STP Notes - Evidence (v.1) PDF

STP NOTES | EVIDENCE 1 / 65
EVIDENCE OUTLINE
I. RULE 128 GENERAL PROVISIONS g. Part of Res Gestae
h. Entries in the Course of Business
A. Basic Principles
i. Entries in Official Records
1. Applicability and Scope of the Rules of Evi-
j. Commercial Lists and the Like
dence
k. Learned Treatises
2. Factum Probandum & Factum Probans
l. Testimony or Deposition at a Former
B. Admissibility of Evidence Proceeding
1. Circumstantial Evidence 6. Opinion Evidence
2. Other Matters a. Opinion of Expert Witness
b. Opinion of Ordinary Witness
II. RULE 129 WHAT NEED NOT BE PROVED
A. Judicial Notice IV. RULE 131 BURDEN OF PROOF AND PRE-
SUMPTIONS
B. Judicial Admission
A. Burden of Proof
III. RULE 130 RULES OF ADMISSIBILITY 1. Burden of Evidence
A. OBJECT (REAL) EVIDENCE B. Presumptions
B. DOCUMENTARY EVIDENCE 1. Presumption of Law
1. Best Evidence Rule a. Conclusive Presumptions
i. Estoppel in Pais
2. Secondary Evidence ii. Estoppel by Deed
3. Parol Evidence Rule b. Disputable Presumptions
4. Interpretation of Documents 2. Presumption of Fact
C. TESTIMONIAL EVIDENCE
1. Competency & Credibility of a Witness V. RULE 132 PRESENTATION OF EVIDENCE
2. Qualifications of a Witness A. Examination of Witnesses
3. Disqualifications 1. Rights and Obligations of Witnesses
a. Absolute and Relative Disqualification a. Witness Protection Program & State
b. Mental Incapacity or Immaturity Witness
i. Rule on Examination of a Child Wit- 2. Order in Examination of Witness
ness
a. Direct Examination
c. Marriage
b. Cross-Examination
d. Death or Insanity of Adverse Party
c. Redirect Examination
(Dead Man’s Statute)
d. Re-Cross Examination
e. Privileged Communication
1. Between Husband and Wife
3. Impeachment of Witnesses
2. Between Attorney and Client B. Authentication and Proof of Documents
3. Between Doctor and Patient
4. Between Priest and Penitent C. Offer and Objection
5. Public Officers
6. Other Privileged Matters VI. RULE 133 WEIGHT AND SUFFICIENCY OF EV-
f. Parental and Filial Privilege IDENCE
4. Admissions and Confessions
a. Offer of Compromise A. Preponderance of Evidence
b. Res Inter Alios Acta Rule B. Proof Beyond Reasonable Doubt
c. Admission by a party
C. Circumstantial Evidence
d. Admission by a third party
e. Admission by a co-partner or agent D. Substantial Evidence
f. Admission by a conspirator E. Other Matters
g.
h.
Admission by privies
Admission by silence
!
i.
j.
k.
Confessions
Similar Acts as Evidence
Unaccepted Offer
!
5. Hearsay and Exceptions
a. Testimonial Knowledge
b. Dying Declaration
c. Declaration Against Interest
d. Act or Declaration ABout Pedigree
e. Family Reputation or Tradition Regard-
ing Pedigree
f. Common Reputation
★ SERVE THE PEOPLE ★

RULE 128
XPN: In criminal cases, if the alteration of the rules of
evidence would, for instance, permit the reception of a
lesser quantum of evidence than what the law required
GENERAL at the time of the commission of the offense in order to

convict, then the retroactive application of such
PROVISIONS & amendatory law would be unconstitutional for being ex

post facto.
BASIC PRINCIPLES Rules of evidence are not self-executing. Confessions

made without the benefit of counsel are still admissible
BASIC PRINCIPLES
in evidence if appellant failed to make timely objections
before the trial court.
(7) What is evidence? (12) How are the rules of evidence construed?
Evidence is the means sanctioned by the Rules of Like all other provisions under the Rules of Court, they
Court, of ascertaining in a judicial proceeding the truth must be liberally construed because they are intended
respecting a matter of fact. (Sec. 1, Rule 128) as tools to facilitate rather than to frustrate the attain-
ment of justice.
(8) What are the four component elements of evi-
dence? (13) When is there a need to present evidence?
1. Means of ascertainment - includes not only the Evidence is needed when the court has to resolve a
procedure or manner of ascertainment but also the question of fact. Where the issue to be resolved is only
evidentiary fact from which the truth respecting a a question of law, no evidence is required and the issue
matter of fact may be ascertained. is to be resolved by mere application of applicable law
and jurisprudence.
2. Sanctioned by the rules - not excluded by the
Rules of Court Evidence is likewise needed under the doctrine of pro-
cessual presumption. When invoking a foreign law,
3. In a judicial proceeding - contemplates an action
evidence of such law must be presented. Otherwise, the
or proceeding filed in a court of law
court will presume that the foreign law is the same as
4. The truth respecting a matter of fact - refers to Philippine law.
an issue of fact and is both substantive (determines
the facts needed to be established) and procedural (14) When is there no need to present evidence?
(governs the manner of proving said facts) 1. When there are no factual issue that exists in a
case
(9) Why is evidence required, what is its purpose?
2. Where the case presents only a question of law,
It is required because of the presumption that the court such question is resolved by the mere application
is not aware of the veracity of the facts involved in a of the relevant statutes or rules
case. It is therefore incumbent upon the parties to prove 3. When the pleadings in a civil case do not tender
a fact in issue through the presentation of admissible an issue of fact (judgement on the pleadings)
evidence. 4. Evidence may also be dispensed with by agree-
ment of the parties in writing upon the facts in-
(10) What is judicial or legal truth?
volved in the litigation and to submit the case for
Judicial or Legal Truth is the truth produced by evi- judgment upon the facts agreed upon, without the
dence offered in court based on accepted rules for ad- introduction of evidence.
missibility. Actual truth may not always be achieved in 5. Matter of judicial notice and matters judicially
judicial proceedings because the findings of the court admitted
would depend on the evidence presented before it
based on the accepted rules for admissibility. For exam- (15) May the rules of evidence be waived?
ple, courts as a rule are not authorized to consider evi- GR: Yes. The applicability of the rules is deemed waived
dence which has not been formally offered. upon failure to seasonably raise the objection. The rules
of evidence are established for the protection of the
(11) Are there vested rights in the rules of evidence?
parties. (Ex. Failure to object to the admissibility of sec-
GR: None, because the rules of evidence are subject to ondary evidence in documentary evidence).
change by the Supreme Court pursuant to its power to
XPN: If the rule waived by the parties has been estab-
promulgate rules concerning pleading, practice and
lished by law on grounds of public policy, the waiver is
procedure. Evidence otherwise inadmissible under the
void. Accordingly, the waiver of the privilege against
law at the time the action accrued may be received in
disclosure of secrets is void.
evidence provided that it is admissible under the law in
force during the trial. Changes in the rules of evidence (16) Distinguish Proof from Evidence
are however subject to the constitutional limitation on
the enactment of ex post facto laws.

Proof Evidence Note: By itself, prima facie evidence is sufficient to establish

the factum probandum if no evidence to the contrary ap-
The effect when the requisite The mode and manner of pears.
quantum of evidence of a proving competent facts in
particular fact has been duly judicial proceedings 2. Conclusive Evidence - One which the law does
admitted and given weight not allow to be contradicted or which is incontro-
T h e p r o b a t i v e e f f e c t o f The means of proof vertible
evidence
Note: DNA testing results that exclude the putative parent
from paternity shall be conclusive proof of non-paternity. If
(17) What is “Falsus in Uno, Falsus in Omnibus” the value of the Probability of Paternity is less than 99.9%,
the results shall be considered as corroborative evidence. If
It literally means “false in one thing, false in everything.”
the value of the Probability of Paternity is 99.9% or higher,
The doctrine means that if the testimony of a witness on there shall be a disputable presumption of paternity. (Rule on
a material issue is willfully false and given with an inten- DNA Evidence, Sec. 9, par. c)
tion to deceive, the jury may disregard all the witness’ 3. Corroborative Evidence - Additional evidence of
testimony. However, this is not an absolute rule of law a different kind and character as that already given
and is in fact rarely applied in modern jurisprudence. It and tends to prove the same proposition
deals only with the weight of the evidence and is not a
Note: Under the Rule on Examination of a Child Witness,
positive rule of law. It is not mandatory but merely sanc-
corroboration shall not be required of a testimony of a child.
tions a disregard of the testimony of a witness if the His testimony if credible by itself, shall be sufficient to sup-
circumstances so warrant. port a finding of fact, conclusion or judgment subject to the
standard of proof required in criminal and non-criminal cas-
(18) What are the classifications of evidence? es. (AM No. 007-07-SC, Sec. 22)
As to quality: 4. Cumulative Evidence - One which is of the same

kind and character as that already given and tends
1. Relevant Evidence - If it has a relation to the fact
to prove the same proposition
in issue as to induce belief in its existence or non-
existence. As to its weight and acceptability:
Note: Relevancy is determined by logic, human experience
1. Primary or Best Evidence - That which the law
and common sense. A simple test of relevancy is the ability
of evidence to persuade or if it can be of help to the fact- regards as affording the greatest certainty of the
finder in establishing the probability or improbability of a fact fact in question
in issue.
2. Secondary or Substitutionary Evidence - That
2. Material Evidence - It is directed to prove a fact which is inferior to primary evidence and is permit-
in issue as determined by the rule of substantive ted by law only when the best evidence is not
law and pleadings. available
Note: Materiality is whether the fact it intends to prove is in
issue or not. As to nature:
3. Competent Evidence - One that is not excluded 1. Object Evidence - It is directly addressed to the
by law or the rules in a particular case sense of the court. These are tangible things exhib-
ited or demonstrated:
4. Credible Evidence - It is not only admissible evi-
dence but also believable and used by the court in a. In open court
deciding a case. Evidence is credible, if worthy of b. In an ocular inspection; or
belief. c. At a place designated by the court for its view
of observation of an exhibition, experiment or
As to its ability to establish the fact in dispute: demonstration
1. Direct Evidence - One which proves the fact in 2. Documentary Evidence - It is supplied by written
dispute without the aid of any inference or pre- instruments or derived form conventional symbols
sumption and letters by which ideas are represented on ma-
2. Circumstantial Evidence - Proof of a fact or terial substances.
facts from which, taken singly or collectively, the 3. Testimonial Evidence - One which consists of the
existence of the particular fact in dispute may be narration or deposition by one who has observed or
inferred as a necessary or probably consequence has personal knowledge of that to which he is testi-
Note: As to probative value, the Court considers circumstan- fying.
tial evidence as being of a nature identical to direct evidence
because no greater degree of certainty is required when the a. Positive Evidence - when a witness affirms
evidence is circumstantial than when it is direct. in that a certain state of facts does exist or
that a certain event happened; greater proba-
As to the degree of its value in establishing a dis- tive value is given to positive evidence
puted fact:
b. Negative Evidence - when the witness
1. Prima Facie Evidence - That which standing states that an event did not occur or that the
alone unexplained or uncontradicted, is sufficient to state of facts alleged to exist does not actually
maintain the position affirmed exist
Note: A denial is a negative evidence. it is considered
by the Court to be a very weak form of defense and

can never overcome an affirmative or positive testi- Civil Cases Criminal Cases
mony particularly when the latter comes form the
mouth of a credible witness. It is negative and self- The party having the burden The guilt of the accused has
serving which cannot be given greater weight than of proof must prove his claim t o b e p r o v e n b e y o n d
the testimony of credible witnesses. b y p r e p o n d e r a n c e o f reasonable doubt
evidence
Rebuttal and Sur-rebuttal Evidence: An offer of compromise is not An offer of compromise by
an admission of any liability, the accused may be received
1. Rebuttal Evidence - It is that kind which is given and is not admissible in in evidence as an implied
to explain, repel, counteract or disprove facts given evidence against the offendor admission of guilt
in evidence by the adverse party. It is evidence in Generally, the concept of The accused enjoys the
denial of some affirmative case or fact which the presumption of innocence constitutional presumption of
adverse party has attempted to prove. does not apply, except in innocence
cases specifically provided
2. Sur-rebuttal Evidence - It is a reply to rebuttal for by law
evidence. When the plaintiff in rebuttal is permitted General denial is allowed General denial is not allowed
to introduce new matter, defendants should be
Judicial admission withdrawn W i t h d r a w n plea is
permitted to introduce evidence in sur-rebuttal, and b e c o m e s e x t r a j u d i c i a l inadmissible
to decline to permit him to do so is error, especially admission
when the evidence in sur-rebuttal is for the first time
made competent by the evidence introduced by the (22) Do the Rules of Evidence apply in cases covered
plaintiff in rebuttal , but defendant should as for the by the Rules on Summary Procedure?
right to meet the new matter. Yes. In civil cases covered by the Rules on Summary
Procedure, where the parties are required to submit
(19) Is corroborative evidence necessary to convict?
position papers attaching thereto affidavits of witnesses,
Corroborative testimony is not always required. The thus obviating the application of the Rules on Testimoni-
testimony of a single prosecution witness, where credi- al Evidence, the rest of the Rules on Evidence still apply.
ble and positive, is sufficient to prove beyond reasonable Therefore, any document or object evidence presented
doubt the guilt of the accused. There is no law which by the parties in their respective position papers must
requires that the testimony of a single witness has to be still conform to the Rules on Evidence.
corroborated, except where expressly mandated in de-
In criminal cases covered by the Rules on Summary
termining the value and credibility of evidence. [People v.
Procedure, while the affidavits of the parties and their
Pabalan (1996)]
witnesses constitute their direct testimony, they may still
Corroborative evidence is necessary only when there are be subject to cross-examination, redirect or re-cross
reasons to suspect that the witness falsified the truth or examination. The Rules on Evidence still apply on any
that his observations are inaccurate. document or object evidence presented.
(23) What is the scope of the Rules of Evidence?

APPLICABILITY AND The rules of evidence shall be the same in all courts and
SCOPE OF THE RULES OF in all trials and hearings, except as otherwise provided
EVIDENCE by law or by these rules. It is guided by the principle of

uniformity. (Rule 128, Sec. 2)
(20) What is the applicability of the Rules of Evidence?

The Rules of Evidence, as part of the Rules of Court, FACTUM PROBANDUM &
apply only to judicial proceedings.
FACTUM PROBANS
Administrative bodies are not bound by the technical
niceties of the rules obtaining in a court of law. (24) Distinguish “factum probandum” from “factum
1. Election cases probans”
2. Land registration cases
3. Cadastral proceedings Factum Probandum Factum Probans
4. Naturalization proceedings The ultimate fact sought to be The intermediate facts
established
5. Insolvency proceedings
6. Other cases as may be provided for by law Proposition to be established Materials which establish the
proposition
Even if not bound by the technical rules of procedure, Hypothetical Existent
the findings of facts of administrative bodies are, how-
ever, respected as long as they are supported by sub- Every evidentiary question involves the relationship be-
stantial evidence, even if such evidence is not over- tween the factum probandum, or the fact or proposition
whelming or preponderant. to be established and factum probans, or the facts or
material evidencing the fact or proposition to be estab-
(21) Distinguish Evidence in Civil Cases from Evidence lished.
in Criminal Cases
Simply put, the factum probandum is the fact to be
proved or which is in issue and to which the evidence is

directed. The factum probans is the probative or evi-

dentiary fact tending to prove the fact in issue. ADMISSIBILITY OF
Matters of judicial notice, conclusive presumptions and EVIDENCE
judicial admissions cannot qualify as parts of the factum
probandum of a particular case, because such matters (29) Distinguish “admissibility of evidence” from “pro-
need not be established or proven.. bative value of evidence”
(25) How may factum probandum be ascertained? Admissibility Probative Value
1. Pleadings submitted by the parties Question of whether certain Question of whether the
pieces of evidence are to be admitted evidence proves an
2. Pre-trial order considered at all issue
3. Issues which are tried with the express or implied
consent of the parties (Rule 10, Sec. 5) Thus, a particular item of evidence may be admissible,
4. In criminal cases, when the accused enters a plea but its evidentiary weight depends on judicial evaluation
within the guidelines provided by the rules on evidence.
Generally, if a fact is admitted, there is no more factum
probandum because there is no fact in issue. However, Stated in another way, the admissibility of evidence
the rules do not fix a standard in ascertaining the should not be equated with the weight of the evidence.
probandum. It depends on the nature of the case pre- The admissibility of the evidence depends on its rele-
sented before the courts vance and competence while the weight of evidence
pertains to its tendency to convince and persuade.
(26) In practical terms, what is the factum probandum
in a civil case? (30) Distinguish “admissible evidence” from “credible
evidence”
Factum probandum in a civil case refers to the elements
of a cause of action from the point of view of the plaintiff
Admissible Evidence Credible Evidence
and the elements of the defense from the standpoint of
The evidence is of such a Refers to the worthiness of
the defendant. character that the court, belief, that quality which
pursuant to the rules of renders a witness worthy of
❖ Q: In a suit for collection of a sum of money, in the ab- evidence, is bound to receive belief. After the competence
sence of any admission by the defendant, what is the it or to allow it to be of a witness is allowed, the
factum probandum of both the plaintiff and the defen- introduced at the trial. consideration of his credibility
dant? follows
A: For the plaintiff, the factum probandum would be:

a. the existence of the debt of the defendant (31) What are the requisites for admissibility of evi-
b. the maturity of the debt dence?
c. the demand made by the plaintiff upon the de-
1. Relevance - It is such a relation to the fact in issue
fendant to pay
d. the failure to pay despite the demand as to induce belief in its existence or non-existence.
It is a matter of relationship between the evidence
From the side of the defendant:
a. the fact of payment of the obligation or and a fact in issue.
b. the prescription of the debt or It is determined by logic, human experience and
c. the elements of any other defense he may inter-
common sense.
pose
Note: Evidence on the credibility or lack of it of a witness is
(27) What is the factum probandum in a criminal case? always relevant. In every proceeding, the credibility of the
witness is always an issue.
The factum probandum includes all matters that the
prosecution must prove beyond reasonable doubt in 2. Competence - if not excluded by law or by the
order to justify a conviction. Usually, they are the ele- rules. Unlike relevance, competence is determined
ments of the crime that is alleged or sought to be by law.
proven.
(32) What are the two axioms of admissibility?
(28) In the probate of a will, which is a special pro- 1. Axiom of relevancy - None but facts having ratio-
ceeding, what is the factum probandum? nal probative value are admissible. It merely pre-
For the probate of a will, even if no person appears to scribes that whatever is presented as evidence
contest the allowance thereof, the court is still required shall be presented on the hypothesis that it is cal-
to grant allowance only if the will is proved to have been culated according to the prevailing standards of
executed as is required by law. (Rule 76, Sec. 5) reasoning to effect rational persuasion. In short, it
just means that the evidence must be relevant.
! Components of relevancy:
a. Materiality - whether the evidence is offered
upon a matter properly in issue, or whether it
is directed towards a fact within the range of
allowable controversy
b. Probativeness - the tendency of evidence to
establish the proposition that it is offered to

prove; to be relevant, it need not be conclu- sary to determine whether the derivative evidence is
sive, the evidence must merely help a little tainted with a constitutional violation, that is, whether the
evidence is a fruit of the poisonous tree.
2. Axiom of competency - Facts having rational
probative value are admissible unless some specific Likewise, as the “but for” test or “taint doctrine” which
rule forbids their admission. The rules of exclusion means that the evidence would not have come to light
are rules of exception to the general admissibility of but for the illegal action of the police.
all that is rational and probative.
❖ Q: The barangay captain reported to the police that Richard
was illegally keeping in his house an armalite M16 rifle. On
(33) What are the kinds of admissibility of evidence?
the strength of that information, the police conducted a
1. Multiple - where evidence that is plainly relevant search of the house of Richard and indeed found said rifle.
and competent for two or more purposes will be The police raiders seized the rifle and brought Richard to the
police station. During the investigation, he voluntarily signed
received if it satisfies all the requirements pre- a sworn statement that he was in possession of said rifle
scribed by law in order that it may be admissible for without license or authority to possess and waiver of right to
the purpose for which it is presented, even if it does counsel. During the trial of Richard for illegal possession of
not satisfy the other requisites of admissibility for firearm, the prosecution submitted in evidence the rifle,
sworn statement and waiver of right to counsel. Individually
other purposes. rule on the admissibility of evidence of the:
2. Conditional - where evidence appears to be im- a. Rifle
material is admitted by the court subject to the b. Sworn statement
condition that its connection with another fact sub-
sequent to be proved will be established. Other-
c.
!
Waiver of right to counsel
A: a. It is not admissible in evidence because it was seized with-

wise, such fact already received will be stricken off out a proper search warrant. A warrantless search is not justified.
the record at the initiative of the adverse party. There was time to secure a search warrant.
3. Curative - where evidence that is otherwise im- b. It is not admissible in evidence because it was taken without
informing him of his custodial rights and without the assistance
proper is admitted to contradict improper evidence of counsel which should be independent and competent and
presented or introduced by the other party, to cure, preferable of the choice of the accused.
contradict or neutralize such improper evidence. c. It is not admissible because it was made without the as-
(fighting fire with fire) sistance of counsel of his choice.
Note: It is submitted that in our jurisdiction, the principle of
❖ Q: Acting on a tip by an informant, police officers stopped a
curative admissibility should not be made to apply where the
car being driven by Aissa and ordered her to open the trunk.
evidence was admitted without objection because the failure
The officers found a bag containing several kilos of cocaine.
to object constitutes a waiver of the inadmissibility of the
They seized the car and the cocaine as evidence and placed
evidence. It is only where the objection was incorrectly
her under arrest. Without advising her of her right to remain
overruled that the court should allow the other party to intro-
silent and to have the assistance of an attorney, they ques-
duce curative evidence to contradict the evidence improper-
tioned her regarding the cocaine. In reply, Aissa said, “I
ly admitted. Where there is a waiver, there is no defect to
don't know anything about it. It isn't even my car.” She was
cure.
charged with illegal possession of cocaine, a prohibited
drug. Upon motion of Aissa, the court suppressed the use of
(34) Distinguish rules of exclusion from exclusionary cocaine as evidence and dismissed the charges against her.
rules. Aissa commenced proceedings against the police for the
recovery of her car. In her direct examination, she testified
Rules of Exclusion Exclusionary Rules that she owned the car but had registered it in the name of a
friend for convenience. On cross-examination, the attorney
Governed by the rules on Commonly used for evidence representing the police asked, “After your arrest, did you not
evidence excluded by the Constitution
tell the arresting officers that it wasn’t your car?” if you
Ex. Best Evidence Rule, Parol Scope (rights protected under were Aissa’s attorney, would you object to the question?
Evidence Rule and Hearsay Art. III Bill of Rights of the Why?
Rule 1987 Constitution)
A: Yes, because her admission, made when she was questioned
1. Right against unreasonable
search and seizure (Sec. 2) after she was placed under arrest, was in violation of her consti-
2. Right to privacy and invio- tutional right to be informed of her right to remain silent and to
lability of communication have competent and independent counsel of her own choice.
(Sec. 3) Hence, it is inadmissible in evidence
3. Right of a person under
investigation for an offense ❖ Q: Sgt. Garcia of WPD arrested two NPA suspects, Max and
(Sec. 12) Brix, both aged 22, in the act of robbing a grocery in Ermita.
4. Right against self incrimi- He noted a pistol tucked under Brix’s shirt, which he
nation (Sec. 17) promptly confiscated. At the police investigation room, Max
and Brix orally waived their right to counsel and to remain
(35) What is the doctrine of “Fruit the Poisonous Tree” silent. Then under oath, they freely answered questions
asked by the police desk officer. Thereafter they signed their
The doctrine speaks of that illegally seized documents, sworn statements before the police captain, a lawyer. Max
papers, and things are inadmissible in evidence. The admitted his part in the robbery, his possession of a pistol
and his ownership of the packet of shabu found in his pock-
exclusion of such evidence is the only practical means
et. Brix admitted his role in the robbery and his possession
of enforcing the constitutional injunction against unrea- of a dagger. But they denied being NPA hit men. In due
sonable searches and seizures. course, proper charges where filed by the city prosecutor
against both arrestees before the RTC. May the written
The doctrine applies where the evidence is secondary or statements signed and sworn to by Max and Brix be admit-
derivative. For instance, an illegal arrest may result in the ted by the trial court as evidence for the prosecution?
arrestee giving a confession. In such case, it is neces-

A: No, the sworn written statements of Max and Brix may not be (40) What are the kinds of collateral matters?
admitted in evidence because they were not assisted by coun-
sel. Even if the police captain before whom they signed the 1. Prospectant / Antecedent - those preceding the
statements was a lawyer, he was not functioning as a lawyer, nor fact in issue but pointing forward to it (ex. moral
can he be considered as an independent counsel. Waiver of the character, motive, conspiracy)
right to a lawyer must be done in writing and in the presence of
independent counsel. 2. Concomitant - those accompanying the fact in
issue and pointing to it (ex. alibi, opportunity, in-
(36) What are the requirements in order that an ad- compatibility)
mission of guilt of an accused during a custodial
investigation be admitted in evidence? 3. Retrospectant / Subsequent - those succeeding
the fact in issue but pointing backward to it (ex.
The admission must be voluntary, made with the as-
flight, concealment, fingerprints, bloodstains)
sistance of competent, independent counsel and ex-
press and it must be writing. (41) What is the rule on evidence on collateral mat-
Waiver of the right to remain silent and right to counsel ters?
must be in writing and executed with the assistance of GR: Evidence on collateral matters shall not be allowed.
competent, independent counsel.
XPN: When it tends in any reasonable degree to estab-
(37) When is the admissibility of evidence determined? lish the probability or improbability of the fact in issue
(Rule 128, Sec. 4)
When Offered When May be Objected
(42) Is non-flight evidence of innocence?
Object Evidence
No. The fact that accused never fled the locality where
the crime was committed is not by itself a valid defense
When the same is presented Can be made either at the
for its view or evaluation, as time it is presented in an
against the prosecution’s allegations because non-flight
in ocular inspection or ocular inspection or does not signify innocence. It cannot be singularly con-
demonstration, or when the demonstrations or when it is sidered as evidence or as a manifestation determinative
party rests his case and the formally offered
real evidence consists of of innocence.
objects exhibited in court.
Likewise, flight per se is not synonymous with guilt and
Testimonial Evidence must not always be attributed to one’s consciousness of
guilt. Flight alone is not a reliable indicator of guilt with-
By calling the witness to the 1. If the objection pertains to out other circumstances.
stand the qualification of the
witness, it should be made
at the time he is called to
the stand.
CIRCUMSTANTIAL
2. If otherwise qualified,
objection should be raised
EVIDENCE
as soon as the objection-
able question is asked or (43) Circumstantial evidence is that evidence that indirect-
after the answer is given if
ly proves a fact in issue through an inference which the
the objection became
apparent by reason of such fact finder draws form the evidence established. When
answer the evidence is circumstantial, a fact is established by
Documentary Evidence making an inference from a previously established fact.
When the court does not have to make an inference from
one fact to arrive at a conclusion, the evidence is direct.
Formally offered by the At the time it is formally
p r o p o n e n t i m m e d i a t e l y offered
before he rests his case (44) When may circumstantial evidence be sufficient
for conviction in a criminal case?
(38) What is the rule on admissibility of electronic 1. There is more than one circumstance
documents? 2. The facts from which the inferences are de-
An electronic document is admissible in evidence if (1) it rived are proven
complies with the rules on admissibility prescribed by 3. The combination of all the circumstances is
the Rules of Court and related laws and (2) it is authenti- such as to produce a conviction beyond reasonable
cated in the manner prescribed by the Rules on Elec- doubt
tronic Evidence. All the circumstances proved must be consistent with
each other, and they are to be taken together as proved.
COLLATERAL MATTERS A conviction based on circumstantial evidence must

exclude each and every hypothesis consistent with in-
nocence.
(39) What are collateral matters?
Direct evidence is not indispensable to prove a crime
Collateral matters refer to matters other than the fact in
charged. In the absence of direct evidence, the prosecu-
issue. These are matters outside the controversy, or are
tion may resort to adducing circumstantial evidence.
not directly connected with the principal matter or issue
in dispute, as indicated in the pleadings of the parties. When the prosecution’s evidence rests on circumstantial
evidence alone, it is imperative that the chain of circum-

stances establish the guilt of the accused beyond rea-

sonable doubt. This means that the circumstances
would allow no other conclusion other than the guilt of
the accused.
(45) What are four basic guidelines in the appreciation

of circumstantial evidence? [People v. Ochate]
1. It should be acted upon with caution
2. All the essential facts must be consistent with the
hypothesis of guilt
3. The facts must exclude every other theory but that
of guilt
4. The facts must establish such a certainty of guilt of
the accused as to convince the judgment beyond a
reasonable doubt that the accused is the one who
!! committed the offense

RULE 129
take judicial notice of the law prevailing in another country. For-
eign laws must be alleged and proved.
WHAT NEED NOT BE

(48) How should judicial notice be exercised?
The power to take judicial notice must be exercised with
PROVED caution and care must be taken that the requisite notori-
ety exists. Any reasonable doubt on the matter sought to
be judicially noticed must be resolved against the taking
(46) What are the facts that need not be proved? of judicial notice.
1. Immaterial allegations
(49) What are the kinds of judicial notice?
2. Facts admitted or not denied provided they
1. Mandatory - if the fact sought to be proved are:
have been sufficiently alleged (Rule 8, Sec. 1)
a. Existence and territorial extent of States
3. Those which the courts may take judicial notice b. Political history, forms of government and
of (Rule 129) symbols of nationality
4. Those that are judicially admitted (Rule 129) c. Law of nations
d. Admiralty and maritime courts of the world and
5. Those that are conclusively presumed (Rule 131) their seals
6. Those that are disputably presumed but uncon- e. Political constitution and history of the Philip-
tradicted (Rule 131) pines
f. Official acts of legislative, executive and judi-
JUDICIAL NOTICE
cial departments of the Philippines
g. Laws of nature
h. Measure of time
(47) What is judicial notice? i. Geographical divisions (Sec. 1)
Judicial notice is the cognizance of certain facts which Note: The Law of Nations is the compilation of rules which
judges may properly take and act upon without proof by common consent of mankind have been acquiesced in
as law.
because they are supposed to be known to them. It is
based on considerations of expediency and conve- 2. Discretionary - a court may take judicial notice of
nience. It displaces evidence, being equivalent to proof. matters which are:
a. The matter must be one of common knowl-
Judicial notice fulfills the objective which the evidence
edge
intends to achieve. It is not equivalent to judicial knowl-
b. The matter must be settled beyond reasonable
edge or that which is based on the personal knowledge
doubt (if there is any uncertainty about the
of the court, rather, it is the cognizance of “common
matter, then the evidence must be adduced)
knowledge.”
c. The knowledge must exist within the jurisdic-
A judge is not justified in refusing to take judicial notice tion of the court or that which judges ought to
of a fact which is not within his knowledge/memory if the know because of their judicial functions (Sec.
fact in question is subject of judicial cognizance. 2)
Judicial notice may be taken of a fact which judges Mandatory Judicial Notice Discretionary Judicial
ought to know because of their judicial functions. But Notice
judicial notice is not judicial knowledge. The mere per- Court is compelled to take Court is not compelled to
sonal knowledge of the judge is not the judicial knowl- judicial notice take judicial notice
edge of the court, and he is not authorized to make his Takes place at the court’s M a y b e a t c o u r t ’s o w n
individual knowledge of fact, not generally or profes- own initiative initiative or on request of a
party
sionally known, the basis of his action.
No hearing Needs hearing and
❖ Q: A resident American, who came here from Mass- presentation of evidence
achusetts, made a will where he stated that, in form, it is
executed in accordance with Massachusetts law. The will, (50) What are the requisites of judicial notice?
instituting his Filipino widow as his sole heir, would not be
valid in form under Philippine law. Upon his death, the wid- 1. The matter must be one of common and general
ow presented the will to the Court of First Instance of Mani- knowledge
la. Probate was objected to by distant relatives of the testa-
2. It must be well and authoritatively settled and
tor in California. The Judge had studied in Harvard and was
familiar with Massachusetts law. Without the introduction of not doubtful or uncertain
formal evidence, he granted probate, stating that the will 3. It must be one which is not subject to a reason-
was, indeed, executed in accordance with Massachusetts able dispute in that it is either
law. How should the matter be resolved on appeal?
a. Generally known within the territorial jurisdic-
A: The judgment should be reversed on appeal. The trial judge tion of the trial court
erred when he took judicial notice of Massachusetts law on the
basis of his personal knowledge of the said law. The mere per-
b. Capable of accurate and ready determination
sonal knowledge of the judge is not the judicial knowledge of the by resorting to sources whose accuracy can-
court, and the judge is not authorized to make his individual not reasonably be questionable
knowledge of a fact the basis of his action [State Prosecutors v.
Muro]. Besides, it is a basic rule that courts of the forum will not The principal guide in determining what facts may be
assumed to be judicially known is that of notoriety. The

test of notoriety is whether the fact involved is so notori- (53) What is the doctrine of processual presumption?
ously known as to make it proper to assume its exis- It lays down the presumption that the foreign law is the
tence without proof. There must be unconditional accep- same as the law of the forum. It arises if the foreign law,
tance by the public or that segment of the public where though properly applicable, is either not alleged, or if
the fact is of relevant importance. alleged, is not duly proved before a competent court.
Note: The fact that a belief is not universal is not controlling for it
is seldom that any belief is accepted by everyone. It is enough
When parties in a case agree on what the foreign law
that the matters are familiarly known to the majority of mankind provides, these are admissions of fact which the other
or those persons familiar with the particular matter in question. parties and the court are made to rely and act upon;
hence they are in estoppel to subsequently take a con-
(51) When is a matter considered “common knowl- trary position.
edge”?
They are those matters coming to the knowledge of men (54) What are the rules with regard to judicial notice of
generally in the course of ordinary experiences of life, or ordinances?
they may be matters which are generally accepted by 1. MTC’s are required to take judicial notice of the
mankind as true and are capable of ready and unques- ordinances of the municipality or city wherein they
tioned demonstration. sit
Thus, facts which are universally known, and which may 2. RTC’s must take judicial notice only:
be found in encyclopedia, dictionaries or other publica- a. When expressly authorized to do so by statute
tions, are judicially noticed, provided, they are of such b. In case on appeal before them and wherein
universal notoriety and so generally understood that they the inferior court took judicial notice of an
may be regarded as forming part of the common knowl- ordinance involved in the same case
edge of every person. A court, however, cannot take 3. Appellate courts may also take judicial notice of
judicial notice of any fact which, in part, is dependent on ordinances not only because the lower courts took
the existence or non-existence of a fact of which the judicial notice thereof but because these are facts
court has no constructive knowledge. capable of unquestionable demonstration.
❖ Q: Explain briefly whether the RTC may, motu proprio, take (55) What is the rule on judicial notice of records of
judicial notice of the following: another case previously tried?
a. The street name of methamphetamine hydrochloride GR: Courts are not authorized to take judicial notice of
b. Ordinances approved by municipalities under its terri- the contents of the records of other cases, even when
torial jurisdiction
c. Rules and regulations issues by quasi-judicial bodies such cases have been tried or are pending in the same
implementing statutes court, and notwithstanding the fact that both cases may
d. Rape may be committed even in public places have been heard or are actually pending before the
A: a. Yes, it may motu proprio take judicial notice of the fact that same judge.
the street name of methamphetamine hydrochloride is shabu,
considering the chemical composition of shabu. XPN:
1. When in the absence of any objection, with the
b. In the absence of statutory authority, the RTC may not take
judicial notice of ordinances approved by municipalities under knowledge of the opposing party, the contents of
their territorial jurisdiction, except on appeal form the MTC’s said other cases are clearly referred to by title and
which took judicial notice of the ordinance in question (US v. number in a pending action and adopted or read
Blanco, 1917)
into the record of the latter
c. Yes, because they are capable of unquestionable demonstra- 2. When the original record of the other case or any
tion, unless the law itself considers such rules as an integral part
part of it is actually withdrawn from the archives at
of the statute in which case judicial notice becomes mandatory.
the court’s discretion upon the request, or with the
d. Yes, the “public setting” of the rape is not an indication of
consent, of the parties, and admitted as part of the
consent. The Supreme Court has taken judicial notice of the fact
that a man overcome by perversity and beastly passion chooses record of the pending case.
neither time, place, occasion nor victim. (2005 Bar Question) 3. When the action is closely interrelated to another
case pending between the same parties
(52) May courts take judicial notice of foreign laws? 4. Where the interest of the public in ascertaining the
GR: Foreign laws may not be taken judicial notice of, truth are of paramount importance
and have to be proven like any other fact. 5. In cases seeking to determine what is reasonable
XPN: When said laws are within the actual knowledge of exercise of discretion or whether or not the previ-
the court and such laws are: ous ruling is applicable in a case under considera-
1. Well and generally known tion
2. Actually ruled upon in other cases before it; and 6. Where there is finality of a judgment in another case
3. None of the parties claim otherwise that was previously pending determination and
therefore res judicata
❖ Q: Suppose a foreign law was pleaded as part of the defense Note: The exceptions are applicable only when the case is clear-
of the defendant but no evidence was presented to prove ly referred to or the original or part thereof are actually withdrawn
the existence of said law, what is the presumption to be from the archives and admitted as part of the record of the case
taken by the court as to the wordings of said law? then pending.
A: The presumption is that the wordings of the foreign law are
the same as the local law (doctrine of processual presumption). ❖ Q: Anna and Badong were accused of killing Cathy. Howev-
er, only Anna was arrested since Badong went into hiding.

After trial, Anna was acquitted of the charge in a decision

rendered by Judge Santos. Subsequently, Badong was ar-
rested and brought to trial. After trial, Badong was found
JUDICIAL ADMISSION
guilty of homicide in a decision rendered by Judge Yantok,
the judge who replaces Judge Santos after the latter retired. (58) What is judicial admission?
On appeal, Badong argues that Judge Yantok should have Judicial admission is an admission, verbal or written,
taken judicial notice of the acquittal of Anna rendered by
made by a party in the course of the proceedings in the
Judge Santos. Is Badong correct?
same case, which does not require proof. (Sec. 4)
A: No. The appreciation of one judge of the testimony of a cer-
tain witness is not binding on another judge who heard the tes-
(59) What are the elements of judicial admission?
timony of the same witness on the same matter. Each magistrate
who hears the testimony of a witness is called upon to make his 1. It must be made by a party to the case or his
own appreciation of the evidence. It is, therefore, illogical to counsel
argue that because one judge made a conclusion in a certain
way with respect to one or more of the accused, it necessarily
2. It must be made in the course of the proceed-
dictates that the succeeding judge who heard the same case ings in the same case
against the other accused should automatically make the same 3. It can be verbal or written admission. There is no
conclusion. particular form required
Note: All courts must take judicial notice of the decisions of the
Supreme Court as they are duly bound to know the rulings of the (60) Distinguish judicial admission from extrajudicial
highest tribunal and to apply them in the adjudication of cases, admission
jurisprudence being part of our judicial system.
(56) In discretionary judicial notice, when is hearing Judicial Admissions Extrajudicial Admissions
necessary? Those made in the course of Those made out of court or in
the proceeding in the same a judicial proceeding other
case than the one under
During Trial After Trial but Before consideration
Judgment or on Appeal
Do not require proof and may Regarded as evidence and
The court on its own initiative, The proper court, on its own be contradicted only by must be offered as such,
or on request of a party, may initiative or on request of a showing that it was made otherwise the court will not
announce its intention to take party, may take judicial notice through palpable mistake or consider it in deciding the
judicial notice of any matter of any matter and allow the that no such admission was case
and allow the parties to be parties to be heard thereon if made
heard. (Sec. 3) such matter is decisive of a
material issue in the case. Judicial admissions need not Requires formal offer for it to
(Sec. 3) be offered in evidence since it be considered
is not evidence. It is superior
Hearing is necessary in the foregoing instances to afford to evidence and shall be
the parties reasonable opportunity to present informa- considered by the court as
established
tion relevant to the propriety of taking such judicial no-
tice or the tenor of the matter to be judicially noticed. Conclusive upon the admitter Rebuttable
Note: Judicial notice of the age of the victim is improper, despite Admissible even if self Not admissible if self-serving
the defense counsel’s admission, thereof acceding to the prose- serving
cution’s motion. As required by Rule 129, Sec. 3 as to any other Subject to cross-examination Not subject to cross
matters such as age, a hearing is required before courts can take examination
judicial notice of such fact.
(57) What are the rules on judicial notice before Appel- (61) How can judicial admission be contradicted?
late Courts? It may be contradicted by showing:
1. An appellate court is without authority to take no- 1. That it was made through palpable mistake
tice or take into consideration the judicial records of 2. That no such admission was made
a case previously decided by the trial court upon 3. To prevent manifest injustice
which said court did not have the opportunity to
pass. (62) When are judicial admissions made?
2. An appellate court cannot consult the records in It may be made by the party himself or by his counsel:
another case to ascertain a fact not shown by the
1. In the pleadings filed by the parties
records of the case before it but could go to its
2. In the course of the trial either by verbal or written
other decisions for the law that is determinative of
manifestations or stipulations, including deposi-
or applicable to the case under review.
tions, written interrogatories and requests for ad-
3. The Supreme Court can also take judicial notice of
missions
its records in a previous case in connection with the
3. In other stages of the judicial proceedings, as in
conduct of litigant or witness in a similar matter.
pre-trial
4. Lower courts, from the Court of Appeals down to
the lowest level, must take judicial notice of deci- Other cases of judicial admissions:
sions of the Supreme Court, as they are in fact duty 4. When there is failure to deny the allegations in the
bound to know the rulings of the high tribunal and other party’s pleadings
to apply them in the adjudication of cases, they 5. Negative pregnant
being part of the legal system.
Two situations in criminal cases:

1. If it is a criminal case undergoing trial, the judicial sions in open court and in pleadings actually filed
admission by counsel can be received in evidence with the court
against the defendant even though against the
conformity of said defendant or even without his (67) Is self-serving rule applicable in judicial admis-
conformity. sions?
2. In the course of pre-trial conference, any admission No. The self-serving rule which prohibits the admission
must be reduced in writing and signed by both the of declaration of a witness applies only to extrajudicial
defendant and his counsel before the admission admissions. If the declaration is made in open court,
cab be received in evidence (Rule 118, Sec. 2) such is raw evidence. It is not self-serving. It is admissi-
ble because the witness may be cross-examined on that
(63) What remedy is available to a party who have a matter.
judicial admission?
1. If written admission - file a motion to withdraw such (68) Are judicial admissions made by the accused dur-
pleading, or any other written instrument containing ing his arraignment binding upon him?
such admission No. A plea of guilty entered by the accused may be later
withdrawn at any time before the judgment of conviction
2. If oral admission - The counsel may move for the
becomes final. Such plea is not admissible in evidence
exclusion of such admission
against the accused and is not even considered as an
(64) What are the rules on admissions made in plead- extrajudicial admission.
ings?
(69) Are admissions made during a pre-trial in a civil
GR: The facts alleged in a party’s pleadings are deemed case considered as judicial admissions?
admissions and are binding upon that party.
Yes. Admissions made in the pre-trial are deemed judi-
XPN: Not all admissions in pleadings in civil cases may cial admissions because they are made in the course of
be considered as judicial admissions because a party the proceedings of the case.
litigant is allowed to make admissions which are merely
hypothetical in nature, as when a defendant moves to (70) What is the rule on actionable documents?
dismiss the case based on lack of jurisdiction or sets up When a party’s action is founded on a written instru-
affirmative defenses. ment, the genuineness and due execution of the instru-
Admissions in a pleading which had been withdrawn or ment shall be deemed admitted unless the adverse par-
superseded by an amended pleading, although filed in ty, under oath specifically denies it and sets forth what
the same case, are considered as extrajudicial admis- he claims to be the facts.
sions. The original pleading must be proved by the party
(71) What is the rule on specific denial?
who relies thereon by formally offering it in evidence.
By specific denial is meant that the defendant must
Where the complaint is amended, it loses its status as a
specify each material allegation of fact the truth of which
pleading and ceases to be a judicial admission. What
he does not admit and, whenever practicable, shall set
constitutes admissions are those stated in the amended
forth the substance of the matters upon which he relies
pleading.
to support his denial, otherwise the denial becomes a
Admissions made in pleadings that have been dismissed general denial which amounts to an admission of the
are merely extrajudicial admissions. allegations in the complaint and justifies a summary
judgment
(65) What is the rule on judicial admissions in one case
in relation to another case? !
Judicial admissions made in one case are admissible at
the trial of another case provided they are proved and
!
are pertinent to the issue involved in the latter, unless:
1. The said admissions were made only for purposes
of the first case, as in the rule of implied admissions
and their effects under Rule 26
2. The same were withdrawn with the permission of
the court therein
3. The court deems it proper to relieve the party there-
from
(66) What are the rules on admissions made in plead-

ings which were not filed with the court?
1. If signed by the party litigant himself - considered
as extrajudicial admission
2. If signed by the counsel - not admissible because a
counsel only binds his client with respect to admis-

RULE 128
object evidence is generally somewhat different from
that needed for demonstrative evidence.
RULES OF
For object evidence, the required foundation relates to
proving that the evidence is indeed the object used in
ADMISSIBILITY
the underlying event.
The foundation for demonstrative evidence, by contrast,
does not involve showing that the object was the one
OBJECT (REAL) used in the underlying event. Rather, the foundation

generally involves showing that the demonstrative object
EVIDENCE fairly represents or illustrates what it is alleged to illus-
trate. For instance, where a drawing is presented to
(72) What is the meaning of object evidence? illustrate the relative positions of the protagonists and
witnesses to a killing, the foundation will normally con-
Object or Real Evidence as defined by the Rules of
sist of testimony by one or more eyewitnesses or inves-
Court refers to evidence that is addressed to the senses
tigators showing that the drawing does indeed fairly
of the court. It may consist of articles or persons, which
represent the positions of those present at the event.
may be exhibited inside or outside the courtroom. It may
also consist in the mere inspection of an object. It is not (75) What are the requisites for the admissibility of
limited to view of an object but extends to visual, audito- object evidence?
ry, tactile, gustatory, olfactory. 1. Relevance - The object must be relevant to the
Object or real evidence is exactly what its name sug- issue. For instance, in a murder case, the prosecu-
gests. It is the real thing itself like the knife used to slash tion offered into evidence a gun. Without a showing
the victim’s throat, the right actually stolen by the ac- that the gun has at least some connection to the
cused, etcetera. It consists of tangible things. crime (e.g. that it was found at the scene), the gun
is irrelevant. Thus, there must be a logical nexus
Object evidence is also known as:
between the evidence and the point on which it is
1. Real evidence offered.
2. Demonstrative evidence
2. Authentic - The object must be authenticated
3. Autoptic proference
before it is admitted. Authentication normally con-
4. Physical evidence
sists of showing that the object is the object that
Physical evidence is evidence of the highest order. It was involved in the underlying event. And, when the
speaks more eloquently than a hundred witnesses. exhibition of an object is intended to establish its
condition at a previous time, it must be proved first
(73) What are the classes of object evidence?
that form that time the object suffered no substan-
1. Direct - evidence can prove directly the fact for tial change in its condition. Upon the trial for mur-
which it is offered. (Ex. In a personal injury case, the der, for instance, a portion of the skull of the de-
direct real evidence of disfiguring injury would be ceased is not admissible in evidence, where it has
an exhibition to the court of the injury itself) been buried for a long time and the evidence does
2. Circumstantial - facts about the object are proved not clearly show that it is in the same condition that
as the basis for an inference that other facts are it was at the time of the burial.
true. (Ex. In a paternity case, a baby may be shown 3. The object must not be hearsay
and the appearance will be compared with that of
4. The object must not be privileged
the alleged father; if they look alike, the court may
then draw an inference that the parental relation- 5. It must meet any additional requirement set by
ship exists) law (ex. it must not be the result of an illegal search
and seizure)
(74) Distinguish object evidence from demonstrative
evidence (76) What is the purpose of authentication?
Object evidence is a tangible object that played some It is to prevent the introduction of an object different
actual role in the matter that gave rise to the litigation. form the one testified about and to ensure that there has
For instance, the knife used in the altercation that forms been no significant changes in the object’s condition.
the basis for the lawsuit.
(77) What are the categories of object evidence?
Demonstrative evidence, by contrast, is tangible evi-
dence that merely illustrates a matter of importance in For purposes of authentication of an object, object evi-
the litigation. Common types of demonstrative evidence dence may be classified into:
include maps, diagrams, models, summaries, and other 1. Unique objects - Objects that have readily identi-
materials created especially for the litigation. fiable marks (ex. a caliber 38 revolver with a serial
The distinction is important because it helps determine number)
the standards that the evidence must meet to be admis- 2. Objects made unique - Objects that are made
sible. In particular, the foundation that must be laid for readily identifiable (ex. a typical kitchen knife which
the witness can readily identify in court if he claims

that he made the thing acquire a unique character- A: No. The object of all evidence is to inform the trial tribunal of
the material facts, which are relevant as bearing upon the issue,
istic by placing identifying marks thereon)
in order that the truth may be elicited and that a just determina-
3. Non-unique objects - Objects with no identifying tion of the controversy may be reached. But object evidence has
marks and cannot be marked (ex. drops of blood or to be kept within reasonable limits by the exercise of a fair judi-
cial discretion. It should be only of a nature to assist the court to
oil, drugs in power form, fiber) an understanding of a situation, of an act, or to comprehend
Under the third category, the proponent of the evidence objective symptoms resulting from an injury. If the objective is to
arouse the prejudice and inflame the passions of the court into
must establish a “chain of custody”. The links to the an angry resentment against the author of a crime, it far overbal-
chain are the people who actually handled or had cus- ances any legitimate purpose for which the exhibit might have
tody of the object. Each of them must show how he been made.
received the object, how he handled it to prevent substi-
(80) Is ocular inspection of object evidence or “view”
tution and how it was transferred to another.
allowed?
(78) What is the “chain of custody” method of authen- Yes. The court can go to the place where the object is
tication? located, when the object evidence cannot be brought to
A problem arises when an object has passed among court because it is immovable or inconvenient to re-
other hands since the time it was taken or found that it move.
becomes essential to identify it as the same item. Under The inspection or view outside the courtroom is a part of
this situation, the necessity of establishing a “chain of the trial. Inasmuch as evidence is thereby being re-
custody” comes into play. It requires that every link in ceived, such inspection should be made in the presence
the chain of custody or every person who handled or of the parties or at least with previous notice to them of
possessed he object since it was first recognized as the time and place set for the view.
being relevant to the case, must explain what he did with
it. (81) May the personal appearance of a person be tak-
en in consideration to establish proof of resem-
The primary reason for the elaborate chain of custody
blance, race, age or parentage?
method is to prevent or at least discourage tampering
with evidence. It has been held that to determine whether a person is
an alien or not, his personal appearance, ethnological
❖ Q: Discuss the “chain of custody” in drug-related cases and racial characteristics, language, customs, dress and
A: The existence of the drug is the very corpus delicti of the manners may be taken into consideration. The age of a
crime of illegal possession of dangerous drugs and thus a condi- person may also be determined by his personal appear-
tion sine qua non for conviction. In order to establish the exis-
ance. The resemblance between a minor and his alleged
tence of the drug, its chain of custody must be sufficiently estab-
lished. The chain of custody requirement is essential to ensure father is competent and material evidence to establish
that doubts regarding the identity of the evidence are removed parentage. However, the absence of such resemblance
through the monitoring and tracking of the movements of the would not be sufficient to show that parentage does not
seized drugs from the accused, to the police, to the forensic
exist.
chemist and finally to the court.
(82) May the accused in a criminal case be compelled

(79) What are the limitations against the use of object
to submit himself to an inspection of his body?
evidence?
It is a well-settled rule in this jurisdiction that the ac-
The limitations against the use of object evidence may
cused may be compelled to submit himself to an inspec-
be classified into:
tion of his body for the purpose of ascertaining identity
1. Inherent limitations - when the object is relevant or for other purposes. The prohibition of compelling a
to the fact in issue, it may be exhibited, examined man in a criminal court to be a witness against himself is
or viewed by the court. Thus it excludes the follow- a prohibition of the use of physical or moral compulsion
ing: to extort communications from him, not an exclusion of
a. Irrelevant evidence his body as evidence when it may be material. The con-
b. Illegally obtained evidence stitutional right extends only to testimonial compulsion
2. Non-inherent limitations - Relevant evidence and not when the body of the accused is proposed to be
may be excluded on the ground that although rele- examined. [Stonehill v. Diokno]
vant and authentic, its probative value is exceeded !
DOCUMENTARY
by its prejudicial effect such as the following:
a. Indecency and impropriety
b. Undue prejudice
c. Offensiveness to sensibilities EVIDENCE
d. Inconvenience and unnecessary expenses
e. Confusing or misleading (83) What is documentary evidence?
Documentary Evidence is evidence supplied by writ-
But when the exhibition is necessary to the ends of jus-
ten instruments, or derived from conventional symbols,
tice, notions of decency and delicacy of feeling will not
such as letters, by which ideas are represented on mate-
be allowed to prevail.
rial substances, documents produced for the inspection
❖ Q: May object evidence be introduced for the purpose of of the court or judge. It includes books, papers, ac-
arousing undue prejudice? counts and the like. Under Rule 130, Sec. 2, documen-

tary evidence consists of writings or any material con- office (Rule 130, Sec. 7). Reason: Immovability of
taining letters, words, numbers, figures, symbols or oth- the public record. Secondary evidence may consist
er modes of written expressions offered as proof of their of the certified true copy of the document and the
contents. official publication thereof.
A document may constitute as object evidence and as The non-production of the original document unless
documentary evidence depending on the purpose for justified gives rise to the presumption of suppression of
which the document is tendered. evidence.
If it is produced without regard to the message which it In addition to the best evidence rule, if the document
contains, it is treated as object, not documentary evi- contains a material alteration, the offeror must account
dence. In such case, the best evidence rule does not for the alteration and if a portion of the document is
apply. introduced by a party, the adverse party can inquire on,
or introduce the remaining portions of the document
If a document is offered to prove what is written on it,
(theory of indivisibility of evidence)
then the document will be treated as documentary evi-
dence. Accordingly, the best evidence rule may be in- (86) What are the purposes of the best evidence rule?
voked.
1. To prevent fraud - If a party is in possession of
such evidence and withholds it, and seeks to sub-
BEST EVIDENCE RULE stitute inferior evidence in its place, the presump-
tion naturally arises that the better evidence is
(84) What is the “best evidence” rule? withheld for fraudulent purposes which its produc-
The best evidence rule has nothing to do with the degree tion would expose and defeat.
of its probative value in relation to other types of evi- 2. To exclude uncertainties in the contents of a
dence. It is not intended to mean the “most superior” document - The best evidence rule accepts the
evidence. More accurately, it is the “original document document itself as the best evidence of its con-
rule” or the “primary evidence rule” tents, because it is certain, and rejects a copy
This rule applies to documentary evidence only, or a thereof because of the uncertainty of its contents
document presented as proof of its contents. It does not caused by the hazards of faulty duplication, or an
apply where there is no bona fide dispute on the con- oral description thereof, and frailties of human rec-
tents of documents and no useful purpose would be ollection.
served by its production.
(87) What is the best evidence rule with respect to
telegrams and cables; in libel cases?
(85) What are the exceptions to the best evidence
rule? On the question as to whether the dispatch sent or the
1. When the original has been lost or destroyed or dispatch received is the best evidence of the message,
cannot be produced in court, without bad faith the better rule is that it depends on the issue to be
on the part of the offeror (Rule 130, Sec. 5) proved:
2. When the original is in the custody or under the 1. If the issue is the contents of the telegram as re-
control of the party against whom the evidence is ceived by the addressee, then the original dispatch
offered, and the latter fails to produce it after rea- received is the best evidence
sonable notice (Rule 130, Sec. 6) 2. If the issue is to the telegram sent by the sender,
the original is the message delivered for transmis-
Even in criminal cases, there must still be a request sion
for production of document even if it be in the pos- 3. If the issue is the inaccuracy of transmission, both
session of the accused and if he refuses to produce telegrams as sent and received are originals
it invoking his constitutional right against self-in-
crimination, then the secondary evidence may be In libel cases:
introduced. 1. If the issue is with respect to the contents of the
3. When the original consists of numerous ac- articles sent by the accused for publication, the
counts or other documents which cannot be ex- manuscript is the best evidence
amined in court without great loss of time and the 2. If the issue is with respect to what was actually
fact sought to be established from them is only the published, a copy of the newspaper publication is
general result of the whole. the best evidence
Requisites: (88) In what cases does the best evidence rule do not
apply?
a. The voluminous character of the records must
be established 1. When the purpose is to show the existence, execu-
b. Such records must be made accessible to the tion or delivery without reference to its terms
adverse party so that their correctness may be 2. To make testimony coherent and intelligible
tested on cross-examination 3. To admissions as to contents of writing and
where subject of preliminary cross examination,
4. When the original is a public record in the cus-
to lay the basis for confrontation
tody of a public officer or is recorded in a public

4. Where there is no bona fide dispute on the con- 4. Proof of contents through secondary evidence
tents of documents and no useful purpose
would be served by its production. (94) How may the execution of a document be proven?
1. Any person/s who executed the document
(89) What is the original of a document? 2. Any person/s to whom the parties to the instrument
When the contents of a writing are to be proved, the had previously confessed the execution thereof
original is required. According to Rule 130, Sec. 4, the 3. Any person/s before whom its execution was ac-
original of a document constitutes: knowledged
4. Any person/s who was present and saw it executed
1. The original of a document is one the contents of
and delivered
which are the subject of inquiry
5. Any person/s who after its execution and delivery,
2. When a document is in two or more copies exe-
saw it and recognized the signatures
cuted at or about the same time with identical con-
tents, all such copies are equally regarded as origi- (95) How may the loss or destruction of a document be
nals proven?
3. When an entry is repeated in the regular course
1. Any person who knew the fact of loss
of business, one being copied from another at or
2. Anyone who has made a sufficient examination in
near
the place/s where the document or papers of simi-
A copy of the original document may not be used with- lar character are usually kept by the persons in
out accounting for the other original copies. It must ap- whose custody the document lost was and has
pear that all of them have been lost or destroyed or can- been unable to find it
not be produced before secondary evidence can be 3. Anyone who has made investigation which is suffi-
given by anyone. cient to satisfy the court that the instrument is in-
deed lost
(90) What is the rule on duplicate originals?
The loss or destruction of the document need not be
WHen a document is in two or more copies when exe-
proved beyond the possibility of mistake. It is enough if
cuted at or about the same time with identical contents,
the testimony satisfies the court of the fact with reason-
or is a counterpart produced by the same impression as
able certainty.
the original, or from the same matrix or by mechanical or
electronic re-recording, or by chemical reproduction or All duplicates or counterparts of a lost or destroyed
by other equivalent techniques which accurately repro- document must be accounted for before using copies
duces the original, such copies or duplicates shall be thereof. Reason: Since all the duplicates or multiplicates
regarded as the equivalent of the original. are parts of the writing to be proved.
Notwithstanding the foregoing, copies or duplicates shall (96) How may the contents of a document be proven?
not be admissible to the same extent as the original if:
1. Any person who signed the document
1. A genuine question is raised as to the authenticity 2. Any person who read the document
of the original 3. Any person who heard it read knowing or it being
2. In the circumstances it would be unjust or in- proved from other sources that the document so
equitable to admit a copy in lieu of the original read was the one in question
4. Any person who was present when the contents of
(91) What is the best evidence rule as applied to elec-
the document were talked over between the parties
tronic documents?
thereto to such an extent as to give him reasonably
An electronic document shall be regarded as the equiva- full information as to its contents
lent of an original document under the best evidence 5. Any person to whom the parties to the instrument
rule if it is a printout or output readable by sight or other have confessed or stated the contents thereof
means, shown to reflect the data accurately (Rules on
Electronic Evidence, Rule 4, Sec. 1) (97) What is the rule when the original document is in
the adverse party’s custody or control?
SECONDARY EVIDENCE It is not necessary to show that the original is in the ac-
tual possession of his adversary. It is enough that the
circumstances are such as to indicate that the writing is
(92) When may secondary evidence be allowed?
in his possession.
When the original has been lost or destroyed or cannot
If there is failure to produce the original despite reason-
be produced in court without bad faith on the part of the
able notice, the adverse party is afterwards forbidden to
offeror, secondary proof of its contents may be allowed.
produce the document in order to contradict the other
(Rule 130, Sec. 5)
party’s copy or evidence of its contents or it may also be
(93) What are the requisites for the presentation of regarded as a judicial admission in advance of the cor-
secondary evidence? rectness of the first party’s evidence. It also gives rise to
the presumption of suppression of evidence.
1. Proof of the existence of the original
2. Proof of execution of the original Even in criminal cases, there must still be a request for
3. Cause of unavailability or loss of the original the production of document even if it be in the posses-

sion of the accused and if he refuses to produce it invok- ties and their successors in interest, no evidence of such
ing his constitutional right against self-incrimination, terms other than the contents of the written agreement.
then the secondary evidence may be introduced. (Rule 130, Sec. 9)
XPN: A party may present evidence to modify, explain or
(98) In what order must secondary evidence be pre-
sented? add to the terms of the written agreement if he puts in
issue in his pleading:
1. Copy of the contents of the original
2. Recital of contents in some authentic document 1. The failure of the written agreement to ex-
3. Recollection of witnesses (Rule 130, Sec. 5) press the true intent of the parties thereto
2. An intrinsic ambiguity, mistake or imperfec-
The hierarchy of preferred secondary evidence must be
tion in the written agreement
strictly followed.
3. The validity of the written agreement
(99) What is the rule as regards admissibility of origi- 4. The existence of other terms agreed to by the
nal and secondary evidence when they are public parties or their successors in interest after the
records? execution of the written agreement
When the original is a public record in the custody of a The term “agreement” includes wills. (Rule 130, Sec. 9)
public officer or is recorded in a public office, its con-
tents may be proved by secondary evidence which may (104) What is parol evidence?
consist of: Any evidence aliunde (extrinsic evidence) which is in-
tended or tends to vary or contradict a complete and
1. Certified true copy issued by the public officer in
enforceable agreement embodied in a document.
custody thereof
2. Official publication (105) What is the purpose of the parol evidence rule?
When the original is outside the jurisdiction of the court, 1. To give stability to a written agreement
as when it is in a foreign country, secondary evidence is 2. To remove the temptation and possibility of perjury
admissible. 3. To prevent possible fraud
(100) If the party against whom the secondary evidence is (106) What are the requisites for the application of the
offered does not object thereto when the same is offered parol evidence rule?
in evidence, the secondary evidence becomes primary
evidence. 1. There must be a valid contract
2. The terms of the agreement must be reduced to
(101) Is the party who calls for the production of the writing
document bound to offer it as evidence? 3. The dispute is between parties and their succes-
No, the party who sought the production of a document sors in interest; and/or
is not obliged to offer it as evidence. Likewise, when a 4. There is dispute as to the terms of the agreement
document is produced, it is not necessarily admissible in Not all writings will trigger the application of the parol
evidence unless the requisites for admissibility are evidence rule. The writing must embody an agreement.
present. (Rule 130, Sec. 8)
When no timely objection or protest is made to the ad-
(102) Distinguish production of documents for purposes mission of parol evidence, and when the motion to strike
of evidence vis-a-vis production of documents as out said evidence came too late and if the other party
a mode of discovery against whom such evidence was presented cross-ex-
amined the witness who testified in respect to the con-
Sec. 8, Rule 130 (Evidence) Rule 27 (Mode of Discovery) tract, said party will be understood to have waived the
Procured by mere notice to Made by proper motion in the benefits of the law. Parol evidence under those facts is
the adverse party, which is a trial court and is permitted competent and admissible.
condition precedent for the only upon good cause
subsequent introduction of shown.
secondary evidence by the
(107) When may the parol evidence rule apply?
proponent. GR: The parol evidence rule applies only to integrated
Presupposes that the Contemplates a situation agreements, or those intended by both parties as the
document to be produces is wherein the document is final and exclusive written memorial of their agreement.
intended as evidence for the either assumed to be
proponent who is presumed favorable to the party in It is based on the theory of integration of jural acts,
to have knowledge of its possession thereof or that the
contents party seeking its production is wherein previous acts and contemporaneous transac-
not sufficiently informed of the tions of the parties are deemed integrated and merged in
contents of the same. the written instrument which they have executed. When
the parties have reduced their agreement to writing, it is
PAROL EVIDENCE RULE presumed that they have made the writing the only
repository and memorial of the truth, and whatever is not
found in the writing must be understood to have been
(103) What is the rule as regards written agreements? waived and abandoned.
GR: When the terms of an agreement have been re-
XPN: The parol evidence rule may also apply to collater-
duced into writing, it is considered as containing all the
al oral agreements. A contract made prior to or contem-
terms agreed upon and there can be, between the par-

poraneous with another agreement and if oral and not 2. It should be mutual or common to both parties to
inconsistent with the written contract it is admissible the instrument
within the exception to parol evidence rule. 3. It should be alleged and proved by clear and con-
vincing evidence
Requirements:
Mistake of fact is a mistake not caused by the neglect of
1. It is not a part of the integrated written agreement
a legal duty on the part of the person making the mis-
in any way
take
2. It is not inconsistent with the written agreement in
any way, including both the express and implied Mistake of law happens when a party, having full knowl-
provisions of the written agreement edge of the facts, comes to an erroneous conclusion as
3. It is not closely connected with the principal trans- to their legal effects.
action as to form part and parcel thereof The ground that the written agreement fails to express
The parol evidence rule does not apply when the collat- the true intent of the parties can only be invoked when
eral oral agreement refers to separate and distinct sub- the contract is literally ambiguous or obscure in its terms
jects. Reason: The parties to a contract cannot be pre- and that the contractual intention of the parties cannot
sumed to have embodied in a single writing all the be understood from the mere reading of the instrument.
agreements which they had on different subjects.
(111) What is the rule on imperfection?
(108) What is the rule on ambiguities? Where a writing, although embodying an agreement, is
Intrinsic or latent ambiguity - when the writing on its face manifestly incomplete, and is not intended by the parties
appears clear an unambiguous, but there are collateral to exhibit the whole agreement, but only to define some
matters or circumstances which make the meaning un- of its terms, the writing is conclusive as far as it goes.
certain. But such parts of the actual contract as are not em-
braced within its scope may be established by parol
Extrinsic or patent ambiguity - ambiguity is apparent on
evidence.
the face of the writing itself and requires something to be
added in order to ascertain the meaning of the words Imperfection includes an inaccurate statement in the
used agreement or incompleteness in the writing, or the pres-
ence of inconsistent provisions therein.
Intermediate ambiguity - where the ambiguity consists in
the use of equivocal words designating the person or (112) What is the rule on conditional agreements?
subject matter, parol evidence of collateral or extrinsic
matter may be introduced for the purpose of aiding the Conditions precedent - may be established by parol
court in arriving at the meaning of the language used. evidence because there is no varying of the terms of the
written contract by extrinsic agreement for the reason
Intrinsic and intermediate ambiguities are curable by that there is no contract in existence; there is nothing to
evidence aliunde or extraneous evidence which to apply the excluding rule.
A patent ambiguity cannot be cured by evidence ali- Conditions subsequent - may not be established by
unde. parol evidence.
(109) What is the principle of “falsa demonstratio non (113) DIstinguish “parol evidence rule” from “best evi-
nocet cum de corpore constat”? dence rule”
“An erroneous description does not spoil the act”. False
description does not injure or vitiate a document, pro- Parol Evidence Rule Best Evidence Rule
vided that the thing or person intended has once been Presupposes that the original Contemplates a situation
sufficiently described. is available in court where the original is not
available in court and/or there
Where there are two descriptions in a deed, the one is a dispute as to whether
said writing is the original
having been superadded to the other, and one descrip-
tion being complete and sufficient of itself while the Prohibits the varying of the Prohibits the introduction of
terms of a written agreement substitutionary evidence in
other which is subordinate and superadded is incorrect, lieu of the original document
the incorrect description or feature of circumstance of regardless of whether or not it
the description is rejected as surplusage, and the com- varies the contents of the
original
plete and correct description is allowed to stand alone.
Can be invoked only when the Can be invoked by any party
controversy is between the to an action regardless of
(110) What is the rule on mistake?
parties to the written whether such party
Parol evidence is admissible to prove mistake in the agreement, their privies, or participated or not in the
any party directly affected writing involved.
execution of a written agreement. Ratio: It would be thereby.
unjust and inequitable to allow the enforcement of a
With the exception of wills, Applies to all kinds of writing/
written instrument which does not reflect or disclose the applies only to documents document provided that the
real meeting of the minds of the parties. which are contractual in content is the issue.
nature
Elements:
1. It should be a mistake of fact and not a mistake of (114) The parol evidence rule is not applicable to a mere re-
law ceipt, unless that receipt can qualify as a valid and en-

forceable contract. Hence, as to a receipt being given for (123) Of two constructions, which preferred (Sec. 17).
the payment of rent due on the lease, parol evidence is When the terms of an agreement have been intended in
admissible to show that the payment was made by note. a different sense by the different parties to it, that sense
is to prevail against either party in which he supposed
(115) The parol evidence rule does not apply and may not the other understood it, and when different construc-
properly be invoked by either party to the litigation tions are otherwise equally proper, that is to be taken
against the other, where at least one party to the suit is which is the most favorable to the party whose favor the
not a party or privy of a party to the written instrument in provision was made.
question and does not base a claim or assert a right
originating in the instrument of the relation established (124) Construction in favor of a natural right (Sec. 18).
thereby. When an instrument is equally susceptible of two inter-
pretations, one if favor of a natural right and the other
INTERPRETATION OF against it, the former is to be adopted.
DOCUMENTS (125) Interpretation according to usage (Sec. 19). An in-

strument may be construed according to usage, in order
to determine its true character.
(116) Interpretation of a writing according to its legal
meaning (Sec. 10). The language of a writing is to be !
interpreted according to the legal meaning it bears in the
place of its execution, unless the parties intended oth-
TESTIMONIAL
erwise. EVIDENCE
(117) Instrument construes as to give effect to all provi-
(126) What is testimonial evidence?
sions (Sec. 11). In the construction of an instrument
where there are several provisions or particulars, such Testimonial or oral evidence is evidence elicited from
construction is, if possible, to be adopted as will give the mouth of a witness as distinguished from real and
effect to all. documentary evidence. It is sometimes called viva voce
evidence which literally means “living voice” or by word
(118) Interpretation according to intention; general and of mouth.
particular provisions (Sec. 12). In the construction of
an instrument, the intention of the parties is to be pur- (127) What is meant by the term “witness”?
sued; and when a general and particular provision are As used in the law of evidence, the term “witness” has
inconsistent, the general is paramount to the particular. reference to a person who testifies in a case or gives
So a particular intent will control a general one that is evidence before a judicial tribunal.
inconsistent with it.
(119) Interpretation according to circumstances (Sec. COMPETENCY AND

13). For the proper construction of an instrument, the CREDIBILITY OF WITNESS
circumstances under which it was made, including the
situation of the subject thereof and of the parties to it, (128) What is meant by competency of witness?
may be shown, so that the judge may be placed in the By competency of witnesses is meant the legal fitness or
position of those whose language he is to interpret. ability of a witness to be heard on the trial of a case.
(120) Peculiar signification of terms (Sec. 14). The terms (129) Differentiate competency from credibility of a
of a writing are presumed to have been used in their witness
primary and general acceptation, but evidence is admis-
sible to show that they have a local, technical, or other- Competency Credibility
wise peculiar signification, and were so used and under- Competence is a matter of Credibility of the witness has
stood in the particular instance, in which case the law or in this jurisdiction also nothing to do with law or the
a matter of rule. In deciding rules. It refers to the weight
agreement must be construed accordingly. the competence of a witness, and the trustworthiness or
the court will not inquire into reliability of the testimony.
(121) Written words control printed (Sec. 15). When an the trustworthiness of the
instrument consists partly of written words and partly of witness.
a printed form, and the two are inconsistent, the written Accordingly, a prevaricating witness or one who has given con-
controls the printed. tradicting testimony is still a competent witness
(122) Experts and interpreters to be used in explaining (130) What is the presumption as to the competency of
certain writings (Sec. 16). When the characters in a witness?
which an instrument is written are difficult to be deci- Presumption of competency. As a general rule, when
phered, or the language is not understood by the court, a witness takes the stand to testify, the law, on ground of
the evidence of persons skilled in deciphering the char- public policy, presumes that he is competent. Hence,
acters, or who understand the language, is admissible to insofar as competency is concerned, if the evidence is in
declare the characters or the meaning of the language. equipoise, the witness should be permitted to testify.
The court certainly cannot reject the witness if there is

no proof of his incompetency. The burden, is, therefore, notices their apparent possession or lack of intelligence,
upon the party objecting to the competency of a witness and may resort to any examination to find out the capac-
to establish the grounds of incompetency. ity as well as understanding of a witness, and as these
matters can not be photographed into the record of the
XPN: There is prima facie evidence of incompetency in
case, the decision of the trial judge on the competency
the following:
of the witness will not be disturbed on appeal unless
1. The fact that a person has been recently found of form that which is preserved it is clear that it was erro-
unsound mind by a court of competent jurisdiction neous.
2. That one is an inmate of an asylum for the insane
(137) When must be the objection to the competency of
(131) What is the test of competency? a witness be made?
The test is whether the individual has sufficient under- The objection to the competency of a witness must be
standing to appreciate the nature and obligation of an made
oath and sufficient capacity to observe and describe the
1. Before he has given any testimony if a party
facts in regard to which he is called to testify.
knows before the trial that the witness is incompe-
(132) Who determines the competency of a witness? tent
2. If the incompetency appears on the trial, the objec-
The judge alone. The decision of competency of a wit-
tion must be interposed as soon as it becomes
ness rests primarily with the trial judge, who sees the
apparent
proposed witness, notices his manner, his apparent
3. When the incompetency of a witness is only par-
possession or lack of intelligence, and may resort to any
tial, the objection need not be raised until he is
examination which will tend to disclose his capacity and
asked to testify to those matters as to which he
intelligence as well as his understanding of the obliga-
is incapacitated.
tions of an oath.
(138) Does drug abuse render a person incompetent to
(133) Who determines the credibility of witnesses?
testify?
The judge alone. The decision of competency of Ques-
No. Drug abuse becomes relevant only if the witness
tions concerning the credibility of a witness are best
was under the influence of drugs at the time he is testify-
addressed to the sound discretion of the trial court as it
ing or at the time the events in question were observed.
is in the best position to observe his demeanor and bod-
While drug abuse may not be ground for barring a wit-
ily movements. The Supreme Court generally defers to
ness form testifying, they may serve as ground for at-
the trial court’s assessment because it has the singular
tacking the credibility of the witness.
opportunity to observe the demeanor of witnesses and
their manner of testifying.
QUALIFICATIONS OF WITNESS
(134) What is a voir dire examination?
(139) What are the qualifications of a witness? (Sec. 20)
It is a competency examination or a preliminary ex-
amination conducted by the trial judge where the wit- A person is qualified or competent to become a witness
ness is duly sworn to answer as to his competency. if he is:
1. Capable of perceiving; and
(135) What is a citizen’s testimonial duty?
2. Can make his perception known to others
GR: Every competent person under the process of sub-
Religious or political belief, interest in the out-
poena by the duly constituted courts of the country may
come of the case, or conviction of a crime (unless
be compelled to appear and testify.
otherwise provided by law, example those who have
XPN: The following are not bound even if subpoenaed: been convicted of falsification of a document, perjury or
1. Chief Executive / President false testimony are disqualified from being witnesses to
2. Judges of superior courts a will) shall not be a ground for disqualification.
3. Members of Congress during sessions It should be noted, however, that loss of the perceptive
4. Ambassadors sense after the occurrence of the fact does not affect the
5. Consuls and other diplomatic officials when there is admissibility of the testimony. Hence, a blind man can
a treaty holding them exempt testify to what he saw prior to his blindness or a deaf
6. Witness who resides more than 100 kilometers man, to what he heard prior to his deafness. But a per-
away form his residence to the place where he is to son incapable of perception is pro tanto incapable of
testify by the ordinary course of travel testifying.
7. A detention prisoner if no permission of the court in
A witness may have been capable of perceiving, yet
which his case is pending was obtained
incapable of narration. He may have no powers of
(136) May the determination of the trial court as to the speech, and have no means of expressing himself by
competency of a witness be disturbed on appeal signs. He may have become insane since the occur-
of the case? rence he is called upon to relate. A person incapable of
As the judge of the trial court is the one who hears the narration is pro tanto incapable of testifying.
witnesses, observes the manner in which they testify, 3. He must take either an oath or an affirmation

4. He must not possess the disqualifications imposed 1. Those whose mental condition, at the time of their
by law or the rules production for examination, is such that they are
incapable of intelligently making known their per-
(140) What are the abilities required of a witness? ception to others (mental incapacity)
A prospective witness must show that he has the follow- 2. Children whose mental maturity is such as to ren-
ing abilities: der them incapable of perceiving the facts respect-
1. To observe - the testimonial quality of perception ing which they are examined and of relating them
2. To remember / recollect - the testimonial quality truthfully (immaturity)
of memory Mental unsoundness of the witness at the time the fact
3. To relate / narrate - the testimonial quality of to be testified to occurred, affects only his credibility. As
narration long as the witness can convey ideas by words or signs
4. To recognize a duty to tell the truth - the testi- and give sufficiently intelligent answers to questions
monial quality of sincerity propounded, she is a competent witness even if she is
feeble-minded (People v. De Jesus, 1984)
(141) Who are disqualified from becoming witnesses
1. Those disqualified under Rule 130, Secs. 21 - 24 Presumption of sanity. The law presumes that every
2. Art. 821 of the Civil Code disqualifies those who person is of sound mind, in the absence of proof to the
have been convicted of falsification of a document, contrary. But mental unsoundness alone does not per se
perjury or false testimony from being witnesses to a disqualify as a witness, it must be of such degree that
will. the person’s ability to perceive, recall, and testify are so
3. Rule 119, Sec. 17 requires that the accused sought impaired that the witness’s testimony is worthless. XPN:
to be discharged to be state witness has not at any If the witness is a lawful inmate of an asylum for the
time been convicted of any offense involving moral insane.
turpitude. The same requirement is provided for a
(145) What are the requisites for the disqualification by
state witness under R.A. 6981 (Witness Protection, reason of mental incapacity?
Security and Benefit Act)
1. The person must be incapable of intelligently mak-
(142) May an attorney be a witness of his own client? ing known his perception to others
2. His incapability must exist at the time of his pro-
Yes. When a lawyer is a witness for his client, except as
duction for examination
to merely formally matters, he should leave the trial of
the case to the other counsel. (146) What are the rules as to time of insanity?
1. At the time of the trial - incompetent
DISQUALIFICATIONS OF 2. At the time of the transaction - competent, but may
WITNESS affect the witness’ credibility
3. At some other period - no effect
(143) What are the two kinds of incompetency?
1. Absolute disqualification - A person is forbidden (147) Are deaf-mutes competent witnesses?
to testify on any matter. This includes: Deaf-mutes are competent witnesses when they can
a. Disqualification by reason of mental inca- understand and appreciate the sanctity of an oath, can
pacity or immaturity (Rule 130, Sec. 21) comprehend facts they are going to testify to and can
b. Disqualification by reason of marriage (Rule communicate their ideas through a qualified interpreter.
130, Sec. 22)
(148) What are the requisites for the disqualification by
2. Relative disqualification - A person is forbidden reason of immaturity?
to testify only on certain matters specified under 1. The mental maturity of the witness must render him
Secs. 23 and 24 of Rule 130 due to interest or rela- incapable of perceiving the facts respecting which
tionship or to privileges of the other parties. he is examined
a. Disqualification by reason of death or insanity 2. He is incapable of relating his perception truthfully
of adverse party (Dead Man’s Statute) (Rule
130, Sec. 23) RULE ON EXAMINATION OF A CHILD
b. Disqualification on ground of privileged WITNESS
communication (Rule 130, Sec. 24) A.M. No. 00-4-07-SC
DISQUALIFICATION (149) Applicability of the rule: Unless otherwise provided,

this Rule shall govern the examination of child witnesses
MENTAL INCAPACITY OR IMMATURITY
(Sec. 21) who are victims of crime, accused of a crime, and wit-
nesses to crime. It shall apply in all criminal proceedings
(144) What is the disqualification by reason of mental and non-criminal proceedings involving child witnesses.
incapacity or immaturity? (Rule 130, Sec. 21)
(150) Presumption of competency. Every child is presumed
The following cannot be witnesses:
qualified to be a witness. However, the court shall con-
duct a competency examination of a child, motu proprio

or on motion of a party, when it finds that substantial 2. Allow leading questions in all stages of the exami-
doubt exists regarding the ability of the child to perceive, nation of a child if the same will further the interests
remember, communicate, distinguish truth from false- of justice
hood, or appreciate the duty to tell the truth in court. 3. When a child does not understand English or Fil-
ipino language or is unable to communicate in said
The competency examination of a child witness is not
languages, an interpreter may be appointed by the
open to the public. Only the following are allowed to
court, motu proprio or upon motion
attend the examination:
4. The court may, motu proprio or upon motion, ap-
1. The judge and necessary court personnel point a facilitator if it determines that the child in
2. The counsel for the parties unable to understand or respond to the questions
3. The guardian ad litem asked
4. One or more support persons for the child 5. A child testifying at a judicial proceeding or making
5. The defendant, unless the court determines that a deposition shall have the right to be accompanied
competence can be fully evaluated in his absence by one or two persons of his own choosing to pro-
vide him emotional support
(151) “Child witness” is any person who at the time of giving
6. Allow the child reasonable periods of relief while
testimony is below eighteen (18) years. In child abuse
undergoing direct, cross, re-direct and re-cross
cases, a child includes one over eighteen (18) years but
examinations as often as necessary depending on
is found by the court as unable to fully take care of him-
his developmental level
self or protect himself from abuse, neglect, cruelty, ex-
7. While testifying, a child shall be allowed to have an
ploitation, or discrimination because of a physical or
item of his own choosing such as a blanket, toy or
mental disability or condition.
doll (emotional security item)
“Facilitator” means a person appointed by the court to 8. The court may prohibit a counsel from approaching
pose questions to a child. The facilitator maybe a child a child if it appears that the child is fearful of or
psychologist, psychiatrist, social worker, guidance coun- intimidated by the counsel
selor, teacher, religious leader, parent or relative. 9. The court may order that persons attending the trial
shall not enter or leave the courtroom during the
“Support person” is a person chosen by the child to testimony of the child.
accompany him to testify at or attend a judicial proceed-
ing or deposition to provide emotional support for him. (156) Corroboration shall not be required of a testimony of a
child. His testimony, if credible by itself, shall be suffi-
(152) Best interests of the child. The totality of the circum- cient to support a finding of fact, conclusion or judgment
stances and conditions as are most congenial to the subject to the standard of proof required in criminal and
survival, protection and feelings of security of the child non-criminal cases.
and most encouraging to his physical, psychological and
emotional development. It also means the least detri- (157) Live link TV testimony of a child witness. In criminal
mental available for safeguarding the growth and devel- cases where a child is a victim or witness, the prosecu-
opment of the child. tor, counsel or the guardian ad litem may apply for an
order that the testimony of the child be taken in a room
(153) Developmental level refers to the specific growth outside the courtroom and be televised to the courtroom
phase in which most individuals are expected to behave by live-link television.
and function in relation to the advancement of their
The person seeking such an order shall apply at least 5
physical, socio-emotional, cognitive and moral abilities.
days before the trial date, unless the court finds on the
(154) The public may be excluded from the courtroom record that the need for such an order was not reason-
when they do not have a direct interest in the case. The ably foreseeable.
court may also, on motion of the accused, exclude the The court may order the the testimony of the child be
public from trial, except court personnel and the counsel taken by live-link television if there is a substantial likeli-
of the parties. hood that the child would suffer trauma from testifying in
the presence of the accused, his counsel or the prose-
(155) Examination of a child witness. As a general rule, the cutor as the case may be. The trauma must be of a kind
examination of a child witness presented in a hearing or which would impair the completeness or truthfulness of
any proceeding shall be done in open court. Unless the the testimony of the child. The child shall, therefore,
witness is incapacitated to speak, or the question calls testify in a separate room.
for a different mode of answer, the answers of the wit-
ness shall be given orally. The testimony of the child shall be preserved on video-
tape, digital disc, or other similar devices which shall be
The party who presents a child witness or the guardian made part of the court record and shall be subject to a
ad litem of such child witness may, however, move the protective order.
court to allow him to testify int he matter provided in this
Rule. (158) Videotaped deposition of a child witness. The pros-
The court may: ecutor, counsel or guardian ad litem may apply for an
order that a deposition be taken of the testimony of the
1. Allow the child witness to testify in a narrative form child and that it be recorded and preserved on video-

tape. Before the guardian ad litem applies for this order, 1. There is identity of interests between husband and
he shall consult with the prosecutor or counsel. wife
2. If one were to testify for or against the other, there
If the court finds that the child will not be able to testify
is a consequent danger of perjury
in open court at trial, it shall issue an order that the de-
3. The policy of the law is to guard the security and
position of the child be taken and preserved by video-
confidence of private life, even at the risk of an
tape. The judge shall preside at the videotaped deposi-
occasional failure of justice, and to prevent domes-
tion of the child.
tic disunion and unhappiness
It must be noted that the right of the accused during 4. Where there is want of domestic tranquility there is
trial, especially the right to counsel and to confront and danger of punishing one spouse through the hostile
cross-examine the child, shall not be violated during the testimony of the other
deposition.
(162) What are the requisites for disqualification by
If the order of the court is based on evidence that the
reason of marriage?
child is unable to testify in the physical presence of the
accused, the court may direct the latter to be excluded 1. That the spouse for or against whom the testimony
from the room. In such case, the court shall order that is offered is a party to the case
the testimony of the child be taken by live-link television. 2. That the spouses are legally married (valid until
annulled)
The videotaped deposition shall be preserved and
3. Testimony is offered during the existence of mar-
stenographically recorded and be subject to a protective
riage
order.
4. The case is not one of the exceptions provided in
If at the tie of trial, the court finds that the child is unable the rule
to testify (substantial likelihood to suffer trauma), or is
unavailable to testify for any reason under Rule 23, Sec. (163) What are the exceptions to the rule on disqualifi-
4(c) of the Rules of Civil Procedure, the court may admit cation by reason of marriage?
into evidence the videotape deposition of the child in lieu The rule on disqualification does not apply in the follow-
of his testimony at the trial. The court shall issue an or- ing:
der stating the reasons therefor.
1. Where the testimony was made outside the
(159) Sexual Abuse Shield Rule. GR: The following evi- marriage
dence is not admissible in any criminal proceeding in- 2. In a civil case by one spouse against the other
volving alleged child sexual abuse: 3. In a criminal case for a crime committed by
one spouse against the other or the latter’s
1. Evidence offered to prove that the alleged victim direct descendants or ascendants
engaged in other sexual behavior
2. Evidence offered to prove the sexual predisposition The disqualification does not apply where an offense
of the alleged victim. directly attacks or directly and vitally impairs the conju-
gal relations.
XPN: Evidence of specific instances of sexual behavior
by the alleged victim to prove that a person other than It does not also apply in the case of estranged spouses,
the accused was the source of the semen, injury or other where the marital and domestic relations are so strained
physical evidence shall be admissible. that there is no more harmony to to be preserved nor
peace and tranquility which may be disturbed.
It is likewise settled jurisprudence that testimonies of
child-victims are given full weight and credit. When a 4. Where the spouse-party gives his/her consent
woman or a child says that she has been raped, she 5. Where the spouse-party fails to raise the disqualifi-
says in effect all that is necessary to show that rape was cation seasonably
indeed committed (People v. Pulanco, 2003)
(164) Distinguish disqualification by reason of marriage
(Sec. 22) and disqualification by reason of marital
DISQUALIFICATION privilege (Sec. 24-A)
MARRIAGE (SPOUSAL IMMUNITY) (Sec. 22) Disqualification by Reason Disqualification by Reason
of Marriage (Sec. 22) of Marital Privilege (Sec. 24)
(160) What is the disqualification by reason of mar- Can be invoked only if one of Can be claimed whether or
riage? the spouses is a party to the not the other spouses is a
action party to the action
During their marriage, neither the husband nor the wife
may testify for or against the other without the consent Applies only if the marriage is Can be claimed even after the
existing at the time the marriage is dissolved
of the affected spouse. testimony is offered
Purpose: To obviate perjury (because of unity of interest) Constitutes a total prohibition Applies only to confidential
and to prevent domestic disunity and unhappiness. for or against the spouse of communications between the
the witness spouses
Who may object: Only the spouse-party and not the
other spouse who is offered as a witness.
(161) What are the reasons for the disqualification rule?

Disqualification by Reason Disqualification by Reason Likewise called the Dead Man’s Statute or Survivor-
of Marriage (Sec. 22) of Marital Privilege (Sec. 24) ship Disqualification Rule. It is designed to close the
The objection would be raised The married person is on the lips of the party plaintiff when the death or incompe-
on the ground of marriage. stand but the objection of tence has permanently closed the lips of the party de-
The married witness would privilege is raised when
not be allowed to take the c o n fi d e n t i a l m a r i t a l fendant in order to remove from the claiming party the
stand at all because of the communication is inquired temptation to give false testimony and the possibility of
disqualification. Even if the into.
fictitious claims against the deceased or incompetent.
testimony is, for or against the
objecting spouse, the spouse-
witness cannot testify (171) What are the requisites for disqualification by
reason of death or insanity of the adverse party?
(165) What is the nature of the prohibition? 1. The witness is a party or assignor of a party to a
It is an absolute prohibition against the spouse’s testify- case or persons in whose behalf a case is prose-
ing to any fact affecting the husband or the wife however cuted
the knowledge of these facts may have been acquired. 2. The action is against an executor or administrator
or other representative of a deceased person or a
However, res gestae declarations of the husband and
person of unsound mind
wife are admissible for or against each other, even
3. The subject-matter of the action is a claim or de-
though each is incompetent to testify.
mand against the estate of such deceased person
(166) What is the duration of the privilege? or against person of unsound mind
4. The subject matter of the testimony refers to any
The privilege lasts only during marriage. It terminates
matter of fact which occurred before the death of
upon divorce or annulment or death, in which event, the
such deceased person or before such person be-
surviving spouse may testify on any matter not learned
came of unsound mind
in confidence.
Incompetency to testify applies whether the deceased
(167) May the accused marry the witness to seal her died before or after the commencement of the action
lips? against him if at the time the testimony was given he
Yes. An accused can effectively “seal the lips” of a wit- was already dead and cannot disprove it.
ness by marrying the witness. As long as a valid mar- Assignor pertains to the assignor of a cause of action
riage is in existence at the time of the trial, the witness- which has already arisen and not the assignor of a right
spouse cannot be compelled to testify even where the before any cause of action accrued.
crime charged is against the witness’ person, and even
though the marriage was entered into for the express (172) Who are the persons entitled to invoke the protec-
purpose of suppressing testimony. tion of the Dead Man’s Statute?
The persons entitled to invoke the protection of the
(168) Does the disqualification extend to testimonies in
Dead Man’s Statute are the executor, administrator and
favor of the spouse?
any other representative of a deceased person, when
The prohibition extends not only to a testimony adverse they are the defendants in a claim against the state of
to the spouse but also to a testimony in favor of the the deceased. The protection may likewise be invoked
spouse. It also extends to both criminal and civil cases by a person of unsound mind in a claim filed against
because the rule does not distinguish. him.
(169) Is the spouses are estranged, does the disqualifi- The rule will not apply where the plaintiff is the executor
cation and the privilege still apply? or administrator as representative of the deceased or if
the plaintiff is the person of unsound mind. Likewise,
No. Technically, it will still apply because the testimony
when a counterclaim is set up by the administrator of the
will still happen during the marriage, but the Supreme
estate, the case is removed form the operation of the
Court has abandoned this literal interpretation of the
Dead Man’s Statute. The plaintiff may testify to occur-
rule.
rences before the death of the deceased to defeat the
Where the marital relations are so strained that there is counterclaim which is not brought against the represen-
no more harmony to be preserved nor peace and tran- tative of the estate but the representative.
quility which may be disturbed, the reason based upon
such harmony and tranquility fails. In such a case, identi- (173) What are the matters prohibited?
ty of interests disappears and the consequent danger of Those occurring in the presence and within the hearing
perjury based on that identity is non-existent. (Alvarez v. of the decedent to which he might testify of his personal
Ramirez, 2005) knowledge if he were alive. Thus it cannot be invoked if
the matter of the testimony of the plaintiff is the non-
DISQUALIFICATION occurrence of a fact.
DEATH OR INSANITY OF ADVERSE PAR- Likewise, facts favorable to the deceased or his repre-
TY (Sec. 23) sentatives are not prohibited as the statutes are de-
signed to protect the interest of a deceased or insane
(170) What is the disqualification by reason of death or person.
insanity of the adverse party?
(174) When can the Dead Man’s Statute not be invoked?

1. Testimony of mere witnesses who are neither party 2. Authorized persons

plaintiffs, nor their assignors, nor persons in whose 3. Persons to whom the privileged communications
behalf a case is prosecuted, nor to a nominal party, were made
nor to officers and stockholders of a plaintiff corpo-
ration. (disinterested witnesses) (178) In what cases may the rule on privileged commu-
2. If the plaintiff is the executor or administrator nication be applied?
or other representative of a deceased person, or We apply the privileged communication to both civil and
the person of unsound mind criminal cases except as to the doctor-patient privilege,
3. In an action against a partnership which is applicable only in civil cases.
4. If the person or persons mentioned under the rule Unless waived, the disqualification under Sec. 24 re-
file a counterclaim mains even after the various relationships therein have
5. When the testimony refers to fraudulent transac- ceased to exist.
tions committed by the persons mentioned in the
rule, provided that fraud has been clearly estab- Note: The privilege cannot be invoked where confidential
lished by evidence communications or information are made in contempla-
6. When there is waiver (by failing to object to the tion of a crime or in furtherance or perpetuation of fraud.
testimony or by cross-examining the witness on the
prohibited testimony or by offering evidence to
Between Husband and Wife
rebut the testimony) (179) What is the reason for the privileged communica-
7. When the testimony of a plaintiff refers to the non- tion rule between husband and wife?
occurrence of a fact It is assured that what you confide with your spouse will
8. In cadastral cases since there is neither plaintiff not be divulged in the future.
nor defendant, nor in land registration cases insti-
tuted by the decedent’s representatives, as the (180) What are the requisites?
oppositors are considered defendants and may,
1. There was a valid marital relation
therefore, testify against the petitioner
2. The privilege is invoked with respect to a confiden-
9. Testimony on the possession by witness of a
tial communication between the spouses given
written instrument made by the deceased, as
during said marriage
such fact exists even after the decedent’s demise
3. The spouse against whom such evidence is being
10. Where the deceased contracted with the plaintiff
offered has not given his or her consent to such
through an agent and said agent is alive and
testimony.
can testify, but the testimony of the plaintiff
should be limited to acts performed by the agent For the information to be confidential, it must be made
during and by reason of the marital relations and is in-
(175) Distinguish the Dead Man’s Statute from the Mari- tended not to be shared with others. Without such inten-
tal Disqualification Rule tion, common reason suggests that the information is
not confidential.
Dead Man’s Statute Marital Disqualification Rule
Only a partial disqualification It is a complete and absolute (181) Who is the holder of the privilege?
a s t h e w i t n e s s i s n o t disqualification
completely disqualified but is The privilege in principle belongs to the communicating
only prohibited from testifying spouse, not to the other one. The prohibition arises only
on matters therein specified.
when the person in whose favor the privilege exists,
Applies only to a civil case or Applies to a civil or criminal demands, by timely objection to the testimony, that the
special proceeding over the case, subject only to two
estate of a deceased or exceptions provided therein: privilege be enforced.
insane person (1) except in a civil case by
one against the other; or (2) in (182) Are third persons who overhears spousal commu-
a criminal case for a crime nication likewise disqualified?
committed by one against the
other or the latter’s direct No. Communications overheard by third persons without
descendants or ascendants knowledge of spouses are still confidential but the third
party is not disqualified to testify.
DISQUALIFICATION (183) What is the duration of the privilege?
PRIVILEGED COMMUNICATION (Sec. 24) The rule rendering one spouse incompetent to testify to
(176) What is the privilege in privileged communication? confidential communications is not affected by the death
of the other spouse or by absolute divorce.
Privilege is a rule of law that, to protect, a particular
relationship or interest, either permits a witness to refrain Between Attorney and Client
from giving testimony he otherwise could be compelled
to give, or permits someone, usually one of the parties, (184) What are the requisites?
to prevent the witness from revealing certain information. 1. There is an attorney and client relationship or a kind
of consultancy relationship with a prospective client
(177) Who may assert the privilege?
2. The privilege is invoked with respect to a confiden-
1. Holder of privilege tial communication between them made in the

course of or with a view to professional employ- 1. Where a strong possibility exists that revealing the
ment client’s name would implicate the client in the very
3. The client has not given consent to the attorney’s activity for which he sought the lawyer’s advice
testimony thereon; or if the attorney’s secretary, 2. Where disclosure would open the client to civil
stenographer or clerk is sought to be examined, liability
that both the client and the attorney have not given 3. Where the prosecutors have no case against the
their consent thereto client unless by revealing the client’s name, the said
name would furnish the only link that would form
(185) What is the purpose of the privileged communica- the chain of testimony necessary to convict an
tion rule between attorney and client? individual for a crime
It is to encourage full disclosure by client to his attorney
of all pertinent matters so as to further the administration (190) Who is the holder of the privilege?
of justice. To the client only belongs the privilege and therefore he
alone can invoke it. And he may claim it not only when
(186) What is the test if the communication is covered his attorney is called upon to disclose professional
by the privilege?
communications, but also when he himself is asked to
The test is whether the communications are made to an make the disclosure.
attorney with a view of obtaining from him professional
assistance or advice regardless of whether there is (191) What is the duration of the privilege?
pending or merely impending litigation or any litigation. The privilege protecting communications continues even
Preliminary communications made for the purpose of after the relation of client and attorney is terminated. The
creating the attorney-client relationship are within the seal of the law once fixed upon them remains forever,
privilege. However, if the communications were not unless removed by the party himself in whose favor it is
made for the purpose of creating that relationship, they there placed.
will not be covered by the privilege even if thereafter the
lawyer becomes counsel of the party in a case involving Between Doctor and Patient
said statements. (192) What are the requisites?
The communications covered by the privilege include 1. The physician is authorized to practice medicine,
verbal statements and documents or papers entrusted surgery or obstetrics
to the attorney through the act or agency of his client. 2. The information was acquired or the advice or
Note: The rule applies even to a counsel de officio treatment was given by him in his professional ca-
pacity for the purpose of treating or curing the pa-
(187) Does the privilege apply where the adverse par- tient
ties are the attorney and the client themselves?
3. The information is confidential
The weight of authority supports the view that when the 4. The information, advice or treatment, if revealed,
client and attorney become embroiled in a controversy would blacken the reputation of the patient
between themselves, as in an action filed for payment of 5. The privilege is invoked in a civil case, whether the
attorney’s fees or for damages against the negligence of patient is a party thereto or not.
the attorney, the privilege is removed from the attorney’s
lips. (193) What is the purpose of the privilege?
It is intended to facilitate and make safe, full and confi-
(188) What are cases where the disqualification based
dential disclosure by the patient to the physician of all
on the attorney-client privilege does not apply?
facts, circumstances and symptoms untrammeled by
1. Intended to be made public apprehension of their subsequent and enforced disclo-
2. Intended to be communicated to others sure and publication on the witness stand to the end
3. Received from third persons not acting in behalf of that the physician may form a correct opinion and en-
or as agents of the client abled safely and efficaciously to treat his patient.
4. Intended for an unlawful purpose
5. Made in the presence of third parties who are (194) When is the physician acting in his professional
strangers to the attorney-client relationship capacity?
Note: It is not within the profession of a lawyer to advise a client When he attends to the patient for curative, preventive
as to how he may commit a crime as a lawyer is not a gun for or palliative treatment.
hire. Thus, the attorney-client privilege does not attach, there
being no professional employment in the strict sense. Note: It is essential that at the time the communication
was made, the professional relationship of physician and
(189) What is the rule on attorney-client privilege as
patient existed. However, it is not necessary that the
applied to the identity of a client?
physician-patient relationship was created through the
GR: A lawyer may not invoke the privilege and refuse to voluntary act of the patient. Thus, the treatment may
divulge the name or identity of his client. have been given at the behest of another, the patient
XPN: being in extremis.

Note: Dentist, pharmacist or nurses are disqualified if 2. The communication was given to the public officer
acting as agents. The test is whether a third person was in confidence
an agent of the doctor in a professional capacity 3. The communication was given during the term of
office of the public officer but the privilege may be
(195) When doesn’t the privilege apply? invoked not only during the term of office of the
1. Where the communication was not given in confi- public officer but also after
dence 4. The public interest would suffer by the disclosure of
2. The communication is irrelevant to the professional the communication
employment
3. The communication was made for an unlawful pur- Other Privileged Matters
pose
(201) Other privileged matters
4. The information was intended to be made public
(ex. under Rule 28, the results of the physical and 1. The guardian ad litem shall not testify in any pro-
mental examination of a person when ordered by ceeding concerning any information, statement, or
the court and also, the results of autopsies or opinion received from the child in the course of
postmortem examinations) serving as a guardian ad litem, unless the court
5. There was a waiver of the privilege either by provi- finds it necessary to promote the best interests of
sions of contract or law (ex. Rule 28 under which if the child
the party examined obtains a report on said exami- 2. The publisher, editor or duly accredited reporter of
nation or takes the deposition of the examiner, he any newspaper, magazine or periodical of general
thereby waives any privilege regarding any other circulation cannot be compelled to reveal the
examination of said physical or mental condition source of any news report or information which was
conducted or to be conducted on him by another related in confidence to him, unless the court or a
physician) House or Committee of Congress finds that such
revelation is demanded by the security of the State
(196) What is the scope of the prohibition?
3. Voters may not be compelled to disclose for whom
It applies not only to communication but also to opinions
they voted
or prescriptions.
4. Trade secrets
Note: Not all information obtained confidentially by the
physician from the patient and necessary for his treat- 5. Bank deposits
ment are within the privilege. The information held to be 6. Informer’s privilege - the prosecutor may not be
privileged is that which would blacken the reputation of compelled to present an informer to protect his
the patient. identity and when his testimony would be merely
Note: It is only the tenor of the communication by the cumulative and corroborative
patient to the doctor that is privileged. Hence, the fact of 7. Conciliators and similar officials shall not testify in
communication, the date and frequency of consultation any court or body regarding any matter taken up at
with the doctor are excluded. the conciliation proceedings conducted by them
(Labor Code, Art. 233)
(197) What is the duration of the privilege?
The confidential character of a privileged communication
It continues after death but may be waived by the per-
is not lost solely on the ground that it is in the form of an
sonal representative of the decedent.
electronic document.
Between Priest and Penitent
(198) Requisites:
DISQUALIFICATION
PARENTAL AND FILIAL PRIVILEGE
1. The confession must have been made to the priest
in his professional character in the course of disci- (202) What is parental and filial privilege? (Sec. 25)
pline enjoined by the church to which he belongs
No person may be compelled to testify against his par-
2. The communications made were confidential and
ents, other direct ascendants, children or other direct
penitential in character
ascendants.
(199) What is the purpose of the privilege? Ratio: To preserve family cohesion.
The rationale for the rule is to allow and encourage indi- Note: Family Code Art. 213 provides that “No descen-
viduals to fulfill their religious, emotional or other needs dant shall be compelled, in a criminal case, to testify
by protecting confidential disclosures to religious practi- against his parents and grandparents, except when such
tioners. testimony is indispensable in a crime against the de-
scendant or by one against the other.
Public Officers
Rule 130, Sec. 25 does not provide for an exception. So
(200) Requisites: in case of conflict, it was suggested that the RUles of
1. The holder of the privilege is the government, act- Court should apply because it took effect in 1989 as
ing through a public officer compared to the Family Code which took effect in 1988.
It may be argued that the former is procedural and the

latter is substantive; however, it was further suggested Every confession is an admission, but not all admissions
that although the Family Code provision is substantive, it are confessions.
is procedural in character. So of these two provisions, Admission is something less than a confession and is
the RUles of Court which was made by the Supreme but an acknowledgement of some fact or circumstance
Court, should prevail. which in itself is insufficient to authorize a conviction,
and which tends only to establish the ultimate fact of
EXTRA-JUDICIAL guilt.
ADMISSIONS AND Admission Confession

Statement of facts which Statement of facts which
CONFESSIONS d o e s n o t i n v o l v e a n involves an acknowledgment
acknowledgment of guilt of guilt
(203) Admission is any extra-judicial statement or conduct Civil transactions and to Acknowledgement of guilt in
matters of fact in criminal criminal cases
(act or omission) by a party that is inconsistent with the cases not involving criminal
position the party presently takes. intent
May be made by third persons Can be made only by the
Admission is not hearsay and not a hearsay exception. party himself
(204) What is the rule on admissions? (Sec. 26) Express or implied Always express
The act, declaration or omission of a party as to a rele-

vant fact may be given in evidence against him. OFFER OF COMPROMISE (Sec. 27)
The rule that the admission must be made by the party
(209) Compromise. Compromise is an agreement made be-
himself does not apply if it is an adoptive admission.
tween two or more parties as a settlement of matters in
(205) Distinguish extra-judicial admissions from judicial dispute.
admissions
(210) Effect of compromise in civil cases
Judicial Admissions Extra-Judicial Admissions In civil cases, an offer of compromise is not an admis-
Rule 129, Sec. 4 Rule 130, Sec. 26 sion of any liability, and is not admissible in evidence
against the offeror.
In the course of a proceeding Out-of-court declaration
in the same case Ratio: It is the policy of the law to favor the settlement of
Does not require proof Requires proof disputes, to foster compromises and to promote peace.
Conclusive upon the admitter Rebuttable
XPN: When such offer is clearly not to buy peace but
Admissible even if self-serving Admissible only if disserving amounts to an admission of liability the offered compro-
Subject to cross-examination Not subject to cross mise being directed only to the amount paid.
examination
The fact that a writing contains an offer of compromise
Admissions in the course of discovery proceedings are does not render it inadmissible in evidence if it is com-
judicial admissions. petent evidence for other purposes. Thus, an express
and an unqualified admission of indebtedness accom-
(206) Self-Serving Declarations. Self-serving declarations
panying an offer of compromise is admissible in evi-
refer to one which has been made extra-judicially by the
dence.
party to favor his interest.
It is excluded on the same ground as any hearsay evi- (211) Effect of compromise in criminal cases
dence, which is the lack of opportunity for cross-exami- In criminal cases, an offer of compromise by the ac-
nation by the adverse party and the inherent untrustwor- cused may be received in evidence as an implied admis-
thiness and it would open the door to fraud and fabrica- sion of guilt.
tion of testimony.
A plea of forgiveness may be considered analogous to
(207) When are self-serving statements admissible? an attempt to compromise a criminal case since no one
would ask for forgiveness
1. When they form part of the res gestae
2. When they are in the form of complaint and excla- XPN:
mations of pain and suffering 1. Those involving quasi-offenses or criminal negli-
3. When they are part of a confession offered by the gence (ex. reckless imprudence)
prosecution 2. Those covered by the Katarungang Pambarangay
4. Where the credibility of a party has been assailed Law
on the ground that his testimony is a recent fabrica- 3. BP 22 - the drawer or maker is allowed to pay in full
tion, in which case his prior declaration, even if self- the holder of the check within 5 banking days from
serving, may be admitted (Testimonial Rehablita- notice that the check has not been paid
tion) 4. Plea of guilty later withdrawn
5. Where they are offered by the opponent 5. An unaccepted offer of plea of guilty to a lesser
6. Where they are offered without objection offense
6. An offer to pay or the payment of medical, hospital
(208) Admissions vis-a-vis Confessions
or other expenses occasioned by an injury

7. Tax cases, as the law provides that the payment of (217) Vicarious Admissions
any internal revenue tax may be compromised, and The basis for admitting such admission is that the per-
all criminal violations may likewise be compro- son making the statement is under the same circum-
mised, except those already filed in court and those stances as the person against whom it is offered. Such
involving fraud circumstances give him substantially the same interest
An offer of compromise that may be considered an im- and the same motive to make a statement about certain
plied admission need not be made by the accused him- matters
self; it ma be made by his lawyer or relatives, provided it 1. Admission by a co-partner or agent (Sec. 29)
is made with the consent of the accused or with his 2. Admission by a co-conspirator (Sec. 30)
knowledge and he does not stop it. 3. Admission by privies (Sec. 31)
(212) “Good Samaritan” Rule
An offer to pay or the payment of medical, hospital and
ADMISSIONS BY A THIRD-PARTY (Sec. 28)
other expenses occasioned by an injury is not admissi-
ble in evidence as proof of civil and criminal liability for ADMISSIONS BY A CO-PARTNER OR
the injury (Rule 130, Sec. 27, par. 2)
AGENT (Sec. 29)
This is to encourage the giving of charitable and merito- (218) What are the requisites?
rious aid to the victims of accidental harm plus a con-
1. The act or declaration of a partner or agent of the
cern that such payment may have been prompted solely
party must be within the scope of his authority
by humanitarian motives.
2. During the existence of the partnership or agency
(213) Distinguish an offer of compromise from ordinary 3. After the partnership or agency is shown by evi-
admission dence other than such act or declaration
The same rule applies to the act or declaration of a joint
Offer of Compromise Ordinary Admission owner, joint debtor, or other person jointly interested with
The proposal is tentative and The intention is apparently to the party.
any statement made in admit liability and to seek to
connection with it is buy or secure relief against a Ratio: What is done by an agent within the scope of his
hypothetical - to buy peace liability recognized as such agency is in legal effect done by the principal.
and, in contemplation of
mutual concessions
(219) Why is the admission of a co-partner received
Although a judicial or an extra-judicial amicable settle- against another?
ment does not bear the court’s approval, “...the agree- The admissions of one partner are received against an-
ment can become the source of rights and obligations of other, not on the ground that they are parties to the
the parties.” record, but on the ground that they are identified in in-
terest, and that each is agent for the other, and that the
(214) Cases where compromises are not allowed acts and declarations of one during the existence of the
1. Civil status of persons partnership, while transacting its business and within the
2. Validity of a marriage or legal separation scope of the business, are evidence against the other/s.
3. Any ground for legal separation
Where the admissions are made in connection with the
4. Future support
winding up of the partnership affairs, said admissions
5. Jurisdiction of courts
are still admissible as the partner is acting as an agent of
6. Future legitime
his co-partners in said winding up.
7. Habeas corpus and election cases
ADMISSION BY CONSPIRATOR (Sec. 30)

RES INTER ALIOS ACTA
(220) What does admission by conspirator refer to?
(215) “Res Inter Alios Acta” Rule
It refers to an extrajudicial declaration of a conspirator,
The expression if fully expressed reads, “Res inter alios
and not to his testimony given on the stand which is
acta alteri nocere non debet” which literally means that
subject to cross-examination.
“things done between strangers ought not to injure
those who are not parties to them.” (221) What are the requisites?
(216) Two branches of the Res Inter Alios Acta rule 1. Conspiracy must be first proved by evidence other
than the admission itself
1. Rule 130, Sec. 28 The rule that the rights of a
2. Admission relates to the conspiracy itself
party cannot be prejudiced by an act, declaration,
3. It has been made while the declarant was engaged
or omission of another, except as hereunder pro-
in carrying out the conspiracy
vided as vicarious admissions
The arrest of the declarant is often found to terminate
2. Rule 130, Sec. 34 The rule that evidence of previ-
the declarant’s participation in the conspiracy so that the
ous conduct or similar acts at one time is not ad-
declarant’s post-arrest statements do not qualify as
missible to prove that one did or did not do the
admissible co-conspirator statements.
same act at another time

ADMISSION BY PRIVIES (Sec. 31) the truthfulness of the statements of the witnesses who
had confessed the commission of the offense. Where
(222) What does admission by privies refer to? the accused acquiesced and willingly took part, although
silently int he reenactment of a crime, his acts therein
Privies refers to those who have mutual or successive
may be considered as evidence against him.
relationship to the same rights of property or subject
matter such as personal representatives, heirs, devisees,
legatees, assigns, voluntary grantees, or judgment credi- CONFESSION (Sec. 33)
tors or purchasers from them with notice of the facts.
(227) Confession. The declaration of an accused acknowl-
It is that the declarant was so situated that his interest
edging his guilt of the offense charged, or any offense
were such that he would not have made the admission
necessarily included therein, may be given in evidence
to the prejudice of his title or possession unless they
against him.
were true. The declarant need not be presented as wit-
ness. His statement may be proved by those who have
knowledge of them. SIMILAR ACTS AS EVIDENCE (Sec. 34)
(223) What are the requisites? Conduct and demeanor of a party at the trial tending
to show consciousness of liability may be admitted
1. There must be privity between the party and the
against such party.
declarant
2. The declarant as predecessor in interest made the Flight of the accused after the commission of the
declaration while holding the title to the property offense is evidence of guilt. Ratio: The wicked flee, even
3. The admission relates to the property when no man pursueth; but the righteous are as bold as
a lion. However, the fact that the accused did not flee
ADMISSION BY SILENCE (Sec. 32) from the scene of the crime is not sufficient ground to
exculpate a person from liability.
(224) What are the requisites? In an administrative complaint against a lawyer for his
1. He must have heard or observed the act or declara- negligence in the performance of duties as counsel
tion of the other person
2. He must have had the opportunity to deny it UNACCEPTED OFFER (Sec. 35)
3. He must have understood the statement
4. He must have an interest to object, such that he (228) Unaccepted offer. An offer in writing to pay a particu-
would naturally have done so, if the statement was lar sum of money or to deliver a written instrument or
not true specific personal property is, if rejected without valid
5. The facts were within his knowledge cause, equivalent to the actual production and tender of
6. The fact admitted or the inference to be drawn form the money, instrument or property.
his silence is material to the issue
Quitacet consentire videtur. He who is silent appears to
consent.
HEARSAY AND
Note: The accused’s right to remain silent prevails over
EXCEPTIONS
this section.
TESTIMONIAL KNOWLEDGE (Sec. 36)
(225) What is the doctrine of adoptive admission?
(229) Testimonial knowledge. A witness can testify only to
An adoptive admission is a party’s reaction to a state-
those facts which he knows of his personal knowledge,
ment or action by another person when it is reasonable
that is, which are derived from his own perception, ex-
to treat the party’s reaction as an admission of some-
cept as otherwise provided in the Rules.
thing stated or implied by the other person.
(230) Hearsay Evidence. Evidence is called hearsay when its
(226) What are instances where there is no implied ad-
mission? probative force depends in whole or in part on the com-
petency and credibility of some persons other than the
1. Allegations of unliquidated damages
witness by whom it is sought to produce it (outside de-
2. Allegations which are not material to the cause of
clarant). It is the evidence not of what the witness knows
action
himself but of what he has heard from others.
3. Conclusions of fact/law
4. Allegations of usury other than in a complaint Hearsay evidence may be verbal or in writing.
5. If defendant has not filed his answer and is de- Elements of hearsay evidence:
clared in default
1. An out-of-court statement, oral or written or non-
6. Act or declaration was made in the course of a
verbal conduct, made by one other than the one
custodial investigation
made by the declarant or witness testifying at the
Note: It has, however, been held that the reenactment of trial; and
the crime is not part of a formal official investigation. The
reenactment is a police continuance, designed to test

2. The out-of-court statement must be offered to 1. Statements offered to prove the declarant’s state of
prove the truth of the matter asserted in the out-of- mind, mental condition, knowledge, belief, inten-
court statement tion, ill-will and other emotion
2. Statements offered to prove the declarant’s physical
(231) Reason for excluding hearsay evidence. The basis condition, illness and the like
for exclusion lies in the fact that hearsay testimony is not 3. Statements of a person from which an inference
subject to the tests which can ordinarily be applied for may be made as to the state of mind of another,
the ascertainment of the truth of the testimony, since the that is knowledge, belief, motive, good or bad faith,
declarant is not present and available for cross-examina- etc. of the latter
tion. 4. Statements which may identify the date, place and
In criminal cases, the admission of hearsay evidence person in question
would be a violation of the constitutional provision that 5. Statements showing the lack of credibility of a wit-
the accused shall enjoy the right of being confronted ness / statements introduced to impeach a witness
with the witnesses testifying against him and to cross- 6. Statements offered to prove its effect on the listener
examine them. / hearer
Moreover, the court is without opportunity to test the ❖ Are newspaper accounts of an incident hearsay evi-
credibility of hearsay statements by observing the de- dence? Newspaper accounts of an incident are hearsay if of-
meanor of the person who made them. fered for a purpose other than the truth of the matter asserted.
The newspaper account is admissible only to prove that there
The hearsay rule therefore bars the admission of evi- was a publication and merely the tenor of the news, but not its
dence that has not been given under oath or solemn truth. (Feria v. Court of Appeals)
affirmation and more importantly, has not been subject- ❖ The prosecution presented in evidence a newspaper
ed to cross-examination by opposing counsel. clipping of the report to the reporter who was present
during the press conference stating that X admitted the
(232) When is the hearsay rule not applicable to the robbery. Is the newspaper clipping admissible against X?
testimony of a witness regarding a statement The newspaper clipping is admissible as non-hearsay if offered
made by a third person? for the purpose of showing that the statement of X was made to
a reporter regardless of the truth or falsity of the statement. The
Where a statement is not offered for the truth of the admissibility depends now on whether the fact that the state-
matter asserted but for an evidentiary purpose not de- ment was made is relevant to the case. If it is relevant, it is ad-
missible as an independently-relevant statement (a non-hearsay
pendent on the truth of the matters asserted.
declaration). It would be hearsay if offered to prove the truth that
Independently-relevant statements. Where, regard- X was the robber.
less of the truth or the falsity of a statement, the fact that The statement of X to a reporter may be admitted as an admis-
it has been made is relevant, the hearsay rule does not sion under Sec. 26 of Rule 130.
apply, but the statement may be shown. Evidence as to
(233) Distinguish “hearsay evidence” from “opinion evi-
the making of such statement is not secondary but pri-
dence”
mary, for the statement itself may constitute a fact in
issue, or be circumstantially relevant as to the existence Hearsay evidence is one that is not based on one’s per-
of such a fact. sonal perception but based on the knowledge of others
to prove the truth of the matter asserted in an out-of-
The independently relevant statements may be grouped court declaration.
into two classes (Estrada v. Desierto):
An opinion evidence is based on the personal knowl-
1. Those statements which are the very facts in edge or personal conclusions of the witness based on
issue; and his skill, training or experience.
2. Those statements which are circumstantial evi-
dence of the facts in issue (234) Exceptions to the Hearsay Rule
Statements which are the facts in issue. If the fact 1. Dying declarations (Sec. 37)
sought to be established is that certain words were spo- 2. Declaration against interest (Sec. 38)
ken, without reference to the truth or falsity of the words, 3. Act or declaration against pedigree (Sec. 39)
the testimony of any person who heard the statement is 4. Family reputation or tradition regarding pedigree
original evidence and not hearsay. Such evidence is (Sec. 40)
admitted for the purpose of establishing merely the ut- 5. Common reputation (Sec. 41)
terance of the words, and not their truth, but the admis- 6. Part of the res gestae (Sec. 42)
sion in evidence of the words spoken is not to be used 7. Entries in the usual course of business (Sec. 43)
in determining the issue of their truth. 8. Entries in official records (Sec. 44)
9. Commercial lists and the like (Sec. 45)
In a prosecution for slander, a witness may testify that he
10. Learned treatises (Sec. 46)
heard the accused utter the slanderous words, for the
11. Testimony or deposition at a former trial (Sec. 47)
making of the statements is the principal fact in issue,
and the witness is called upon to testify as to a matter
within his personal knowledge. DYING DECLARATION (Sec. 37)
Statements which are circumstantial evidence of
(235) Dying Declaration (Ante Mortem Statement) is a
the facts in issue.
statement made by the victim of homicide, referring to

the material facts which concern the cause and circum- credibility of testimony of a witness in court. One may
stances of the killing and which is uttered under a fixed even question the competency of the declarant himself
belief that death is impending and is certain to follow who like any other witness, may be impeached (thus the
immediately, or in a very short time, without an opportu- requirement that the declarant must be a competent
nity of retraction and in the absence of all hopes of re- witness had he survived). A dying declaration as an ex-
covery. ception to the hearsay rule is not meant to confer com-
petency on an otherwise incompetent witness.
It may be received in any case (civil or criminal) wherein
his death is the subject of inquiry, as evidence of the The credibility or trustworthiness of those who have
cause and surrounding circumstances of such death. allegedly heard or taken down the dying declaration and
the form and manner by which the declaration was tak-
(236) Reason for admissibility en, are vital points to be considered by an objector.
1. Necessity - because the declarant’s death renders Where it is shown that the persons form the prosecution
impossible his taking the witness stand and it often were the ones who squeezed out the dying declaration
happens that there is no other equally satisfactory from the ops of a weakened declarant through questions
proof of the crime calculated to bring out a desired response, a conscien-
tious counsel may bring this matter up in court.
2. Trustworthiness - the declaration is made in extrem-
ity, when the party is at the point of death and every
hope of this world is gone, when every motive to DECLARATION AGAINST INTEREST (Sec. 38)
falsehood is silenced, and the mind is induced by
the most powerful consideration to speak the truth (239) Declaration Against Interest. This exception refers to
a declaration made by a person who at the time his dec-
(237) Elements of a dying declaration laration is presented in evidence is already dead or is
1. That the declaration is one made by a dying per- unable to testify. This declaration must be one which
son when made, was known to the declarant himself to be
against his interest, pecuniary, moral (or penal), and
2. That the declaration was made by said dying per-
which would not have been made unless he believed it
son under a consciousness of his imminent
to be true.
death
3. That the declaration refers to to the cause and It is not enough that a declaration against interest was
circumstances surrounding the death of the made. It is necessary that the declarant knew that the
declarant and not of anyone else statement was against his interest and which he would
4. That the declaration is offered in a case where the not have made had it not been true.
declarant’s death is the subject of inquiry Likewise, if the declaration is favorable to the interest of
5. The declarant is competent as a witness had he the declarant, it is a mere self-serving statement and
survived does not fall as an exception to the hearsay rule.
6. The declarant should have died
Note: The declaration against interest made by the de-
To admit a dying declaration in evidence, it must be ceased or by one unable to testify is admissible even
shown that the declarant believed at the time the state- against the declarant’s successors in interest or even
ment was made, that he was in a dying condition and against third persons.
had given up the hope of surviving. This consciousness
of an impending death may be established by other
ACT OR DECLARATION ABOUT PEDI-
circumstances such as the nature of the injury and the
GREE (Sec. 39)
conduct of the declarant.
Subsequent belief in recovery before his actual death (240) Act or Declaration Against Pedigree. The act or
does not bar admissibility of a declarant’s statement. declaration of a person deceased, or unable to testify, in
The admissibility of the dying declaration depends upon respect to the pedigree of another person related to him
whether at the time of the declaration the deceased by birth or marriage, may be received in evidence where
believed that the injury received would be fatal. The it occurred before the controversy, and the relationship
circumstance that he thereafter recovered does not ren- between the two persons is shown by evidence other
der the declaration inadmissible. than such act or declaration.
Note: If the declarant survives, his declaration may be The word “pedigree” includes relationship, family ge-
admissible as part of the res gestae. nealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the
❖ Let us assume that the declarant’s last words were, “I do relatives. It embraces also facts of family history inti-
not know the one who stabbed me.” May these words be
admitted to favor the accused? It will. There is nothing in the mately connected with pedigree.
rules which prohibits the admission of a dying declaration that is
favorable to the accused. The early case of U.S. v. Antipolo (241) Requisites
affirms that dying declarations are admissible in favor of the
1. The declarant is dead or unable to testify
defendant as well as against him.
2. The declarant is related by birth or marriage
(238) Assailing a dying declaration. Courts have to apply to to the person whose pedigree is in issue
dying declarations the same rules applied in testing the 3. The declaration was made before the contro-
versy

4. The relationship between the two persons is shown As a general rule, the reputation of a person should be
by evidence other than such act or declara- that existing in the place of his residence, it may also be
tion that existing in the place where he is best known.
(248) Distinguish “common reputation” from “rumor”

FAMILY REPUTATION OR TRADITION RE-
GARDING PEDIGREE (Sec. 40) Common Reputation Rumor
Presupposes the existence of Story current without known
(242) Family Reputation or Tradition Regarding Pedi-
a general belief already authority for its truth, and
gree. The reputation or tradition existing in a family formed on which the general therefore by its nature, does
previous to the controversy, in respect to the pedigree of opinion is founded. not yet represent the
prevailing belief in a
any one of its members, may be received in evidence if community.
the witness testifying be also a member of the family,
either by consanguinity or affinity. Entries in family bibles (249) Character means that which a person really is, while
or other family books or charts, engraving or rings, fami- reputation is that which he is reputed to be.
ly portraits and the like, may be received as evidence of
pedigree. (250) Evidence of negative good repute. Where the foun-
dation proof shows that the witness was in such position
(243) This exception involves that he would have heard reports derogatory to one’s
1. A statement by a member of the family either character, the reputation testimony may be predicated
by consanguinity or affinity on the absence of reports of bad reputation or on the
2. The statement is about the reputation or tradi- fact that the witness had heard nothing against the per-
tion of the family in respect to the pedigree of son.
any member of the family
A man’s character is not talked about till there is some
3. The reputation or tradition is one existing previ-
fault to be found with it. It is the best evidence of this
ous to the controversy
character that he is not talked about at all.
COMMON REPUTATION (Sec. 41) PART OF THE RES GESTAE (Sec. 42)
(244) What may be established by common reputation?
(251) Res gestae literally means “things done.” It includes
1. Matters of public interest more than 30 years old the circumstances, facts and declarations incidental to
2. Matters of general interest more than 30 years the main fact or transaction necessary to illustrate its
old character and also includes acts, words or declarations
3. Matters respecting marriage or moral character which are closely connected therewith as to constitute
and related facts; or part of the transaction.
4. Individual moral character
What is done or said by the participants under the im-
Common reputation cannot establish pedigree. mediate spur of the transaction becomes part of the
transaction that thus speaks. It is the event that speaks
(245) Reason for admissibility for itself through the spontaneous words or instinctive
1. Necessity - because of the usual difficulty in obtain- words or conduct of the witness and not the witness
ing other evidence than reputation speaking for and about the event.
2. Trustworthiness - these facts are likely to have been
(252) Distinguish “res gestae in connection with a
generally inquired about and that persons having homicidal act” from “dying declarations”
personal knowledge have disclosed facts which
thus have been discussed and generally known in Res Gestae in connection Dying Declarations
the community. with a Homicidal Act
May be made by the killer Can be made only by the
(246) Distinguish “matters of public interest” from himself after or during the victim
“matters of general interest” killing or that of a third person
May precede, accompany or Made only after the homicidal

Matters of Public Interest Matters of General Interest be made after the homicidal attack has been committed
Common to all citizens of the Common only to a single attack was committed
state or to the entire people community or to a J u s t i fi c a t i o n i n t h e Trustworthiness based upon
considerable number of spontaneity of the statement its being given in awareness
persons forming part of the of impending death
community
(253) Two types of res gestae

(247) Common reputation is the definite opinion of the
community in which the fact to be proved is known or 1. Spontaneous Statements
exists. It means the general or substantially undivided Statements made by a person while a startling
reputation, as distinguished from a partial or qualified occurrence is taking place or immediately prior or
one, although it need not be unanimous. subsequent thereto with respect to the circum-
stances thereof

Requisites of admissibility of spontaneous state- d. Verbal acts must characterize or explain the
ments: legal significance of the equivocal act
a. There must be a startling occurrence (254) Distinguish “verbal acts” from “spontaneous
b. That while the event is taking place or imme- statements”
diately prior to or subsequent thereto, a
statement has been made Verbal Acts Spontaneous Statements
c. The statement must relate to the circum-
The res gestae is the equivo- The res gestae is the startling
stances of the startling occurrence; and cal act occurrence
d. The statement must be spontaneous, before
V e r b a l a c t m u s t b e Statements may be made
the declarant had the time to contrive or de- contemporaneous with or prior, or immediately after the
vise a falsehood m u s t a c c o m p a n y t h e startling occurrence.
equivocal act
The event must be of such a nature as to cause an
excited reaction in an average individual.
ENTRIES IN THE COURSE OF BUSINESS
The interval of time between the startling occur- (Sec. 43)
rence and the statement depends upon the circum-
stances; but such statement must have been made (255) Entries in the ordinary course of business means
while the declarant was under the immediate influ- that the entries have been made regularly, as is usual, in
ence of the startling occurrence. the management of the trade or business. It is essential
that there be regularity in the entries. It is otherwise
However, if the declarant was rendered uncon-
known as the “Shop-Book Rule.”
scious after the startling occurrence, his statements
relative thereto upon regaining consciousness are This hearsay exception is commonly encountered in
still part of the res gestae regardless of the time breach of contract suits and suits for collection of a sum
that intervened in between. of money.
Reason for admissibility: (256) Reason for admissibility. Reliability is furnished by the
a. Necessity - natural and spontaneous utter- fact that regularly kept records typically have a high
ances are more convincing than the testimony degree of accuracy.
of the same person on the stand The law does not fix any precise moment when the en-
b. Trustworthiness - the statement is made in- tries should be made. It is sufficient if the entry was
stinctively, the facts speaking through the made within a reasonable period of time so that it may
party not the party talking about the facts appear to have taken place while the memory o the facts
was unimpaired.
It is essential that they should have been caused by
something startling enough, to produce nervous (257) Requisites
excitement. The declarant must be a witness to the
1. That the entrant made the entry in his profes-
event to which the utterance relates. He must have
sional capacity or in the performance of a duty
personally observed the fact.
2. That the entry was made in the ordinary course
What the law distrusts is not the “after speech” but of business or duty
the “afterthought” 3. The entries must have been made at or near the
The admissibility is anchored on the theory that the time of the transaction to which they relate
statement was uttered under circumstances where 4. The entrant must have been in a position to know
the opportunity to fabricate is absent. The state- the facts stated in the entries
ment is a reflex action rather than a deliberate act, 5. The entrant must be deceased or unable to
instinctive rather than deliberate. testify
2. Verbal Acts (258) How regularity of entries proved. It may be proved

Statements accompanying an equivocal act materi- by the form in which they appear in the corresponding
al to the issue and giving it a legal significance. book.
Equivocal Act - ambiguous one which in itself does There is no overriding necessity to bring into courts all
not signify anything when taken separately. the clerk or employees who individually made the entries
Thus, in bribery, the declaration made by the third in a long account. It is sufficient that the person who
person accompanying the delivery of money is supervises them testify that:
admissible. 1. The account was prepared under his supervision
Requisites: 2. The entries were regularly entered in the ordinary
course of business
a. The principal act to be characterized must be
equivocal
b. The equivocal act must be material to the ENTRIES IN OFFICIAL RECORDS (Sec. 44)
issue
c. Verbal acts must be contemporaneous with (259) Requisites
the equivocal act

1. That it was made by a public officer or by an- 1. Statements of matters of interest to persons en-
other person specially enjoined by law to do gaged in an occupation
so 2. The statements must be contained in a list, register,
2. That it was made by a public officer in the perfor- periodical or other published compilation
mance of his duty, or by another person in the 3. That compilation is published for use by persons
performance of a duty specially enjoined by law engaged in that occupation
3. The public officer or the other person had suffi- 4. Is generally relied upon by them
cient knowledge of the facts stated by him, Examples: Mortality tables and accepted actuarial and
which he must have acquired personally or through annuity tables, rate of exchange in newspapers, etc.
official information
(265) Reason for admissibility
(260) To qualify their statements as official information ac-
quired by the officers who prepared the reports, the 1. Necessity - because of the actual inaccessibility of
persons who made the statements not only must have the persons responsible for the compilation of mat-
personal knowledge of the facts stated but must have ters contained in a list, register, periodical or other
the duty to give such statements for record. (Ex. Monthly published compilation and tremendous inconve-
reports of judges). nience it would cause to the court if it would issue
summons to these numerous individuals
(261) Reason for admissibility 2. Trustworthiness - they have no motive to deceive
1. Necessity - practical impossibility of requiring the and they further realize that unless the list, register,
official’s attendance as a witness to testify to the periodical or other published compilation are pre-
innumerable transactions occurring in the course of pared with care and accuracy, their work will have
2.
his duty
Trustworthiness - there is a presumption of regulari- ! no commercial or probative value
ty in the performance of official duty LEARNED TREATISES (Sec. 46)

(262) Probative value: It is only a prima facie evidence of the (266) In order that a published treatise, periodical or pamphlet
facts stated therein. on a subject of law, history, science or art may be ad-
missible, it is necessary either:
It is not essential for the officer making the official
statement to have a personal knowledge of the facts 1. That the court can take judicial notice of it
stated by him, it being sufficient that the official informa- 2. A witness, expert in the subject, testifies that the
tion was acquired by officers who prepared the reports write of the statement in the treatise, periodical, or
from persons who do not only have personal knowledge pamphlet is recognized in his profession or calling
of the facts stated but must have the duty to give such as expert in the subject
statements for the record (Africa v. Caltex, 1966).
(267) Reason for admissibility
It is well settled that entries in the police blotter should
1. Necessity - the ordinary expert witness has no
not be given due significance or probative value as they
knowledge derived from personal observation. He
are not conclusive evidence of the truth of their contents
virtually reproduces, literally or in substance, con-
but merely of the fact that they were recorded. Hence,
clusions of others which he accepts on the authori-
they do not constitute conclusive proof (People v. Cabr-
ty of the eminent names responsible for them. It
era, Jr., 2003)
would be costly to refuse to accept information
(263) Distinguish “entries in the course of business” from a competent source ready at hand.
from “entries in official records” 2. Trustworthiness - the learned writers have no mo-
tive to misrepresent. Perhaps, they may be biased
Entries in the Course of Entries in Official Records in favor of the truth as they see it and most impor-
Business
tantly, it is not a bias in favor of a litigant in the
The person who made the There is no such requirement lawsuit
entries must be dead or
unable to testify
(268) Learned writers have no motive to misrepresent. He is
Needs authentication Need not be authenticated aware that his work will be carefully scrutinized by the
Best evidence rule applies Exception to the best learned members of his profession and that he shall be
evidence rule (irremovability subject to criticisms and ultimately rejected as an au-
of public records) thority on the subject matter if his conclusions are found
The entries are made The entrant is a public officer, to be invalid.
pursuant to a duty, either or if a private individual, must
legal, contractual, moral or have acted pursuant to a
religious specific legal duty TESTIMONY OR DEPOSITION AT A
FORMER PROCEEDING (Sec. 47)
!
COMMERCIAL LISTS & THE LIKE (Sec. 45) (269) Requisites
1. The testimony or depositions of a witness de-
(264) Requisites ceased or unable to testify

2. The testimony was given in a former case or pro- lowing factors be present: (a) training and education; (b)
ceeding, judicial or administrative particular, first-hand familiarity with the facts of the case
3. Involving the same parties and (c) presentation of authorities or standards upon
4. Relating to the same subject matter; and which his opinion is based.
5. The adverse party having had an opportunity to An expert witness may base his opinion either on the
cross-examine him first-hand knowledge of the facts or on the basis of hy-
pothetical questions where the facts are presented to
(270) What may be admitted as evidence is testimony or de-
position. A decision in a previous case involving the him hypothetically and on the assumption that they are
same parties and subject matter does not fall under the true, formulates his opinion on the hypothesis.
exception.
(274) Expert evidence is admissible only if:
The requirement of identity of parties is met where the
1. The matter to be testified requires expertise; and
party in the former case is in “privity” with, or is substan-
2. The witness has been qualified as an expert
tially the same as, a party in the present case.
The court is not, however, bound by the opinion of an
What is considered as a testimony in the former trial is
expert. Expert opinion evidence is to be considered or
the “transcript of the witness’ testimony.”
weighed by the court like any other testimony, in the
(271) In criminal cases, either party may utilize as part of its light of its own general knowledge and experience upon
evidence the testimony of a witness who is deceased, the subject of inquiry.
out of or cannot with due diligence be found in the
Philippines, unavailable, or otherwise unable to testify, (275) In presenting an expert witness:
given in another case or proceeding, judicial or adminis- 1. Introduce and qualify the witness
trative, involving the same parties and subject matter, 2. Let him give his factual testimony, if he has knowl-
the adverse party having the opportunity to cross-exam- edge of the facts
ine him (Rule 115, Sec. 1(f))
3. Begin the hypothetical question by asking him to
assume certain facts as true
OPINION RULE (Sec. 48) 4. Conclude the question, by, first asking the expert if
he has an opinion on a certain point assuming that
(272) Opinion is an inference or conclusion drawn from facts these facts are true and secondly, asking him, after
observed.
ha has answered affirmatively, to give his opinion
GR: Witnesses must give the facts personally observed on the point
by him and not their inferences, conclusions or opinions. 5. After he has stated his opinion, ask him to give his
XPN: reasons
1. Opinion of expert witness (Sec. 49) - on a matter (276) Hypothetical question. Hypothetical questions may be
requiring special knowledge, skill, experience or asked of an expert to elicit his opinion. Courts, however,
training which he is shown to possess are not necessarily bound by the expert’s findings.
2. Opinion of ordinary witness (Sec. 50) A proper hypothetical question places before the expert
witness assumed facts which have been proved. It then
a. The identity of a person about whom he has
calls for an opinion based thereon.
adequate knowledge
b. A handwriting with which he has sufficient Hypothetical questions must include only facts that are
familiarity supported by the evidence.
c. The mental sanity of a person with whom he is
(277) Standards for Expert Testimony
sufficiently acquainted
d. The witness’ impressions of the emotion, be- 1. Frye Standard
havior, condition or appearance of a person Scientific evidence is admissible if it was based on
a scientific technique generally accepted as reliable
Reason for admissibility. It is for the court to form an
in the scientific community.
opinion concerning the facts in proof of which evidence
is offered. Witness must testify to facts within their 2. Schwartz Standard
knowledge and may not state their opinions. The admissibility of specific test results in a particu-
lar case hinges on the laboratory’s compliance with
appropriate standards and controls, and the avail-
OPINION OF EXPERT WITNESS (Sec. 49)
ability of their testing data and results.
(273) Expert evidence is the testimony of one possessing in 3. Daubert Standard
regard to a particular subject or department of human The judge must ensure that the testimony’s rea-
activity, knowledge which is not usually acquired by soning or method is scientifically valid and is rele-
other persons. vant to the issue. Admissibility would depend on
Test: Whether the opinion called for will aid the fact find- factors such as:
er in resolving an issue.
a. Whether the theory or technique can be or has
There is no definite standard of determining the degree been tested
of skill or knowledge that a witness must possess in b. Whether the theory or technique has been
order to qualify as an expert. It is sufficient that the fol- subjected to peer review and publication

c. The known or potential rate of error 2. The prosecution may not prove bad moral charac-
d. The existence and maintenance of standards ter of the accused unless in rebuttal when the latter
controlling the technique’s operation opens the issue by introducing evidence of his
e. Whether the theory or technique is generally good moral character
accepted in the scientific community This prevents a pronouncement of guilt not be-
4. Kumho Standard cause there exists sufficient evidence of his guilt,
If scientific, technical or other specialized knowl- but because he is a “bad” man.
edge will assist the trier of fact to understand the 3. As to the offended party, his good or bad moral
evidence or to determine a fact in issue, a witness character may be proved as long as it tends to
qualified as an expert by knowledge, skill, experi- establish the probability or improbability of the
ence, training, or education, may testify thereto in offense charged
the form of an opinion or otherwise, if:
(Ex. If the theory of the accused is that he acted in
a. The testimony is based upon sufficient facts or self-defense, the character of the victim for vio-
data lence, turbulence, revengefulness and the like may
b. The testimony is the product of reliable princi- throw light on the probability of his having been the
ples and methods; and aggressor).
c. The witness has applied the principles and
methods reliably to the facts of the case XPN to the XPN:
In our jurisdiction, the restrictive tests for admissibility 1. Proof of the bad character of the victim in a murder
established by Frye-Schwartz and Daubert-Kumho go case is not admissible if the crime was committed
through treachery and premeditation
!
into the weight of the evidence. (Herrera v. Alba, 2005)
2. In prosecution for rape, evidence of complainant’s
past sexual conduct, opinion thereof or of his/her
OPINION OF ORDINARY WITNESS (Sec. 50) reputation shall not be admitted unless, and only to
the extent that the court finds that such evidence is
(278) Ordinary opinion evidence is that which is given by a material and relevant to the case.
witness who is of ordinary capacity and who has by B. In Civil Cases - The moral character of either party
opportunity acquired a particular knowledge which is
thereto cannot be proved unless it is pertinent to
outside the limits of common observation and which
the issue of character involved in the case (ex. In
may be of value in elucidating a matter under considera-
tion. civil actions for damages arising from the offenses
of libel, slander or seduction).
Shorthand rendering of facts. This is also known as in-
stantaneous conclusions of the mind. The witness may C. In Witnesses - Both criminal and civil, the bad
testify on his impressions of the emotion, behavior, con- moral character of a witness may always be proved
dition and appearance of a person. by either party (Sec. 11, Rule 132) but not evidence
of his good moral character, unless such character
The memory may retain no single detail indeed. One may
has been impeached (Sec. 14, Rule 132)
never have recognized a single detail yet the appearance
of the man may have left upon them mind an indelible Proving good or bad character of a party. The rule is that
impression as to his physical and mental condition. testimony to prove good or bad character of a party to a
civil action or of the defendant in a criminal prosecution
(279) Character Evidence (Sec. 51) must relate and be confined to the general reputation
Character is the aggregate of the moral qualities which which such person sustains in the community or neigh-
belong to and distinguish an individual person. borhood win which he lives or has lived.
It is not the same as a man’s reputation because the Specific conduct of the party exhibiting character is not
latter depends on attributes which others believe one to allowed to prove the character of such person for three
possess. reasons: undue prejudice, unfair surprise and confusion
of issues.
GR: Character evidence is not admissible in evidence
under Sec. 51 of Rule 130. Ratio: The evidence of a !
person’s character does not prove that such person !
acted in conformity with such character or trait in a par-
!
ticular occasion.
XPN:
!
A. In Criminal Cases - Preponderance of evidence
1. Accused may prove his good moral character
which is pertinent to the moral trait involved in the
offense charged. (Ex. In prosecutions for estafa,
perjury or false testimony wherein the person’s
moral trait for honesty or probity is involved.

RULE 131
If the prosecution does not have a prima facie case, it is
futile to waste time in considering the evidence present-
ed by the defense. SHould the prosecution succeed in
BURDEN OF PROOF establishing a prima facie case against the accused, the
burden is shifted upon the accused to prove otherwise.
& PRESUMPTIONS Under the Speedy Trial Act, if the accused is not brought
to trial within the time required, the information shall be
(280) Burden of proof (onus probandi) (Sec. 1) dismissed on the motion of the accused. In this case,
the burden of proof of supporting such motion is with
Burden of proof / Risk of Non-Persuasion - the duty
the accused. (Sec. 13, RA 8493)
of a party to present evidence on the facts in issue nec-
essary to establish his claim or defense by the amount A plea of self-defense shifts the burden of proof from the
of evidence required by law. prosecution to the defense since such a plea means that
the accused admits to having performed the criminal
Proof is the establishment of a requisite degree of belief
act, but disclaims legal liability on the ground that his life
in the mind of the trier of fact as to the fact in issue.
has been exposed to harm before he committed the act
Two separate burdens in burden of proof: in defense of himself.
1. Burden of going forward - that of producing evi- An accused, who claims justifying or exempting circum-
dence to support cause of action stances by way of defense, has the burden of proof to
2. Burden of persuasion - the burden of persuading establish such defense by clear and convincing evi-
the trier of fact that the burdened party is entitled to dence.
prevail
(282) Stage when burden of proof may be determined.
“Ei incumbit probatio qui dicit, no qui negat” - He wo
asserts, not he who denies, must prove. In civil cases, it is determined primarily on the pleadings
since it is where the allegations and defenses are made
(281) Upon whom burden of proof rests although it may be changed during the pre-trial and
A. In Civil Cases: during the proceedings.
1. The plaintiff has the burden of proof to show the In criminal cases, the accused raises his defenses during
truth of his allegations if the defendant raises a the pre-trial conference. However, the issues may not be
negative defense changed anymore after the pre-trial conference unlike in
2. The defendant has the burden of proof if he raises civil cases since it will already be a violation of the right
an affirmative defense on the complaint of the of the accused to be informed of the nature and cause
plaintiff of the accusation against him.
Note: In a civil case, the plaintiff is always compelled to (283) Test to determine where burden of proof lies.
allege affirmative assertions in his complaint. When he Which party would fail if he offers no evidence?
alleges a cause of action, he will be forced to allege that
he has a right and such right was violated by the other (284) Degree of proof that satisfies the burden of proof.
party. Thus, he has the duty to prove the existence of A. In Civil Cases - Preponderance of evidence
this affirmative allegation.
B. In Criminal Cases
When the defendant files his answer and sets up purely
a negative defense and no evidence is presented by To sustain Preliminary Issuance of
conviction Investigation Warrant of Arrest
both sides it is the defendant who will win the case since
Evidence of guilt Engenders a well- P ro b a b l e c a u s e
the plaintiff has not presented the quantum of evidence
beyond reasonable founded belief of (ex. that there is
required by law. doubt the fact of the reasonable ground
commission of a to believe that the
On the other hand, when the defendant in his answer crime accused has
sets up an affirmative defense, if there is no evidence committed an
presented by both sides, it is the defendant who will lose offense)
the case.
C. In Administrative Cases - Substantial evidence
Nevertheless, the defendant can raise both negative and (in a petition for a writ of amparo, the parties shall
affirmative defenses. Defenses and objections not establish their claims by substantial evidence).
pleaded either in a motion to dismiss or in the answer
are deemed waived. (Rule 9, Sec. 1) (285) Hierarchy of evidence
1. Proof beyond reasonable doubt
B. In Civil Cases: 2. Clear and convincing evidence
The burden of proof is with the prosecution by reason of 3. Preponderance of evidence
the presumption of innocence. 4. Substantial evidence
It is required that courts determine first if the evidence of (286) Burden of evidence is the logical necessity on a party
the prosecution has at least shown a prima facie case during a particular time of the trial to create a prima facie
before considering the evidence of the defense. case in his favor or to destroy that created against him
by presenting evidence.

In both civil and criminal cases, the burden of evidence Burden of Proof Burden of Evidence
lies on the party who asserts an affirmative allegation. It does not shift the burden of It creates a prima facie case
proof, which remains where it and thereby sustains the said
(287) Distinguish burden of proof from burden of evi- is, but by the presumption, burden of evidence on the
dence the one who has that burden point which it covers, shifting
is relieved from the time it to the other party. It relieves
b e i n g , f ro m i n t ro d u c i n g those favored thereby of the
Burden of Proof Burden of Evidence evidence in support of his burden of proving the fact
Does not shift and remains Shifts from party to party averment because the presumed.
throughout the entire case depending upon the presumption stands in the
exactly where the pleadings exigencies of the case in the place of evidence.
originally placed it. course of the trial.
Presumptions shift the burden of producing evidence
Generally determined by the Generally determined by the
with regard to the presumed fact.
pleadings filed by the party. developments of the trial, or
by provisions of substantive
law or procedural rules which (293) Theory of Bursting Bubble or Thayerian Theory.
may relieve the party from When opposing evidence comes into the case, the pre-
presenting evidence on the
facts alleged.
sumption, having served its purpose, is no longer opera-
tive and the issue determined on the evidence just as
though no presumption had ever existed. The effect of
(288) Upon whom burden of evidence rests
this rule is to continue the burden of persuasion on him
A. In Civil Cases: The plaintiff has to prove his affir- who initially had the benefit of the presumption. In other
mative allegations in the complaint and the defen- words, the presumption does not shift the burden.
dant has to prove the affirmative allegations in his
counterclaim and his affirmative defenses. (294) Classification of presumptions
B. In Criminal Cases: The prosecution has to prove 1. Presumption of Law (Praesumptiones Juris). It is
its affirmative allegations in the information regard- a deduction which the law expressly directs to be
ing the elements of the crime as well as the atten- made form particular facts.
dant circumstances; while the defense has to prove 2. Presumption of Fact (Praesumptiones Hominis).
its affirmative allegations regarding the existence of It is a deduction which reason draws from facts
justifying or exempting circumstances, absolutory proved without an express direction from the law to
causes or mitigating circumstances. that effect.
(289) Principle of negativing averments Presumption of Law Presumption of Fact
GR: Negative allegations need not be proved, whether in Certain inference must be Discretion is vested in the
a civil or criminal action. made whenever the facts tribunal as to drawing the
appear which furnish the inference
XPN: Where such negative allegations is an essential basis of the inference
part of the cause of action or defense, such negative Reduced to fixed rules and Derived wholly and directly
allegation does not have to be proved if it is only for the form a part of the system of form the circumstances of the
purpose of denying the existence of a document which jurisprudence. particular case by means of
the common experience of
should properly be in the custody of the adverse party. mankind.
In a criminal case, the rule is that if the subject of the
negative averment inheres in the offense as an essential (295) Presumptions of Law may be divided into:
ingredient thereof, the prosecution has the burden of 1. Conclusive Presumption - a presumption of law
proving the same. In view, however, of the difficult office that is not permitted to be overcome by any proof
of proving a negative allegation, the prosecution, under to the contrary
such circumstance, need to do no more than make a
2. Disputable Presumption - that which the law
prima facie case from the best evidence obtainable.
permits to be overcome or contradicted by proofs
(People v. Quebral, 1939)
to the contrary; otherwise, the same remains satis-
(290) Presumption is an inference as to the existence or non- factory.
existence of a fact which courts are permitted to draw
(296) Conclusive Presumptions (Sec. 2). The following are
from the proof of other facts.
instances of conclusive presumptions.
(291) Distinguish presumptions from judicial admissions 1. Estoppel in Pais (Equitable Estoppel) - Whenever
and judicial notice a party has, by his own declaration, act, or omis-
sion, intentionally and deliberately led to another to
Presumptions Judicial Admissions and
believe a particular thing true, and to act upon such
Judicial Notice
belief, he cannot, in any litigation arising out of such
The proponent still has to As a rule, the proponent need
introduce evidence of the not introduce any evidence. declaration, act or omission, be permitted to falsify
basis of the presumption. it
Requisites as to the party to be estopped:
(292) Effect of legal presumption upon
a. Conduct amounting to false representation or
concealment

b. Intent or at least expectation that the conduct Equipoise Rule: Where the evidence gives rise to
shall be acted upon two probabilities, one consistent with defendant’s
c. Knowledge, actual or constructive of the real innocence and another indicative of his guilt, that
facts which is favorable to the accused should be con-
sidered.
Requisites as to the party claiming estoppel:
2. Presumption that a person takes ordinary
a. Lack of knowledge of truth as to the facts in
care of his concerns
question
Al men are presumed to be sane and normal and
b. Reliance in good faith upon the conduct or
subject to be moved by substantially the same
statements of the party to be estopped
motives. When of age and sane, they must take
c. Action or inaction based thereon to his detri-
care of themselves. Courts operate not because
ment or prejudice (Kalalo v. Luz)
one person has been defeated or overcome by
Through estoppel an admission or representation is another but because he has been defeated or over-
rendered conclusive upon the person making it and come illegally. There must be a violation of law, the
cannot be denied or disproved as against the per- commission of what the law knows as an action-
son relying thereon (Art. 1431, Civil Code). Estoppel able wrong, before the courts are authorized to lay
is effective only as between the parties thereto or hold of the situation and remedy it. (Vales v. Villa,
their successors in interest (Art. 1439, Civil Code). 1916)
Laches - failure or neglect for an unreasonable and 3. Presumption of suppression of evidence
unexplained length of time, to do that which, by The natural conclusion is that the proof if produced,
exercising due diligence, could or should have been instead of rebutting would support the inference
done earlier; it is negligence or omission to assert a against him and the court is justified in acting upon
right within a reasonable length of time warranting a that conclusion.
presumption that the party entitled to assert it ei-
Requisites:
ther has abandoned or declined to assert it. (Tijam
v. Sibonghanoy) a. That the evidence is material
b. That the party had the opportunity to produce
2. Estoppel by Deed - The tenant is not permitted to the same
deny the title of his landlord at the time of com- c. That the said evidence is available only to said
mencement of the relation of landlord and tenant party
between them.
When presumption will not apply:
Two points to remember:
a. When the suppression of evidence is not will-
a. Estoppel may attach even though the landlord ful
does not have title at the commencement of b. When the evidence suppressed or withheld is
the relations merely corroborative or cumulative
b. Estoppel may inure in favor of the successor c. When the evidence is at the disposal of both
What a tenant is estopped from denying is the title parties
of his landlord at the time of the commencement of d. When the suppression is an exercise of privi-
the landlord-tenant relationship. If the title asserted lege
is one that is alleged to have been acquired subse- 4. Presumption from possession of stolen goods
quent to the commencement of that relation, the This is not in conflict with the presumption of inno-
presumption will not apply. cence. At the start of the criminal case, the court
will apply the presumption of innocence. But once
(297) Disputable Presumptions (Sec. 3). The following pre-
the prosecution is able to prove that a certain ob-
sumptions are satisfactory if uncontradicted, but may be
ject has been unlawfully taken, that there is a crime
contradicted and overcome by other evidence:
of theft committed and the prosecution has also
1. Presumption of Innocence proven that the accused is in possession of this
Applies to both civil and criminal cases. This pre- object unlawfully taken, then the presumption of
sumption accompanies the accused throughout the innocence disappears. The new presumption of
trial down to the moment of conviction. This pre- guilt will now take place.
sumption disappears after conviction and the ap-
5. Presumption that a person in a public office
pellate court then will presume the accused guilty.
was regularly appointed or elected to it
By reason of this presumption, an accused is not Ratio: It would cause great inconvenience if in the
called upon to offer evidence on his behalf for his first instance strict proof were required of appoint-
freedom is forfeited only if the requisite quantum of ment or election to office in all cases where it might
proof necessary for conviction be in existence. be collaterally in issue.
Basis: Founded on the principle of justice and is The burden of proof is on the adverse party to show
intended not to protect the guilty but to prevent the that he was not appointed or designated.
conviction of an innocent person.
6. Presumption that an official duty has been
regularly performed

Ratio: Those who are engaged in a given trade or busi-

ness are presumed to be acquainted with the gen-
a. Innocence and not wrongdoing is to be pre-
eral customs and usages of the occupation and
sumed
with such other facts as are necessarily incident to
b. An official oath will not be violated
the proper conduct of the business.
c. A republican form of government cannot sur-
vive long unless a limit is placed upon contro- (298) No presumption of legitimacy or illegitimacy (Sec.
versies and certain trust and confidence re- 4). There is no presumption of legitimacy or illegitimacy
posed in each governmental department or of a child born after 300 days following the dissolution of
agent at least to the extent of such presump- the marriage or the separation of the spouses. Whoever
tion alleges the legitimacy or illegitimacy of such child must
The presumption of regularity and legality of official prove his allegation.
acts is applicable in criminal as well as in civil cas- Under the Rules on DNA Evidence:
es.
1. DNA results that exclude the putative parent from
Note: In writ of amparo cases, the presumption of paternity shall be conclusive proof of non-paternity
regularity in the performance of official duty may
not be invoked by the respondent therein who is a 2. If the value of the Probability of Paternity is less
public officer or employee. than 99.9%, the results of the DNA testing shall be
considered as corroborative evidence
Neither does the presumption apply in custodial
investigations. 3. If equivalent to 99.9% or higher, there shall be a
disputable presumption of paternity.
This presumption of authority is not confined to
official appointees. It has been extended to persons !
who have been appointed pursuant to a local or !
special statute to act in quasi-public or quasi-offi-
!
cial capacities and to professional men (ex. sur-
geons and attorneys) !
Omnia praesumuntur rite et solemniter esse acta
donec probetur in contrarium - All things are pre-
sumed to have been done regularly and with due
formality until the contrary is proved.
While ordinarily, irregularity will not be presumed,
an adverse presumption may arise where the offi-
cial act in question appears to be irregular on it
face.
7. Presumption of regularity of judicial proceed-
ings
A court or judge acting as such, whether in the
Philippines or elsewhere, is acting in a lawful exer-
cise of jurisdiction.
The court rendering the judgment is presumed to
have jurisdiction over the subject matter and the
parties and to have rendered a judgment valid in
every respect.
Jurisdiction is presumed in all cases, be it the supe-
rior or inferior court. However, jurisdiction to render
a judgment in a particular case or against particular
persons may not be presumed where the record
itself shows that jurisdiction has not been acquired
or where there is something in the record showing
the absence of jurisdiction.
8. Presumption that private transactions have
been done fairly and with regularity
An individual intends to do right rather than wrong
and intends to do only what he has the right to do.
In the absence of proof to the contrary, there is a
presumption that all men act fairly, honestly and in
good faith.
9. Presumption that the ordinary course of busi-
ness has been followed

RULE 132
7. Not call for self-incriminating testimony
8. Not be leading
9. Not be misleading
PRESENTATION OF 10.
11.
Not tend to degrade the reputation of a witness
Not be repetitious
EVIDENCE 12. Not call for a narration
(305) What is conditional examination of witnesses?

EXAMINATION OF WITNESSES (306) How is conditional examination of witnesses con-
(299) Witnesses. Witnesses are those who testify in a case or ducted in criminal cases?
give evidence before a judicial tribunal. 1. With respect to a prosecution witness, the condi-
tional examination takes place where the case is
(300) How are testimonies given? pending (Rule 119, Sec. 15)
It is usually given orally, in open court. Therefore, gener- 2. In case of a defense witness, it can be before an-
ally, the testimonies of witnesses cannot be presented in other judge, a member of the IBP when designated
affidavits. by the court, or before an inferior court if designat-
One instance when the testimonies of witnesses may be ed by a superior court (Rule 119, Secs. 12-13)
given in affidavits is under the Rules on Summary Pro-
cedure. (307) Proceedings to be recorded. The questions pro-
pounded to a witness and his answers thereto shall be
Depositions need not be taken in open court. recorded. Also to be recorded are the statements made
Another instance where testimony may be given in an- by the judge, any of the parties or any of the counsels. In
other place other than in open court is on the Examina- fact, the entire proceedings of the trial or hearing must
tion of a Child Witness or Victim. Through the use of live be recorded. The recording may be by shorthand, steno-
link television, the judge may question the child in type or any means of recording found suitable by the
chambers or in some other comfortable place other than court.
the courtroom, in the presence of the support person,
guardian ad litem, prosecutor and counsel for the par- RIGHTS AND OBLIGATIONS OF A WIT-
ties. NESS
(301) What is the purpose of open court testimony?
(308) Obligation of a Witness. A witness must answer ques-
It is to enable the court to judge the credibility of the tions, although his answer may tend to establish a claim
witness by the witness’ manner of testifying, their intelli- against him.
gence and their appearance.
(309) Rights of a Witness.
(302) What is an oath and what is an affirmation?
1. To be protected from irrelevant, improper or insult-
An oath is an outward pledge made under an immediate ing questions, and from harsh or insulting de-
sense of responsibility to God or a solemn appeal to the meanor
Supreme Being in attestation of the truth of some state-
2. Not to be detained longer than the interests of jus-
ment.
tice require
An affirmation is a solemn and formal declaration or
3. Not to be examined except only as to matters per-
assertion that the witness will tell the truth, this being
tinent to the issue
substituted for an oath in certain cases.
4. Not to give an answer which will tend to subject
(303) What is the rule on oath or affirmation? him to a penalty for an offense unless otherwise
The general rule is that the testimony of witnesses shall provided by law
be given under oath or affirmation. 5. Not to give an answer which will tend to degrade
This is to affect the conscience of the witness to compel his reputation, unless it be to the very fact at issue
him to speak the truth; and that if he willfully falsifies that or to a fact from which the fact at issue would be
truth, he may be punished for his perjury. presumed. But a witness must answer to the fact of
his previous final conviction for an offense
The right to have the witness sworn may be waived, if a
party fails to object to the taking of the testimony of a (310) What is the right of a witness to be free from per-
witness without the administration of an oath. sonal violence?
(304) Questions propounded to a witness must: The action of the judge in seizing the witness by the
shoulder and turning him about (to look to the judge)
1. Be relevant
was unwarranted and an interference with that free from
2. Not be indefinite or uncertain
from unlawful personal violence to which every witness
3. Not be argumentative
is entitled while giving the testimony in court, which his
4. Not call for conclusions of law
attorney had the right to protest and to demand that the
5. Not call for opinion or hearsay evidence
incident be made of record. [In Re: Aguas (1901)]
6. Not call for illegal answer

(311) What are answers tending to establish a claim? ted written interrogatories to the defendant. (Rule 25,
Self incrimination relates to criminal proceedings only, Sec. 6)
not to a civil action, or to evidence that may be used
(317) What are the classifications of immunity statutes?
against the witness in such action, or to questions of
property or business. 1. Use Immunity - Only prohibits the use of witness’
compelled testimony and its fruit in any manner in
(312) What is the scope of the right against self incrimi- connection with the criminal prosecution of the
nation? witness. It does not render a witness immune from
1. No person shall be compelled to be a witness prosecution.
against himself 2. Transactional Immunity - Grants immunity to the
2. The rule may be invoked in any court or proceed- witness from prosecution for an offense to which
ings his compelled testimony relates.
3. The rule only covers testimonial compulsion and
production by him of incriminating documents and (318) Examination of witness by trial judge
articles Judges must not only be impartial, but must also appear
The right against self-incrimination is a protection to be impartial. However, this is not to say that judges
against testimonial compulsion. It prohibits the use of must remain passive or silent during the proceedings. A
physical or moral compulsion to extort communications judge should properly intervene in the presentation of
from the accused, not an exclusion of his body as evi- evidence to expedite and prevent unnecessary waste of
dence. time.
The witness is not, however, the sole judge as to It is the judge’s prerogative and duty to ask clarificatory
whether his answers, if given will tend to show that he is questions to ferret out the truth.
guilty of a crime. The determination of this question is for What is proscribed is undue interference by propounding
the trial judge. questions to the witnesses which will have the effect of
The right against self-incrimination is granted only in or will tend to build or bolster the case for one of the
favor of individuals. parties.
It likewise extends to administrative proceedings with a (319) Who may be admitted in the witness protection
criminal or penal aspect. program according to the Witness Protection, Se-
curity and Benefit Act (R.A. 6981)?
(313) Distinguish the right against self-incrimination of
the accused from that of an ordinary witness. Any person who has witnessed or has knowledge or
information on the commission of a crime and has testi-
Accused Ordinary Witness fied or is testifying or about to testify before any judicial
Cannot be compelled to May be compelled to testify or quasi-judicial body, or before any investigating au-
testify or produce evidence in by subpoena, having only the thority, may be admitted into the program, provided that:
the criminal case in which he right to refuse to answer a
is the accused or one of the particular incriminating 1. The offense in which his testimony will be used is a
accused, he cannot be question at the time it is put
grave felony as defined under the RPC or its
compelled to do so even by to him.
subpoena or other processes equivalent under special laws
or order of the court. He 2. His testimony can be substantially corroborated
cannot be required either for
the prosecution, for the co-
it its material points
accused, or even for himself. 3. He or any member of his family within the second
degree of consanguinity or affinity is subjected to
If the witness is the accused, he may totally refuse to threats to his life or bodily injury
take the stand. 4. He is not a law enforcement officer
(314) When is an act testimonial? When is there com- (320) Who is a state witness?
pulsion?
A state witness is a person who has participated in the
It is testimonial if it explicitly or implicitly relates to a
commission of a crime and desires to be a witness for
factual assertion or discloses information.
the state. He shall be admitted to the witness protection
There is compulsion only when a witness has asserted a program whenever the following circumstances are
right to refuse to disclose self-incriminating information present:
and this refusal has been overridden.
1. The offense in which his testimony will be used is a
(315) Does the right against testimonial compulsion grave felony as defined under the RPC or its
apply to forced re-enactments? equivalent under special laws
2. Absolute necessity for his testimony
Yes, it comes within the ban since it is communicative in
3. There is no direct evidence available for proper
nature.
prosecution of the offense committed
(316) Limitation if a witness is a party in a civil action. 4. His testimony can be substantially corroborated
Before the plaintiff could compel the defendant to be a on its material points
witness, the plaintiff must first prove that he has submit- 5. He does not appear to be the most guilty

6. He has not, at any time, been convicted of any 2. American rule - restricts cross-examination to
crime involving moral turpitude facts and circumstances which are connected with
the matters that have been stated in the direct ex-
(321) What is the procedure for admission as state wit- amination of the witness.
ness to the witness protection program?
Under Philippine jurisdiction, we follow the two rules,
Before any person is admitted into the program he shall
specifically under the following instances:
execute a sworn statement describing in detail the
manner the offense was committed and his participation - In general, we follow the English rule, which allows
therein. the cross-examination to elicit all important facts
bearing upon the issue, but this does not mean that
If his application is denied, said sworn statement and
a party by doing so is making the witness his own
other testimony given in support of said application shall
in accordance with Sec. 5.
not be admissible in evidence.
- We follow the American rule as to the accused or
Admission into the program shall entitle such state wit-
hostile witness, who may only be cross-examined
ness to immunity from criminal prosecution for the of-
on matter covered by direct examination.
fenses in which his testimony will be given and used.
Failure without just cause of the witness to testify when (326) What is the doctrine of incomplete testimony?
lawfully obliged to do so, shall be cause for his prosecu- When cross-examination cannot be done or completed
tion for contempt. If he testifies falsely or evasively, he due to causes attributable to the party who offered the
shall be liable for perjury. His immunity shall be removed witness, the incomplete testimony is rendered incompe-
and he shall be subject to criminal prosecution. tent and should be stricken from the record.
(322) What is the order in the examination of an individ- XPN: Where the prosecution witness was extensively
ual witness? cross-examined on the material points and thereafter
failed to appear and cannot be produced despite a war-
1. Direct examination
rant for his arrest.
2. Cross-examination
3. Redirect examination (327) When may testimony be stricken off for lack of
4. Re-cross examination cross-examination?
The order is optional in the sense that the parties are not It depends on who is at fault.
required to avail of all the examination provided under
1. If it is the party presenting the witness who is at
the rules.
fault, then the direct examination can be expunged
(323) What is direct examination? 2. If the inability to cross-examine was attributable to
Direct examination is the examination-in-chief of a the adverse party (cross-examiner), then there can
witness by the party presenting him on the facts relevant be no forfeiture of the direct testimony
to the issue.
(328) Is a party bound by the testimony of his witness?
Its purpose is to elicit facts about the client’s cause of
The general rule is that a party who voluntarily offers the
action or defense.
testimony of a witness in the case is bound by the testi-
(324) What is cross-examination? mony of said witness.
Cross examination is the most reliable and effective XPN: A party is not bound when calling the following:
way known of testing the credibility and accuracy of a 1. Adverse party
testimony. 2. Hostile witness
Its purposes include: 3. Unwilling witness
4. Witness required by law to be presented
1. To discredit the witness
2. To discredit the testimony of the witness (329) Who is a hostile witness?
3. To clarify certain matters
A witness may be considered as unwilling or hostile only
4. To elicit admissions from a witness
if so declared by the court upon adequate showing of:
(325) What are the scope and limitations of cross-exam- 1. His adverse interest
ination? 2. Unjustified reluctance to testify; or
The witness may be cross-examined by the adverse 3. His having misled the party into calling him to the
party as to any matters stated in the direct examination, witness stand
or connected therewith.
(330) What is re-direct examination?
1. English rule - where a witness is called to testify
Its principal object is to prevent injustice to the witness
to a particular fact, he becomes a witness for all
and the party who has called him by affording an oppor-
purposes and may be fully cross-examined upon all
tunity to the witness to explain or amplify the testimony
matters material to the issue, the examination not
which he has given on cross-examination or to explain
being confined to the matters inquired about in the
any apparent contradiction or inconsistency in his
direct examination.

statements, an opportunity which is not ordinarily afford- 2. When the witness is ignorant, or a child of tender
ed him during his cross-examination. years; or is feeble-minded or a deaf-mute and there
is difficulty in getting direct and intelligible answers
The witness may be allowed to reaffirm or explain his
form such witness
statements, their meaning or import and to minimize or
3. Hostile witness
destroy discrediting tendencies.
4. When the witness is the adverse party of when the
Note: If in the exercise of discretion, the court admits witness is an adverse officer, director, managing
new matter in re-examination or if explanation of the agent of a corporation, partnership or association
answers given is necessary, the court may permit a re- which is an adverse party
cross examination.
(334) What is the reason for allowing leading questions
(331) What is the purpose of re-cross examination? on cross-examination?
Its purpose is to overcome the other party’s attempt to The witness is not the cross-examining party’s witness.
rehabilitate a witness or to rebut damaging evidence He is expected to be adverse or hostile to the cross-
brought out on cross-examination. examiner. He is not expected to cooperate.
Note: It is not a matter of right on re-cross examination
(335) What is a misleading question?
for counsel to touch on matters not brought on the re-
direct examination of the witness. A misleading question is one which assumes as true
facts not yet testified to by the witness, or contrary to
Re-cross examination of the witness is limited to new
that which he has previously stated. It is not allowed.
matters brought out on the re-direct examination of the
witness and also on such other matters as may be al- XPN:
lowed by the court in its discretion. 1. When waived
2. Asking hypothetical questions to an expert witness
(332) What is the rule on recalling a witness?
The general rule is that after the examination of a wit- (336) What is the rule regarding the number of counsels
ness by both sides has been concluded, the witness examining a witness?
cannot be recalled without leave of court. Only one counsel should be allowed to examine a wit-
Ratio: A witness cannot be detained longer than the ness in a single stage. However, the other counsel may
interest of justice requires. make objection to the testimony.
XPN: Recall has been expressly reserved with approval Ratio: To protect the witness from undue and confusing
of the court. interrogation; and to secure system and brevity by giving
control of the interrogation to a single hand.
While under the strict rules of practice, impeaching
questions should be propounded to a witness before he (337) When is a question preliminary?
has left the stand, it is generally held permissible to re-
When the question does not touch on any issue.
call a witness who has left the stand for the purpose of
impeachment or to lay a foundation therefor. A question that merely suggests a subject without sug-
gesting an answer or a specific thing is not a leading
(333) What are leading questions and what is the rule question.
regarding them?
Example: “State whether anything occurred between
Leading questions are those which suggest to the you and the defendants on the evening of January 9,
witness the answer which the examining party desires. It 2000.”
is generally not allowed.
(338) Impeachment of adverse party’s witness
The test whether a question is leading or not is the sug-
gestiveness of its substance. To impeach a witness means to discredit the witness’
testimony. It is a fundamental right on cross-examina-
XPN:
tion. Since the witness’ credibility is always in issue, it is
1. On cross-examination never beyond the permissible scope of cross-examina-
2. On preliminary matters tion.
3. When there is difficulty in getting direct and intelli-
gible answers from a witness who is ignorant, or a (339) What are the ways of impeaching an adverse par-
child of tender years or is of feeble mind ty’s witness? (Sec. 11)
4. Unwilling or hostile witness 1. By contradictory evidence
5. Witness is an adverse party or an officer, director, or 2. By evidence that the general reputation for
managing agent of a public or private corporation truth, honesty, or integrity of the witness is
or of a partnership or association which is an ad- bad
verse party 3. By prior inconsistent statements
Leading questions on direct examination. As a rule, lead- Other modes of impeachment aside from Sec. 11:
ing questions are not allowed on direct examination.
4. By involving him during cross-examination in con-
XPN:
tradiction
1. On preliminary matters

5. By showing the impossibility or improbability of his verse interest; (b) unjustifiable reluctance to testify; and
testimony (c) such witness misled the party from calling him to the
6. By proving action or conduct of the witness incon- witness stand.
sistent with his testimony Ratio: Without the exception, the party calling the wit-
7. By showing bias, interest or hostile feeling against ness will be at the mercy of a treacherous witness.
the adverse party
The impeachment is limited to bad reputation and the (344) Explain the process of impeaching a witness by
bad reputation must be for lack of veracity and does not evidence of inconsistent statements
extend to bad reputation for lack of morals (ex. a witness Two different stages:
may be discredited because he is a well-known liar but 1. The facts discrediting the witness or his testimony
not if he is a well-known sex addict) may be elicited from the witness himself upon
Not every aspect of a person’s reputation may be the cross-examination
subject of impeachment. Evidence of bad reputation for 2. The facts discrediting the witness are proved by
the purpose of impeachment should refer only to the extrinsic evidence, i.e., the adverse party in rebuttal
following specific aspects: for truth; for honesty; for proves by another witness or documentary evi-
integrity. dence the facts discrediting the testimony of the
witness under attack.
(340) Distinguish contradictory evidence from prior in-
consistent statements The process of cross-examining a witness upon the
point of prior contradictory statements is called in the
Contradictory Evidence Prior Inconsistent
Statements practice of American courts “laying the predicate” for
the introduction of contradictory statements. It is almost
It refers to other testimony of It refers to statements, oral or
the same witness, or other documentary, made by the universally accepted that unless a ground is thus laid
evidence presented by him in witness sought to be upon cross-examination, evidence of contradictory
the same case, but not the impeached on occasions
statements are not admissible to impeach a witness.
testimony of another witness other than the trial in which
he is testifying Before a witness can be impeached by evidence that he
has made at other times statements inconsistent with his
(341) What is the rule on prior convictions? present testimony, it is necessary that a foundation
The theory here is that the credibility of the witness is should have been laid by calling the attention of the
affected by his having been convicted of a crime. It does witnesses to the former statements so as to give him
not matter if the crime is serious or a light or minor of- opportunity to explain before the statements were of-
fense. fered in evidence. If the statements be in writing they
must be shown to the witness before any question is put
(342) What is rehabilitation of witnesses? to him concerning them.
When the cross-examiner has attempted to impeach a Thus, for instance, if the attorney for the accused had
witness, the party who called the witness is allowed on information that a certain witness had made and signed
redirect to attempt to “rehabilitate” (to restore the wit- a sworn statement before the fiscal materially different
ness’ credibility). It must appear, however, that the wit- from that given in his testimony before the court, the
ness’ credibility has been attacked. Unless credibility is attorney in cross-examining the witness should direct his
attacked, there is nothing to rehabilitate. attention to the discrepancy and ask him if he did or did
Note: The fact that a witness has been impeached does not make a statement delivered in court.
not mean her testimony will be stricken or disregarded. A witness is impeached by prior inconsistent statements
by laying the predicate:
(343) May a party impeach his own witness?
GR: No, a party is not allowed to impeach his own wit- 1. By confronting him with such statements, with the
ness. By calling a witness, the party certifies his credibil- circumstances under which they were made
ity. 2. By asking him whether he made such statements
3. By giving him the chance to explain the inconsis-
XPN: tency
1. Witness required by law (ex. In the probate of a will, The rule that the attention of the witness be called to the
if the will is contested, the law requires that the time, place and circumstances does not apply where the
proponent should present all the attesting witness- impeaching evidence is in writing. The writing must be
es to the will if they are still alive. If any or all of shown to the witness so that he may read it or it may be
them testify against the due execution of the will or read to him. He must be asked if he wrote it or signed it
do not remember having attested to it or are other- and if he admits this, his attention must be called to the
wise of doubtful credibility, the proponent can start inconsistencies.
impeaching these witnesses)
2. Witness is an adverse party (345) What is the ratio for “laying the predicate”?
3. Witness is an unwilling or hostile witness 1. To avoid unfair surprise to the adverse party
Mere relationship to one of the parties does not make 2. To save time, as an admission by the witness may
one a hostile witness. There must be showing of (a) ad- make the extrinsic proof unnecessary; and

3. To give the witness, in fairness to him, a chance to Note: The rule does not apply to parties in civil cases,
explain the discrepancy nor to the accused in criminal cases, one of his rights
being to be present during the trial.
The mere presentation of the prior declarations of the
witness without the same having been read to him while (351) When may witnesses refer to memorandum? (Sec.
testifying in court is insufficient for the desired im- 16)
peachment of his testimony if he was not given the am-
Permitting a witness to aid himself during his testimony
ple opportunity to explain the supposed discrepancy
with written memoranda is a concession to the frailty of
(346) Distinguish laying the predicate from laying the human memory.
foundation for basis
(352) Distinguish “present memory revived” or revival of
Laying the Predicate Paying the Foundation for present memory from “past recollection record-
Basis ed” or revival of past recollection.
It refers only to impeachment It refers to a situation where
of a witness through prior an evidence which is Present Memory Revived Past Recollection Recorded
inconsistent statements otherwise incompetent will be Memory is obscure but there Recollection is zero
introduced in evidence is still memory
because it falls under the
exceptions to the rule on The main evidence is the The main evidence is the
exclusion (ex. Under the Best testimony of the witness memorandum
Evidence Rule, if a party
desired to introduce The witness simply testifies Witness must swear that the
secondary evidence, he must that he knows that the writing correctly states the
first prove that the writing memorandum is correctly transaction.
was duly executed and that written by him or under his
the original has been lost or direction; no need to swear
destroyed. Without first laying
the foundation, secondary Present memory revived or revival of present memory.
evidence will not be admitted
by the court.
A witness may be allowed to refresh his memory re-
specting a fact, by anything written or recorded by him-
(347) What is the effect of a witness’ denial of making a self or under his direction at the time when the fact oc-
statement? curred or immediately thereafter, or later so long as the
fact was fresh in his memory and he knew that it was
If the witness denies making the prior statement or says
correctly recorded.
that he does not remember making it, the adverse party
should call in rebuttal a witness to prove that such Note: The evidence is still testimonial in character. The
statement has in fact been made. memorandum will not be considered as documentary
evidence.
(348) What is the rule on prior contradictory statement
Past recollection recorded or revival of past recollec-
as independent evidence?
tion. A witness may also testify from such writing or
Prior contradictory statement of a witness which is ad- record, though he retains no recollection of the particular
missible as independent evidence may be shown with- facts, if he is able to swear that the writing or record
out laying the predicate. (Ex. Where said testimony con- correctly stated the transaction when made, but such
tains admission against interest. The admission is pre- evidence must be received with caution.
sented as original or independent evidence. This must
Note: Since there is complete loss of recollection or
be offered in evidence-in-chief and not on rebuttal)
memory on the part of the witness, then it is the memo-
(349) Evidence of good character of witness. Not admis- randum itself that will serve as evidence. It will not be
sible except when such character has been impeached. considered as documentary evidence.
(Sec. 14) The memorandum from which the witness may be per-
mitted to refresh need not be an original writing. it is
(350) What is the rules on the exclusion and separation
sufficient if it is shown that the witness knows the copy
of witnesses? (Sec. 15)
to be a true one, and his memory is refreshed thereby
On any trial or hearing, the judge upon motion may ex- enables him to testify from his own recollection of the
clude from the court any witness not at the time under facts, independent of his confidence in the accuracy of
examination, so that he may not hear the testimony of the copy.
other witnesses. The judge may also cause witnesses to
be kept separate and to be prevented from conversing (353) What is the rule of completeness / rule of indivisi-
with one another until all shall have been examined. bility? (Sec. 17)
Purpose: So that the testimony of a witness shall not be When part of an act, declaration, conversation, writing or
influenced by the statements of other witnesses. record is given in evidence by one party, the whole of the
same subject may be inquired into by the other; and
Where a witness remains in court notwithstanding the
order excluding him therefrom, such fact may not dis- When a detached act, declaration, conversation, writing,
qualify him from being a witness but it may affect his or record is given in evidence, any other act, declaration,
credibility. conversation, writing or record necessary to its under-
standing may also be given in evidence.

(354) What is the right to inspect writing shown to wit- Public Writing Private Writing
ness? (Sec. 18)
As to persons A public A private writing
Whenever a writing is shown to a witness, it may be bound instrument is binds only the
inspected by the adverse party. evidence even parties who
! against third
persons, of the fact
which gave rise to
executed it or their
privies, insofar as
due execution and
AUTHENTICATION AND PROOF its due execution date of the
OF DOCUMENTS and to the date of

the latter
document are
concerned.
(355) What is authentication? As to validity of C e r t a i n

certain transactions must
Authentication means the process of proving the due transaction be in a public
execution and genuineness of the document. d o c u m e n t ,
otherwise they will
The due execution and genuineness means nothing not be given any
validity
more than that the instrument is not spurious, counter-
feit, or of different import on its face from the one exe- Note: Church registries of birth, marriages and deaths made
cuted. subsequent to the promulgation of General OrdersNo. 68 (Dec.
1889) and Act No. 190 (Aug. 1901) are no longer public writings
A document is a deed, instrument or other duly autho- nor are they kept by duty authorized public officials. They are
rized paper by which something is proved, evidenced or private writings and their authenticity must therefore be proved,
set forth. as are all other private writings in accordance with the Rules of
Evidence (Llemos v. Llemos, 2007)
(356) What are the classes of documents?
(357) How may the due execution and authenticity of a
For the purpose of their presentation in evidence, docu- private document be proved?
ments are either public or private.
The due execution and authenticity of a private docu-
Public documents are: ment may be proved either by:
1. The written official acts, or records of the official 1. Anyone who saw the document executed or written
acts of the sovereign authority, official bodies and 2. Evidence of the genuineness of the signature or
tribunals, and public officers, whether of the Philip- handwriting of the maker
pines or of a foreign country
2. Documents acknowledged before a notary public (358) When may private writings be admitted in evi-
except last wills and testaments; and dence without previous proof of its authenticity
and due execution?
3. Public records, kept in the Philippines, or private
documents required by law to be entered therein. 1. When the genuineness and due execution of the
document is admitted by the adverse party
All other writings are private.
2. When such genuineness and due execution are
Note: Last wills and testaments must undergo an au- immaterial to the issue
thentication process even if they are notarized. The sub- 3. When the document is an ancient document
stantive rule in the Civil Code provides that: “No will
Note: The ancient document rule applies only if there are
shall pass wither real or personal estate unless it is
no other witnesses to determine authenticity.
proved and allowed in the probate court.”
Note: A public document is a document in the execution (359) What are other instances when authentication is
of which a person in authority or a notary public takes not required?
part. In order to avoid the authentication of private writings,
Note: The public documents above are admissible in the parties can resort to any of the following:
evidence without further proof of their authenticity, and 1. Rule on Actionable Documents - when the ad-
all that the party presenting them in evidence has to do verse party fails to specifically deny under oath the
is mark them as exhibits and thereafter offer them as genuineness and due execution of the actionable
evidence in accordance with the rules. document and to set forth what he claims to be the
Note: A private writing is not self-authenticating. It re- facts, the same shall be deemed admitted (Rule 8,
quires proof of their due execution and authentication Sec. 8)
before they can be received in evidence. 2. Request for Admission - if the party fails to
specifically deny the matters on which the admis-
Public Writing Private Writing
sion is requested within the period given, the gen-
As to authenticity A public document A private writing uineness and due execution shall be deemed ad-
is admissible in must be proved
evidence, without relative to its due mitted (Rule 26)
further proof of its execution and
3. Pre-Trial - the parties can enter stipulations and
genuineness and genuineness,
due execution. before it may be admit the genuineness and due execution of the
received in document
evidence.
(360) What are the requirements for the ancient docu-
ment rule?

1. The private document is more than 30 years old must be evidence that is clear, convincing and more
2. It is produced from custody in which it would natu- than merely preponderant.
rally be found if genuine Reason:
3. It is unblemished by any alterations or circum-
stances of suspicions 1. Necessity - practical impossibility of requiring the
official’s attendance as a witness to testify to the
An ancient document is said to be in proper custody if it innumerable transactions occurring in the course of
is in the place in which and under the care of the person his duty
with whom it would naturally be. Ratio: The fact of its 2. Trustworthiness - there is a presumption of regulari-
coming form the natural and proper place tends to re- ty, legality and accuracy.
move presumptions of fraud and strengthen the belief of
its genuineness. Note: There are two classes of public documents, name-
ly, those issued by competent public officials by reason
By merely producing the document, it establishes prima of their office, and those executed by private individuals
facie its own authentication. The burden then shifts to which are authenticated by notaries public. The “other
the adverse party to prove that the document is not what public documents” referred to include notarial docu-
it purports to be or otherwise not authentic. ments.
Computation of age. The time is to be reckoned from the Note: The rule is not absolute “in the sense that the con-
date of the execution to the day when the instrument is tents of a public document are conclusive evidence
offered in evidence. against the contracting parties as to the truthfulness of
the statements made therein.” They constitute only pri-
(361) How is the genuineness of the handwriting au-
thenticated? (Sec. 22) ma facie evidence of the facts which gave rise to their
execution and of the date of the latter.
1. Testimony of the purported writer
2. The testimony of a witness who has seen the writer (363) What is the rule on proof of official records? (Sec.
sign his name or actually make the writing whether 24)
the witness attested the instrument or not 1. If it is a domestic record, it may be evidenced by:
3. The testimony of a witness who is familiar with the a. An official publication
handwriting. Thus, under this rule, the genuineness b. A copy thereof attested by the officer having
of a handwriting may be proved. custody of the record or his deputy, with a
a. By any witness who believed it to be the certificate that such officer has the custody
handwriting of such person because he has
seen the person write or has seen writing pur- 2. If it is a foreign record, it may be evidenced by:
porting to be his upon which the witness has a. An official publication
acted or been charged. b. A copy thereof attested by the officer having
b. By a comparison made by the witness of the the custody of the record or his deputy, ac-
court, with writings admitted or treated as companied by a certificate that such officer
genuine by the party, against whom the evi- has the custody, which may be made by the
dence is offered, or proved to be genuine to secretary of the embassy or legation, consul-
the satisfaction of the judge. general, consul, vice-consul, or consular agent
or foreign service officer and with a seal of his
Handwriting experts are not mandatory. office
Weight of expert testimony: It depends upon the as-
sistance he may afford in pointing out distinguishing (364) What must the attestation of copy state? (Sec. 25)
marks, characteristics and discrepancies in and between It must state that it is a correct copy of the original or a
genuine and false specimens of writings which would specific part thereof, as the case may be.
ordinarily escape notice or detection by an untrained
It must be under the official seal of the attesting officer, if
observer.
there be any or if he be clerk of court having a seal, un-
(362) What is the rule on public documents offered as der the seal of such court.
evidence? (Sec. 23)
(365) Irremovability of public records (Sec. 26)
Documents consisting of entries in public records made
Any public record, an official copy of which is admissible
in the performance of a duty by a public officer are prima
in evidence, must not be removed from the office in
facie evidence of the facts therein stated. All other public
which it is kept, except upon order of a court where the
documents are evidence, even against a third person, of
inspection of the record is essential to the just determi-
the fact which gave rise to their execution and of the
nation of a pending case.
date of the latter.
Ratio:
Prima facie evidence is evidence which, if unexplained
or uncontradicted, is sufficient to sustain a judgment in 1. To enable others to use the records
favor of the issue which it supports. 2. To prevent the serious risk of loss
3. To prevent its exposure to wear and tear
Note: To contradict the facts contained in a notarial doc-
ument and presumption of regularity in its favor, there

XPN: Upon order of the court where the inspection of There shall be no difference between sealed and un-
the record is essential to the just determination of a sealed private documents insofar as their admissibility
pending case. as evidence is concerned.
(366) Public record of a private document (Sec. 27) (372) Documentary evidence in an unofficial language
(Sec. 33)
If a private writing is inserted officially into a public
record, its record, recording or incorporation into the Documents written in an unofficial language shall not be
public record becomes a public document, but that does admitted as evidence, unless accompanied with a trans-
not make the private writing itself a public document so lation into English or Filipino. To avoid interruption of
as to make it admissible without authentication. proceedings, parties or their attorneys are directed to
have such translation prepared before trial. 
(367) Proof of lack of record (Sec. 28)
A written statement signed by an officer having the cus-
tody of an official record or by his deputy that after dili-
gent search no record or entry of a specified tenor is
found to exist in the records of his office, accompanies
by a certificate as above provided, is admissible as evi-
dence that the records of his office contain no such
record or entry.
(368) How judicial record is impeached (Sec. 28)

1. By evidence of want of jurisdiction in the court or
judicial officer
2. Collusion between the parties (e.g. legal separation
or annulment cases)
3. Fraud in the party offering the record, in respect to
the proceedings
Fraud refers to extrinsic fraud, which is a ground for
annulment of judgment.
Extrinsic fraud refers to any fraudulent act of the prevail-
ing party in the litigation which is committed outside of
the trial of the case, whereby the defeated party has
been prevented from exhibiting fully his case by fraud or
deception practiced on him by his opponent.
(369) Proof of notarial documents (Sec. 30)

A notarial document is one which is duly acknowledged
before a notary public.
A document acknowledged before a notary public be-
comes a public instrument. Hence, its execution and
due authenticity need not be proved.
Note: The person who notarized the document must
really be a notary public, and notarized it in accordance
with the Notarial Law.
Probative value of a notarial document. It is evidence of
the facts expressed therein.
(370) Alterations in documents, how to explain (Sec. 31)

The party producing a document as genuine which has
been altered and appears to have been altered after its
execution, in a part material to the question in dispute,
must account for the alteration. He must show that:
1. The alteration was made by another, without his
concurrence; or
2. Was made with the consent of the parties affected
by it; or
3. Was otherwise properly or innocently made; or
4. That the alteration did not change the meaning or
language of the instrument
(371) Seal in documents (Sec. 32)

OFFER AND OBJECTION Where the absence of an offer of testimonial evidence

was not objected to as when the witness was cross-
(373) Offer of evidence (Sec. 34). The court shall consider examined by the adverse party despite the failure of
no evidence which has not been formally offered. The counsel to make an offer of the testimony of the witness,
purpose for which the evidence is offered must be spec- the court must consider the testimony.
ified.
Failure to object to the omission of the party offering the
(374) What is the procedure in the offer of evidence? evidence to formally offer the evidence, and the cross-
examination by the adverse party constitute a waiver to
1. First, there is the formal offer of evidence the defect.
2. Objections are posed on grounds such as evi-
dence offered is immaterial or irrelevant (378) How an offer of evidence is made (Sec. 34).
3. If objection is sustained: Evidence offered will 1. The party must state the nature or substance of
not be allowed to be presented in court. The reme- the evidence and the specific purpose for which
dy of the offeror is the tender of excluded the evidence is offered
evidence / offer or proof 2. The court shall consider the evidence solely for the
If objection is overruled: Evidence will be al- purpose for which it is offered, not for any other
lowed to be presented in court purpose
4. Presentation of evidence offered (379) When to make an offer (Sec. 35). The proper time to
offer evidence depends on the nature of evidence.
(375) Why must the purpose of offer be specified?
To determine whether that piece of evidence should be Testimonial / Oral Evidence Documentary and Object
admitted or not. Because such evidence may be admis- Evidence
sible for several purposes under the doctrine of multiple At the time the witness is After the party has presented
admissibility, or may be admissible for one purpose and called to testify his testimonial evidence,
before he rests.
not for another, otherwise the adverse party cannot in-
The offer is orally made un-
terpose the proper objection. less allowed by the court to
be in writing.
Evidence submitted for one purpose may not be consid-
ered for any other purpose by the judge. Note: Offered only once.
Without the offer, the court cannot determine whether Implied offer - Every time a
question is asked of a wit-
the evidence is admissible or not. I tis not a mere pro- ness, there is an implied
cedural technicality as it is the only means by which the automatic offer of the evi-
dence sought to be elicited
court may ascertain and verify the truth of the claims.
by the question. If there is
In other words, opposition parties will be deprived of any objection to the question,
the same must be raised
their chance to examine the document and to object to immediately. Otherwise, there
its admissibility. On the other hand, the appellate court is a waiver.
will have difficulty reviewing the documents not previ- Thus, oral evidence is always
ously scrutinized by the court below. being offered twice:
1. Before the witness testi-
Note: Where the evidence is inadmissible for the pur- fies; and
pose stated in the offer, it must be rejected, though the 2. Every time a question is
same may be admissible for another purpose. The rea- asked of him
son is that the adverse party is prevented from objecting
to the admissibility thereof on grounds other than those (380) Procedure before documentary and object evi-
available to meet the stated purpose. dence can be considered by the court
1. Marking
(376) Instances when the Court allowed the admission 2. Identification
of evidence not formally offered
3. Authentication (except: public document)
In People v. Matte and Mata Vda. de Onete v. Court of 4. Formal offer; and
Appeals (1995), the Court allowed evidence not formally 5. If the evidence is excluded, an offer of proof
offered to be admitted and considered by the trial court
Authentication and identification can be dispensed with
provided the following circumstances are present:
if there is a stipulation on the due execution and gen-
1. The same must have been duly identified by testi- uineness of the private document.
mony duly recorded
Note: To allow a party to attach any document to his
2. The same must have been incorporated in the
pleading and then expect the court to consider it as
records of the case
evidence may draw unwarranted consequences. The
Likewise when the adverse party cross-examined the opposing party will be deprived of his chance to exam-
witnesses of the other party testifying on the evidence. ine the document and object to its admissibility.
(377) When is there a waiver of formal offer? (381) Stages in the presentation of documentary evi-
dence

1. Identification. By identification is meant proof that 4. Document or affidavits used in deciding quasi-
the document being presented is the same one judicial or administrative cases
referred to by the witness in his testimony 5. Lost objects previously marked, identified,
described in the record, and testified to by
2. Marking. All exhibits should be marked to facilitate
witnesses who had been subjects of cross-exami-
their identification. The marking may be made at
nation in respect to said objects
the pre-trial or during the trial.
The plaintiff and the prosecution shall use capital (384) When should objection be made? (Sec. 36)
letters (“A”, “B”, “C”, etc.) and the accused shall The proper time to make a protest or objection against
use Arabic numbers (“1”, “2”, “3”, etc.) the admission of evidence depends on the manner the
3. Authentication. The proof of a document’s due evidence is offered.
execution and genuineness, if the purpose is to Manner of Offering Time to Make Objection
show that it is genuine, or the proof of its forgery, if Evidence offered orally Made immediately after the
the purpose is to show that the document is a offer is made
forgery.
For questions propounded Made as soon as the grounds
4. Inspection. Under Sec. 18 of Rule 132, whenever in the course of the oral t h e r e f o r e s h a l l b e c o m e
examination of a witness reasonably apparent
a writing is shown to a witness, it may be inspected
by the adverse party. In case of an offer of evi- Within 3 days after notice of
dence in writing the offer unless a different
5. Formal offer. After the termination of the testimo- period is allowed by the court
nial evidence, the proponent will then make a for-
Objections made at the start of the testimony of a wit-
mal offer and state the purpose of which the docu-
ness are different. Here, the party objecting objects to
ment is presented (Rule 132, Sec. 34)
the witness’ testimony in general. The party objecting is
6. Objections. THe objection to the introduction or asking the court to disallow the testimony of the witness
presentation of the document shall be made when or to not allow the witness to testify at all.
it is formally offered in evidence (Rule 132, Sec. 36)
A protest or objection against the admission of any evi-
(382) Distinguish identification from formal offer dence must be made at the proper time, and if not so
made, it will be understood to have been waived.
Identification Formal Offer
What does the party waive? The objections to its admis-
Identification of documentary Formal offer of documentary
evidence is done in the evidence as an exhibit is
sibility. The evidence becomes admissible but the waiver
course of the trial and is done when the party has involves no admission that the evidence possesses the
accompanied by the marking presented his testimonial weight attributed to it by the offering party.
of the evidence as an exhibit evidence before he rests his
case.
(385) Purposes of objections
Note: The mere fact that a particular document is identi- 1. To keep out inadmissible evidence that would
fied and marked as an exhibit does not mean that it will cause harm to a client’s cause. The rules of evi-
be or has been offered as part of the evidence of the dence are not self-operating and hence, must be
party. The party may decide to formally offer it if it be- invoked by way of an objection
lieves this will advance its cause, or it may decide not to 2. To protect the record, ex. to present the issue of
do so at all. It is only when the proponent rests his case admissibility of the offered evidence in a way that if
and formally offers the evidence that an objection there- the trial court rules erroneously, the error can be
to may be made. Any objection prior thereto is prema- relied upon for a future appeal
ture. 3. To protect a witness from being harassed on
Documents which may have been marked as exhibits the stand or form being harassed by the adverse
during the hearing but which were not formally offered in counsel
evidence cannot be considered as evidence nor can 4. To expose the adversary’s unfair tactics like his
they be given any evidentiary value. consistently asking obviously leading questions
5. To give the trial court an opportunity to cor-
Presentation of a documentary evidence or object evi- rect its own errors and at the same time warn the
dence for marking and identification during the court of court that a ruling adverse to the objector may
the trial is not the offer contemplated in the rules. Failure supply a reason to invoke a higher court’s appellate
to object to the evidence at this time should not be con- jurisdiction
strued as a waiver of the objection to the evidence. 6. To avoid a waiver of the inadmissibility of an
otherwise inadmissible evidence
(383) When formal offer of evidence is not required
1. Summary proceedings because it is a proceed- (386) Classification of objections
ing where there is no full-blown trial 1. General objection - It does not go beyond declar-
2. Documents judicially admitted or taken judicial ing the evidence as immaterial, incompetent, irrele-
notice of vant or inadmissible. In other words, it does not
3. Documents, affidavits and depositions used in specify the grounds of objection. It is also known as
rendering summary judgments broadside objection.

They do not clearly indicate to the judge the ground The rule, however, does not impose a general or an ab-
upon which the objections are predicated, as they solute ban on general objections. There is no compelling
do not sufficiently define to present any question need to specify the ground, if the ground for exclusion
for review. should have been obvious to the judge or to the counsel.
2. Specific objection - It states why or how the evi- A general objection to evidence is sufficient where the
dence is irrelevant or incompetent. (ex. objection to ground therefor is so manifest that the trial court could
the question for being leading) not fail to understand it, as when the evidence offered is
clearly irrelevant or incompetent.
Some writers hold that an objection that the evidence is
“irrelevant” may at times not be general. Necessarily, (389) When repetition of objection unnecessary. (Sec. 37)
when the evidence clearly is one which does not prove a
fact in issue, with no probative value and with no rela- When it becomes reasonably apparent in the course of
tionship to the fact in issue, or inadmissible for any pur- the examination of a witness that the questions being
pose and no other objection is possible, there is no other propounded are of the same class as those to which
ground for the objection except to say that it is “irrele- objection has been made, whether such objection was
vant.” sustained or overruled, it shall not be necessary to re-
peat the objection, it being sufficient for the adverse
The rule is that a specific objection is always preferred party to record his continuing objection to such class of
over a general objection. This is not to say, however, that questions.
a general objection can never be allowed. The rules do
not impose a general or an absolute ban on general (390) Ruling on objections. (Sec. 38)
objections. There are cases where the incompetency of The ruling of the court must be given immediately after
the evidence is so palpable that a mere general objection the objection is made, unless the court may take a rea-
is deemed sufficient and where the portion of the evi- sonable time to study the questions raised by the objec-
dence objected to is clearly pointed out, and its illegality tion. Nonetheless, a ruling should always be made dur-
is apparent on its face, then the general objection must ing the trial. If no ruling is made during the course of the
be allowed. trial, counsel would have no means of knowing whether
3. Formal objection - It is one directed against the or not he would be compelled to meet any evidence at
alleged defect in the formulation of the question (ex. all, hence it would prejudice the substantial rights of the
ambiguous question) accused.
4. Substantive objection - Objections made and The reason for sustaining or overruling an objection need
directed against the very nature of the evidence (ex. not be stated. However, if the objection is based on two
It is inadmissible either because it is irrelevant or or more grounds, a ruling sustaining the objection on
incompetent or both, e.g. parol, hearsay evidence, one or some of them must specify the ground or
privileged communication, opinion) grounds relied upon.
(387) Requirements to exclude inadmissible evidence (391) Effect of ruling on objections

1. One has to object to the evidence 1. When an objection to a question is sustained - the
2. The objection must be timely made court declares the question improper, and the wit-
3. The grounds for objection must be specified ness ought not to answer it
(specific objection) 2. When the objection is overruled - the court declares
the question proper and the witness may answer it
The party has a right to object to evidence which he
considers not admissible under the complaint, even if (392) Striking out answer. (Sec. 39)
the questions were asked by the judge.
Should a witness answer the question before the ad-
(388) Reasons why an objection must be specific verse party had the opportunity to voice fully its objec-
tion to the same, and such objection is found to be meri-
1. So that the judge may understand the question
torious, the court shall sustain the objection and order
raised and that the adversary may have an oppor-
the answer given to be stricken off the record.
tunity to remedy the defect, if possible
2. To make a proper record for the reviewing court in On proper motion, the court may also order the striking
the event of an appeal out of answers which are incompetent, irrelevant or oth-
erwise improper.
As a rule, failure to specify the grounds for the objection
is in effect a waiver of the objection. Every other objec- (393) Modes of excluding inadmissible evidence
tion which is not particularly stated is to be considered
1. Objection - when the evidence is offered
abandoned, except where the evidence could not have
been legally admitted for any purpose whatever. 2. Motion to strike out or expunge - proper in the
following cases:
When evidence is excluded upon a mere general objec-
a. When the witness answers prematurely before
tion, the ruling will be upheld, if any ground in fact exist-
there is reasonable opportunity for the party to
ed for the exclusion. It will be assumed, in the absence
object
of any request by the opposing party or the court to
b. Unresponsive answers
make the objection definite, that the ruling was made
upon the right ground.

c. Answers that are incompetent, irrelevant or (397) Distinguish offer of proof and offer of evidence
improper
d. Uncompleted testimonies where there was no Offer of Proof / Tender of Offer of Evidence
Excluded Evidence
opportunity for the other party to cross-exam-
ine Only resorted to if admission Refers to testimonial,
is refused by the court for documentary or object
e. Conditionally admitted evidence not later sub- purposes of review on evidence that are presented
stantiated appeal. or offered in court by a party
so that the court can consider
There must be objection before motion to strike. his evidence when it comes
to the preparation of the
An objection to a witness’ disqualification in general decision
must be made as soon as he is called to the stand and
before his examination begins, provided his disqualifica- (398) The “por lo que puedo valer” principle
tion is then known.
The Supreme Court encourages the admission of bor-
(394) Waiver of objections; Belated objections derline evidence for whatever it is worth or por lo que
puedo valer.
There is a waiver when there is failure to point out some
defect, irregularity or wrong in the admission or exclu- It is impossible for a judge, in the early stages of the
sion of evidence. Such failure may be express or im- development of proof, to know with certainty whether
plied. A rule of evidence not invoked is waived. the testimony is relevant or not; and where there is no
indication of bad faith on the part of the attorney offering
Unless a timely and sufficient objection is made to an
the evidence, the curt may, as a rule, safely accept the
evidence introduced, the reviewing court will not ordinar-
testimony upon the statement of the attorney that the
ily consider the question of the propriety of admission of
proof offered will be connected later.
the evidence. It will not be considered on appeal be-
cause there is deemed to be a waiver. The otherwise The rulings of the trial court on procedural questions and
inadmissible evidence not objected to will be in the on admissibility of evidence during the court of a trial are
record for consideration, the same as other evidence. interlocutory in nature and may not be the subject of
Once admitted, the evidence is in the case for what it is separate appeals or review on certiorari. These are as-
worth, and the judge has no power to disregard it for the signed as errors and reviewed in the appeal taken from
sole reason that it could have been excluded if objected the trial court on the merits of the case.
to, nor can he strike it out on his own motion.
(399) Two traditional methods of making the tender
However, while the evidence is admissible, it does not
1. Counsel tells the court what the proposed testimo-
necessarily follow that the same should be given weight.
ny will be, after stating for the record the name and
Admissibility of evidence should not be equated with
other personal circumstances of the witness
weight of evidence.
2. Question and answer form
(395) Tender of excluded evidence. (Sec. 40)
The first method has the advantage of brevity and effi-
If documents or things offered in evidence are excluded ciency but it does not create as clear a record as the
by the court, the offeror may have the same attached to second method. The use of the first method is not
or made part of the record. If the evidence excluded is mandatory. Whichever method of tender is used, the
oral, the offeror may state for the record the name and advocate must see to it that the offer must be specific
other personal circumstances of the witness and the enough to contain the facts and circumstances of the
substance of the proposed testimony. matter sought to be proved by the excluded evidence.
Otherwise stated, when an attorney is not allowed by the
(400) An offer of proof may be made.
court to present testimony which he things is competent,
material and necessary to prove his case, he must make 1. Before the court has ruled on the objection, in
an offer of proof. This is the method of properly pre- which case its function is to persuade the court to
serving the record to the end that the question may be overrule the objection or deny the privilege invoked
saved for purposes of review. 2. After the court has sustained the objection, in
Purposes: which case its function is to preserve for the appeal
the evidence excluded by the privilege invoked
1. To inform the court what is expected to be proved
2. So that the appellate court may determine from the 3. Where the offer of proof includes the introduction of
record whether the proposed evidence is compe- documents, or any of the physical evidence, the
tent same should be marked for identification so that
they may become a part of the record
(396) How tender of excluded evidence is made
(401) May an objection be interposed to the manner of
1. As to documentary or object evidence - It may have
tender of excluded evidence?
the same attached to or made part of the record
The rules are silent on the issue. However, there is no
2. As to oral evidence - It may state for the record the
cogent reason to disallow the objection. If the document
name and other personal circumstances of the
tendered is not described or identified, its substance
witness and the substance of the proposed testi-
stated in vague and general terms or when the purpose
mony.

for which it is offered is not declared, then the evidence

has to be objected to. To have a contrary rule and confer
immunity from objection to such type of evidence would
be to grant a favored status to evidence initially exclud-
ed by the trial court.
(402) When offer of proof not required.

1. When the question to which an objection has been
sustained clearly reveals on its face the substance,
purpose and relevancy of the excluded evidence
2. When the substance, purpose and relevancy of the
excluded evidence were made known to the court
earlier in the proceedings and such part appears on
record
3. Where evidence is inadmissible when offered and
excluded, but thereafter becomes, it must, be re-
offered, unless the court indicates that a second
offer would be useless
(403) English Exchequer Rule.

It is a species of mid-1800 English rule pursuant to
which a “trial court’s error as to the admission of evi-
dence was presumed to have caused prejudice and
therefore, almost automatically required a new trial.”
This rule has long been laid to rest for even English ap-
pellate courts now disregard an error in the admission of
evidence “unless in its opinion, some substantial wrong
or miscarriage of justice has been occasioned,” known
as the Harmless Error Rule.
In our jurisdiction, we follow the harmless error rule, for
in dealing with evidence improperly admitted in the trial,
we examine its damaging quality and its impact to the
substantive rights of the litigant. If the impact is slight
and insignificant, we disregard the error as it will not
overcome the weight of the properly admitted evidence
against the prejudiced party.
!

RULE 133
Where the evidence of the parties in a criminal case is
evenly balanced, the constitutional presumption of inno-
cence should tilt the scales in favor of the accused.
WEIGHT AND The rule is different in a civil case, the party who will lose
SUFFICIENCY OF
is the party who has the burden of proof.
(407) Paraffin Tests. Paraffin tests are inconclusive. The

EVIDENCE absence of powder burns in a suspect’s hand is not
conclusive proof that he has not fired a gun. In fact, the
traces of nitrates can easily be removed by the simple
(404) Weight of evidence is the probative value or credit that
act of washing one’s hand.
the court gives to a particular evidence admitted to
prove a fact in issue. (408) Polygraph Tests. A polygraph is an electromechanical
Admissibility of evidence and its weight are different. The instrument that simultaneously measures and records
admissibility of evidence depends on its relevance and certain physiological changes in the human body that
competence while the weight of evidence pertains to are believed to be involuntarily caused by an examinee’s
evidence already admitted and its tendency to convince conscious attempt to deceive a questioner.
and persuade. American courts almost uniformly reject the results of
polygraph tests when offered in evidence for the pur-
(405) Hierarchy of evidentiary values
pose of establishing the guilt or innocence of one ac-
1. Proof beyond reasonable doubt cused of a crime, whether the accused or the prosecu-
- It is required for conviction of an accused in a tion seeks its introduction, for the reason that polygraph
criminal case has not yet attained scientific acceptance as a reliable
- That which is the logical and inevitable result and accurate means of ascertaining truth or deception.
of the evidence on record, exclusive of any The rule is the same in Philippine jurisdiction.
other consideration, of the moral certainty of
the guilt of the accused or that degree of proof (409) Preponderance of evidence (Sec. 1)
which produces conviction in an unprejudiced Preponderance of evidence means that the evidence
mind. adduced by one side is, as a whole, superior to or has
2. Clear and convincing evidence greater weight than that of the other.
- This is adduced to overcome a prima facie In civil cases, the party having the burden of proof must
case or a disputable presumption establish his case by a preponderance of evidence. In
- An accused who invokes self-defense must determining where the preponderance or superior weight
prove it by clear and convincing evidence of evidence on the issues involved lies, the court may
- That degree of proof which will produce in the consider all the facts and circumstances of the case, the
mind of the trier of facts a firm belief or con- witnesses’ manner of testifying, their intelligence, their
viction as to the allegations sought to be es- means and opportunity of knowing the facts to which
tablished. (ex. extradition proceedings) they are testifying, the nature of the facts to which they
3. Preponderance of evidence testify, the probability or improbability of their testimony,
- The degree of proof required in civil cases their interest or want of interest, and also their personal
- That which is of greater weight or more con- credibility so far as the same may legitimately appear
vincing than that which is offered in opposition upon the trial. The court may also consider the number
to it of witnesses, though the preponderance is not neces-
sarily with the greater number.
4. Substantial evidence
- Required to reach a conclusion in administra- (410) Distinguish positive testimony from negative tes-
tive proceedings or to establish a fact before timony
administrative or quasi-judicial bodies
Positive Testimony Negative Testimony
- Such relevant evidence as a reasonable mind
might accept as adequate to support a con- It is when the witness affirms It is when a witness states
that a fact did or did not that he did not see or know of
clusion occur the occurrence of a fact
Evidence to be believed must not only come form a It has greater weight than It has lesser weight than
credible witness but must also be credible in itself. The negative testimony since the positive testimony because
evidence must be natural, reasonable and probable as to witness represents of his there is only a total disclaimer
personal knowledge the of personal knowledge.
make it easy to believe. presence or absence of a
fact.
(406) Equipoise Rule (Equiponderance of Evidence). The
doctrine refers to a situation where the evidence of the (411) Proof beyond reasonable doubt (Sec. 2)
parties are evenly balanced or there is doubt on which
In a criminal case, the accused is entitled to an acquittal,
side the evidence preponderates. In such case, the de-
unless his guilt is shown beyond reasonable doubt.
cision should be against the party with the burden of
Proof beyond reasonable doubt does not mean such a
proof.
degree of proof as, excluding the possibility of error,

produces absolute certainty. Only the existence of moral sion of the crime is purely circumstantial or is inconclu-
certainty is required. sive.
Prosecution must present evidence that is strong (416) Flight. Flight form the scene of the crime is a circum-
enough to convince the court that the prisoner must be stantial evidence which is admissible against him and, if
punished not because he cannot prove that he is inno- not explained in a manner consistent with his innocence,
cent but because it has proved that he is guilty. is to be considered as tending to show that he was the
For the defendant, it is enough that he is able to prove person who committed the deed.
his defenses by preponderance of evidence since it will
create a reasonable doubt as to his guilt. Thus, whenev- (417) Out-of-court identification. The Supreme Court has
er there is a reasonable doubt, the accuse dis entitled to held that the admissibility and reliability of out-of-court
an acquittal. identification of suspects, the Totality of Circum-
stances Test, which utilizes the following factors:
(412) Alibi. As a defense, alibi is inherently weak and crum- 1. The witness’ opportunity to view the criminal at the
bles in the light of positive identification by truthful wit- time of the crime
nesses. It is evidence negative in nature and self-serving 2. The witness’ degree of attention at that time
and cannot attain more credibility than the testimonies of 3. THe level of certainty demonstrated by the witness
prosecution witnesses who testify on clear and positive at the identification
evidence. 4. The length of time between the crime and the iden-
tification; and
For alibi to prosper, it is not enough for the accused to
5. The suggestiveness of the identification procedure
prove that he was somewhere else when the crime was
committed. He must likewise prove that it was physically When the identity of the appellant is not established
impossible for him to be present at the crime scene or beyond reasonable doubt, acquittal necessarily follows.
its immediate vicinity at the time of its commission. Conviction for a crime rests on the strength of the pros-
ecution’s evidence, never on the weakness of that of the
Requisites of the defense of alibi to prosper. defense.
1. The presence of the accused in another place at In every criminal prosecution, the prosecution must
the time of the commission of the offense prove two things: (1) the commission of the crime and (2)
2. The physical impossibility for him to be at the the identification of the accused as the perpetrator of the
scene of the crime at the time of its commission. By crime. Cursory identification does not suffice to convict
physical impossibility we refer to the distance and the accused. What is needed is positive identification
the facility of access between the situs criminis and made with moral certainty as to the person of the of-
the place where he says he was when the crime fender.
was committed. Eyewitness identification is often decisive of the convic-
Alibi is not always false and without merit. Sometimes, tion or acquittal of an accused. Identification of an ac-
the fact that the accused was somewhere else may just cused through mug shots is one of the established pro-
be the plain and unvarnished truth. But to be exonerat- cedures in pinning down criminals. However, to avoid
ing, the defense of alibi must be so airtight that it would charges of impermissible suggestion, there should be
admit of no exception. nothing in the photograph that would focus attention on
a single person.
(413) Frame up. LIke ailibi, the defense of frame up is viewed
A police line-up is merely a part of the investigation
with disfavor as it can easily be concocted. The legal
process by police investigators to ascertain the identity
presumption is that official duty has been regularly per-
of offenders or confirm their identification by a witness
formed by government officials in prosecuting a crime.
to the crime. Police officers are not obliged to assemble
(414) Delayed reporting by witnesses of what they know a police line-up as a condition sine qua non to prove the
about a crime does not render their testimonies false or identity of an offender. If on the basis of the evidence on
incredible, for the delay may be explained by the natural hand, police officers are certain of the identity of the
reticence of most people and their abhorrence to get offender, they need not require any police line-up any-
involved in a criminal case. But more than this, there is more.
always the inherent fear of reprisal, especially if the ac-
(418) Res Ipsa Loquitur. “The thing speaks for itself”. A
cused is a man of power and influence. The natural re-
maxim for the rule that the fact of the occurrence of an
luctance of a witness to get involved in a criminal case
injury, taken with the surrounding circumstances, may
as well as to give information to the authorities is a mat-
permit an inference or raise a presumption of negli-
ter of judicial notice.
gence, or make out a plaintiff’s prima facie case, and
(415) Motive. The general rule is that the prosecution need present a question of fact for the defendant to meet with
not prove motive on the part of the accused when the an explanation. The doctrine is simply a recognition of
latter has been positively identified as the author of the postulate that as a matter of common knowledge and
crime. XPN: It only becomes relevant when the accused experience, the very nature of certain types of occur-
has not been positively identified and proof thereof be- rences may justify an inference of negligence on the part
comes essential only when the evidence of the commis- of person who controls the instrumentality causing the
injury, in the absence of some explanation by him. How-

ever, it does not dispense with the requirement of proof the testimony of the complainant is scrutinized with
of negligence. extreme caution; and
3. That the evidence of the prosecution stands or falls
(419) Credibility of witnesses on its own merits and cannot be allowed to draw
In the assessment of the credibility of witnesses, we are strength from the weakness of the defense
guided by the following well-entrenched rules: (1) that Sweetheart Theory. Accused admits that he had sex-
evidence to be believed must not only spring from the ual intercourse with the complainant that fateful day, but
mouth of a credible witness but must itself be credible, argues that they were lovers and the act is consensual.
and (2) findings of facts and assessment of credibility of However, other than his bare allegations, he adduced no
witness are matters best left to the trial court who had independent proof that he was the sweetheart of the
the opportunity to personally evaluate the witnesses’ victim. His sweetheart defense was neither corroborated
demeanor, conduct, and behavior while testifying. by any other witness nor substantiated by any memento,
Falsus in uno, falsus in omnibus (False in one love note, picture or token. Furthermore, even assuming
thing, false in everything). If the testimony of the that they were lovers, their relationship did not give him
witness on a material issue is willfully false and given a license to sexually assault her. Love is not a license to
with an intention to deceive, the court may disregard all rape.
the witness’ testimony. Nevertheless, the court may
accept as admissible portion or portions of the testimo- (420) Extrajudicial confession, not sufficient ground for
conviction (Sec. 3)
ny believed to be true and set aside the fabricated ones.
This is not a mandatory rule of evidence but is applied An extrajudicial confession is not sufficient ground for
by the courts in its discretion. conviction unless corroborated by evidence of corpus
1. It deals only with weight of evidence and not a delicti.
positive rule of law
2. The witnesses’ false or exaggerated statements on (421) Corpus delicti. Corpus delicti is the actual commission
other matters shall not preclude the acceptance of by someone of the particular crime charged.
such evidence as is relieved from any sign of false- Two elements:
hood
1. That a certain result has been proved
3. The court may accept and reject portions of the
2. That someone is criminally responsible for the act
witness’ testimony depending on the inherent cred-
ibility thereof Note: The identity of the accused is not a necessary
element of the corpus delicti.
The credibility of witnesses is best determined by the
trial judge, who has the direct opportunity to observe Corpus delicti in its legal sense refers to the fact of the
and evaluate their demeanor on the witness stand. The commission of the crime, not to the physical body of the
trial court’s findings of fact will not be disturbed on ap- deceased or to the ashes of a burned building... The
peal, unless there is a clear showing that it plainly over- corpus delicti may be proven by the credible testimony
looked matters of substance which, if considered, might of a sole witness, not necessarily by physical evidence
affect the results of the review. such as those aforementioned. (Rimorin v. People, 2003)
Rules on Credibility in Rape Cases Corpus delicti is not synonymous with the whole charge
so as to require that all the elements of the crime be
The lone testimony of the offended party, if free from
established independently of the extrajudicial confes-
serious and material contradictions, is sufficient to sus-
sion. It means there should be some evidence apart from
tain a verdict of conviction. Ratio: No young Filipina of
the confession tending to show the commission of the
decent repute would undergo the expense, trouble, in-
crime.
convenience of a public trial, exposing herself to public
shame and ridicule; suffer scandal, embarrassment and (422) Circumstantial evidence, when sufficient (Sec. 4)
humiliation of a public trial and publicly admitted that
It is sufficient for conviction if:
she was criminally abused unless it is the truth.
1. There is more than one circumstance
The sole, uncorroborated testimony of an accused who
2. The facts from which the inferences are derived are
turned state witness may suffice to convict his co-ac-
proven; and
cused if it is given unhesitatingly and in a straightforward
3. The combination of all the circumstances is such as
manner and is full of details which by their nature could
to produce a conviction beyond reasonable doubt
not have been the result of deliberate afterthought, oth-
(People v. Guihama, 2003)
erwise, it needs corroboration, the presence of lack of
which may ultimately decide the case of the prosecution All the circumstances proved must be consistent with
and the fate of the accused. each other, and they are to be taken together as proved.
They must point unerringly to the direction of guilt and
Three precepts have guided the Supreme Court in re-
mere suspicions, probabilities, or suppositions do not
viewing rape convictions:
warrant a conviction. A conviction based on circumstan-
1. An accusation for rape can be made with facility, it
tial evidence must exclude each and every hypothesis
is difficult for the person accused, though innocent,
consistent with innocence.
to disprove;
2. That in view of the intrinsic nature of the crime of Reason for its admission: It is due to the necessity, es-
rape, where only two persons are usually involved, pecially in a criminal case. If only direct evidence is al-

lowed, very few convictions could be had. Besides cir- the privilege of the writ and such reliefs as may be prop-
cumstantial evidence is based on sound rational er and appropriate; otherwise, the privilege shall be de-
grounds of everyday logic. nied (The Rule on the Writ of Amparo). The same rule
applies to petitions for writ of habeas data (The Rule on
Direct proof of previous agreement to commit a crime is
the Writ of Habeas Data)
not necessary to prove conspiracy as it may be deduced
from the acts of the perpetrators before, during and after When may Supreme Court review findings. The evalua-
the commission which are indicative of a common de- tion of testimonial evidence by trial courts is accorded
sign, concerted action and concurrence of sentiments. great respect because of its chance to observe first-
(Serrano v. Court of Appeals, 2003) hand the demeanor of witnesses. The rule is not inflexi-
ble but admits of exceptions.
Note: Circumstantial evidence can be utilized not only in
a criminal case but in a civil case as well. (426) Exceptions to conclusiveness of facts
(423) Distinguish direct evidence from circumstantial 1. When the finding is grounded entirely on specula-
evidence tions, surmise or conjecture
Direct Evidence Circumstantial Evidence 2. When the inference made is manifestly absurd,
Establishes the existence of a Does not prove the existence
mistaken or impossible
fact in issue without the aid of of a fact in issue directly, but 3. When the judgment is premised on a misrepresen-
any inference or presumption. merely provides for logical
inference that such fact really tation of facts
exists.
4. When there is grave abuse of discretion in the ap-
The witnesses testify directly Each proof is given of facts preciation of facts
of their own knowledge as to and circumstances from
the main facts to be proved. which the court may infer 5. When the findings of facts are conflicting
other connected facts which
reasonably follow, according 6. When the CA in making its findings went beyond
to the common experience of the issues of the case and the same is contrary to
mankind.
both the admissions of appellants and appellees
(424) Positive identification as direct evidence and as 7. When the findings of fact of the CA are at variance
circumstantial evidence. Positive identification per- with those of the trial court, the SC has to review
tains essentially to proof of identity and not per se to the evidence in order to arrive at the correct find-
that of being an eyewitness to the very act of commis- ings based on the record
sion of the crime. 8. When the findings of fact are conclusions without
Two types of positive identification: citation of specific evidence on which they are
based
1. A witness may identify a suspect or accused as the
offender as an eyewitness to the very act of the 9. When the facts set forth in the petition as well as in
commission of the crime. This constitutes direct the petitioner’s main and reply briefs are not disput-
evidence. ed by the respondents
2. The second type is when, although a witness may 10. The findings of fact of the CA is premised on the
not have actually witnessed the very act of com- supposed evidence and is contradicted by the evi-
mission of a crime, he may still be able to positively dence on record; and
identify a suspect or accused as the perpetrator of
11. When certain material facts and circumstances
a crime as when, for instance, the latter is the per-
have been overlooked by the trial court, which if
son or one of the persons last seen with the victim
taken into account, would alter the result of the
immediately before and right after the commission
case in that they would entitle the accused to ac-
of the crime. The second type of positive identifica-
quittal
tion forms part of circumstantial evidence.
Note: In the absence of direct evidence, the prosecution (427) Power of the court to stop further evidence (Sec.
may resort to adducing circumstantial evidence to dis- 6)
charge its burden. The court has the power to stop the introduction of tes-
timony which will merely be cumulative.
(425) Substantial evidence (Sec. 5)
Factual findings of quasi-judicial agencies which have (428) Evidence on motion (Sec. 7)
acquired expertise in specific matters within their juris- When a motion is based on facts not appearing of
diction are generally accorded not only respect but at all record, the court may hear the matter on affidavits or
times even finality, if such findings are supported by depositions presented by the respective parties, but the
substantial evidence. court may direct that the mater be heard wholly or partly
Administrative bodies cannot require that cases before on oral testimony or depositions (ex. motion for bail
such bodies must be proven by preponderance of evi- when bail is not a matter of right since prosecutor must
dence. prove that the evidence of guilt is strong)
Note: If the allegations in the petition for writ of amparo While the court may hear and rule upon motions solely
are proven by substantial evidence, the court shall grant on the basis of affidavits or counter-affidavits, if the affi-

davits contradict each other on matters of fact, the court

can have no basis to make its findings of fact and the
prudent course is to subject the affiants to cross-exami-
nation so that the court can decide whom to believe
(Sapida v. de Villanueva, 1972)
!
!

ELECTRONIC
ment not being presented or retained in its original
form
EVIDENCE
3. Where the law requires that the document be pre-
sented or retained in its original form, that require-
ment is met by an electronic document if:
a. There exists a reliable assurance as to the
E-COMMERCE LAW (R.A. 8792) integrity of the document from the time it was
first generated in its final form; and
(429) Electronic document refers to information or the rep- b. That document is capable of being displayed
resentation of information, data, figures, symbols, by to the person to whom it is to be presented;
which a right is established or an obligation extin- provided that no provision of this act shall
guished, or by which a fact may be proved and affirmed, apply to vary any and all requirements of exist-
which is received, recorded, transmitted, stored, pro- ing laws on formalities required int he execu-
cessed, retrieved or produced electronically. tion of documents for their validity.
Electronic data message refers to information gener-
ated, sent, received or stored by electronic, optical or (431) For evidentiary purposes, an electronic document shall
similar means. be the functional equivalent of a written document under
existing laws.
Electronic signature refers to any distinctive mark,
characteristic and/or sound in electronic form, repre- (432) Burden of proof
senting the identity of a person and attached to or logi- The person seeking to introduce an electronic data mes-
cally associated with the electronic data message or sage or electronic document in any legal proceeding has
electronic document or any methodology or procedures the burden of proving its authenticity by evidence capa-
employed or adopted by a person and executed or ble of supporting a finding that the electronic data mes-
adopted by such person with the intention of authenti- sage or electronic document is what the person claims it
cating or approving an electronic data message or elec- to be.
tronic document.
Digital signature refers to an electronic signature con-
sisting of a transformation of an electronic or an elec-
RULES ON ELECTRONIC
tronic data message using an asymmetric or public EVIDENCE (A.M. 01-7-01-SC)
cryptosystem such that a person having the initial un- (433) Applicability. Under A.M. 01-7-01-SC, the rules shall
transformed electronic document and the signer’s public apply to all criminal and civil actions and proceedings,
key can accurately determine: as well as quasi-judicial and administrative cases.
1. Whether the transformation was created using the
private key that corresponds to the signer’s public (434) Electronic documents as functional equivalent of
paper-based documents.
key; and
2. Whether the initial electronic document had been Whenever a rule of evidence refers to the term of writing,
altered after the transformation was made document, record, instrument, memorandum or any
other form of writing, such term shall be deemed to in-
Asymmetric or public cryptosystem means a system
clude an electronic document.
capable of generating a secure key pair, consisting of a
private key for creating a digital signature, and a public An electronic document is admissible in evidence if it
key for verifying the digital signature. complies with the rules on admissibility prescribed by
the Rules of Court and related laws and is authenticated
(430) What are the requisites for the admissibility of in the manner prescribed by these Rules.
electronic documents?
1. Where the law requires a document to be in writing, (435) When is electronic evidence regarded as being
the equivalent of an original document under the
the requirement is met by an electronic document if
Best Evidence Rule?
the said electronic document maintains its integrity
and reliability and can be authenticated so as to be An electronic document shall be regarded as the equiva-
usable for subsequent reference: lent of an original document under the Best Evidence
a. The electronic document has remained in- Rule if it is a printout or output readable by sight or other
complete and unaltered, apart from the addi- means, shown to reflect the data accurately.
tion of any endorsement and any authorized
(436) Manner of authentication of an electronic docu-
change or any change which arises in the
ment
normal course of communication, storage and
display; and 1. By evidence that it has been digitally signed by the
b. The electronic document is reliable in the light person purported to have signed the same
of the purpose for which it was generated and 2. By evidence that other appropriate security proce-
in the light of all relevant circumstances. dures or devices as may be authorized by the
Supreme Court or by law for the authentication of
2. Paragraph (1) applies whether the requirement
electronic documents were applied to the docu-
therein is in the form of an obligation or whether the
ment
law simply provides consequences for the docu-

3. By other evidence showing its integrity and reliabili- (443) Audio, video and similar evidence. Audio, photo-
ty to the satisfaction of the judge graphic and video evidence of events, acts or transac-
tions shall be admissible provided it shall be shown,
(437) Authentication of electronic signatures presented or displayed to the court and shall be identi-
1. By evidence that a method or process was utilized fied, explained or authenticated by the person who
to establish a digital signature and verify the same made the recording or by some other person competent
2. By any other means provided by law to testify on the accuracy thereof.
3. By any other means satisfactory to the judge as
establishing the genuineness of the electronic sig- (444) Ephemeral electronic communication. This refers to
nature telephone conversations, text messages, chatroom ses-
sions, streaming video and other electronic forms of
(438) Disputable presumptions in relation to electronic communication and the evidence of which is not record-
signature ed or retained.
1. The electronic signature is that of the person to Communication of this type shall be proven by the tes-
whom it correlates timony of a person who was a party to the same or has
2. The electronic signature was affixed by the person personal knowledge thereof. In the absence or unavail-
with the intention of authenticating or approving the ability of such witnesses, other competent evidence may
electronic document to which it is related or to
indicate such person’s consent to the transaction
embodied therein; and
!! be admitted.
3. The methods or processed utilized to affix or verify

the electronic signature operated without error or
!
fault
(439) Disputable presumptions relating to digital signa-

tures (in addition to the foregoing)
1. The information contained in the certificate is cor-
rect
2. The digital signature was created during the opera-
tional period of a certificate
3. The message associated with the digital signature
has not been altered from the time it was signed
4. A certificate has been issued by the certification
authority indicated therein
(440) Method of proof. All matters relating to the admissibili-

ty and evidentiary weight of electronic document may be
established by an affidavit stating the facts of direct
personal knowledge of the affiant or based on authentic
records. The affidavit must affirmatively show the com-
petence of the affiant to testify on the matters contained
therein.
(441) Cross-examination. The affiant shall be made to affirm

the contents of the affidavit in open court and may be
cross-examined as a matter of right by the adverse par-
ty.
(442) Electronic business records are an exception to

the hearsay rule provided:
1. Made at or near the time of or from transmission or
supply of information
2. Made by a person with knowledge thereof
3. Kept in the regular course or conduct of business
activity
4. Such was the regular practice
All these must be shown by the testimony of the custo-
dian or other qualified witness.
This presumption may be overcome by evidence of the
untrustworthiness of the source of information or the
method or circumstances of the preparation, transmis-
sion or storage thereof.

JUDICIAL
The applicability of this rule may refer to:
1. The courts where the rule will apply
AFFIDAVIT RULE
2. The kinds of cases or proceedings where the rule
will apply
3. The state of the proceeding
(445) What is the Judicial Affidavit Rule? (449) Type of cases

The Judicial Affidavit Rule requires that direct exami- This Rule shall apply to all actions, proceedings, and
nation of a witness, which is the examination-in-chief of incidents requiring the reception of evidence. However,
a witness by the party presenting him on the facts rele- the Rule shall not apply to small claims cases under
vant to the issue, shall be in the form of judicial affi- A.M. 08-8-87.
davits, subject to the usual mode of cross-examination.
The Rule may apply to criminal cases in three situations,
(446) When is the rule effective? as follows:
The Rule took effect on 1 January 2013. However, in 1. The maximum of the imposable penalty does not
criminal cases without private prosecutors, the Supreme exceed six years
Court allowed public prosecutors in first- and second- 2. Regardless of the penalty involved, with respect to
level courts until the end of 2013 to utilize the affidavits the civil aspect of the actions, or where the ac-
of the complainant and his witnesses prepared and cused agrees to the use of the Rule
submitted in connection with the investigation and filing
(450) Courts where the Rules are applicable
of the Information in court. Public prosecutors are re-
quired to fully comply with the Rule by 1 January 2014. 1. Metropolitan Trial Courts, Municipal Trial Courts in
Cities, the Municipal Trial Courts, the Municipal
During the one-year period when the concession is in
Circuit Trial Courts
effect, the attending public prosecutor, upon presenting
2. Shari’a Circuit Courts, Shari’a District Courts and
the witness, shall require the witness to affirm what the
the Shari’a Appellate Courts
sworn statement contains and may only ask the witness
3. Regional Trial Courts
additional direct examination questions that have not
4. Sandiganbayan
been amply covered by the sworn statement.
5. Court of Tax Appeals
The concession does not apply in criminal cases where 6. Court of Appeals
the private complainant is represented by a duly em- 7. Investigating officers and bodies authorized by the
powered private prosecutor, who has the obligation to Supreme Court to receive evidence, including the
comply with the Rule. Integrated Bar of the Philippines (IBP)
8. Special courts and quasi-judicial bodies, whose
(447) Reasons for the issuance of the rule rules of procedure are subject to disapproval of the
Case congestion and delays plague most courts in Supreme Court, insofar as their existing rules of
cities, given the huge volume of cases filed each year procedure contravene the provisions of this Rule
and the slow and cumbersome adversarial system that
the judiciary has in place. About 40% of criminal cases (451) Service and Filing of the Judicial Affidavit
are dismissed annually owing to the fact that com- The parties shall serve on the adverse party and file with
plainants simply give up coming to court after repeated the court not later than five days before pre-trial or pre-
postponements. Few foreign businessmen make long- liminary conference or the scheduled hearing with re-
term investments in the Philippines because its courts spect to motions and incidents.
are unable to provide ample and speedy protection to
This Rule amends the existing minimum period, which is
their investments, keeping its people poor.
three (3) days, for the service and filing of the pre-trial
In order to reduce the time needed for completing the brief. Under the new RUle, considering that the judicial
testimonies of witnesses in cases under litigation, on 21 affidavit must be attached to the pre-trial brief, the latter
February 2012 the Supreme Court approved for piloting must be served and filed within five days.
by trial courts in Quezon City the compulsory use of
In Criminal cases
judicial affidavits in place of the direct testimonies of
witnesses. It is reported that such piloting has quickly This is the only portion of the Rule that provides a sepa-
resulted in reducing by about two-thirds the time used rate provision for criminal cases, veering from the simul-
for presenting the testimonies of witnesses, thus speed- taneous filing of judicial affidavits by the parties. The
ing up the hearing and adjudication of cases. The adop- general rule is reiterated, but this time applicable only to
tion of the Rule hopes to replicate nationwide the suc- the prosecution, to submit the judicial affidavits of its
cess of the Quezon City experience in the use of judicial witnesses not later than give days before the pre-trial,
affidavits. serving copies of the same upon the accused. The com-
plainant or public prosecutor shall attach to the affidavits
These reasons for the issuance of the Judicial Affidavit
such documentary or object evidence as he may have,
Rule are contained in the “whereas” clauses of A.M. No.
marking them as Exhibits A, B, C and so on. No further
12-8-8-SC.
judicial affidavit, documentary or object evidence shall
(448) What is the scope of application of this Rule? be admitted at the trial.

If the accused, on the other hand, desires to be heard on almost wholly dependent on the witness. This is no
his defense after receipt of the judicial affidavit of the longer true under this Rule because the lawyers pre-
prosecution, he shall have the option to submit his judi- pares the judicial affidavit which takes the place of the
cial affidavit as well as those of his witnesses to the direct testimony.
court within ten days from receipt of such affidavits and Thus, it is now required that the judicial affidavit shall
serve a copy of each on the public and private prosecu- contain a sworn attestation at the end, executed by the
tor, including his documentary and object evidence pre- lawyer who conducted or supervised the examination of
viously marked as Exhibits 1, 2, 3 and so on. These affi- the witness to the effect that:
davits shall serve as direct testimonies of the accused
and his witnesses when they appear before the court to 1. He faithfully recorded or caused to be recorded the
testify. questions he asked and the corresponding answers
that the witness gave; and
It is interesting to note that only the paragraph applica- 2. Neither he nor any other person then present or
ble to the prosecution contains the provision that: “No assisting him coached the witness regarding the
further judicial affidavit, documentary, or object evidence latter’s answers
shall be admitted at the trial.” Does this mean that the
accused is covered by the general rule, which allows the To put teeth to this provision, the Rule provides that a
late filing of the affidavit? false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment. There is no
(452) How is the service/filing done? requirement that the lawyer who prepared the judicial
The Rule specifies only two manners of service or filing affidavit must be the one to present the witness in court.
of the affidavit: by personal service or by licensed couri-
(455) What language should be used in the affidavit?
er service. It is interesting that there is no express men-
tion of “registered mail” and it is logical that the term A judicial affidavit shall be prepared in the language
“courier service” does not refer to, and does not include, known to the witness and, if not in English or Filipino,
registered mail. The purpose of the Rule is to expedite accompanied by a translation in English or Filipino.
cases and there can be no reliance on the presumptive
(456) How does the opposing party make objections?
receipt by reason of registered mail.
Objection to a witness may take the form of:
There is no overriding reason why registered mail should
be removed as a manner of service/filing. 1. A disqualification from testifying; or
2. To a specific question raised
(453) The judicial affidavit shall contain the following:
Under the Rules of Court, objection to a question pro-
1. The name, age, residence or business address, and pounded in the course of the oral examination of a wit-
occupation of the witness; ness shall be made as soon as the grounds therefor shall
2. The name and address of the lawyer who conducts become reasonably apparent. The adverse party may
or supervises the examination of the witness and move to disqualify the witness or to strike out his affi-
the place where the examination is being held; davit or any of the answers found in it on ground of in-
3. A statement that the witness is answering the ques- admissibility. The court shall promptly rule on the motion
tions asked of him, fully conscious that he does so and, if granted, shall cause the marking of any excluded
under oath, and that he may face criminal liability answer by placing it in brackets under the initials of an
for false testimony or perjury; authorized court personnel, without prejudice to a tender
4. Questions asked of the witness and his corre- of excluded evidence.
sponding answers, consecutively numbered that:
i. Show that circumstances under which the (457) How should the party presenting the witness iden-
witness acquired the facts upon which he tify and mark documentary evidence?
testifies; The parties’ documentary or object evidence, if any,
ii. Elicit from him those facts which are relevant which shall be attached to the judicial affidavits and
to the issues that the case presents; and marked as Exhibits A, B, C, and so on in the case of the
iii. Identify the attached documentary and object complainant or the plaintiff, and as Exhibits 1, 2, 3 and
evidence and establish their authenticity in so on in the case of the respondent or the defendant.
accordance with the Rules of Court
5. The signature of the witness over his printed name; (458) How can the party or witness keep the original of
6. A jurat with the signature of the notary public who the documentary or object evidence?
administers the oath or an officer who is authorized Litigants and witnesses, for good reasons, often prefer
by law to administer the same to keep the original of the document that is to be pre-
7. Attestation of the lawyer sented in and submitted to the court. The Rule provides
for the following procedure:
(454) What is the sworn attestation of the lawyer?
1. Attach the document or evidence to the judi-
One of the problems with the Rule is the fact that judges cial affidavit of the witness/es. This must be
only have limited opportunity to observe the demeanor done obviously before the pre-trial conference or
of the witnesses. the hearing. This is done by attaching the photo-
Moreover, even if lawyers briefed the witness, the oral copy of the document or the reproduction or pho-
answer given by the witness during direct examination is tograph of the object evidence. The Rule provides

that should a party or a witness desire to keep the filing a written formal offer of evidence allowed under the
original document or object evidence in his posses- existing rules. A party shall immediately make an oral
sion, he may, after the same has been identified, offer of evidence of his documentary or object exhibits,
marked as exhibit, and authenticated, warrant in his piece by piece, in their chronological order, stating the
judicial affidavit that the copy or reproduction at- purpose or purposes for which he offers the particular
tached to such affidavit is a faithful copy or repro- exhibit.
duction of that original. After each piece of exhibit is offered, the adverse party
2. Bring the original during the pre-trial or pre- shall state the legal ground for his objection, if any, to its
liminary conference. This is required under pre- admission, and the court shall immediately make its
trial rules, so the document may be preliminarily ruling respecting that exhibit.
marked as evidence and compared with the origi- After each piece of exhibit is offered, the adverse party
nal, if needed. The Rule provides that the party or shall state the legal ground for his objection, if any, to its
witness shall bring the original document or object admission, and the court shall immediately make its
evidence for comparison during the preliminary ruling respecting that exhibit.
conference with the attached copy, reproduction, or
pictures, failing which the latter shall not be admit- Since the documentary or object exhibits form part of
ted. As provided under pre-trial rules and reiterated the judicial affidavits that describe and authenticate
in the Rule, evidence not pre-marked shall not be them, it is sufficient that such exhibits are simply cited
admissible as evidence. The Rule indicates that the by their markings during the offer of evidence, the objec-
pre-marking is done by the parties themselves, not tions, and the rulings, dispensing with the description of
the clerk of court as provided in the existing pre- each exhibit.
trial rules. If so, the requirement of preliminary con-
ference, which is conducted before the pre-trial
conference for the purpose of pre-marking docu-
ments before the clerk of court, should be dis-
pensed with and revised/deleted form the rules of
procedure to avoid surplusage.
(459) Cross-examination and re-direct examination un-

der the Rule
The adverse party shall have the right to cross-examine
the witness on his judicial affidavit and on the exhibits
attached to the same. The party who presents the wit-
ness may also examine him as on re-direct. In every
case, the court shall take active part in examining the
witness to determine his credibility as well as the truth of
his testimony and to elicit the answers that it needs for
resolving the issues.
(460) Resort to subpoena under the Rule

There is no need for a judicial affidavit if the witness is
called to testify through a subpoena. If the government
employee or official, or the requested witness, unjustifi-
ably declines to execute a judicial affidavit or refuses
without just cause to make the relevant books, docu-
ments, or other things under his control available for
copying, authentication, and eventual production in
court, the requesting party may avail himself of the is-
suance of a subpoena ad testificandum or duces tecum.
The rules governing the issuance of subpoena to the
witnes in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit
shall be understood to be ex parte.
(461) Formal offer of evidence and objections

The formal offer of documentary or object evidence shall
be made upon the termination of the testimony of a
party’s last witness. This obviously means that this is
done when a party rests its case, and not every time the
testimony of each witness is terminated.
The formal offer is made orally in open court, which
shows an obvious intent to do away with the option of

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STP NOTES | EVIDENCE 1 / 65

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GENERAL at the time of the commission of the offense in order to

PROVISIONS & amendatory law would be unconstitutional for being ex

BASIC PRINCIPLES Rules of evidence are not self-executing. Confessions

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Proof Evidence Note: By itself, prima facie evidence is sufficient to establish

As to quality: 4. Cumulative Evidence - One which is of the same

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(23) What is the scope of the Rules of Evidence?

EVIDENCE by law or by these rules. It is guided by the principle of

(20) What is the applicability of the Rules of Evidence?

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directed. The factum probans is the probative or evi-

(25) How may factum probandum be ascertained? Admissibility Probative Value

A: For the plaintiff, the factum probandum would be:

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A: a. It is not admissible in evidence because it was seized with-

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COLLATERAL MATTERS A conviction based on circumstantial evidence must

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stances establish the guilt of the accused beyond rea-

(45) What are four basic guidelines in the appreciation

!! committed the offense

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WHAT NEED NOT BE

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After trial, Anna was acquitted of the charge in a decision

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(66) What are the rules on admissions made in plead-

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OBJECT (REAL) used in the underlying event. Rather, the foundation

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(82) May the accused in a criminal case be compelled

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INTERPRETATION OF against it, the former is to be adopted.

DOCUMENTS (125) Interpretation according to usage (Sec. 19). An in-

(119) Interpretation according to circumstances (Sec. COMPETENCY AND

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DISQUALIFICATION (149) Applicability of the rule: Unless otherwise provided,

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(161) What are the reasons for the disqualification rule?

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1. Testimony of mere witnesses who are neither party 2. Authorized persons

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ADMISSIONS AND Admission Confession

The act, declaration or omission of a party as to a rele-

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ADMISSION BY CONSPIRATOR (Sec. 30)

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