission by a co-conspirator
should relate to the conspiracy and during the conspiracys
existence and the conspiracy must be established by evidence
other than by the declaration or admission by co-conspirators.
The admission must relate and made during the existence of
the conspiracy.
Most admissions made by conspirators are done after arrest or
commission of the crime. This is not the one contemplated
under the exception. What is contemplated by the exception is
an admission made while the conspiracy is still in existence.
Such as during the planning stage or at the very least, while
the crime is being perpetrated but never after the
consummation of the crime.
Again, independent evidence of conspiracy is required.
3. Privies
This contemplates of a situation wherein the ownership of the
property passes from one person to another. Predecessor to
successor. The admission made by the predecessor is
evidence against the successor because in a situation
involving transfer of ownership, the successor is deemed to be
stepping into the shoes of the predecessor. So one in the
same.
But take note of the important requisites.
53
a) The declaration by the predecessor must be made
while the predecessor was holding title to the
property.
So that if the admission or declaration was made before he
became the owner or after he relinquished the ownership of
the property, the exception does not apply.
City of Manila v. Jacinto Del Rosario
City of Manila initiated an action for the recovery of property
against Jacinto Del Rosario. In support of its claim that the City
is the owner of the property, the City presented two
documents: a petition and a letter both signed by Lorenzo del
Rosario. In this two documents, Lorenzo offered to buy the
property from the City of Manila. So it was obvious that in the
two documents, Lorenzo acknowledged that the ownership
belongs to the City of Manila.
It turned out that this property was acquired by Lorenzo from a
certain Roco. And after Lorenzo del Rosario acquired the
property, he in turn sold it to Jacinto. Jacinto is the present
owner. Lorenzo is the predecessor.
Issue: Whether the admission made by Lorenzo in the two
documents is evidence against Jacinto.
SC said that for this exception to apply, it is necessary that the
admission must be made by the predecessor while the
predecessor was still holding title to the property. In this case,
the first document was prepared, signed, and executed by
Lorenzo before he became the owner. Precisely because it
was an offer to buy the property.
On the other hand, the letter which was also presented to the
City Council of Manila, it was prepared and sent to the City
Council of Manila after Lorenzo sold the property to Jacinto.
First letter was made before Lorenzo became the owner.
Second letter was made after Lorenzo sold the property to
Jacinto. No longer the owner.
Gevero v. IAC
This also involves a property which Del Monte Coporation
purchased from Lancero in 1964 who in turn bought the same
property from a certain Gevero in 1952. 12 years apart. This
property was originally owned by Teodorica Babangha the
mother of Gevero from whom Lancer bought the property.
When Teodorica Babangha died, her children including Gevero
executed an extrajudicial partition including the portion which
Del Monte Corp purchased from Lancero which was purchased
from Gevero. When Del Monte Corporation learned about the
extrajudicial partition of the property, Del Monte Corporation
instituted an action to quiet title to declare the extrajudicial
partition a nullity in so far as the subject property is concerned.
But during, the trial the children of Teodorica, in their effort to
defeat the claim of Del Monte, presented a document entitled
Settlement to Prevent or Avoid Litigation purportedly signed by
Lancero, the predecessor of Del Monte, wherein Lancero
made an admission that the transaction that he had with his
own predecessor Gevero was defective. He acknowledged that
his title was defective. The children of Teodorica argued that
the admission made by Lancero in that document is evidence
against Del Monte his successor.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
This admission was sought to be admitted against Del Monte
under this exception. Admission by Privies.
But the SC saw it the other way. For admission by privies to
apply, the admission must be made while the predecessor was
still holding tittle to the property, not before, not after.
In this case, the admission made by Lancero as contained in
the Settlement was made in 1968, 4 years after Lancero sold
the property to Del Monte. He was no longer holding title to the
property at the time of admission. Therefore, it is inadmissible
under Res Inter Alios Acta.
ADMISSION BY SILENCE
Section 32. Admission by silence. An act or declaration
made in the presence and within the hearing or observation of
a party who does or says nothing when the act or declaration is
such as naturally to call for action or comment if not true, and
when proper and possible for him to do so, may be given in
evidence against him.
Q: Why is this an exception?
A: If someone does or says nothing on the face of a
declaration made by another and the declaration is of such
nature that would call for denial or action if it is not true, that
declaration is deemed to be the declaration of that person who
does or says nothing.
In effect, it is as if the admission was made by the party
himself, even if originally that admission was made by
somebody else.
Adoptive Admission
There is that other doctrine essentially the same as admission
by silence. This was enunciated in the case of Estarada v
Disierto.
SC defined it as a parties reaction to the declaration or act of
another wherein it is reasonable to treat such reaction as an
admission to what was stated or implied by another.
Unlike admission by silence where the admission lies in the
silence of the parties, who was supposed to act or to do
something or to say on the face of the statement or
declaration, this adoptive admission centers on the partys
reaction. This reaction can be a positive act or a negative act.
But it refers to a reaction. If under the circumstances, it is
reasonable to treat that reaction as an admission to what was
stated or implied by another, that admission becomes the
admission of the party under the principle of adoptive
admission.
The Estrada case involves the infamous Angara Diary.
During the remaining days of Estradas presidency, Angara
was the executive secretary. When Estrada realized his
support was dwindling, especially when the AFP withdrew their
support from him, Angara suggested to President Estrada to
consider graceful exit by resigning. But on the face of this
suggestion Estrada instead of expressing his protest or
objection simply commented that he does not want to go out of
54
the country. This was his reaction to the suggestion proposed
by Angara.
When Estrada questioned the swearing in of GMA as
successor, the issue came out as to whether he really resigned
from presidency. Since resignation is matter of intention, SC
had to grapple with the issue as to whether the acts of Estrada
prior, during and after leaving Malacanang indicates intention
to resign.
The SC had to sift to the entries found in Angara diary which
contains the details of their discussions including the
suggestions to Estrada and his reactions to the suggestion.
Estrada argued that he never resigned. It was suggested to
him but he never accepted the proposal.
SC said that based on the Angara diary, it was obvious that his
reaction to the suggestion was anything but not protest. He did
not object. By simply saying that he does not want to get out of
the country or by his silence about it constitutes adoptive
admission. He was in effect accepting the suggestion to resign.
It was also argued that the Angara Diary should not be
admissible because he was not the one who wrote the entries.
SC said that one of the exceptions to the res inter alios acta
rule is the admission by an agent. Angara was then the little
president. As alter ego of the president, his actions are
deemed to be actions of the president. Admission of the agent
is admission of the principal.
Exception
Do not confuse the admission by silence or adoptive admission
in a situation where the right to silence applies. Any admission
made in instances where the declarant has the right to remain
silent is an exception. It cannot be considered as admission by
silence or adoptive admission. That silence cannot be taken
against that person. To rule otherwise is to negate the right to
remain silent that is constitutional.
Res Inter Alios Acta, Second Branch
The so called Prior or Similar Conduct Rule.
Section 34. Similar acts as evidence. Evidence that one did
or did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or similar thing at
another time; but it may be received to prove a specific intent
or knowledge; identity, plan, system, scheme, habit, custom or
usage, and the like.
If Mr Servacio was unfaithful at one time, it is not admissible in
evidence that he is unfaithful at another time. This rule
recognizes that there is always a second chance.
So an employee who was dismissed for infraction committed in
the present year cannot argue that he cannot be guilty
because in the five years he has been an awardee or model
employee. The fact that he was a very good very dedicated
employee for 5 years is not admissible in evidence that he is
always a good and dedicated employee at the present year.
That is the long and short of it.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
So it doesnt follow, non-sequitur. So if you are caught by your
girlfriend playing around with another, always invoke that.
Not totally inadmissible
But it is not totally inadmissible. It may be admissible to
produce circumstantial evidence as to specific intent or
knowledge; identity, plan, system, scheme, habit, custom or
usage, and the like. Not direct evidence of guilt in so far as the
present act.
People v Irang
Two robberies were committed in one night. One suspect was
identified by the victim as one having polk mark on the face.
On the prosecution of the second robbery, a witness testified
that one of the suspect has polk mark on the face. The
purpose was to establish that the same assailant was guilty of
the two robberies.
An argument was made that it was not admissible under
similar act or prior conduct rule. The fact that one may have
been guilty at one time does not necessarily follow that he is
also guilty at another time.
SC said while it is not admissible to prove the direct guilt of the
accused, it is always admissible to prove identity which is
allowed under the rules.
US v Pineda
The accused was a pharmacist owned a pharmacy. He was
prosecuted for violation of Pharmacy Law because it was
established that one customer bought certain medicine to cure
the illness of his horses but after administering the medicine,
the horses died. He complained to the Bureau of Drugs to have
the medicine examined. It was found out that the medicine
contained poisonous substance.
To verify or confirm that the store of the accused really sells
poisonous substance, the representative of the Bureau of
Drugs went to the pharmacy and bought the same drugs. The
drugs were tested and was confirmed that the medicine
contains poisonous substances.
During trial, the testimony of the representatives that they
bought the same medicine in the pharmacy of the accused was
objected to because their transaction was separate from the
one involved in the prosecution. The prosecution involves
medicine bought by the complainant before the representatives
bought on their own.
SC said that while this may not be admissible under the prior
or similar conduct rule, SC said it may be admissible to prove
intent or knowledge because if it can be established that a
person repeatedly performed the same wrong doing, this
repeated act may prove intent or negligence or even malicious
intent.
Take note, Admission takes various shapes or forms. It could
be express or implied. There are some acts or conducts which
in law are considered as forms of admission and therefore
admissible in evidence.
OFFER OF COMPROMISE
55
An offer of compromise is by law considered a form of
admission.
Section 27. Offer of compromise not admissible. In civil
cases, an offer of compromise is not an admission of any
liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the accused may be
received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a
plea of guilty to lesser offense, is not admissible in evidence
against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury.
What is the rule in an offer of compromise?
It depends on the nature of action where the offer was
presented as evidence.
1. Offer of compromise is not admissible as an implied
admission in civil cases.
Under the rule, if it is done in a civil case, offer of compromise
is not admissible in evidence as an implied admission of
liability because in this jurisdiction, compromise is the rule. Our
policy is to encourage compromise in civil cases. If the offer is
to be admissible as an implied admission of liability, people will
be hesitant to propose compromises.
2. This rule is not true if the action is done in a criminal
case
The policy here is that it cannot be compromised because in
criminal cases the real offended party is the entire people.
Society as a whole, not the individual victim. Even if the
individual victim who was particularly involved settles or
compromises, that settlement will not affect the criminal
prosecution. The compromise affects only the civil aspect but
not the criminal case. Compromise of the civil aspect of the
criminal case is not a ground for the dismissal of a criminal
case.
Exceptions provided for by law
1. Quasi-offenses committed through negligence
These are criminal cases under the RPC. These cases refer to
reckless imprudence. It could be reckless imprudence resulting
in homicide, damage to property. These are criminal cases.
The real offended party is still the State but by express
provision of the rule, the quasi-offenses are treated in the
same category as civil cases on the matter of compromise.
The reason there is that quasi-offenses are considered as less
grave offenses because of the gravity of the offense. It is not
as grave as intentional crimes so settlement is allowed.
2. Where the law allows compromise
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Criminal liability involving payment of taxes can be
compromised because the BIR is only interested in the
payment than sending tax payers to jail.
3. Plea of guilt later withdrawn
If your client pleads guilty but realizes the stupidity of his plea,
your client can withdraw it as improvident plea.
4. Unaccepted plea of guilt to a lesser offense
If the plea is rejected during plea bargaining, that plea is not
admissible as evidence of implied admission of guilt.
5. Good Samaritan Rule
If you happen to bump somebody in the street, you bring the
offended party to the hospital and offer to pay the medical
expenses or actually paid it yourself. Not admissible as implied
admission of guilt. This is to encourage assistance to victims of
accidents instead of abandoning their victims. These covers
hospital, medical or other expenses occasioned by the injury.
Other forms
Other forms or acts which are considered as offer of
compromise
May include:
1. Plea for forgiveness
You ask forgiveness. That amounts to offer of compromise.
You ask for forgiveness because you are at fault. That is why it
is so hard to settle cases if the other party demands for
forgiveness. It is easier to settle cases if the demand involves
money rather than a demand asking the other party to ask for
forgiveness. Personal or in writing to be published in the
newspaper. By asking for forgiveness, you are acknowledging
guilt. There is no settlement there.
2. Offer of marriage in a criminal case
That is admissible as implied admission in acts of
lasciviousness, sexual abuse, or rape. No one in his right mind
will offer to marry a victim of rape unless he believes he is the
one responsible.
3. Offer to pay money
4. Offer to restitute or give a substitute
All these offer of compromise, in whatever shape or form, can
only be admissible against a party as an implied admission if it
made by the party himself or someone with the consent or
acquiescence of the party. If done without knowledge, consent
or ratification of the accused, it does not bind the accused.
People v Godoy
A teacher was alleged to have raped his student. After the
commission of the crime and in order to dissuade the family
from filing a case, an Imam offered to the victim that Godoy
marry her. Not only that. The parents and sisters-in-law of the
accused went to the family of the offended party to dissuade
them from initiating the complaint for rape.
56
One of the issues raised was whether these gestures of offer
of marriage and offer to pay money are admissibleas implied
admission of guilt.
SC said while the offer of compromise in criminal cases is
admissible as an implied admission of guilt, that only applies
only if the offer came from the accused himself. In this case
there was no evidence that the offer was made by the accused
himself or was made with his consent or authority.
Distinguish this from People v De Guzman
Prosecution for rape. The family of the accused offered to pay
money to the family of the victim. It was rejected. Evidence
was produced to establish the rejected offer.
SC said the offer of money constitutes an offer of compromise
therefore admissible in criminal cases even if the offer was
made by the family of the accused because it was established
that the accused knew about it and he never did anything to
stop it. His inaction amounts to ratification to the offer.
Therefore, it was admissible.
How to nip the bud.
So what do you do if you happen to be a counsel to a party of
a criminal case and your client wishes to settle amicably? How
can you make the criminal case be dismissed if the
compromise is not allowed? You are treading on a dangerous
ground. You might be accused for obstruction of justice.
How to do it.
In a charge murder or rape, but you believe that the family of
the offended party can be bought or can be settled. There are
people who can be bought. Loss of a family member can be
compensated in monetary terms. Your client instructs you to
settle the civil aspect. He is willing to spare no expense. Lets
settle this. Theoretically, you cannot. Settlement in the civil
case will not result in the dismissal of the criminal case. But in
practice, there are courts or judges who are more realistic and
accommodating so that a mere affidavit of desistance executed
by the offended party will suffice to dismiss the case. Although
theoretically it cannot be done, but it happens that if everybody
is happy, there is no problem.
There is a crime only if someone sees it
If nobody complains, there is no case. If nobody sees it, there
is no crime. You watch the film Black Mass. This is the fife
story of the most feared mobster in Chicago 1960s. Whitey
Bulger. The most feared mobster who is a brother of a State
senator. He was having this conversation with his son because
his son came home one day from school because his son
figured in a fist fight with his classmate. They were sent to the
guidance counsellor and was sent home. In his conversation
with the son, the child asked the father if he did something
wrong. Am I in trouble? The father said youre in trouble not
because you did something bad. You are in trouble because
you allowed someone to see you do something bad. There is a
crime only if someone sees it.
Going back to settlement or compromise. So if the court is
cooperative, there is no problem.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
But there are judges who are really faithful to the letter of the
law. They will not acknowledge or honor the affidavit of
desistance because strictly it is really obstruction of justice. So
how do you get the criminal case dismissed if the judge is not
cooperative?
One way, do not quote me on this, you get the complainant to
get lost. Take a vacation. If the family is from Cebu. Take
vacation in Manila. Then, set the hearings three times. First
date. Prosecutor is unable to present the principal witness or
complainant. The prosecutor will ask the court for time to
present the complainant. As defense counsel invoke speedy
trial. But the trial will not dismiss it at that time. Second time.
Prosecutor will say Your honor, the complainant cannot be
found. You invoke speedy trial. Third time last chance, the
same. Of course now, the court has no more choice but to
dismiss the case under the speedy trial. Otherwise, the court
will also be disciplined. That is administratively for courts to
ignore the speedy trial act.
The dismissal amounts to acquittal. Your client cannot be
prosecuted twice.
Dangers
But sometimes its not as easy as that. There are instances
when the judge will really insist in presenting the complainant.
So if the complainant will not appear it is possible that a
subpoena will be issued so the complainant will be wanted on
the run. Failure to honor subpoena authorizes the court to
issue warrant. The danger there is the complainant is found
and forced to testify. There is the risk involved.
Another way to protect the accused in the scenario because
the witness is forced to testify. Make sure the affidavit of
desistance will not only state that the civil aspect is settled, that
the complainant manifest to not pursue the case, and that he
has reconciled with the accused of the case, not enough.
Indicate the admission on the part of the complainant some
facts that would negate the element of the crime. So that in
event he was forced to testify, you can always confront him
with the affidavit of desistance to negate his testimony so that
the court will see the inconsistency and cause doubt. This
places the complainant in the bad line. He may be prosecuted
for perjury.
These are the theoretical dangers.
Send emissaries
It is also helpful for you if you are not sure if the other party is
receptive to the offer to send emissaries. Do not do it yourself
because if it is rejected, it may be traced to your client. Instruct
someone to do it and make sure to instruct that someone to
deny any knowledge on the part of the accused or the lawyer.
Always premise the offer on the statement that Im doing this
on my own do not tell the accused or his counsel so that if the
offer is rejected it will not be traced to you.
Make everyone happy
The best way compromise is to make everyone happy. Make
the prosecutor happy so he will not ask for issuance of
subpoena. Make the court happy. But do not quote me on this.
57
HEARSAY EVIDENCE RULE
The HEARSAY EVIDENCE RULE as provided under Section 36, Rule
130 of the Rules of Court states:
Sec. 36. Testimony generally confined to personal
knowledge; hearsay excluded A witness can testify only
to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception,
except as otherwise provided in these rules.
GENERAL RULE: PERSONAL KNOWLEDGE IS REQUIRED.
If the witness testifies on facts base on another persons personal
knowledge, that is not admissible under the hearsay evidence rule.
Ms. Pulmones testifies that she heard Ms. Yap that Mr.
Padayao sexually abused her. The one testifying in court is
Ms. Pulmones but the fact that the statement that Mr.
Padayao sexually abuse Ms. Yap is not based on her personal
knowledge but base on the personal knowledge of Ms. Yap.
The testimony of Ms. Pulmones on the matter maybe
objected to under the hearsay evidence rule.
Not all instances where witnesses testify to facts not based on his
personal knowledge are covered by hearsay evidence rule, there are
instances that even if that witness testifies to facts not based on his
personal knowledge, that testimony maybe admissible.
The determination on whether a statement, assertion or declaration
is hearsay and therefore inadmissible under the hearsay evidence
rule depends on the purpose for which the evidence is offered.
HEARSAY PURPOSES. If the purpose is to prove the truth of the
statement, assertion or declaration then that evidence is offered for
hearsay purposes so that when a witness testifies to certain
declaration or acts or statements, which is not based on his personal
knowledge, that testimony of the witness is hearsay and therefore
inadmissible under hearsay evidence rule.
NON-HEARSAY PURPOSES. If the testimony of those witnesses is not
based on the witness personal perception or knowledge, that
testimony is admissible because it is offered not for hearsay
purposes but for some non-hearsay purposes. The purpose is not to
prove the truth or falsity of the statement or declaration or
assertion but just to prove that a certain statement, declaration or
assertion was made regardless of the truth or falsity of such
statement, declaration or assertion.
Under the rules, this is otherwise referred to as the
INDEPENDENTLY RELEVANT STATEMENT. The fact that the
statement, declaration or assertion was made is a relevant fact and
its relevance is independent from the truth or falsity of such
statement. If that is the purpose of the offer, even if the witness
testifies as to facts not base on his personal knowledge, is not
covered by hearsay evidence rule and therefore that testimony is
admissible. It is not to prove the truth of the statement but to prove
that the statement was made.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
INSTANCES
1. Assertion, declaration or statement is independently relevant
IF IT IS THE VERY FACT IN ISSUE IN THE CASE. The issue is
whether or not the assertion, declaration or statement was
made. If its the issue in the case, that is an independently
relevant statement. It does not matter whether the
assertion, declaration or statement is true or false. The
following instances are typical examples involving
independently relevant statement:
Prosecution for libel. Ms. Yap cause the circulation of a text
message describing Mr. Miralles as only hunk in appearance but
bankrupt in performance. Mr. Miralles may feel besmirch or his
reputation malign by such circulation of such message and so Mr.
Miralles cause the filing of a criminal case for libel against Ms. Yap.
In order to prove the existence of the allege libelous statement, a
portion of that message is offered and testified to by a witness who
happen to receive a copy of that text message. Regardless of
whether Mr. Miralles is really hunk in appearance but bankrupt in
performance, the existence of that statement is independently
relevant, even if that witness testifies without personal knowledge
as to Mr. Miralles actual condition is beside the point. The issue
there is whether or not such libelous statement was made and that
can be proven by the testimony of that witness who may have not
have a personal knowledge of the fact asserted in the statement.
Prosecution for grave threats. Mr. Miralles threaten Ms. Yap,
telling her, Im gonna blow your fucking head off! Suppose Ms. Yap
filed a criminal complaint for grave threats against Mr. Miralles,
somebody heard Mr. Miralles uttering the alleged threatening
statement. That witness may have no personal knowledge as to
whether or not Mr. Miralles really intended to blow Ms. Yaps head
off but that witness may testify as to the statement or fact that
indeed Mr. Miralles uttered such threatening statement. Regardless
of the truth of the fact asserted in the statement, the fact that the
statement was made is irrelevant to the issue in the case, the issue
being whether or not Mr. Miralles made a threatening statement
which is the essence of the crime.
Prosecution for oral defamation. Libel if the allegedly libelous
statement is written and oral defamation if orally done. In this
situation, the existence of the statement or the fact that the
statement was made is the issue of the case.
The instances illustrate a situation where an assertion, declaration
or statement is admissible even if testified by a person who does not
have any personal knowledge on the truth or falsity of the
statement but because the statement is independently relevant,
that testimony maybe admissible under the independently relevant
statement principle.
2. The assertion, the making of the assertion, declaration or
statement may not be the fact in issue in the case but it
maybe CIRCUMSTANTIAL EVIDENCE of a fact in issue in
the case. If the making of the assertion, declaration or
statement is established by the witness, that making of
such assertion, declaration or statement can be used as a
circumstantial evidence to prove a fact in issue.
Mental state of declarant
If Mr. Miralles suddenly stands in front and
declare that he is a messiah of God. the logical
conclusion there is that Mr. Miralles must be crazy. If
58
the witness testifies that Mr. Miralles in the middle in
the class, stands up and declares that he is the
messiah, regardless of whether or not he is really the
messiah, the fact of that assertion, declaration or
statement was made by Mr. Miralles is independently
relevant to the truth or falsity of the fact asserted in
the declaration. Whether it is true or not, the fact is
he made such declaration under that circumstances
that maybe admissible as circumstantial evidence
that Mr. Miralles is crazy,
If Mr. Miralles executed his last will and
testament around such time that he made such
declaration in the class, Mr. Miralles dies and his will
is submitted to court for probate. The approval of Mr.
Miralles will maybe objected on the ground that Mr.
Miralles at the time he executed the will was not of
sound mind. A witness who heard Mr. Miralles
declaring to the class that he is the messiah can be
presented in court. It cannot be objected under
hearsay because the purpose is not for hearsay
purposes but to non-hearsay purposes. It is an
independently relevant statement; the purpose is to
prove the mental state of the declarant.
Physical condition of declarant
Mr. Miralles and Mr. Macapobre share a room
with their partners together under the cover of
darkness and they each did their respective thing.
While Mr. Miralles is doing his thing, he overheard
Mr. Macapobre or the girl saying what happen to
you man! youre sooo soft. A dispute arises as to the
physical condition of Mr. Macapobre. Whether or not
Mr. Macapobre was indeed soft at that time doesnt
matter. The purpose there is to establish that such
statement was made by the girl as to probably
establish the physical condition of Mr. Macapobre at
that time which is a circumstantial evidence of his
physical condition.
Credibility of witness
A plaintiff says the defendant owed him 1
million and despite demand, the defendant never
paid and that is why he is suing him for collection of
sum of money. During the turn of the defendant, the
defendant presented a witness to testify that during
the trial, they had a conversation with the plaintiff
who confided to her that actually that defendant has
already paid the obligation. The witness who heard
the declaration of the plaintiff to the effect that the
defendant has already paid the obligation may be
presented in court to testify that on such date, the
plaintiff made such declaration that the defendant
has already paid the obligation. Of course, the
witness has no personal knowledge whether Mr.
Miralles has already paid the obligation or not. He has
no personal knowledge as to the fact asserted in the
declaration made by the plaintiff but it doesnt
matter because the purpose is just to establish that
on such a date, there was such declaration, assertion
or declaration made by the plaintiff which is contrary
to his statement made in court.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
The existence of other inconsistent statement
maybe the evidence of the existence of such other
inconsistent statement made by the plaintiff maybe
admitted in court to establish circumstantial evidence that
the plaintiff is not credible. Again independent relevant
statement, what is being established is there is the fact
that at another time, the plaintiff made an inconsistent
statement. Which goes into the credibility of the party.
When the assertion, statement, declaration is offered to establish
particular date, particular place and particular identity of an
individual
Ms. Yap filed a case against Mr. Miralles for a crime of
multiple rape; the defense of Mr. Miralles was alibi.
He claims that at the time of the alleged incident
which allegedly took place in Cebu City, he was in Jolo
preaching, he was a Muslim. In order to prove that in
such time Mr. Miralles was in Jolo, Mr. Miralles may
present a witness who happen to be present when he
was preaching in Jolo. The witness would now say
that on this day at such time on this place, I was
present there because I was also a member of the
cult of Mr. Miralles and I heard him say that he is the
son of God. Whether Mr. Miralles is a son of God, it
doesnt matter. The witness may testify that when he
was at the place and time, he heard Mr. Miralles
make the statement to prove that Mr. Miralles was in
Jolo at the time and place of the alleged crime
therefore Mr. Miralles could have not been the party
responsible for the multiple rape.
The witness will establish there that on that day on
which day the crime was actually committed, Mr.
Miralles was in Jolo, that establishes Mr. Miralles
alibi. Alibi is a circumstantial evidence. It is a
circumstantial evidence that would negate the
allegation that he was the person responsible for the
crime. In all these instances a particular assertion,
declaration or statement even if testifies to by a
witness who has no personal knowledge of the truth
or falsity of facts contained in the statement,
assertion or declaration may still be admissible
because it is not covered by the hearsay evidence rule
but instead it is covered by independently relevant
statement rule.
THE REASONS WHY HEARSAY EVIDENCE IS NOT ADMISSIBLE ARE
THE FOLLOWING:
1. Absence of cross-examination
2. Absence of demeanor evidence
3. Absence of oath or affirmation
Why is there absence of cross-examination, demeanor evidence or
oath or affirmation in a situation covered by hearsay evidence rule?
Cross-examination. There is absence precisely because the original
source of the assertion, declaration or statement is not the one in
court testifying because the witness testifying is simply the one who
heard it from the original source. The original source, not being in
the stand cannot be cross-examined and cannot be observed by the
court.
Demeanor evidence. In appreciating the testimony of a witness, the
Court will observe the witness. Human nature. There are witnesses
59
whose behavior in court while testifying can spell the difference
between truth and falsity. There are witnesses who are not good in
lying. On the other hand, courts are supposed to be skilled in
observing demeanors and behaviors of witnesses while testifying
and these demeanors, behaviors would determine whether the
witness is falsely or truthfully testifying. If the original source of the
declaration, assertion or statement is not in court, it deprives the
court the opportunity to observe the demeanor of the witness and
therefore, it deprives the court of the opportunity to determine
whether the source of that information is telling the truth so
therefore not reliable.
Oath or affirmation. Since the original source of the statement,
assertion or declaration is not in court, he cannot take an oath. It is
the taking of the oath or affirmation that compels a witness to be
truthful because of the consciousness that if he is caught telling a lie,
he may be faced some adverse consequences like criminal
prosecution for perjury. We have a presumption that when a
witness takes an oath with consciousness of a possible repercussion,
he is likely to be truthful although not necessarily. Because of these
three requisites, absence of any or both, some or all makes the
testimony or evidence inadmissible under the hearsay evidence rule.
Why is cross-examination, demeanor of evidence or oath
or affirmation important such that absence of any, some or all
makes the testimony or evidence inadmissible under the hearsay
evidence rule?
TESTIMONIAL QUALITIES. The law requires the witness to
possess some testimonial qualities. It is the presence of cross
examination, the presence of the opportunity of the court to
observe the demeanor of the witnesses and it is the taking of the
oath or affirmation that provides the mechanics to ensure that the
witness possesses the required testimonial qualities.
Testimonial Qualities required of a witness:
1. The witness sincerity or his willingness to testify truthfully.
This is otherwise referred to as the witness veracity. The
issue there is whether the witness has the motive to lie. Is
the witness really sincere? Does he have any reason to
falsely testify?
This can be determined by cross-examination. You cross-examine
the witness is he has any bias against the other party. If he has any
motive to falsely testify. It can be achieved by cross-examining the
witness. The court in observing the witness can establish whether
the witness is being truthful or the witness is lying like when the
witness does not look at the judge eye-to-eye, it is an indication of a
false witness. If you present your witness, tell the witness to look
the judge in the eye, the judge will assume your witness is truthful. If
the witness hesitates before answering the question, it is obvious
that the witness is overthinking his answer, that is a sign of a false
witness because a truthful witness answers spontaneously. These
are rules that the court may observe in determining the demeanor
evidence.
2. The witness should possess the ability to testify accurately.
A witness may be truthful but his testimony may not be
accurate. It is two different things. A witness may have no
motive to lie, he may be the most neutral witness but it
doesnt necessarily follow that his testimony should be
taken by the court because it is possible that while he may
be sincere, he may not be capacitated to testify accurately.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Accuracy and reliability of a witness testimony depends on three
factors.
1. The witness ability to observe or observation. A witness
who claims that he saw the incident because he was just
an arms length away from the crime scene as against the
witness who claims that he saw the incident but he was 30
meters away, there might be a difference in the ability to
observe. So that under normal circumstances, a witness
who is nearer to the point in issue is slightly to be
believable as to someone who is far away. If the witness
admitted that at the time of the incident, it was dark and
he was not wearing his eyeglasses and that he admitted
that he was suffering from some eye problem that it can
be established that the witness has no capacity to observe
the incident. In that respect, his testimony on the matter
maybe incredible. My not be believed by the court
because of the absence of the ability to observe.
These are the things that you need to establish during your cross-
examination. In cross examination, it will determine this specific
factor - the ability to observe. The issue there is whether or not the
witness perceives the incident and that if the witness did perceive
the incident, whether he perceive it accurately. That is the question
that should be answered in so far as the first factor is concerned
observation.
2. The ability of the witness to remember. He may have
observed the incident close and personal but he may be suffering
from some mental condition that he could not recall even forgets his
own name at a time, there is something wrong with his memory.
The question that has to be ask there is does the witness retain an
impression of his perception. He claims he had perceived something
or witness something but the question in the second factor is does
he have an impression of what he claims he had perceived. You now
go to the second factor which is memory - recollection. If you want
to establish that the witness lacks the capacity to remember or
recall, then you can establish that he is taking medication, he is
already old, suffering from alzheimer, it is precisely intended to
establish that the witness lacks the ability to testify accurately
because his memory is compromise.
How do you test if the witness has the ability to recall and
remember?
Cross examination and demeanor of evidence because if
the witness if ask with the specifics of the incident that he claims he
had witness will take a long time to recall or remember, the judge
will definitely doubt the ability of the witness to recall or if the
witness makes an inconsistent statement in so far as particular
details of the event he claims to have witness.
3. The ability of the witness to transmit, narrate or
communicate. It is possible that the witness has the ability
to observe. No problem. He has the ability to memorize,
recall perfectly the incident because he regularly takes
shabu but he may have problem with language.
Remember, your thoughts are being communicated into
words and language. What one may be thinking may not
be the message the other person appreciates if something
is lost in the translation. That is the problem of
communication, transmission.
The issue there is does the witness language or words
accurately conveyed the impression conveyed his impression of his
perception. It is an important factor to consider whether or not to
60
believe or disregard the testimony of a witness. Its a fact of life that
words can hardly perfectly describe events, disputes arise because
of misunderstanding, because of the language use
miscommunication. Just like the witness, a victim of rape testifying,
there is a difference between penetration and touching. If the
witness sees one thing but says another thing, there might be
problem with the issue. There might be a problem with truth or
falsity. A factor relating to transmission of ones impression of the
perception to the judge is to be looked into under language or
communication becomes important.
How do you determine if the witness possesses the capacity to
narrate accurately the impression of his perception?
Again, you need cross-examination. It is always
helpful if other than asking the witness to testify on the
occurrence of a certain fact, it is always helpful that you
ask the witness to demonstrate so that court will now
have a visual picture of the incident, the court will
appreciate how the event or an act was actually
committed. Its different when the judge merely looks at
the transcript - the words. You appreciate the occurrence
of an event by just listening to the testimony of a witness
is different from actually seeing the witness demonstrating
how an event took place or how the act was committed.
This cannot be achieved if the witness is not personally in court
because he cannot be cross-examined, he cannot be observed, he
cannot be asked to take an oath.
So because hearsay deprives the adverse party the opportunity to
cross-examine, because it deprives the court from obtaining
demeanor evidence, and because it deprives the court from
subjecting the source of the statement to an oath or affirmation, the
end result there is the testimony of the witness who simply
reiterates what he claims he heard from the source of the statement
is unreliable. It doesnt enjoy the presumption of reliability. Its
untested by cross-examination.
In other words, the reason behind hearsay has everything to do with
RELIABILITY. If the witness testifies on things not based on his
personal knowledge, that testimony is unreliable. What makes the
testimony reliable is when the witness is subjected to cross-
examination, demeanor evidence and oath or affirmation. But these
are not possible if the source of the statement is not in the stand.
That explains why hearsay evidence is inadmissible.
Take note: hearsay evidence rule, like all other exclusionary rules is
not self-executory; it must be invoked by the adverse party and it
must be invoked timely. So that even if hearsay evidence is
inadmissible, it may be admitted by the court if the adverse party
fails to object to it seasonably. So what is the effect of failure to
object seasonably? Hearsay evidence, otherwise inadmissible,
becomes admissible!
But even if the hearsay evidence becomes admissible and even if it is
in fact admitted by the court because of failure of the adverse party
to object, because of its inherent unreliability, the court will
nonetheless disregard it when it is time to appreciate the weight and
sufficiency of evidence. It is unreliable because, as said, it has not
been subjected to the 3 tests: cross-examination, demeanor
evidence and oath or affirmation.
Now lets go to exceptions.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
EXCEPTIONS
There are 11 exceptions in the Rules but there are more. Disinfect
your mind of the thinking that the exceptions are only those
mentioned in the Rules of Court. There are other exceptions.
1. Dying Declaration
Section 37. Dying declaration. The declaration of a dying
person, made under the consciousness of an impending death,
may be received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding
circumstances of such death. (31a)
A dying declaration is hearsay but it is admissible hearsay because it
is an exception to hearsay rule.
Do not confuse this with independently relevant statements because
the latter is not hearsay because the witness there testifies that he
heard or knows a certain act, a certain statement, assertion or
declaration; insofar as the making of that statement, assertion or
declaration, that witness has personal knowledge. What he has no
personal knowledge of is the truth of the assertion. So its not
actually hearsay because the purpose is just to prove that he
actually heard the assertion.
But in exception to hearsay, its really hearsay because the person
testifying has no personal knowledge as to the truth of the dying
declaration and the purpose of his testimony is to prove the truth of
the assertion. But because it is an exception, it is admissible.
Justifications/Rationale
a. Trustworthiness
The law presumes that someone who is conscious/aware of his
impending death is likely to tell the truth. So you need to be
dying in order to be truthful. This is based on the premise that a
person staring at his own death would not make fearless,
reckless, false accusations against another. Because according
to the framers, knowledge or awareness of ones impending
death is so solemn and awful that it amounts to an oath. Death
is solemn.
b. Necessity
The declarant there is dead. Take note: No dying declaration
until and unless the declarant dies. With the declarant already
dead and in most cases the only evidence available is the
testimony of the declarant especially in crimes committed in
secrecy, disallowing the admission of dying declaration through
the testimony of a witness who heard the declaration would
promote/cause a miscarriage of justice. So in order to prevent a
failure of justice, the court allows the admission of the
testimony of a witness who happens to have heard the
declaration of a dying and then dead man. So at least you have
that opportunity to present a witness even if hearsay.
REQUISITES
a. The declaration must relate to the cause or the
surrounding circumstances of the victims death.
It does not include other statements, other declarations which
do not deal with the cause and surrounding circumstances of
the victims death. So if Mr. Miralles is dying and is conscious of
61
his impending death, with his wife beside him, the only dying
declaration that may be admissible in case Mr. Miralles dies is a
statement relating to the cause like the identity of the assailant
and any other facts having causal connection to the death.
So if Mr. Miralles, conscious of his impending death, confides to
the wife that actually the daughter of our house help is my
child, it has nothing to do with the surrounding circumstances
of his death. Its not covered by dying declaration. The wife may
not be called to testify if, for example, on the basis of that
declaration, a claim against the estate of Mr. Miralles is filed
claiming that the child is Mr. Miralles illegitimate child. The
wife may not be presented to prove that indeed Mr. Miralles is
the father of the child on the basis of that dying declaration
because that is not covered, that is not the kind of declaration
contemplated by the Rules.
For example, conscious of his impending death, Mr. Miralles
confessed to the police or to anybody else actually I was the
one who raped Ms. Yap 2 months ago, that statement may be
made while Mr. Miralles was conscious of his impending death
but that declaration relates to something else. It does not have
anything to do with the cause and surrounding circumstances
of Mr. Miralles death.
In one Bar Examination, a question was asked if a dying
declaration may be received in evidence in the prosecution for
robbery. Do it refer to cause and surrounding circumstances of
death? Some opine that its not admissible. But others say that
its still part of the surrounding circumstances because if death
occurred during a robbery, the chance there is complex crime:
robbery with homicide. Because robbery with homicide is in
law considered as one offense. So it can be argued that the
dying declaration may be admissible in evidence to prove the
robbery, robbery being a circumstance of the death.
b. The dead man/declarant must have been competent to
testify had he survived.
The witness there really is the dead but the one who heard the
declaration practically steps into the shoes of the dead man. So
that if the dead man himself, had he been alive, is not
competent to testify on his dying declaration, then it follows
that the witness who heard him make the declaration who
merely reiterates what he heard from the dying man would not
also be allowed to testify. A spring cannot rise above its source.
The source there is the dead man. If the dead man, had he
been alive, could not testify because he is not competent, with
more witness that the witness who heard the declaration
cannot.
This is the ruling in the case of Geraldo & Ariate vs. People of
the Philippines: The victim was attacked under cover of
darkness and he was attacked from behind by his assailant. The
crime happened along the road. Now it was claimed that when
the victim was attacked the place was not properly illuminated
and that the assailant attacked him from behind. After the
attack, one of the victims family members rushed to the victim
and the victim allegedly made a dying declaration identifying
the alleged assailant. The victim died. During the trial the
witness who heard the declaration testified. But it was
established during the trial that the place was not properly
lighted and the assailant came from behind. So the SC said if
the assailant came from behind then obviously the victim was
not in a position to identify the assailant. So even if the victim
were alive, even if he survives and testifies, his testimony
Pelaez Moot Court - Evidence Transcript Team 2015-2016
would not have had any value at all because he was not in a
position to observe or identify the assailant. And so the SC said
one of the requisites for dying declaration is: the victim, had he
been alive, should himself be competent to testify. Otherwise,
no dying declaration.
(You can cross-examine him but not as to the truth of the
declaration. Maybe you can cross-examine him as to the
circumstances of him hearing the declaration. You can assail his
perception on that respect. Because he can claim that I was
there when the dying declaration was made; I heard it myself.
You can cross-examine him on that. But the absence of cross-
examination which is referred to by law, which is absent in
hearsay evidence, is cross-examination as to the truth of the
declaration. Now in hearsay, the witness, the one who heard
the declaration, cannot be cross-examined as to whether the
statement is true because precisely he was not the one who
saw the incident. So if the dying declaration says that it was X
who was the assailant, the testimony of the witness who heard
the declaration may not be offered to prove that it was really X
who was the assailant.)
c. The declaration must be made under consciousness of an
impending death.
Take note. As I emphasized earlier, one of the justifications for
dying declaration as an exception to hearsay is its presumed
trustworthiness and this arises from the fact that the victim,
when he made the declaration, was conscious of his impending
death. Its the consciousness of an impending death that makes
it trustworthy.
So what is meant by consciousness of an impending death? Its
a state of the mind. It is required that a fixed consciousness of
an inevitable/impending death is entertained by the dying
victim. The dying victim must entertain the
thought/thinking/idea that his death is a certainty, inevitable,
impending. This can be determined by his acts prior and during
the attack or the making of the declaration. If the victim would
say I dont think I would survive, it is an indication that he is
conscious of his death. Or if the injury would be so fatal. It
should be determined by the surrounding circumstances. The
important factor there is the fact that the victim/declarant has
abandoned all hopes of survival. It doesnt matter whether
death occurred immediately after the declaration. Its not the
rapid succession of death in point of fact but its consciousness
of an impending death.
What happens if at the time the declaration was made the
victim honestly believed that he would inevitably die but for
some stroke of fortune/luck he survived? What happens to the
dying declaration? And when he already survived, a
supervening event took place and this time around the victim-
declarant died. Maybe when the victim realized in the hospital
that he is already out of danger he was too happy and
overjoyed to realize that anytime he might die so unfortunately
he had a cardiac arrest because he could not contain his
excitement that he survived and so he died. Is that dying
declaration? Take note that what makes dying declaration
admissible is the fact that its trustworthy and it is trustworthy
because it was made under consciousness of an impending
death where the declarant was presumed to be truthful. The
fact that death occurred due to other supervening fact does not
in any way detract the trustworthiness of the declaration
earlier made because the declaration was made under
62
consciousness of an impending death. What happened
afterwards does not undo the declaration already made under
consciousness of an impending death; it is still trustworthy. But
jurisprudence has it that its no longer covered by dying
declaration because under the last requisite (take note), it says
there that a dying declaration is admissible in a case where the
subject of inquiry is the death of the declarant as evidence of
cause and surrounding circumstances of the death. Take note
the dying declaration must relate to the very incident and
circumstances that gave rise to the dying declaration. In other
words, what is contemplated under dying declaration is the
declarant-victim must die as a result of the incident that gave
rise to the declaration. Thats the prevailing rule. If the death
occurs due to factors other than the incident that gave rise to
the declaration, its no longer covered. Because if it is
established that the victim survived after the attack but died
because of cardiac arrest, theres no case against the assailant
there. He died because of other factors.
Take note, in some cases, the SC ruled that one of the essential
requisites for dying declaration is that the dying declaration is
offered in evidence in cases for parricide, murder, homicide,
involving the death of the declarant-victim (the crimes are specified,
take note) but dont be misled because Rule 130, Sec. 27 is explicit:
dying declaration may be received in evidence in any case where the
subject of inquiry is the death of the declarant. So any case where
the subject of inquiry is the death of the declarant.
One example of a case where the subject of inquiry is the death of
the declarant but not parricide, murder, nor homicide is a civil case
for recovery under an insurance policy. Suppose the victim during
his lifetime secured an insurance policy over his life in favor of his
wife for example. As is usual in insurance coverage, there is that so-
called excepted risk, the excepted risk being death by suicide. Its
common. In every life insurance policy, suicide is not covered.
Otherwise people who want to make money would insure
themselves and then commit suicide. So if the insurer refuses to pay
the insurance proceeds because it claims that the insured
committed suicide, in that case for recovery of the insurance
proceeds, obviously death of the insured becomes the subject of
inquiry there. Now if you want to prove that his death was not
caused by suicide but murder, you can always present the witness
who heard the dying declaration. The witness would say that
according to the victim he was stabbed to death by so and so. Dying
declaration under this circumstance or situation is admissible.
Although it is a civil case, it is a case where the subject of inquiry is
the death of the declarant.
That demonstrates the point that dying declaration is not only
admissible for criminal cases for murder, homicide, parricide. So
sometimes their decisions cant be trusted. Im sure there are cases,
maybe some of those I assigned, the SC said there that there is this
last requisite (murder, parricide, or homicide) but its not. Although
these are the common cases.
2. Declaration against interest
Section 38. Declaration against interest. The declaration
made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact is asserted in the
declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to
Pelaez Moot Court - Evidence Transcript Team 2015-2016
be true, may be received in evidence against himself or his
successors in interest and against third persons. (32a)
This sounds the same as Sec. 26, Rule 130 (Admission against
interest)
Section 26. Admission of a party. The act, declaration or
omission of a party as to a relevant fact may be given in
evidence against him. (22)
But its not the same. Sec. 38 is declaration against interest, sec. 26
is admission against interest. These are not the same but they have
SIMILAR CHARACTERISTICS. Some are:
a. Both are exceptions to hearsay evidence rule.
But sec. 26 is not considered as an exception under the Rules of
Court because it is not one of those mentioned there as
exceptions, only 11 are mentioned and sec. 26 is not one of
them, only declaration against interest (sec. 38). There bases
are different.
The basis for sec. 26 as exception to hearsay evidence rule is
jurisprudence, Estrada v. Desierto, where the SC made a
definitive ruling that sec. 26, admission against interest, is
hearsay but it is admissible hearsay and so it is an exception to
the hearsay rule.
Declaration against interest under sec. 38 is an exception on
the basis of the Rules of Court because the Rules expressly
provide that sec. 38 is one of the exceptions.
b. They both contemplate extrajudicial admissions.
These are both precisely hearsay because the one in court is
not the source of the statement.
What are their distinctions/DIFFERENCES?
a. Sec. 26 does not require that declarant is dead or unable
to testify.
What is required there is that the declarant made an
extrajudicial statement, somebody heard and the one who
heard him testifies in court as to what he heard from the
declarant. Thats enough to satisfy the requirement.
In declaration against interest under sec. 38, the testimony of
the witness who heard the declaration is not admissible unless
there is proof that the source of the statement, the declarant
himself, is already dead or unable to testify.
b. In sec. 26, the admission can only be admissible against
the declarant himself. But in declaration against interest
under sec. 38, the declaration may be admissible not only
against the declarant but also against the declarants
successors-in-interest or even against third parties.
Justification (for declaration against interest as exception to
hearsay rule)
a. Trustworthiness
Because of the inherent nature of the declaration. It is a
declaration against the interest of the declarant. There is a
presumption in law that a person, a reasonable man, would not
make any declaration, statement or assertion against his own
63
interest unless he/she believes it to be true. When someone
makes a statement against his own interest, chances are he
might be telling the truth. So anyone who heard that declarant
make that declaration against declarants own interest may
testify and that testimony, even if hearsay, is admissible.
b. Necessity
Because the declarant is dead or unable to testify. Without the
declarant himself available, without him testifying in court,
there might be a failure of justice unless this is made an
exception to hearsay. So again, a witness who heard the
declaration, if the declarant is already dead or unable to testify,
may testify in lieu of the declarant himself.
This was the ruling in the case of Parel vs. Prudencio. This is a
case for recovery of the possession of a 2-storey residential
building. Prudencio, the plaintiff, claims that during the
construction of the 2-storey residential building he allowed the
nd
parents of the defendant Parel to occupy the 2 floor of the
building so that the parents could supervise the construction
and safeguard the materials found in the premises. Years later,
when Prudencio needed the residential building for some
purpose, he asked that parents of the defendant to vacate and
the parents of the defendant complied, in fact they went and
relocated abroad. After they did, the defendant who is the son
surreptitiously took possession of the ground floor of the
residential building claiming that his parents were co-owners of
the building and that he occupied the ground floor upon
instructions of the parents. This prompted Prudencio, the
owner of the building, to sue for recovery of possession. In
order to prove that the building belongs to him exclusively,
Prudencio presented an affidavit executed by the father of the
defendant to the effect that the father of the defendant
acknowledged long before the controversy arose that he is not
the owner of the property and instead it is Prudencio who is the
lawful owner of the property. It turned out that this affidavit
was executed by the father of the defendant because in the
past, prior to the controversy, the government through the
assessors office served him a notice of the assessment of real
estate tax and not the treasurers office attempted to collect
real estate taxes from him. But the father of the defendant
executed the affidavit so he may not be compelled to pay the
real estate taxes, he executed an affidavit claiming that he is
not the owner of the property so why should he be made to
pay the taxes when he is not the owner, the owner is Mr.
Prudencio.
So when the case reached the SC, one of the issues there was
whether or not that affidavit executed by the father of the
defendant may be admissible in evidence against the defendant
because it was objected to as hearsay because the father of the
defendant was not presented in court, the one presented was
the plaintiff. The affiant, the father of the defendant, did not
testify. The father was not subjected to cross-examination.
The SC said while it is hearsay, it falls under the exceptions to
hearsay particularly under sec. 38, declaration against interest.
It complies with the requirements. A) The declarant there is
already dead or unable to testify, he was abroad. B) The
declaration was made by the father before the controversy
arose. C) And obviously it was against the interest of the
declarant, against the interest of the father because he was
admitting that he was not the owner. Thats against the interest
of the declarant. The SC said all the requisites for declaration
Pelaez Moot Court - Evidence Transcript Team 2015-2016
against interest are present. It is admissible under the
exceptions.
Take note that in one of the requisites is where declarant there
is already dead or unable to testify, it does not only
contemplate of death. The declarant there is either dead or
unable to testify. Unable to testify contemplates of a situation
where the declarant is still alive but for one reason or another
he is unable to testify. Take note, mere absence or
unavailability is not enough. The proponent must prove by clear
evidence that efforts were exerted to produce the declarant in
court but to no avail. In other words, if youre the proponent,
you cannot automatically present the witness unless you wither
establish the death of the declarant or his unavailability and
your diligent efforts to produce him before the court.
This was the ruling in the case of Fuentes vs. CA. This involves a
prosecution for murder, a stabbing incident. The accused fled.
During the trial, the uncle of the accused testified that the
cousin of the accused admitted to him that he was the one who
killed the victim. The defense sought for the acquittal of the
accused based on that declaration made by the cousin of the
accused, an admission allegedly made in the presence of the
uncle. The uncle was the one testifying in court about that
alleged admission. The defense argued that the admission
made by the cousin, an admission to the effect that it was the
cousin who killed the victim, is a declaration against interest
and therefore admissible against the declarant and therefore
the accused should be acquitted because the person
responsible is somebody else. The SC disregarded this. It said
there is no evidence that the defense exerted efforts to
produce the cousin who allegedly made the
confession/declaration. Obviously the SC suspected that it was
a strategy resorted to by the defense to acquit the accused to
make it appear that somebody else killed the victim. So the
point there is that the defense failed to prove that there was
diligent, sincere efforts to produce the declarant and for this
the SC said this cannot be considered under the declaration
against interest under sec. 38.
So if you are the proponent it is important to establish the fact
of death or unavailability to testify and the efforts to produce
the declarant.
3. Act or Declaration About Pedigree
Section 39. Act or declaration about pedigree. The act or
declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between
the two persons is shown by evidence other than such act or
declaration. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the
places where these fast occurred, and the names of the
relatives. It embraces also facts of family history intimately
connected with pedigree. (33a)
A very interesting rule.
Whats pedigree? Dog food?
PEDIGREE generally refers to family relationships, family/personal
circumstances. It specifically relates to family relationships,
genealogy, family tree, relatives, clans, lahing pikutin. The facts of
birth, marriage, death, the dates, places, family history, anything
64
that involves family history, these are all matters of pedigree. So if
the question involves someones birth, the circumstances, the date,
the place, or marriage or death, or relationships, these questions
can be established by evidence under sec. 39, acts or declarations
about pedigree. Take note the evidence here is hearsay but by
express provision of the Rules, admissible hearsay.
So that, when you say that I was born on this particular
date, or in this place or from this parents, -- this is obviously hearsay
because these information were not obtained by your personal
knowledge. You have no personal knowledge that you came from
your parents.
But why is this admissible under Section 39?
- The justifications herein include:
1. Trustworthiness
- because these are facts that a person or a family
member should know. (Who else is more interested in
your private/personal circumstances other than you
and your familythat is why it is presumed reliable)
- Thus, if one says that he is born from his parents,
the law presumes it to be an accurate/reliable
information because he should know better
2. Necessity
- Because the declarant there is dead or unable to
testify (THUS, TAKE NOTE: Sec. 39 requires that
the declarant must be dead or unable to testify)
- Requisites:
1. There must be an act or declaration about pedigree
2. The declarant must be dead or unable to testify
- Jison vs Court of Appeals
- An action for compulsory recognition of illegitimate
filiation filed by an illegitimate daughter against her
illegitimate father, a certain Francisco Jison. Monina, the
daughter claims to be the illegitimate daughter of
Francisco but Francisco denied it up to his dying day. Thus,
Monina filed an action to compel Francisco to recognize
her. During the trial, one of the pieces of evidence
presented by Monina were the letters sent to Monina by
the siblings (brothers/sisters) of Francisco. In these letters,
they acknowledge that Monina is really the illegitimate
daughter of their brother Francisco. In other words, these
letter came from Moninas aunties/uncles. The authors of
the letters however were not presented in court, but
Monina, being the recipient of the letters testified and
identified these letters as coming from the siblings of
Francisco.
- The admission of these letters were objected to against
hearsay because the authors/writers of the letter were not
presented in court. Monina however argued that these
letters could be presented in court as under Sec. 39 of Rule
130 on Acts or Declarations regarding Pedigree because
these are letters containing declarations made by the
family members/relatives of Francisco, the aunties/uncles
of Moniina
- Held: The Supreme Court ruled that under Sec. 39, one of
the requisities therein is that the declarant must be dead
or unable to testify. In this case, Monina failed to prove
that the authors of the letters were already dead or
unable to testify. Therefore, the Supreme Court said that it
cannot be admitted under Sec. 39.
3. The declaration must involve matters concerning the
pedigree of another relative.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
- meaning, the declaration must relate to the
pedigree of a relative
- The declarant and the person whose pedigree is
in question must be relatives either by
consanguinity or by affinity.
4. The relationship between the declarant and the
person whose pedigree is in question must be
established by evidence other than that act or
declaration
- This contemplates of the requirement of:
independent evidence of pedigree
- The most controversial among the requisites
- This applies only in a situation where the
claimant seeks recovery against a relative
through the declaration of another relative
common to both claimant and the defendant
which means that this requirement of
independent evidence of pedigree presupposes
three relatives:
The first relative is the claimant (the
one who asserts a claim; the plaintiff.
The second relative is the defendant
(the one against whom the claim is
directed) because this is a case filed by
one relative against the other relative
but there is an issue as to the
relationship between the two as to
whether they are really relatives. In
order to prove the existence of the
relationship that they are indeed
relatives, a third relative comes into
the picture in the form of a
declaration. Thus, we have a third
relative which is the declarant (he who
made a declaration prior to the
controversy that involves the pedigree
of the person against whom the claim
is directed).
- Example: The third relative would say that the
defendant is really the illegitimate father of the
claimant. Making use of the case Jison vs Court
of Appeals:
- Monina is the claimant, Francisco is the defendant, the
siblings (the brothers/sisters) are the declarants (thus,
there are 3 relatives involved, the declarant, the
defendant and the claimant). If this is the scenario, the last
requisite, the independent evidence of pedigree is
required. Without this requisite, the testimony made by
the witness as to the declarations made by the dead or
unable to testify declarant may not be admitted under this
exception.
- This is illustrated in the case of Mendoza vs Court of
Appeals
This involves an action for compulsory recognition of filiation
filed by Teofista who claims to be the illegitimate daughter of
Casimiro Mendoza. To prove the fact that indeed she is the
illegitimate daughter of Casimiro, Teofista presented witneses,
among whom was Isaac who happens to be the nephew of
Casimiro. Thus, Teofista is the claimant, Casimiro is the
defendant, Isaac was called to the stand. Isaac said that
sometime long ago, before the controvery arose, he was told
by his father Hipolito and his grandmother Brigida that Teofista
is the illegitimate daughter of Casimiro. So, we have here a
65
witness who has no personal knowledge that Teofista is really
the illegitimate daughter of Casimiro but his knowledge was
from the information that he got from his father and his
grandmother, Hipolito and Brigida. Cearly therefore, Teofista
was seeking to establish her relationship with Casimiro using
the declaration of Hipolito and Brigida, but because they were
already dead, Isaac was called to the stand who is the one now
relating to the court the declarations made by Hipolito and
Brigida during their lifetime.
th
This is the typical scenario contemplated now under the 4
requisite. This requires now the independent evidence of
pedigreethe relationship between Teofista and Casimiro
cannot be proved alone by the declarations made by Hipolito
and Brigida. It requires evidence other than the declarations of
the 2.
Thus, as independent evidence of the relationship between the
declarant and Casimiro, Teofista presented in court an extra-
judicial partition involving the estate of Brigidas husband,
Florencio who is the father of Hipolito and Casimiro where it
states that Brigida, Hipolito (Isaacs father) and Casimiro are the
suriving heirs of the deceased, Florencio. This piece of evidence
now establishes the fact that indeed, Casimiro, the defendant
(the person whose pedigree is in question) and the declarants,
Brigida and Hipolito are relatives by consanguinity (this is an
independent evidence that establishes the pedigree of Casimiro
on top of the decalaration made by Brigida and Hipolito to the
effect that Teofista is the illegitimate daughter of Casimiro.)
What happens if the declaration involved and sought to be
admitted in court is a declaration made by the person
against whom the claim is directed? (meaning its a
declaration made by the defendant himself, not the
declaration of another relative)
- In other words, what is the rule regarding the
situation wherein there are only two relatives
involved? (the claimant and the defendant who
rd
is at the same time the declarantno 3
relative common to the defendant and the
claimant).
- Under the case of Tison vs Court of Appeals, the
independent evidence of pedigree is no longer
required. That pedigree can be established by
the act or declaration alone.
- This involves an action for recovery of property. The piece
of land was owned by Teodora, married to Martin
Guerrero. When Teodora died, she was survived by her
husband and her nephew and niece. But her husband,
executed the settlement of the estate of Teodora and
adjudicated the entire estate unto himself as the sole
owner, the nephew and the niece were excluded.
Eventually, the husband sold the property subject of the
rd
case to a 3 party, a certain Domingo. Martin Guerrero,
the husband, died thereafter. The nephew and the niece
then filed an action to recover their share in the property
which the husband sold to Domingo alleging that they are
also heirs of Teodora and therefore, they inherited part of
the piece of land owned by Teodora which was
adjudicated solely to the husband which he eventually sold
to Domingo.
- During the trial, Domingo filed a demurrer to evidence on
the ground that the niee and the nephew failed to proved
their relationship as nephew and niece of Teodora. One of
the pieces of evidence produced by the niece and the
nephew to prove that they were indeed the niece and the
Pelaez Moot Court - Evidence Transcript Team 2015-2016
nephew of Teodora, and that they were therefore heirs
entitled to the estate of Teodora, was the testimony of the
niece to the effect that during the lifetime of Teodora,
prior to the controvery in question, Teodora declared that
she and her brother are Teodoras niece and nephew. So
the subject of relationship here is Teodoras relationship
between the claimants. The declaration which the
claimant used to establish their claim against the estate of
the defendant is the declaration of the defendant
herself,Teodora. Thus, an issue was raised as to whether it
was necessary fot the plaintiffs to introduce independent
evidence of pedigree.
- Held: The Supreme Court said that, in this situation, the
requirement of the independent evidence of pedigree is no
longer necessary because this requisite is only required if
the claimant seeks recovery against a relative through the
declaration of another relative. However, in this case, the
claimant was seeking recovery against the estate of the
relative Teodora using Teodoras own declaration. Thus,
there were only two relatives, the nephew and niece and
Teodora. And in this is the case, independent evidence of
pedigree is no longer required obviously because the
declaration was made by the party himself, what better
proof of pedigree can there be other than the declaration
of the person concerned? Here, it was Teodora herself
who declared that the plaintiffs are indeed her niece and
nephew. This declaration now, as testified by the niece is
enough to establish pedigree, no need for independent
evidence.
Section 40. Family reputation or tradition regarding pedigree.
The reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its members,
may be received in evidence if the witness testifying thereon be
also a member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts, engravings
on rings, family portraits and the like, may be received as evidence
of pedigree.
*TN: Do not confuse Sec. 39 with Sec. 40 because although Sec. 40
also speaks of pedigree, but they contemplate different rules,
requisites and situations.
o Section 40 talks of family reputation or tradition regarding
pedigree. The justification relied in this section is
reliability/trustworthiness and not necessity becaue
under this Section, death or the unavailability of the
declarant is not a requirement which is only applicable on
Sec. 39.
o The justification is reliability/trustworthiness because the
witness here testifies on the pedigree of a relative, being
the pedigree of the person whose pedigree is in question
as it is presumed that he should know
o There are two parts that are contemplated under this
section:
1. Those referring to testimonial evidence
- This speaks of a situation where a family
member testifies of the pedigree of another
person belonging to the same family; meaning
the witness testifies of the pedigree of another
66
person who is his/her own relative either by
consanguinity or affinity, blood or marriage
- Example: Ms. M. Yap and Ms. J. Yap came from
the same clan. Ms. M. Yap is a witness in a case
filed by the other Ms. J. Yap which is an action to
compel recognition of illegitimate filiation. Ms.
M. Yap, the witness who claims to be the cousin
of the other Ms. Yap testified in court to the
effect that the complainant Ms. J. Yap is the
illegitimate daughter of Mr. Ang, a Chinese
businessman. Ms. M. Yap may not have personal
knowledge that J. Yap is the illegitimate
daughter of Mr. Ang, but being a family member,
she is presumed to know that fact or that she
acquired her knowledge by family reputation
thus, her testimony on the matter is admissible
under Section 40.
- What is important here is that the witness must
be a relative of the person whose pedigree is
the subject of the testimony.
- Further, making use of the example above, it
could also happen that Ms. M. Yap would testify
about herself, her own pedigree in relation to
somebody (or her personal circumstances like
her marriage, her birth, her family history)
these may not be personal knowledge but, they
are admissible hearsay.
- This is the ruling in the case of People vs
Alegado.
- This involves the prosecution of two counts of statutory
rape. The child there was alleged to be below 12 years old.
During the trial, the grandfather of the victim testified that
the victim is his granddaughter, the victims mother being
his daughter and while the child was still young, the
mother left and entrusted the daughter, the victim in this
case to the lolo/grandfather. The lolo/grandfather thus
testified that when the mother entrusted to him the
custody of the child/victim, she told the lolo to make sure
to send the child to school as she was already seven (7)
years old. The accused in this case argued that he canot be
convicted of statury rape as there was no clear and
convincing evidence that the child was below twelve years
old as there was no birth certificate presented. The
testimony of the lolo was to the effect only that the
mother told him to make sure to send the child to school
as she was already seven (7) years old.
- The testimony of the lolo here was objected to under
hearsay
- Held: Based on the testimony, the Supreme Court
however was convinced that indeed the child was below
twelve years old when the rape was committed. The
testimony of the lolo as to the age of the child was
admissible here under Sec. 40, family tradition o
repuatation existing prior to the controvery, even though
he had no personal knowledge therein. The family
tradition in this case, as per the Supreme Court, refers to
the family tradition in sending their children to school
upon reaching seven (7) years old. Thus, it follows that the
child was already seven (7) years old when the child was
entrusted to the grandfather and then computing now the
period, using that as a reckoning period, the Supreme
Court arrived at the computation that the child was stil
below twelve years old at the time of the rape.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
- Moreover, the Supreme Court also said that another
evidence in so far as the age of the child was the testimony
of the child herself. The child said that she was already
born on this date. Obviously, the child had no personal
knowledge on the date of her birth because she was only
informed about it by her mother and the other famly
members. But, the Supreme Court said that, ones birth,
the date, the place, as well as ones marriage or death are
matters of family reputation exisiting in the family which
can be testified to by any member of the family because of
the premise that being a member of the same family, they
should know. Thus, even if the child had no personal
knowledge of the date of her birth, her testimony to the
effect that she was born on such a date was admissible
even though it was hearsay.
- Thus, the testimony of the lolo was a matter of family
tradition which is the sending of the young children to
school upon reaching the age of 7. In sofar as the
testimony of the child, family reputation.
2. Those referring to family
posessions/objects/documents
- This now speaks of entries in family bibles, or
other family books or charts, engravings on
rings, family portaits or pictures, family diaries or
anything that has got to do with family
relatonships and the like are also admissible as
evidence of pedigree
- Jison vs Court of Appeals
- Here, Monina tried to justify the admission of the letters
sent to her by the sisters and brothers or Francisco under
nd
the 2 part of Sec. 40. She argued that these letters fall
nd
under the 2 part of Sec. 40 (entries in family bibles,
family books or charts, etc.)
nd
- Held: The Supreme Court disagreed and ruled that the 2
part of Sec. 40 are otherwise referred to as family
possessions. The letters which Monina received from the
sisters and brothers of Francisco could not be considered
as family possession. So, only if it is characterized by the
same classification as family bibles, family charts,
engravings and rings and family portraits. Thus a letter
sent by one relative to another is not what is
contemplated in this Section under the Jison Doctrine.
st
- The letters cannot also be admitted under the 1 part of
Section 40 because the said part only contemplates of a
testimony of a family member. In this case, the authors of
the letters were not presented. Had they been presented,
st
the letters could be admissible under the 1 part of Sec 40.
- What then is an example of a family possession?
This was illustrated in the case of Rafael Ferrer
et. al vs Joaquin de Inchausti Jr. et. Al
- There was this woman, Isabel who had the fortune of
getting married twice. She married Ramon Martinez first
and out of their union, the begot 2 children, Ramon, Jr.
and Rosa. When Ramon Martinez dies, Isabel wasted no
time in contracting another marriage. This time, her
equally fortunate husband was Joaquin de Inchausti, and
out of their union, they begot 3 children: Rafael, Cleotilde
and Joaquin, Jr. So all in all, Isabel had 5 children, 2 from
st
the 1 marriage and 3 from the second marriage. Fast
forward, Isabel died and Rosa also died (one of the
st
supposed children of Isabel from the 1 marriage). When
67
Rosa died, she was survived by her 2 children who are now
the 2 plaintiffs in this case. The plaintiffs claim that they
are the surviving heirs of Rosa and they complained as
they said that their mother Rosa was left out from the
estate of Isabel. When Isabel died, her estate was
st
supposed to be divided by her children (2 from her 1
nd
marriage and 3 from the 2 marriage) but the plaintiffs
st
claimed that Rosa, a product of the 1 marriage was
deprived of her share and as heirs of Rosa, they wanted
her share.
- As a defense, the other children: Ramon, Rafael, Cleotilde
and Joaquin, Jr. denied that Rosa was the child of Isabel.
One of the pieces of evidence that they adduced in court
to prove that Rosa was not Isabels child was a day bookv
of Isabel, or otherwise referred to as a diary as kept and
prepared by Ramon, Jr. the supposed brother of Rosa in
st
the 1 marriage where it was stated that on such a date, a
three year old girl named Rosa, of unknown parents was
delivered to her mother, Isabel. So, the day book of
Ramon, Jr. supposedly contained an entry tending to prove
that Rosa was merely delivered to Isabel and therefore,
she wasnt Isabels child. But, Ramon, Jr. was already dead
and he wasnt already around to testify the contents of
this day book.so the defendants presented Joaquin, Jr.
who took the stand and testified about the day book and
its entries to the effect that Rosa isnt the child of Isabel.
- The presentation of the day book and the testimony of
Joaquin was objected to by the plaintiffs on the ground
that Ramon, Jr. was already dead and thus, it is hearsay as
the day book was kept and prepared by him and Joaquin
was only testifying on the day book of Ramon so, it is only
hearsay
- Held: The supreme court said that even if it is hearsay, it is
nd
admissible under Sec. 40, 2 part. The day book partakes
of the nature of a family book or chart which falls under
the same category as family bible, family portrait or the so
called family possessions.
COMMMON REPUTATION
Sec. 41 . Common reputation. Common reputation existing
previous to the controversy, respecting facts of public or general
interest more than thirty years old, or respecting marriage or
moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of
common reputation. (35)
REPUTATION existing prior to the controversy involving matters of
public or general interest of more than 30 years old or respecting
marriage or moral reputation may be received as evidence of
common reputation.
When someone testifies that Mr. Ochavillo is a monstrous pedophile
and that witness did not have personal knowledge of the fact that
he is a monstrous pedophile but that testimony, that knowledge is
based on the reputation of Mr. Ochavillo existing in the community.
Its hearsay BUT under section 41, its ADMISSIBLE under moral
character.
There are two(2) matters involved in Section 41:
1. Matters of general or public interest
2. Matters respecting marriage or non-marriage or moral
character
Pelaez Moot Court - Evidence Transcript Team 2015-2016
IN MATTERS OF GENERAL OR PUBLIC INTEREST, the requirement
there is that it must be existing for more than 30 years old. But for
matters of marriage, non-marriage or moral character, NO such
requirement. But both contemplate a hearsay testimony. Meaning,
knowledge acquired by the witness NOT based on personal
knowledge but based on common reputation.
So if theres a public monument for example. You go to Mactan.
Theres a monument there of Lapu-lapu. It says there Lapu-lapu or
Magellan died here. Thats hearsay! But by common reputation, the
witness may testify that Magellan died in Mactan. Theres a
particular site where the shrine stands. Thats common reputation.
Monuments and other inscriptions in public places. These are
information of facts that a witness may testify and that testimony is
admissible even if not based on his personal knowledge.
TN: Under 41, that involves matter relating to marriage. Marriage is
supposed to be a matter of pedigree.
39 and 40 also involves marriage. 41 also involves marriage. So the
fact of marriage or the fact of non-marriage may be proved either by
39(evidence of pedigree), 40(also evidence of pedigree) and under
41(evidence of common reputation). In 39 and 40, what is required
there is the declaration must come from a member of the same
family as that person whose pedigree is in question.
So if in a case, for example of Mr. Ochavillos pedigree, whether he is
married or not married becomes an issue in a case, that matter may
be proved by a declaration, an act or omission of a family member
who is already dead or unable to testify under Article 39 or it may be
testified to by a family member who is still alive, takes the stand and
testify, a member of the same family as that of Mr. Ochavillo under
Article 40 or under Article 41 by a witness who testifies on Mr.
Ochavillos marriage or non-marriage on the basis of his reputation
existing in the family.
This was the ruling in the case of
In Re Mallari
He is a lawyer. He passed the bar. After sometime of practicing law,
his license to practice law was cancelled by the SC because the SC
found him to be NOT a Filipino citizen. His parents were found to be
Chinese nationals. Under the Constitution, only Filipino citizens can
practice law. Years after, Atty. Mallari moved to reopen the case. He
introduced newly discovered evidence. One of the pieces of
evidence introduced by Atty. Mallari was consisted of testimony of
residents of the same community where his parents resided and
these witnesses uniformly testify based on common reputation that
the mother of Atty. Mallaris father meaning, the lola of Atty. Mallari
was unmarried. Meaning, she was not married to anyone and that
she was a tagalog-speaking woman. Proceeding from the finding
that she was a tagalog-speaking woman, the SC concluded that she
must be a Filipino. The SC deduced and made a conclusion that she
must be a Filipino. Now under the Constitution, a child born to a
Filipino mother or father is a natural born Filipino. So the license of
Atty. Mallari was reinstated because of Common Reputation. Those
witnesses of course had no personal knowledge of the citizenship
but because of the existing reputation in the community to the
effect that his lola was unmarried and was a tagalog-speaking
woman, the SC took it to mean that indeed the mother of Florencio
Mallaris father was a Filipino and therefore Atty. Mallaris father
was a Filipino and Atty. Mallari also is a Filipino.
RES GESTAE
68
Sec. 42 . Part of res gestae. Statements made by a person while
a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae. (36a)
Two forms of Res Gestae:
1. Spontaneous Statement
2. Verbal Acts
(1) Spontaneous Statement
The first parts says that statement made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto may be received in evidence as part of res
gestae. Thats a spontaneous statement. What makes the statement
admissible is the fact that the statement was spontaneously made.
Whats the relevance of the statement being spontaneously made?
The relevance there is when a statement was spontaneously made
then therefore it was made without opportunity of the declarant to
concoct, to contrive, to think falsely. Its instinctive remarks,
statements. Because of the absence of the opportunity to concoct,
that statement enjoys the presumption of accuracy, truthfulness.
And therefore, the basis for this exemption even if hearsay is
admissible is reliability, trustworthiness! Its trustworthy because of
the nature of the statement being given without opportunity to
think.
DBP pool vs RMN
This RMN is engaged in radio network and in pursuit of its business,
it has some radio communication facilities all over. One of its
facilities were burned, destroyed, totally damaged and these
facilities were during the occurrence of the fire, covered by Fire
Insurance Policy. In fire insurance policy, there are standard
excepted risks. The most common excepted risk is fire by rebellion.
If the property covered by insurance is destroyed by fire caused by
rebellion or in any similar incident, the insurance policy would not
pay. So when the facilities of RMN burned down, the network
demanded for the payment of the proceeds of the fire insurance
policy but DBP Pool refused to pay invoking the excepted risk clause
contending that based on the investigation, the fire was caused by
members of the CPP NPA in the area(rebels). So the network was
constrained to go to court to demand payment. By way of defense,
the insurance company presented the fire investigation report and
this fire investigation report was based on the testimonies of the so
called eyewitnesses to the incident who were interviewed by the
investigator. Of course, those witnesses who claimed to have
witnessed the incident were not presented in court to testify but
only the investigation report testified to by the investigator. The
investigator himself had no personal knowledge of the incident. So
naturally the admission of this piece of document was objected to
under hearsay. It is obviously hearsay. But the insurance company
counterargued that this is admissible under res gestae. The first
form! BUT SC disagreed with the insurance company.
SC: Res gestae of the first form or otherwise known as spontaneous
statement requires that the statement must be made without
opportunity on the part of the declarant to concoct the statement.
But in this case, SC said there was no evidence that the testimonies
of these witnesses who were interviewed by the investigator was
made without opportunity to concoct or made without being
influenced by other factors like exchange of information with
Pelaez Moot Court - Evidence Transcript Team 2015-2016
another or speculation. So because of the failure of the proponent
to prove absence of the opportunity to concoct, SC said, this cannot
be considered part of res gestae and therefore it cannot be admitted
under the hearsay evidence rule.
Talidano vs Falcon Maritime and Allied Services
This is a case involving a seaman onboard a foreign vessel. While the
vessel was enroute to its destination, it intruded into another
vessels route. Investigation reveal that the deviation from its route
was caused by the failure of Talidano to perform his duty. Talidano
was designated as a watchman. He was supposed to guide the
captain of the vessel in following the designated route but he was
absent during his duty. So he was terminated and when he returned
to the Philippines, he filed a labor complaint for illegal dismissal. By
way of defense, the respondent employer, the shipping company,
allege that he was legally dismissed because of gross neglect of duty
which caused the vessel to evade from the designated route. This
defense was supported by the ship captains fax messages. These fax
messages contain the statements and declarations of the captain
relating to the incident (the failure of Talidano to report to his
designated post). The ship captain who made these reports was not
presented because as you know, in labor case the parties are only
required to submit position papers and if you have affidavits, the
affidavits are attached. NO trial. And therefore, the ship captain was
not presented in court for cross examination. Talidano objected to
the admission of the fax messages prepared by the ship captain on
the ground that its hearsay. But the respondent argued that its
admissible under res gestae. It was claimed that the statements
contained in the fax messages were made while a startling
occurrence was taking place or immediately prior or immediately
subsequent to the startling occurrence.
SC: Cannot agree with contention of respondent shipowner that its
part of res gestae of the first form. Why?
There was no showing that the statements contained in
the fax messages were made while the startling
occurrence was taking place assuming the startling
occurrence was the negligence of Talidano in not reporting
into his post. If it was the startling occurrence, there was
no showing that the statements were made by the ship
captain while the startling occurrence was taking place or
immediately prior or subsequent thereto. There was no
such showing. Worst, the fax messages which contain the
declaration of the ship captain did not bare any date. So
without the date, it cannot be determined as to when the
statements were made and therefore, it cannot be
determined whether it was made while a startling
occurrence was taking place or immediately prior thereto.
So requirement there is:
1. Spontaneous
2. no opportunity to concoct; and
3. It must be made while the startling occurrence was
taking place or immediately prior or subsequent thereto.
You must establish the connection between startling occurrence and
the statements for the statements to be considered admissible as
part of res gestae. The res gestae there is the startling occurrence.
(2) Verbal Acts
69
This also refer to statements accompanying an equivocal act which is
relevant to the issue and giving it legal significance. So a statement
accompanying an act.
So theres an act and the act is accompanied by the statement. The
act by itself is equivocal. Meaning, it is susceptible to two or more
interpretations. But because of the accompanying statement which
is relevant to the issue, the otherwise equivocal act is given a
specific meaning. Typical example is the act of one handing
something to another.
Ex: Mr. Miralles delivers something to Mr. Padayao. Thats equivocal
act. That act could mean so many things. Its possible that Mr.
Miralles by handing over to Mr. Padayao a sum of money, one
interpretation there is Mr. Miralles is lending money to Mr. Padayao.
So a contract of loan. Or it could also mean that Mr. Miralles
eventually paid his loan to Mr. Padayao. So the act of handing
money made by Mr. Miralles to Mr. Padayao is an equivocal act. But
because of the accompanying statement, the statement that
accompanies the act of handing over the money which statement is
relevant to the issue, its the statement which gives legal significance
to the act. So if Mr. Miralles while handing over the money to Mr.
Padayao says, Thank you for your kindness Mr. Padayao. So
obviously the statement of gratitude indicates that Mr. Miralles was
paying his loan to Mr. Padayao. Or if Mr. Miralles while handing the
money to Mr. Padayao says, Pay me after a month you son of a
****. So obviously its a contract of loan. So a statement
accompanying an equivocal act.
This was also involved in the case of Talidano vs Falcon Maritime. It
was argued by the respondent shipping lines that the fax messages
prepared by the ship captain also partake of the nature of a verbal
act. It was a statement accompanying an equivocal act.
SC said lets assume that the startling occurrence, the equivocal act
there that is the act of Mr. Talidano in not showing up at his
designated post. Its an equivocal act. They say its an equivocal act.
But here, there is no showing that the statements of the ship captain
as contained in the fax messages accompanied that equivocal act.
Because as pointed out earlier, the statements did not bear any
date, time. It is impossible to determine the time when the
statements were supposedly made and therefore, it can hardly be
determined if that statements actually accompanied the alleged
equivocal act. Again, the connection between the statement and the
startling occurrence which in this second form of res gestae is the
equivocal act. The keyword there is the statement there must
accompany the equivocal act to give it legal significance.
ENTRIES IN THE COURSE OF BUSINESS
Sec. 43 . Entries in the course of business. Entries made at, or
near the time of transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know the
facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of
business or duty. (37a)
Pelaez Moot Court - Evidence Transcript Team 2015-2016
The justification for this exception are:
1. Trustworthiness
Entries in the course of business are presumed to be
trustworthy because they were done in the ordinary
course of business.
2. Necessity
Necessity because the entrant or the person who made
the entries is already dead or unable to testify.
So an entry made at or near the time of the transaction to which
they refer made by a person deceased or unable to testify made in
his professional capacity or performance of a duty or in the ordinary
course of business or duty.
TN: That under Section 43, the entrant there must have personal
knowledge of the facts contained in the entry. The entrant made the
entries and his knowledge on these entries is based on his personal
knowledge but he could not testify in court because he is either
dead or for some reasons, unable to testify. And so someone takes
the place, takes the stand to testify the entries made by the entrant
who is dead or unable to testify. Of course, hearsay! But under this
provision, it is admissible hearsay.
TN: The entrant must have personal knowledge and the entrant
must be dead or unable to testify.
Canque vs CA
This involves a contract. Canque is a contractor who was awarded
various government projects(construction of roads on Toledo city,
Naga to Toledo). In connection with the government project,
Canque engaged the services of Socor Construction Corp. as its
subcontractor. Under their subcontracting agreement, Socor would
undertake certain aspects of the project and Socor would just send
Canque a progress billing depending on the amount of materials
delivered and extent of the services rendered. During the existence
of their contract, Socor sent project billings to Canque representing
payments for the materials that Socor claimed to have delivered for
the purposes of the project and for the services rendered by the
subcontractor Socor. But Canque refused to pay the billings because
according to Canque, Socor failed to present the delivery receipts
showing the extent or the quantity of materials delivered by Socor
to Canque for purposes of the project. Of course, you do not pay the
billing without supporting documents. This prompted Socor to go to
court to compel Canque to pay the progress billings. Canque insisted
that Socor present the delivery receipts but Socor could not present
the delivery receipts. Instead, during the trial, to prove that
deliveries of materials were actually made, Socor presented their so
called book of collectible accounts containing the alleged materials
delivered by Socor to Canque for purposes of the project. The book
of collectible accounts was testified to by its bookkeeper who was at
the same time the entrant. He was the one who made the entries in
the corporations book of collectible accounts. This was objected to
but Socor argued that this is admissible under Entries in the Course
of business.
SC disagreed and said for the entries in the course of business to
apply, it is necessary that first, the entrant must either be dead or
unable to testify. BUT in this case, the entrant was the bookkeeper
and he was the one who actually took the stand and testified. So he
was not dead. Neither was he unable to testify as he in fact testified.
On that score alone, the book of collectible accounts cannot be
admitted on the basis of entries in the course of business.
70
One more thing, SC said that for entries in the course of business to
apply, it is necessary that the entrant must have personal knowledge
of the facts therein stated. But in this case, the bookkeeper who
testified who admitted in court that he was the entrant BUT he
admitted that the entries that he made in the book of collectible
accounts were simply based on the report provided by the project
engineer. It was the project engineer who supplied him with the
details, the facts the entrant recorded in the book of collectible
accounts. So obviously the entrant(bookkeeper) had no personal
knowledge stated in the book of collectible accounts. So in these
two counts, SC said that its NOT admissible under Entries in the
course of business.
Northwest Airlines vs Chiong
This involves an overseas contract worker who was called to fly
abroad to perform a job abroad. And so on the designated date of
his flight he went to the airport and approached the check-in
counter only to be refused boarding. He missed his flight and he
missed his job opportunity. And so Mr. Chiong filed a breach of
contract against the airlines. By way of defense, the airlines argued
that Mr. Chiong was a no-show during his flight. So there was factual
issue of whether or not Mr. Chiong really arrived at the airport and
approached the check-in counter. Two conflicting factual versions.
During the trial, the airlines in order to prove that Mr. Chiong did not
show up at a designated time and place, presented a passenger
manifest and a passenger name record of the airlines and this was
testified to by the supervisor on duty. Of course the entrant, those
officers and employees responsible in the recording of the entries in
the passenger manifest and passenger name record were not
presented in court. Someone else testified other than the entrant
and therefore its hearsay. When objected on this ground, the airline
company argued that it is an exception to hearsay under Entries in
the Course of Business.
SC ruled against the airline. SC said for this exception to apply, the
proponent must show that the entrant is either dead or unable to
testify which the airline failed to prove in this case. There was no
showing that the employees and officers responsible to the
recording of the entries in the passenger manifest and passenger
name record were dead or unable to testify.
Do not confuse this with Entries in Official Records. Theres also such
a thing as official record. Thats section 44.
Sec. 44 . Entries in official records. Entries in official records
made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein
stated. (38)
OFFICIAL RECORDS
Section 44. Entries in official records. Entries in official
records made in the performance of his duty by a public officer
of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts
therein stated. (38)
Do not confuse entries in the course of business with official
records. These are two different rules although both involve records.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

ENTRIES IN THE COURSE OF ENTRIES IN OFFICIAL RECORDS admittedly the report was based on the information he gathered
BUSINESS from somebody else. The SC further state that neither was the
refers to private this specifically refers to knowledge acquired by the fire investigator through official
transactions. So mostly government records kept information because those witnesses who allegedly supplied the
records maintained and by government officers or investigator with those facts which formed part of the basis of the
kept by companies, offices or person entries were not specifically enjoined by law to make that report.
corporations like in the specifically enjoined by law They are ordinary witnesses and there is not law that requires them
examples given, records of to submit reports. to supply those information to the fire investigator. So not being
the contractor, Airline personally acquired, neither was it through official information. The
Company. SC ruled that it cannot be admitted under official entries in official
Entrant: Entrant: records.
must be dead or unable to no such requirement
testify; somebody else 2. must have (a) personal
testifies knowledge CASE: PEOPLE v SAN GABRIEL (same principle)
2. must have (a) personal
knowledge or (b) official This involves a murder, stabbing incident that occurred at the pier.
information Immediately after the incident, an eyewitness reported the incident
to the police station and the police on duty entered it in the police
blotter. In that police blotter, X was identified as the assailant. But
What is official information? when the case was eventually filed, the one charged was not X but Y.
And so during the trial, Y in his defense, presented a copy of the
The knowledge deemed to be acquired in official information if it is
police blotter, identified by the custodian of the police blotter. The
derived from somebody specifically enjoined by law to make a
accused tried to convince the court that the eyewitness who
report. In other words, there must be a specific law that requires
reported to the police after the incident identified somebody else,
somebody to make a report and the entrant acquired knowledge of
he should be acquitted. This was objected to by the prosecution
the facts from that someone who made the report which reporting
under hearsay. But the accused argued that it falls under entries in
is specifically enjoined by law. In the absence of a law that
official records. Take note that entries in the official records is a
specifically enjoins the submission of the report, that person is not
prima facie evidence of the truth of the matter therein stated. But
deemed to be someone enjoined by law and therefore cannot be
the SC saw it the other way. For entries in the official record, it is
considered as official information.
required that the facts therein stated must be acquired by the
entrant personally or through official information. Obviosly, the
police who entered the incident in the police blotter had no
CASE: CALTEX v AFRICA personal knowledge of the facts reported because admittedly it was
based an the eyewitness who witnessed the incident to the police
This involves an action for damages arising from a fire that occurred station.
in a gasoline station owned by Caltex. The plaintiffs here are the
owners of the neighbouring houses that gutted down by fire According to SC, this eyewitness is not specifically enjoined by law to
originating from the Caltex gasoline station. The defense of Caltex is report that incident to the police. So if you happen to witness a
that the cause of the fire was not of their own making but it was crime, its not actually your legal duty to report it. There is no law
somebody else, a stranger, not related to Caltex that originated, that that makes it your specific duty to report a crime that you
caused the fire. In support of its defense that it was somebody else witnessed to the police. Theres no such law.
who caused the fire, Caltex presented a fire investigation report
prepared by the governments fire investigator. In that fire
investigation report it was stated that the cause of the fire was a
CASE: BARCELON ROXAS SECURITIES (same principle)
stranger who lighted a cigarette and after lighting the cigarette, he
threw the matchstick into the underground tank of the gasoline This involved an action initiated by the BIR against Barcelon Roxas
station. Set the gasoline station afire, burning the neighbouring Securities for collection of deficiency income tax. By way of defense,
houses which led to the filing of an action for damages arising from Barcelon Roxas Securities argued that the BIRs action for deficiency
tort. Now the admission of the fire investigation report which was income tax has already prescribed. In an effort to prove that the
testified to by the investigating fire marshal or fire investigator was action has not yet prescribed, BIR claimed that the notice of the
objected to on the ground of hearsay because the report were assessment was served on Barcelon Roxas on certain date through
based on the interviews on the fire investigating officer gathered registered mail. To prove this allegation, BIR presented their record
from those who have claimed to have witnessed the fire. So custodian who testified to the BIRs record book which contains the
obviously, the facts therein stated were obviously from other list of the names of the taxpayers, the nature and the amount of
persons not the one on the witness stand. But Caltex argued that it their liabilities, the date, the notices of the assessments were made
falls under entries in the official record because its a report and so on and so forth. This was identified by the record custodian.
prepared by a government officer, a fire investigation officer Now objected to under hearsay evidence rule, BIR argued that it was
connected with the government. admissible hearsay under official record.
But the SC disagreed, and said, under entries in the official records The SC rejected the argument holding that for entries in the official
to be an exception to hearsay, one of the important requisites there record to be admissible, its important that the entrant of the entries
is that the entrant must have acquired sufficient knowledge of the must have either personal knowledge of the facts therein stated or
facts therein stated either personally or official information. acquired the facts through official information. But it was
Obviously, the fire investigator has no personal knowledge because established that the entrant, the record keeper, had no personal
71
Pelaez Moot Court - Evidence Transcript Team 2015-2016
knowledge of the facts therein stated particularly the fact that the
notice of assessment was served and the date it was served and it
was established that he was not the one who caused the mailing of
the notice of assessment. SC said, it could have been different if the
post office testified as to the fact of the mailing. So since the
entrance, the one responsible for the recording of this entry record
book of the BIR, acquired the information neither from personal
knowledge nor from official information the evidence was
inadmissible.
What is the rule insofar as medical certificate is concerned?
Medical certificate prepared by a medical doctor. TN, in entries in
official records, the entrant there must either be public officer of the
republic of the Philippines or any person specifically enjoined by law
to make a report. So insofar as medical certificate is concerned, the
only medical certificate that could be considered as official record is
a med cert issued by a government physician. Otherwise, it cannot
be considered as entries in official records.
But in People v Turco, SC said that a medical certificate or report
prepared and issued by a government physician is admissible under
entries in official record. Meaning, it can be admitted in court even if
the physician who made and prepared the report is not presented in
the court. But somebody else testifies in court, that is admissible
under entries in official records but according to SC. Since the
physician himself who made the medical report is not presented in
court, then that medical report, even if admissible has less probative
value because according to SC, the one who prepared the report is
supposed to be an expert witness and being an expert witness, it is
required that the witness, the one who prepared the report, must
be shown to have possessed the special knowledge, skill, training
which is the qualification of an expert witness. Without presenting
the medical or the physician himself who prepared the report, this
qualification may not be established. So, it admissible but less
probative value.
But this contradicts the express provision of the rule, because the
rule says that the entries are prima facie evidence of the truth of the
facts stated therein. If its prima facie evidence of the truth, then, it
proves the truth therein stated. Its incumbent upon the adverse
party to prove otherwise, but being a prima facie evidence, it
presumed trued, so whatever is stated in the report, the extent of
the injury, so on and so forth.These are presumed true. But people v
Turco the SC went against the express provision of the rule. But this
opinion, of the SC, is also not without bases because its really a
work of an expert. Without presenting the physician who prepared
the report, there can be no cross examination. Only him could be
crossed examined on the intricacies of the report. So take note of
People v Turco. Maybe this apply only to medical certificate because
of the expert nature of the testimony of the suppose witness.
Examples of Knowledge of facts acquired by the entrant through
official information.
1. Under the family code, the solemnizing officers, the priest,
imam, judges, ship captain, airplain pilot, military
commander. They are authorized to solemnize marriages
and under the express provision of the family code, they
are required to submit copies of the marriages contracts
to the civil registrar where the marriage took place. The
72
express provision of the law these authorized officers are
required to make that report.
So that, if in a case, you want to prove the fact of marriage
and the details of the marriage, your usual piece of
evidence there is an excerpt of the record available in the
local civil registrar. Number, record number, married this
so and so. License and so on and so forth.
If you want to prove the marriage, you may subpoena to
be served on the local civil registrar to bring to the court
the excerpt of the record. Of course that local civil
registrar who is now testifying in court insofar as these
records are concerned, has no personal knowledge of the
facts therein stated because he was not the one who
solemnized the marriage. He was neither one of those
who stood as the principal sponsor, was a guest during the
marriage. Generally he has no personal knowledge of the
marriage and the particulars of the marriage and obviously
hearsay. But under entries in official records, the
testimony of the local civil registrar, insofar as the excerpt
of the marriage as found in the record is admissible under
entries in official record. No personal knowledge but
knowledge of the local civil registrar insofar as to the fact
of marriage was acquired through official information
because the knowledge came from the solemnizing officer
who provided and supplied a copy of the marriage
certificate and marriage contract. And under the family
code, the solemnizing officer is specifically enjoined by law
to submit or provide this report to the LCR. Thats a
perfect example of a person specifically enjoined by law to
submit a report for any knowledge acquired by the entrant
from this person falls under entries in official record.
2. A report coming from a ship captain under Article 612 of
the Code of Commerce, captains of vessels are required by
law to keep and maintain a logbook where to record all
incidents that tooks place on board the vessel and his or
her actions thereon. Specific requirement of the law,
provision thereon is 612 of the COC.
(wala ko kita sa provision jud)
CASE: HABERTON SHIPPING v NLRC
In Haberton Shipping v NLRC, there was a seaman who
figured in a fistfight with the co-crew member and after
the investigation, he was found to be the one responsible
who initiated the fight and so he was terminated. When he
returned to the Philippines, he filed a for illegal dismissal.
The employer argued that the dismissal was legal referring
to the incident where the complainant figured in a violent
fight with a co-crew member. In support of his defense
that the termination was legal, the shipping company, the
respondent, presented the ship captains logbook which
contains the report of the incident that involved the
complainant. Of course, as Ive said, in a labor case, the
parties are only required to submit possession papers and
required to attach their documentary evidence. One of the
documentary evidence presented by the respondent was
the captains logbook which contains the specifics of the
report as prepared by the ship captain. This was objected
to under hearsay because the ship captain who made the
report was not presented as a witness for cross
examination. It was argued by the respondent that it falls
under the exception, entries in the official records,
admissible hearsay.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
The SC agreed with the employer and said that under
Section 12 of the Code of Commerce, every ship captain is
required to keep and maintain a logbook where to record
incidents that occurred on board vessel and any actions
taken thereon. This qualifies the requirement. The logbook
is specifically required by law on the part of the ship
captain. So it is admissible if any knowledge coming from
that logbook is deemed to have been acquired through
official information. The same principle applies in the more
recent case of
CASE: SABILI v COMELEC
This was action for cancellation of a Certificate of
Candidacy like what they did against Grace Poe, but this
time, in Sabili the respondent there was a candidate for
municipal mayor. It was alleged that the certificate of
candidacy, the respondent that she misrepresented that
she was already a resident of that municipality for more
than one year. One year is required for candidates for the
position of municipal mayor. By way of defense and in
order to prove that she was already or has been a resident
of the municipality for more than one year, the
respondent presented the affidavit of the barangay
captain who testified that based on the record of the
barangay secretary, the respondent has been a resident of
the brgy for more than one year. Of course the secretary
of the brgay was not presented for cross examination,
objected to for being hearsay. It was argued that it falls
under the exception entries in the official record.
And the SC agreed and said under the Local Government
Code, the barangay secretary is required specifically by law
to keep an updated list of all residents in their barangay.
And so when the barangay captain testified that the
respondent has been a resident of his barangay for more
than one year based on the record of the barangay
secretary. Obviously, the barangay captain acquired his
knowledge from or through official information.
COMMERCIAL LIST
Section 45. Commercial lists and the like. Evidence of
statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the
truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation and
is generally used and relied upon by them therein. (39)
Evidence of statements of matters of interest of persons engaged in
occupation contain in a list, periodical, register, or other published
compilation may be received in evidence as tending to prove the
matters therein stated. If such compilation is (1)published for the
use of those engaged in particular occupation and (2) generally
used and relied upon therein.
Commercial list and the like simply refers to those so called standard
handbooks published for use and generally relied upon by people
engaged in a particular occupation.
EXAMPLE
So typical example, those people engaged in trading of oil, or trading
of currency, fluctuating interest rates. They have this standard
handbooks that contain everyday professional need for purposes of
73
their occupation. For those people engaged in the business of
trading currencies for example. They have these standard
handbooks where necessary information can be found like in this
particular business, currency, they have this list of various exchange
rates. How much is the exchange rate of one peso to the dollar, this
fluctuates. So if you have a case, an issue there relevant to the case
how much was the exchange rate from peso to the dollar in 1980.
That can be established by using commercial list. The standard
handbook of those engaged in that particular business. Now of
course, the witness who would testify there has no personal
knowledge but because it is found, the statement, the information is
found in the standard handbook, they are presumed to be accurate
because they are relied upon and used by people engaged in that
particular business. The same hold true to people engaged in copra
business or any kind of business for that matter.
The only requirement there, it must be published for the use of
those people engage in that particular occupation and must be
generally used by those people.
REQUIREMENT:
1. Must be published for the use of those people engaged in a
particular occupation
2. Must be generally used by them
CASE: PNOC SHIPPING LINES v CA
This involves a collision of two vessels as a result thereof, on vessel
capsized and sank together with all the cargoes and equipment
installed in the vessel. So the owner of the vessel that sank sued the
owner of the erring vessel for damages representing the
replacement value of the vessel and all its damages equipment.
During the trial and in order to prove the value of the replacement,
the extent of the damage sought to recover from the defendant. The
plaintiff presented price quotations coming from various suppliers of
equipment. Of course, these price quotations were testified to by
the general manager of the plaintiff. So he was not the one who
prepared those price quotations. Obviously, hearsay. But the
plaintiff argued that while hearsay, it is admissible under the
exception commercial list and the like.
But the SC disagreed. The SC said, the essence of a commercial list is
that it possesses the character of a standard handbook published for
the use of people engaged in that particular occupation and must be
shown to have been generally used and relied upon by these people.
In the case of the price quotations, obviously, this was not published
for the use of people engaged in a particular occupation. These were
private communication between the supplier and the plaintiff. The
plaintiff simply requested the supplier to provide them with the
price quotations. Secondly, the SC said, it cannot be considered as
standard handbook. It was not shown that these price quotations
were actually used and generally relied upon by people engaged in
that particular occupation. So price quotations not a commercial list
and therefore inadmissible.
LEARNED TREATISES
Section 46. Learned treatises. 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
Pelaez Moot Court - Evidence Transcript Team 2015-2016

treatise, periodical or pamphlet is recognized in his profession BUT this is available only when:
or calling as expert in the subject. (40a)
a. The witness is dead or unable to testify
b. The case must involve the same parties
We have treaties and the like. Learned treaties. Published treaties, st
c. The 1 and subsequent case must involve the same
periodicals and pamphlets on the subject on history, law, science
subject matter
and art may be received in evidence tending to prove the truth of
any matter therein stated.

1. If the court takes judicial notice of the published treaty. General
public interest. Remember the rule on judicial notice,
discretionary judicial notice. Matters of general interest. It falls
there. So if the court takes judicial notice of the treaty then
whatever is stated in that published treaty, periodical or
pamphlet, any of these subjects may be received in evidence.
Obviously, the witness who testifies on the treaty has no
personal knowledge because his knowledge is based only on
the work of those who authored the treaties, periodicals and
the pamphlets. But under this exception, it is admissible
hearsay. Typical example of a treaty or a pamphlet or periodical
on the subject of science like for example
EXAMPLE
Mr. M is sex guru. He has this treaty on Kamasutra. If theres an
issue relating to sex that happens to be relevant in the case and
that issue may be resolved by applying the priceless lessons
thought by Mr. M in that book or pamphlet. It can be presented
in evidence either on the two situations.
a. If the court takes judicial notice of Mr. Ms work. So if
the judge happens to be an avid fun of Mr. M, then
obviously, the judge will take judicial notice of it. It is
admissible even if the judge has no personal
knowledge of the matters therein stated because it
falls under published treaties, periodical or pamphlet
on the subject of history, law, science and art. If the
court doesnt take judicial notice, there is other way
to present it in court and the testimony as well as the
evidence is admissible.
b. By presenting an expert witness. A witness expert on
the field who will testify that the author of the
pamphlet or treaty or periodical Mr. M is recognized
in his field or profession in the field. So we have two
experts here, Mr. O for example is also a master of
sexuality. He is the author of the book titled All you
want to know about sex but you are afraid to ask
(hahaha). So Mr. O confirms and affirms that the
author of the book Kamasutra, Mr. M is indeed
recognized and acknowledge in their field as an
expert on the matter. Admissible!
Last exception under the Rules of Court:
Testimony or deposition in prior proceedings
- There are instances when witnesses already testify in the
previous case but no longer available in the subsequent
case.
- Instead of presenting again the witnesses in the
subsequent case, you may present the transcript of
stenographic notes taken during the proceedings in the
previous case.
- IOW, in so far as the subsequent case, the witness is no
nd
longer around to be cross examine in the 2 case. BUT
under this exception the transcript of stenographic notes
nd
may be admissible as evidence in the 2 case without
requiring the witness to again testify.
74
Under this, the evidence consisting the testimony of the witness in
st
the 1 case may be received as evidence in the subsequent case
against the party who had the opportunity to cross examine the
st
witness in the 1 case. NOTE.
Case: Manliclic vs Calaunan
- Vehicular accident between a bus and an owner-driven
vehicle
st
- The 1 case was criminal case for reckless imprudence
resulting in physical injuries and damage to property was
filed by the offended party against the driver of the erring
bus.
- During trial, witnesses were presented.
- But during the pendency of the criminal case, a civil case
was subsequently field by the same complainant against
the driver and his employer, the bus company. It was a suit
for damages filed against the driver and his employer
- Problem: the witnesses who testify in the criminal case
were no longer available to testify during the succeeding
civil case.
- So what the proponent did was just to present the
transcript of stenographic notes.
- This was however objected to under the hearsay rule. But
the proponent argues that the transcript of the
stenographic notes covering the testimony of the
witnesses may be admissible under this exception
- BUT the SC disagreed. For this exception to apply, it is
st nd
important that the 1 and 2 case must involve the same
subject matter and the same parties.
- These requirements are absent in this case. While the
driver was a party in both cases, the employer was not a
party to the first case. The bus company was not given to
st
cross examine the testimony of the witness in the 1 case.
Note: when the witness is not dead but unable to testify, SC said
that the unavailability of the witness to testify must be due to some
compelling grave cause that makes him unavailable to be present his
testimony. Grave case may include physical infirmity, mental
inability, and old age resulting to loss of memory.
Case: Tan vs CA
- Mere refusal of the witness to testify is not a justification
for invocation of this exception
- The fact that he turn hostile is not a justification. Also his
mere refusal. These witnesses can be compelled to testify
through service of subpoena. It must be due to some grave
case that disabled him to testify again.
THUS: Rule of Court provides for 11 exceptions to Hearsay
Evidence Rule.
BUT not the only exceptions. There are exceptions not mentioned in
the Rules.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Additional exceptions:
a. Section 26, Rule 130. Admission against interest.
- Different from declaration against interest under Section
38 which an exception to Hearsay Evidence Rule by
express provision of law.
o These are 2 different rules. Do not confuse one
from another. But note that both are exceptions
to Hearsay Evidence Rule.
- Here, Section 26 (admission against interest) is an
exception to Hearsay Rule as provided by jurisprudence.
Case: Estrada vs Desierto
- SC officially declared that section 26 is one of the
exceptions to Hearsay Rule.
- Although not mentioned by Rules.
Distinguish section 26 (admission against interest) from section 38
(declaration against interest):
- In section 26, no requirement that the declarant must be
dead or unable to testify.
- But in section 38, the declarant must be dead
- Section 26, the admission is admissible against the
declarant himself and no one else.
- In section 38, it is admissible against the declarant, his
rd
successor in interest, or even 3 parties
Another exception:
b. Section 28 on the rules of examination of child witness
- A declaration of the child describing an act of child abuse,
which is otherwise inadmissible under hearsay evidence
rule, may be admissible as evidence under certain rules.
o When the child says that Mr. O fondled my
breast, and someone hears it, Mr. B. Later on,
Mr. B may testified, even if obviously hearsay,
may be admissible as evidence. By express
provision of this rule.
- Subject to requirements:
1. The proponent of the hearsay statement must
inform the adverse party of this kind of evidence
and the specifics of the proposed testimony. This
is to give the adverse party the chance to
intelligently object to the proposed hearsay
testimony. So the adverse party must be inform
in advance of the intention to present it and its
tenor.
2. If the child is available to testify, the court
upon motion of the adverse party must make
sure that the child be produce in court for
purposes of cross examination.
Ex. Mr. B testify of the statement of
the child. But if the adverse party
intents to cross examine the witness,
the child must be presented or
produced for purposes of cross
examination, if the child is available.
If not available, the hearsay
statement of the child may only be
75
admitted if the same can be
corroborated by other available
evidence. The it can be admissible.
- When a child is deemed unavailable?
o when the child is dead, when is unable to testify
because of some physical infirmity, mental
illness, loss of memory or would be expose to
sever psychological injury if presented in court
o In any of these instances, the evidence will be
admissible if corroborated by any admissible
evidence
- NOTE. Came out in the previous bar exam
Another exception:
c. As embodied in the ruling of the case of General Razon vs
Tagitis
- Involving a petition for the issuance of writ of Amparo
which involves petition for production of victims of
enforced disappearance.
- The respondents are the law enforcement agency of the
government, usually the military.
o So given the nature of the proceedings, the SC
took noted to the natural tendencies of the
witnesses to not testify against the military
- So the SC said that in this kind or proceeding, evidence
which is otherwise inadmissible may be admissible as long
as the totality of the evidence will result to a reasonable
basis for the court to act on the writ of Amparo.
- In this case, the evidence which was proposed to be
admitted, was a triple hearsay. Source of the information
submitted it to someone else. And this someone else
related to another. And to another.
- The SC said that this info is triple hearsay but because of
the nature of the writ, may be admissible. So long
considered along with other admissible evidence, so as to
satisfy the court of the basis of the grant of writ.
All in all, there are 14 exceptions to Hearsay Evidence Rule. 11 from
Rules of Court, and 3 from the jurisprudence and special rules.
OPINION EVIDENCE
Basic is the rule that cases are to be decided based on facts. Trial is
process where facts are established by the use of evidence. Since
facts are required to support the findings. The opinion of the witness
is not admissible because it is not based on facts. Or not a fact itself.
But there are recognized exception when the opinion is admissible.
1. Opinion of an expert witness
- An expert expressed his opinion based on established fact
o When the doctor witness testify that based on
his examination, the witness appears to have
been raped. The witness has no personal
knowledge of the fact of rape since he was not
there when it happened. But base on his
expertise, he could express his opinion that the
victim cud have been raped. Admissible as
evidence.
- Requirements:
Pelaez Moot Court - Evidence Transcript Team 2015-2016

a. Possess the necessary skills, knowledge, o Mr. P may testify that at the time of incident,
experience and training to have been found as Mr. M was drunk. Opinion as to the emotion,
expert on the matter he is testifying about. behavior, condition, appearance of another.
On matters of Psychology, the witness
should have bene shown to have
possessed the required skills,
What is therefore prohibited the Opinion rule as an exclusionary
knowledge, experience and training.
rule is the testimony of the ordinary witness that requires special
Expert testimony on matters requiring
knowledge, skill, training and experience.
expertise, that is a an exception to
hearsay. The most important part, the Expert witness on expert matters is allowed. Ordinary witness on
expert witness must be shown such ordinary matter is allowed. BUT ordinary witness on expert
expertise. matters. Not allowed.
Before you present a witness to be
presented as an expert, you as a
proponent need to establish his
expertise. One way of short circuiting, Case: de Llana vs Rebecca
ask the other party to stipulate on the - This case involves a whiplash injury
expertise of your witness. If the other - The victim there was a doctor herself. She testify on her
party does not stipulate, establish the behalf and identity the medical report of her attending
expertise. physician. Who was not presented?
- SC said that even if she knew about it being a doctor
2. Testimony of an ordinary witness on the matters that not herself, she could not testify on the reports of another
require expertise doctor because she was presented not as an expert
- An ordinary witness may express his opinion that do not witness, but as an ordinary witness being the victim of the
require skills, knowledge, experience and training. incident.
- So ordinary witness on ordinary matter
- What are these ordinary matters? If a witness is offered as an ordinary witness, he cannot, even if
a. Identity of another person truly an expert, be allowed to testify on matters which needs
o So long as proper basis is shown. It must be expertise.
shown that the ordinary witness has sufficient
knowledge on the identity of the other
o Maybe because of the relationship. Basis here is
the sufficient knowledge of someones identity. CHARACTER EVIDENCE
- Generally, inadmissible. Because a party or a case should
b. Handwriting of another
be decided based on the acts or omissions subject of the
o Ordinary witness may identify and attest to the
controversy.
court that the particular hand writing is the
- It should not be based on the character of the person
handwriting of the person. He can do that.
involved.
o And even if not present when the handwriting
o If Mr. M is charge with acts of lasciviousness, he
was affixed, but the witness can express his
should be convicted on the basis of the act
opinion that the particular handwriting belongs
complained of. He should not be convicted
to that person.
because of his character of a lewd person.
o That testimony is admissible so long as proper
Lustful character. Even if he is known to be
basis is established.
sexually addict. Even if he has that character, he
The proper basis there is sufficient
cannot be convicted of the crime charge with
knowledge or familiarity of the
only that.
handwriting. Established why he
o Unfair to crucify someone based on his character
obtained familiarity with the
o Based on the premise that everyone has the
handwriting.
right and the opportunity to reform.
o Maybe maniac 5 yrs. ago. But not so today. His
c. Mental sanity of another.
character 5 yrs. ago should not be made basis of
o Mr. P may express his opinion that Mr. M is
his conviction.
insane. That is an opinion made by an ordinary
witness regarding the mental sanity of another. BUT the rules recognized exceptions.
That is allowed.
o So long as proper basis is shown. Proper basis is Instances where evidence of character is admissible.
the fact that that witness has adequate
knowledge abut the mental sanity of another.
The rule depends on whether it is introduced in a criminal case or in
d. An ordinary witness may testify as to his expressions
a civil case. And it depends on whether the character pertains to the
of another emotion, behavior, condition, appearance,
character of the accused, character of the private offended party or
these are matters that he may testify and admissible.
the character of the witness. Different folks, different strokes.
Different rules.

76
Pelaez Moot Court - Evidence Transcript Team 2015-2016
1. Character evidence in relation to Criminal cases
- The accused can always prove his good moral character
which is pertinent to the moral trait involved in the
offense charged.
- The right of the accused to prove his good moral character
so long as that good moral character is pertinent to the
moral trait involved of the offense charged
o If Mr. M is charged of the crime acts of
lasciviousness, the moral trait involved is
chastity. So he can always prove the he is a
person of chaste character.
-
nd
What about the prosecution? 2 rule is, in criminal cases,
unless in rebuttal, the prosecution may not prove the bad
character of the accused.
o So at the first instance, the prosecution cannot
prove the Mr. M is a person of unchaste
character.
- The prosecution can only prove the bad moral character of
Mr. M which pertinent to the moral trait involved during
rebuttal.
- Meaning if during Mr. Ms evidence in chief, Mr. M tried to
prove his good moral character, the prosecution now is
given the opportunity to rebut the evidence of Mr. M.
- And so in rebuttal, the prosecution may now prove the
bad character of Mr. M.
- But not at the first instance. Only during rebuttal. NOTE.
2. Character of the private complainant? Victim?
- Under section 51, rule 130. The character of the offended
party whether good or bad may be proved if it is to
established the probability or improbability of the offense
charged. Note.
- Can be proven if it tends to establish the probability or
improbability of the offense charged.
Note. Not all character evidence are admissible. In so far as private
complainant as concerned, only those moral character which are
pertinent to the offense charged.
Because the law requires that it tends to establish the probability or
improbability of the offense charged.
- This can be done if the moral character is pertinent to the
moral trait involved in the offense charged.
Case: CSC vs Belagan (Important case)
- Superintendent of the DepEd, charged with various
offense of his subordinates. One of which was a teacher.
And this complaints involved sexual harassment.
- By way of defense, Belagan tried to prove the bad moral
character of the complainant, and the evidence presented
where evidence of the numerous cases filed against the
complainant.
- It was established that the complainant was charged with
22 various rim cases with MTC and 23 cases with office of
the barangay captain. Thus, totaling to 45 various
offenses. Character evidence.
77
- SC said that there are 2 provisions in the rules which
relates to character evidence
- The first is embodied under section 51, which deals with
the character evidence.
- And the second is under Section 14 of rule 132 which deals
with the impeachment of the witness.
We go to the first, section 51. The bad moral character of the private
offended party, if tends to prove the probability or improbability of
the offense charged.
- SC said that for this rule to apply, though it states to
criminal case lang, SC applied here it in an administrative
case.
- For this rule to apply, it is necessary that the character
evidence should relate to the moral trait pertinent to the
offense charge.
- In this case, Belagan was charged with sexual harassment,
the moral trait involved is the chastity.
o If charge is murder, moral trait is character for
violence or peace.
o If theft or estafa, character is honesty.
- These 45 various case, not one involved relates to a sexual
offense. These cases involved defamation, malicious
mischief, slight physical injury. Libel.
- These character evidence that Belagan presented are not
pertinent to the moral trait involved of the offense
charged. Thus, not admissible under section 51.
What about under section 14, Rule 132? The rule which governs
impeachment of witness.
- The adverse partys witness may be impeached by
contrary evidence, prior inconsistent statements, evidence
that his general reputation for truth, honesty and integrity
is bad. That is character evidence.
- SC said that when Belagan presented evidence consisting
of the derogatory record of the complainant, he was
obviously was trying to prove that she was not a credible
witness, trying to impeach.
- In this case, the 22 various cases filed with MTC, occurred
in 1986. The present case happened in 994. Over a decade.
The 23 cases occurred in 1979.
- These character evidence, the reputation existed a decade
ago and cannot be made a reliable basis of establish the
credibility of a witness. Too remote from the commence of
the suit
- SC said that the 10 yrs. time difference is too remote to
judge the credibility of the witness.
THUS, in this case:
Under section 51, which involves the party character of private
complainant, not applicable. Since there was failure to establish that
the moral character was pertinent to the moral train involved.
NOTE: section 51 and section 14 have different purposes.
- In section 51, this tends to establish the probability or
improbability of the offense charged. Given the character
of the complainant, that issue is whether or not the crime
has been committed.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
- In section 14, the credibility of the witness. The issue is
whether or not he is credible. The only trait u can prove is
character for truth, honesty and integrity and no other.
Whether he can be worthy of belief.
So, judging the admissibility of the charter of the complainant, in
light of section 14. SC said it must be establish that the character in
relation to truth, honesty and integrity of the witness, should be
have existed during trial or prior thereto but not too remote in time
from the commencement of the suit.
IOW. If you want to impeach a witness by evidence of his general
reputation for his character of truth, honesty and integrity, the rule
is that character must be establish to be existing during or prior to
the suit but not too remote in time.
How do you prove character evidence?
Note: 2 ways to prove to prove character.
a. evidence of specific wrongful conduct
b. by common reputation
2 situations where character evidence may be admissible:
1. If the moral character of the person is the very fact in
issue.
o Like in prosecution for libel.
o Ex. Mr. P circulated in facebook that Mr. M is a
corrupt mayor. Libelous. So, angered by the
publication, Mr. M filed a libel suit.
o Rule here? Since the moral character of Mr. M is
the very issue of the case. Mr. P can prove the
bad character of Mr. M by specific wrongful act
or conduct. And so Mr. P can establish the fact
that Mr. M was accused of stealing before. This
is allowed because the moral character to be
established is the very issued of the case.
What if not the issue of the case? But just a circumstantial evidence
to prove a fact in issue. To support the interference that the moral
character of a person is consistent or inconsistent of the offense
charge?
- Example: moral character is not the issue of the case but
just a circumstantial evidence of a fact in issue.
o Murder case where the accused interposes a
defense of self-defense. Establish unlawful
aggression and that the victim was the one who
was aggressive.
o Prove the character evidence of the victim.
o Prove that the victim was a person of violent
tendency. But this is not the main issue. Since
the main issue is the killing.
o But the character of the evidence of the victim
as an aggressor, violent man is circumstantial
evidence to prove the fact in issue that the
victim was the aggressor.
How to prove the moral character of the victim that he was the
aggressor or someone who is violent.
- Prove by general reputation.
78
- You cannot prove the persons bad reputation by specific
wrongful conduct but only by general or common
reputation.
WHY IS IT ALLOWED?
IN THE CIVIL SERVICE COMMISSION IF THE MORAL CHARACTER IS
NOT THE ISSUE IN THE CASE, the specific acts cannot be used to
prove the moral character because the accused would be prejudiced
as he would not be prepared to meet the specific acts intending to
prove the moral character. Second: since the acts are not the very
issue to the case, it would only clutter the issue/ records of the case
because the case is only about the particular act so it would cause
confusion. Third: because of the confusion, it would result in the
undue delay of the disposition of the case. That is why it is not
admissible. So only evidence of general reputation of the person
concerned.
BUT IF THE MORAL CHARACTER IS THE VERY FACT IN ISSUE there
cannot be any prejudice because he is presumed to meet the issue.
And since it is the very issue in the case it will not clutter the case
and would not result in the undue delay because everything would
be limited to that act alone.
PRESENTATION OF EVIDENCE
Depends on the kind of evidence:
Testimonial present witness
Document / object present the object or document
Section 1 rule 132. A witness is required to testify orally. Except if
the witness is incapacitated to speak or the question requires
another mode of answer or requires the use of affidavits.
Direct, cross, re-direct, re-cross, should be done orally but with the
enactment of the judicial affidavit rule, direct examination should be
done through affidavits, cross-examination, re-direct, and re-cross
are done orally.
So when you present a witness with a judicial affidavit, instead of
asking him direct examination questions, just ask him to identify the
affidavit and that will take the place of direct examination. In the
process of asking questions, there are questions which are not
allowed, the rules mention 2 types of objectionable questions, :1)
Leading 2) Misleading
Leading- a question that suggests to the witness the answer desired
by the examining party.
The effect is that the examining counsel is the one answering the
question, not the witness. This is not allowed in direct examination
because of the relationship between the proponent and the witness.
Theyre supposed to be on the same side, on the same team and the
likelihood that the witness will just confirm the question of the
counsel.
Instances when it is allowed:
1. In cross-examination- it is encouraged because you will
lead the witness into a trap. Rather than asking open-
ended questions which will give the witness an
opportunity to explain.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

How do you avoid leading questions? The best way is to ask

open-ended questions : what, how, when, who. Cross examination is not only related to the direct, or matters
connected thereto, but it may also cover ANYTHING BEARING UPON
2. Concerning preliminary matters as long as it does not go THE ISSUE SO LONG AS IT IS RELEVANT TO THE FACT IN ISSUE EVEN
into the gist of the testimony of the witness. IF IT IS NOT TAKEN IN THE DIRECT.

3. Direct examination of a hostile witness it is encouraged So if a witness testifies that he was present during the execution of
because it is as if you are conducting cross- examination. the promissory note, in the cross you can ask about payment, or he
was present in signing the receipt, matters that were not touched
during the direct. Because payment is a matter which is relevant to
What makes a witness hostile? the issue of the case, it may be allowed in cross, precisely
constructive purpose. You test the bias, ill-will of the witness and so
Witness should be declared by the court as hostile witness, you
on and so forth.
have to establish the hostile character of the witness.
You remember the three: 1. Observation, memory, transmission
How?
these are the matters you can explore in the cross.
By showing the witness adverse interest, or by showing that
RE-DIRECT- covers matters taken up during the cross the purpose is
the witness has mislead you into calling him as witness and has
to explain or supplement the answer. If as a result of the cross some
turned against you before the presentation of your evidence,
aspects of the testimony were shaken that needs to be explained,
and by showing unreasonable reluctance to testify.
thats the opportunity for you to supplement the answer.
4. If the witness is the adverse party
RE-CROSS EXAMINATION purpose is to demolish or to elicit
Adverse party witness the adverse party. You are the plaintiff,
favorable admissions on matters taken on the re-direct. Exception is
you call the defendant as your witness. Does not need
matters not taken up at the discretion of the court.
declaration by the court, being the adverse party, it is
presumed that he is hostile. No need to prove the 3 mentioned AUTHENTICATION AND PROOF OF DOCUMENTS
for hostile witness.
How do you prove documentary evidence in court?
Hostile witness requires declaration of the court.
Two documents
Both are the proponents witnesses, you conduct the direct
examination and even if you employ leading questions that is 1. Public enumerated in section 19 rule 132.
still allowed in direct examination because the witness is not on *Records of official acts or written official acts of the
the side of the proponent. sovereign authority, official bodies and tribunals whether
of the Philippines or of a foreign country.
They may be cross-examined by the adverse party that happens
to be his own counsel. The only LIMITATION IS IN THE CROSS- *Documents acknowledged before a notary public
EXAMINATION SHOULD BE ONLY LIMITED IN MATTERS
CONTAINED IN THE EVIDENCE-IN-CHIEF. *Public records kept in the Philippines of private
documents required by law to be entered therein.
The rule is that the proponent may not impeach is own witness,
(Example is birth certificate)
if you present your witness you are deemed to have vouched
the honesty and credibility of the witness and you assure the
2. Private not covered under the above mentioned.
court that your witness is honest. The rule prohibits the
proponent from discrediting his own witness, you cannot prove
that he is a liar, or a person without integrity. EXCEPTION IS Unlike in criminal law, there are official and commercial documents.
WHEN HE IS A HOSTILE/ADVERSE PARTY WITNESS but they
cannot be impeached on the ground of bad moral character.
They can be impeached in any other modes except of
evidence of bad moral character / reputation for truth, Authentication as applied in documentary evidence proving the
honesty, integrity is bad. genuineness and due execution of the document, In object - process
of proving that the object is the very object used in the controversy.
ORDER OF EXAMINATIO
TN: Authentication applies only if the document is private.
1. DIRECT EXAMINATION examination propounded by a party
who calls the witness to the stand. Coverage is on matters If you present a document under section 19, you only present it and
relevant to the case or the so called evidence-in-chief. If you prove its existence but not authenticate it BECAUSE they are
are the plaintiff you prove your cause of action. presumed to be genuine and authentic, it enjoys the presumption of
regularity.
2. CROSS-EXAMINATION
How do you prove a public document?
TWO PURPOSES
It depends on the kind of public document involved, whether it is
1. Destructive purpose if you intend to demolish or destroy paragraph a, b or c. If it falls under paragraph a (records of official
the testimony of the witness. acts or written official acts of the sovereign authority, official bodies
2. Constructive purpose you use the testimony of the and tribunal)
witness to your advantage.
79
Pelaez Moot Court - Evidence Transcript Team 2015-2016
By:
1. official publication in our jurisdiction the official gazette.
2. Copy.
Why copy? Because maybe the original may not be taken out of its
custody because public records are not usually taken out of its
custody. In relation to the BER, if it consists of public documents, the
certified true copy is the secondary evidence.
Under section 24 in relation to sec. 25, if that document falls under
paragraph a, if kept outside the Philippines, there are requirements:
1. If it is a copy it has to be accompanied by an attestation to
be executed by the legal custodian containing a statement
that its a faithful copy of the original.
2. If kept outside the Philippines, must be accompanied by a
certification issued by the consular office of the
Philippines in that country with a statement that the
person who issued the certification is the legal custodian
and authorized to issue such certification
Not all are needed to be accompanied with a certification, the
only requirement for a consular certification is if the document
is WRITTEN OFFICIAL ACTS/ RECORDS OF OFFICIAL ACTS OF
THE SOVEREIGN AUTHORITY (PARAGRAPH A), if kept in the
Philippines, no more need for certification. = Ruling in Heirs of
absillia v. teodora.
Heirs of medina case is not consistent with the express
language of the rules.
Supposed the public document is a document acknowledged
before a notary public? Just present the document, the
certification signed by the notary public is a prima facie
evidence of its due execution. And it has to be identified by a
witness.
If the public document is under paragraph c (Public records
kept in the Philippines of private documents required by law to
be entered therein) -2 ways
1. present the record itself
2. if not available, certified copy.
WHAT ABOUT PRIVATE:
It may be admitted if its duly authenticated, the proponent needs to
comply with authentication which means to prove the genuineness
and due execution by presenting a witness who is present during the
execution or familiar with the handwriting/signature of the party.
Exception to the requirement of authentication:
1. Ancient documents a document more than 30 years old
produced from a custody which is naturally found as
genuine and unblemished by any alteration / suspicion
just prove that it is 30 years old, produced from a custody
which is naturally found as genuine and that it is
unblemished by suspicion or alteration. (more difficult to
be proved.)
2. When the private document is offered not as an authentic
document. if it is offered as a forgery, you dont
authenticate it. The only requirement is you have to
80
identify as such as the proponent claims it to be. If it is a
forged, prove that it is forged.
Both the witness and the testimony must be credible
If testimony of Pope Francis (even if he is a credible witness) is not
credible, the court is obliged to ignore the testimony if the
testimony itself does not stand scrutiny because it is incredible. The
court should not give it full weight or credence because the message
and the messenger, the singer and the song, the witness and the
testimony should both be credible.
The witness is credible if his reputation for honesty and truth is good
and if his testimony is consistent with human nature and ordinary
course of things. So if you come up with a theory of your cause of
action or defense, make sure your version is credible. Also make
sure that you have credible witness to carry your story.
It is also your duty to discredit evidence of the adverse party.
Strengthen your position, demolish the opposite sides position. That
is how you win in litigation.
Section 11. Impeachment of adverse party's witness. A witness
may be impeached by the party against whom he was called, by
contradictory evidence, by evidence that his general reputation for
truth, honestly, or integrity is bad, or by evidence that he has made
at other times statements inconsistent with his present, testimony,
but not by evidence of particular wrongful acts, except that it may
be shown by the examination of the witness, or the record of the
judgment, that he has been convicted of an offense.
Essence of impeachment is to discredit the witness of the adverse
party.
Impeaching a witness may be done in the course of cross-
examination or by presenting your own evidence in your evidence-
in-chief
Three Modes of Impeaching a Witness
1. Contradictory evidence
Typical example of this is when the prosecution presents an eye
witness who claims that on such a such a date, time, and place, he
witnessed the crime. You impeach him by contrary evidence by
presenting a witness during your turn for presentation that on such
a such a date, time, and, place, the eyewitness was in Jolo, a
hundred kilometers away from the crime scene where the witness
claimed to be at the time of the incident. The court may reject the
testimony of the eyewitness because of the presentation of the
contrary evidence. Such eyewitness is deemed impeached.
2. Prior Inconsistent statement
If the prosecutions witness testifies that on such and such a
date,time, and place he was there and witnessed the killing of the
victim during the trial. But this witness testified during the
preliminary investigation before the prosecutors office that he was
not present during the incident in question. His statements are
inconsistent.
How do you impeach?
Pelaez Moot Court - Evidence Transcript Team 2015-2016
Establish the witness made two contradictory
statements. This in itself is not sufficient
Confront the witness with the prior inconsistent
statement. Relay to him the specific time, place, and
persons present when the prior inconsistent statement
was made. If he is confronted with the transcript of
stenographic notes, the witness is more likely to admit
that he made such prior statement.
Ask the witness to explain the inconsistency. If the
statements are really inconsistent, the witness will be
unable to give a satisfactory explanation. The witness is
deemed impeached since he is not trusted with his
statements.
Neither testimony is given credence because is regarded as a liar.
However, if he has satisfactory explanation for the inconsistency,
then the court may disregard one statement for being taken out of
context and admit the other statement.
What happens if the witness denies having made such prior
inconsistent statement?
Go back to the first mode. Present contrary evidence. Present the
stenographer who took the testimony of the witness during the
preliminary investigation. The court will find the witness an
unreliable witness. So he is impeached under the first mode, not the
second mode.
3. Evidence that his general reputation for truth, honestly,
or integrity is bad
*We have already discussed this.
You cannot establish the bad character of the witness by evidence of
specific acts or conduct except a copy of a final judgment or
admission by the witness that he was convicted of a crime in the
past.
OFFER AND OBJECTION
The court shall not consider evidence which is not formally offered.
The purpose of the evidence must be specified.
Even if the evidence already forms part of the record of the case, the
court is not supposed to consider it in the appreciation of the
evidence if not formally offered. It is as if the evidence does not exist
at all.
Specify the purpose for which the offer is made. In Uniwide Sales vs.
Titan-Ikeda on multiple admissibility, the evidence may not be
admissible for one purpose but admissible for another purpose. The
opposing party can intelligently oppose to the formal offer if he
believes that the offer in so far as the purpose is concern is
objectionable. The court can also intelligently rule on the objection if
the purpose is specified.
If no formal offer and specific purpose- the evidence shall not be
considered.
How do you make a formal offer?
81
Testimonial Evidence- made right after the witness is called to the
stand and before he is asked direct examination questions. Specify
the gist of the testimony.
What is the effect if the witness testifies without any formal offer of
evidence?
Concepcion Capuera vs CA
FACTS: The accused there was prosecuted for 2 counts of estafa for
issuig bouncing checks. During the trial the prosecutor presented the
private complainant under direct examination without first making
an offer but the defense counsel also just kept his silence waiting for
the completion of the direct examination. Then he moved that the
testimony of the witness be stricken off for failure to make a formal
offer.
SC: The failure of the defense counsel to object to the testimony of
the witness on the ground that there is no formal offer amounts to
the waiver of his right to object so that he cannot anymore move
that the testimony be stricken off the record on the ground that
there was no formal offer.
: It was incumbent upon the adverse counsel to object to the
testimony of the witness when the ground therefore becomes
apparent. The ground becomes apparent when the witness started
testifying on the direct examination without the formal offer being
made. Failure to object immediately amounts to a waiver. This
amounts to a waiver and the testimony of the witness cannot
anymore be stricken off. This is the controlling doctrine.
SIR: So object immediately during the direct examination.
But this ruling of the Supreme Court earns so much criticism in the
legal community because the rule in objection is: The Objection
should be made after a formal offer is made.
When there is nothing to object, why raise an objection? If there is
no formal offer made, there is nothing to object.
TAKE NOTE: The objection to an offer should be done AFTER AN
OFFER IS MADE.
And besides the Supreme Court said it is incumbent upon the
proponent to make sure he makes a formal offer before presenting
his witness. And for his failure, you cannot punish the adverse party.
OBJECTION TO A TESTIMONIAL EVIDENCE may include 3 scenarios:
1. IF THE OFFER IS OBJECTIONABLE
Objection should be raised as soon as the grounds
therefore become apparent. So raise the objection
seasonably or immediately, otherwise the effect is waiver.
2. PERFECT OFFER BUT QUESTIONS ARE OBJECTIONABLE
Object as soon as the question is asked. Do not wait for
the witness to answer because what is objectionable is the
question. So, as soon as the question is asked but before
the answer is given.
3. PERFECT OFFER, PERFECT QUESTIONS, BUT THE ANSWER
IS OBJECTIONABLE
The ground for objection to an objectionable answer is
only known when the answer is given. So you cannot
object to the answer before the answer is given. So what
do you do? You move that the answer be stricken off the
record because (it is not responsive to the question, it is
hearsay, it is speculation, the question does not call for an
opinion).
Again, all of these should be raised SEASONABLY.
Pelaez Moot Court - Evidence Transcript Team 2015-2016
There are instances when one objection applies to the series of
questions asked. Now the rule does not burden you to raise the
same objection with the same objectionable questions asked. So it is
possible that the first objection is objectionable, the court resolves
whether it sustains the objection or overrules the objection, and the
succeeding questions are the same as the questions objected to,
whether overruled or sustained, you dont have to raise again the
objection when the same succeeding questions are asked. You just
have to register your CONTINUING OBJECTION to the same types of
objectionable questions. Your honor may we register our
continuing objection to this type of questions. Then any question
with the same nature as the first are deemed objected to.
WHAT ARE THE GROUNDS FOR OBJECTION?
There are so many. The exclusionary rules that we discussed.
Best Evidence Rule
Parol Evidence Rule
Lack of authentication
Irrelevant, immaterial
What is prohibited in Parol Evidence Rule?
Extraneous, either oral or documentary. Evidence that varies the
contents of the document.
HOW DO YOU OFFER AND OBJECT A DOCUMENTARY EVIDENCE?
Different from that of testimonial.
When do you make a formal offer of an object or documentary
evidence?
Done after all of the witnesses of that party had testified. So it is
done at the end of presentation of evidence of each party.
May be done orally especially when theres only a few. In this case, it
should be OBJECTED TO ORALLY by the adverse party.
But when the formal offer is made in writing, the adverse party is
given 3 days within which to file his objection or comment unless
the court allows a longer period.
TAKE NOTE: In the course of the trial, the documentary evidence
needs to be identified or authenticated by a sponsoring witness. And
the documents identified may be marked in the course of the
proceedings.
Common mistake: you dont object to the admission of an object or
document during the time the time these evidences are identified,
authenticated and marked by a witness.
Ex. If the evidence is a photocopy and the object of the inquiry is
contents of the document, the rule involved here is Best Evidence,
so the witness identifies it and the moment it is marked, and you
know it is just a photocopy, you cannot object to the marking of the
photocopy under the best evidence rule. BECAUSE OBJECTION TO
THE ADMISSION OF AN OBJECT OR DOCUMENTARY EVIDENCE CAN
ONLY BE DONE ONCE EVIDENCES ARE FORMALLY OFFERED.
Identification, authentication and marking is NOT a formal offer. If it
is done before the formal offer, it is premature. So you wait for the
formal offer.
Failure to object to an object or documentary evidence during the
identification, authentication and marking stage will not amount to a
waiver of your right to object to an admission.
So if you object during the identification, authentication and
marking stage but did not object when the formal offer is made,
then that amounts to waiver because your objection earlier is not
honored because it is premature.
82
WHAT HAPPENS IF YOUR EVIDENCE TESTIMONIAL, OBJECT OR
DOCUMENTARY IS EXCLUDED BY THE COURT?
If you believe that the exclusion is erroneous and that evidence is
vital to your defense, your remedy is to avail of the TENDER OF
EXCLUDED EVIDENCE otherwise known as OFFER OF PROOF.
Ex. You presented a witness but the adverse party objected so for
some reason or another the court did not allow your witness to
testify. And that evidence is so vital. And without that testimony,
you have nothing. So your remedy is, you APPEAL and TENDER OF
EXCLUDED EVIDENCE. This is a remedy to preserve the evidence
which was excluded by the trial court. So, you keep it on record so
the appellate court can have the opportunity to take a look at the
excluded evidence and evaluate the action of the trial court whether
it is improper.
HOW DO YOU MAKE A TENDER OF EXCLUDED EVIDENCE?
It depends on the type of evidence which was excluded by the court.
TESTIMONIAL ex. Your witness was not allowed to testify.
Place into the records the full name and personal
circumstances of the witness and place into the
record the gist of the proposed testimony of the
witness.
Your honor with the exclusion of our testimony
we would like to make a tender of excluded
evidence, the witness name is and personal
circumstances are, had the witness been allowed
to testify, these would have been his
testimonies: 1, 2, 3 etc.
If the appellate court will read this and find later
on that the lower courts order is improper, then
the appellate court will reverse the order of the
lower court, consider the testimony and
probably reverse the decision if so warranted.
OBJECT OR DOCUMENTARY
By filing a pleading in court for tender of
excluded evidence and describe the document
or object evidence and submit or attach to the
record the object or document and the appellate
court will look into it and will rule WON the
exclusion is proper.
On appeal, the appellate court will determine if the exclusion of
the evidence was proper.
This question was asked in the previous bar exams.
WEIGHT AND SUFFICIENCY
Two Stages of trial
1. Admissibility determined by rules on relevancy and
competency.
2. Weight and Sufficiency credibility of the evidence
admitted. The court will evaluate the evidence whether it is
sufficient or worthy of belief to form a conclusion.
Three quantum or standard of evidence
(1) Proof beyond reasonable doubt erases or forecloses
all reasonable doubt; applied in criminal cases for an
accused to be convicted; if there is any doubt, the court
Pelaez Moot Court - Evidence Transcript Team 2015-2016
must acquit.
The prosecution has the burden to prove the guilt of the
accused. The defense is only required to create doubt to
obtain acquittal. Acquittal does not necessarily mean
innocence. It may mean that the evidence was not enough
to establish the guilt of the accused. The court almost all of
the time acquits the accused by saying that he is not
guilty, not that he is innocent. Not guilty not enough
evidence.
(2) Preponderance of evidence applied in civil cases.
Comparing the evidence of two contending parties, whose
evidence is superior or has greater weight.
(3) Substantial evidence applied in administrative cases
and in proceedings involving Writ of Amparo(Section 17,
Amparo Rule). There is reasonable basis to conclude or to
support the conclusion. The standard of a reasonable
prudent man is applied.
DOCTRINAL RULES IN APPRECIATING EVIDENCE
(i) Equipoise Rule when an act or circumstances is
susceptible with two interpretations, the one consistent with guilt
and the other with innocence, the one consistent with
innocence should be upheld.
A crime involving a violent confrontation between two groups.
While one person was attacking another, the friend of the
attacker was restraining the friend of the person being
attacked.
Two interpretations:
Guilt - The act of restraining was to prevent the other from
helping his friend therefore being an accomplice to the crime.
Innocence - It was to keep him from harms way.
where the evidence on an issue of fact is in issue or
there is doubt on which side the evidence preponderates, the
party having the burden of proof loses. Hence, if the
inculpatory facts and circumstances are capable of two (2) or
more explanations, one of which is consistent with innocence
and the other consistent with guilt, the former should prevail,
for then the evidence does not suffice to produce a conviction
(Abarquez vs. People).
(ii) Actors Rule - where the testimonies of witnesses on one
and the same factual issue are inconsistent with each other, the
testimony of the witness whose action is more connected to the
point at issue should be given more credence. Thus, as
between the carpenter and the tenant, the latter should be given
more credence, being more closely connected to the point at
issue, that is, whether the improvements are found on the
litigated lot. For while a carpenter would not concern himself
with the title of the property, a lessee would normally look into
the title of the property leased, including its precise location and
boundaries (Heirs of Vicente Reyes vs. Court of Appeals).
Extra-judicial confession is not sufficient to convict the accused,
unless corroborated by evidence of corpus delicti (Section 3,
Rule 133)
CORPUS DELICTI 2 concepts
1. Material or physical evidence constituting the crime
2. The fact the crime has been committed. There is a crime.
There is a victim. And there is someone responsible for the act.
83
What needs to be corroborated by corpus delicti, the extra-
judicial confession itself or the testimony of the person who
heard the extra-judicial confession?
Policewoman killed her husband. On the road, she confessed
to another policeman about the killing.
Allegedly, the barangay captain lives near the place of the
confession was made. He testified to corroborate the
confession made by the policewoman. A conflicting evidence
was presented to prove that the barangay captain was not able
to hear it since he was inside the house at that time. It was
argued that the testimony of the barangay captain is necessary
to corroborate the testimony of the policeman who heard the
confession of the accused policewoman.
SC said this is not how the corroboration of the extrajudicial
confession is made.
What must be corroborated is the extrajudicial confession and
not the testimony of the person to whom the confession was
made, and the corroborative evidence required is not the
testimony of another person who also heard the confession but
the evidence of corpus delicti (People vs. Lorenzo).
Is it required that all elements of the crime charged must be
established by independent evidence apart from the
extrajudicial confession?
No. Section 3, Rule 133 of the Rules of Court does not mean
that every element of the crime charged must be clearly
established by independent evidence apart from the
confession. It means merely that there should be some
evidence tending to show the commission of the crime apart
from the confession. Otherwise, the utility of the confession as
a species of proof would vanish if it were necessary, in addition
to the confession, to adduce other evidence sufficient o justify
a conviction independently of such confession. In other words,
the other evidence need not, independently of the confession,
establish the corpus delicti beyond reasonable doubt (People
vs. Lorenzo).
Is circumstantial evidence sufficient for conviction?
Yes, circumstantial evidence is sufficient for conviction if the
following requisites are present:
(i) there must be more than one circumstance;
(ii) the facts from which the inferences are derived are
proven; and
iii)the combination of all circumstances is such as to
produce a conviction beyond reasonable doubt.
It is very difficult to obtain a conviction based only on
circumstantial evidence especially if there is no witness. There
is no crime if there is not witness. But I am not suggesting
anything.
Pelaez Moot Court - Evidence Transcript Team 2015-2016

TIPS: applies only if the BER applies. Meaning, secondary evidence

The mockbar or bar dwell on basic questions. do not
overanalyse they are not supposed to ask complicated
questions. trust that the examiner has no desire to trick you. do
not look at your examiner as if you are looking at me. Because
obviously you do not trust me when I ask questions. you tend
to overanalyse.
You go over the codal provisions. You cant go wrong with the
codal provisions. Memorize the important rules. BER. Parole.
Hearsay. There is no question about evidence that will not
involve this topics.
Ramirez v. Alvarez
Marital DQ rule. 3x it came out in the bar. It is a breakthrough.
Husband burned down the house wherein his sister is staying.
His wife testified against him. MDQ does not apply when
domestic relation is already strained.
Pacres v. Igona
Parol evidence rule. Stipulation pour autrui. A beneficiary of
this stipulation is considered as a party to an agreement and
therefore bound by PER even if his name is not a party nor a
signatory to the contract.
Ureta v. Ureta
PER presupposes valid agreements. If the agreement is
assailed to be void, PER does not apply. A void agreement is
not binding.
Chan v. Chan
is allowed. Basically, exception is different from inapplicability.
MCC Sales v. Ssangyeong
th
Came out sa mockbar sa 4 year.
Fax. EER.
Codilla v. NPC
Presence of manual signature negates the electronic character
of a document.
Jaime Dela Cruz v. People
Questions about consti law. Right against self-incrimination
applies to prohibition of testimonial compulsion. Does not cover
physical examination like blood or urine test. However, in this
case, SC said that in those cases where non-testimonial
evidence is excluded from RASI, this non-testimonial evidence
must be related or relevant to the basis for the arrest. How on
earth can the allegation of extortion give rise to urine
examination?! No relevance at all. SC sometimes make sense.
Disierto v. Estrada
Rule on admission against interest. Rule on admission by an
agent. Hearsay evidence rule. Doctrine of adoptive admission.
Other questions asked
Define Rape-shield rule. Sexual abuse shield rule.
Documentary Stamp Tax as a rule of exclusion.

Nullity of marriage. Patient-physician privileged communication (walang forever)

rule applies not only to testimonial evidence. Revealing the
contents of a medical report amounts to the physician
testifying, therefore it is covered.

People v. Enojas

Electronic evidence rule applies to all cases including

CRIMINAL cases.

The manner of authenticating text messages, who may

authenticate:

- A party to the text communication

- Someone who has personal knowledge of the text
communication

Atienza v. BOM

Court can take judicial notice of anatomical position of kidneys

since it is covered by Laws of nature (mandatory judicial
notice).

Dela Lana v. Rebecca

Whiplash. An injury you should avoid. Do not ever get bumped

from behind or you will suffer from whiplash injury. The court
cannot take judicial notice of the laws of medicine. The court
has no expertise to determine the cause of whiplash injury.

Heirs of Prodon v. Alvarez?

Best evidence rule. If the BER does not apply, the proponent
can always present any other evidence, a copy or a testimony
of a witness, without having to comply with the requirement of
accounting for the original. The requirement of the accounting

84