UPDATED 07c TOM Remedial Law Bar Reviewer III

“Cor mundum crea in me, Deus” 1 of 173
TOM Bar Reviewer in Remedial Law III

Rules on Evidence. Judicial Affidavit Rule. DNA Evidence.
Electronic Evidence. Examination of Child Witness.
CONTENTS
I. Conceptual Framework 2
II. General Principles 3
III. Admissibility of Evidence 3
COMMON MATTERS UNDER IV-V-VI 4
IV. Judicial Notice 5
V. Judicial Admissions 6
VI. Extrajudicial Admissions; res inter alios acta 6
ON THE TYPES OF EVIDENCES 8
VII. Object/Real Evidence 8
VIII. Documentary Evidence 9
ON THE BEST EVIDENCE RULE (BER) 9
PAROL EVIDENCE RULE 10
IX. Authentication & Proof of Documents 10
X. Testimonial Evidence 10
DISQUALIFICATIONS OF WITNESSES 11
HEARSAY RULE 13
EXCEPTIONS TO THE HEARSAY RULE 13
OPINION RULE [Rule 130, Section 48] 13
RULE ON CHARACTER EVIDENCE [Rule 130, C(8)] 14
XI. Examination of Witnesses 14
ORDER OF THE EXAMINATION 14
ON IMPEACHING A WITNESS 18
X. Burden of Proof [Rule 131] 18
XI. Presumptions [Rule 131] 18
XII. Offer and Objection [Rule 132] 19
XIII. Weight & Sufficiency of Evidence [Rule 133] 19
XIV. OTHER RELEVANT RULES 19
A. Judicial Affidavit Rule 21
B. Rule on DNA Evidence 22
C. Rules on Electronic Evidence 22
D. Rule on the Examination of Child Witnesses 22
Other Relevant Concepts 24
I. Conceptual Framework
TYPES OF EVIDENCES
1. Object (real) evidence
2. Documentary evidence
3. Testimonial evidence
UNDER DOCUMENTARY EVIDENCE

1. Best Evidence Rule
2. Parol Evidence Rule
3. Rules on Electronic Evidence (A.M. No. 01-7-01-SC) D
4. Authentication and proof of documents
UNDER TESTIMONIAL EVIDENCE

1. Qualifications of a witness
2. Competency versus Credibility of a witness
3. Disqualifications of witnesses
4. Examination of a witness; Order in the examination
5. Impeachment of witness
6. Evidence of the good character of a witness
7. Judicial Affidavit Rule (A.M. No. 12-8-8-SC).
8. Admissions and confessions: a. Res inter alios acta rule; b. Confessions
c. Similar acts as evidence
9. Hearsay
10. Opinion rule: a. Opinion of expert witness; b. Opinion of ordinary witness.
11. Character evidence: Criminal cases
12. Rule on Examination of a Child Witness (A.M. No. 004-07-SC): Live-link TV
testimony of a child witness
THE REVISED RULES ON EVIDENCE

Rule 128 General Provisions
Rule 129 What Need Not Be Proved
Rule 130 Rules of Admissibility
Rule 131 Burden of Proof and Presumptions
Rule 132 Presentation of Evidence
Rule 133 Weight and Sufficiency of Evidence
Rule 134 Perpetuation of Testimony
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II. General Principles
ON THE DEFINITION OF EVIDENCE 3

ON APPLICABILITY OF THE RULES ON EVIDENCE 3
ON THE LIBERAL CONSTRUCTION OF THE RULES ON EVIDENCE 4
————————————————————————————————
ON THE DEFINITION OF EVIDENCE

1. Codal, Section 1, Rule 128: Rule 128, Section 1. Evidence defined. — Evidence is
the
a. means,
b. sanctioned by these rules,
c. of ascertaining (the truth)
d. in a judicial proceeding
e. the truth respecting a matter of fact.
2. MEANS: not the end; a means of proving a fact
3. SANCTIONED: It has to be allowed by law or by the rules;
3. PURPOSE: to ascertain JUDICIAL TRUTH, not the actual truth
*Courts may only adjudicate matters presented before it: it may be that a
person actually guilty be declared innocent because the corpus delicti was excluded
by the rules; EG: illegal search and seizure leading to the suppression of evidence
in a drug possession case.
4. APPLICABILITY: apply to juridical proceedings
*they cannot be compelled upon quasi-judicial or administrative
proceedings. Such bodies however may apply them when deemed practicable
and/or convenient (falls under Rule 1 Sec. 4, “other cases not herein provided
for”) *EG: hearsay evidence may be admitted in non-judicial proceedings
such proceedings; photocopies of documents, even when what is sought to be
proved are the contents thereof (in contrast to the Best Evidence Rule), may also
be admitted outside judicial proceedings.
5. Evidence is presented to prove a matter of fact
*laws, including ordinances made by LGUs need not be proven in court;
Courts must make judicial notice of official acts of the legislative, the executive,
and the judicial departments of the Philippines [Rule 129, Sec. 1].1
*When are oral official acts considered as public documents? When they are
recorded.
1
Q: Distinguish clearly but briefly between: Legislative facts and adjudicative facts. (2004 Bar
Question) SUGGESTED ANSWER: *****Legislative facts refer to facts mentioned in a statute or
in an explanatory note, while adjudicative facts are facts found in a court decision.
*exception to #5 (Must the court take judicial notice of all laws?) - foreign
laws from the point of view of evidence, are considered as matters of fact.
See discussion under Rule 129, Sec 1 on foreign laws.
*not every fact having conceivable connection to the issue of a case or that
w/c provides a reasonable inference as to the truth or falsity of a matter alleged is
considered evidence. To be considered evidence, the same must:
a. be SANCTIONED by LAW - allowed by the ROC
b. NOT be an END in ITSELF but a MEANS of ASCERTAINING
the TRUTH of a MATTER of FACT
c. be USED, not in all types of proceedings but, IN a "JUDICIAL
PROCEEDING”
5. Evidence in a Civil vs. Evidence in a Criminal case******
EVIDENCE IN A CIVIL CASE EVIDENCE IN A CRIMINAL CASE
QOP: Preponderance of evidence Proof beyond reasonable doubt

The defendant does not enjoy the presumption There is presumption of innocence of the accused
Effect of offer to compromise: no effect It’s an implied admission of guilt
Use of certain terms: use admission Use “confession” which is an admission
PT admissions: not follow a definite form in writing, signed by accused & counsel, otherwise, they are
inadmissible in evidence.
ON APPLICABILITY OF THE RULES ON EVIDENCE

1. When the rules are not applicable [] Rule 1, Section 4. In what case not applicable.
— These Rules shall not apply to (EL CINO)
a. election cases,
b. land registration,
c. cadastral,
d. naturalization and
e. insolvency proceedings,
f. and other cases not herein provided for,
*except by
i. analogy
ii. or in a suppletory character
ii. and whenever practicable and convenient.
ON THE LIBERAL CONSTRUCTION2 OF THE RULES ON

EVIDENCE
1. Under Sec. 6 of Rule 1, procedural rules must be liberally interpreted and
applied so as not to frustrate substantial justice; however, to justify the
relaxation of the rules, a satisfactory explanation and subsequent fulfillment
of the requirements have always been required.
2. There is NO VESTED RIGHT in the Rules on Evidence (ROE) because
the same are subject to change by the SC pursuant to its powers to promulgate
rules concerning pleading, practice and procedure; however, such change in the
rules must not violate the constitutional limitation on the enactment of EX
POST FACTO laws - that which alters the ROE and receives less or different
testimony than that required at the time of the commission of the offense in order
to convict the accused.
————————————————————————————————
2
******How shall the Rules of Court be construed? [2%] (Bar Question) The Rules of Court should be
liberally constructed in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1, 1997 Rules of Civil
Procedure.) However, strict observance of the rules is an imperative necessity when they are
considered indispensable to the prevention of needless delays and to the orderly and speedy
dispatch of judicial business. (Alvero vs. Judge de la Rosa. 76 Phil. 428 and other cases.)
III. Admissibility of Evidence

*NB: Rules on evidence REVOLVE AROUND ADMISSIBILITY
ELEMENTS OF ADMISSIBILITY 6
WAIVER OF ADMISSIBILITY. 6
ADMISSIBILITY vs. PROBATIVE VALUE (Weight) 8
ADMISSIBLE EVIDENCE vs. CREDIBLE EVIDENCE 8
MORE ON PROBATIVE VALUE & CREDIBILITY 9
MULTIPLE ADMISSIBILITY 9
CONDITIONAL ADMISSIBILITY 10
CURATIVE ADMISSIBILITY 10
INADMISSIBLE EVIDENCE UNDER THE ANTI-WIRETAPPING LAW [RA 4200] 10
————————————————————————————————
ELEMENTS OF ADMISSIBILITY
*******Wigmore’s two axioms of admissibility
1. RELEVANCY (axiom of relevancy); it is relevant to the issue; none but facts
having rational PROBATIVE VALUE are admissible;
*a matter of LOGIC & REASONING.
2. COMPETENCY (axiom of competence); it is not excluded by the law or
the rules; all facts having rational probative value are admissible unless some
SPECIFIC RULE FORBIDS them.
*a matter of LAW or the RULES (not excluded by them); refers to
eligibility of evidence; for witnesses, their qualifications.
TEST OF RELEVANCY
1. It must have such a relation to the FACT IN ISSUE (a DISPUTED FACT) as
to INDUCE BELIEF IN ITS EXISTENCE/NON-EXISTENCE
2. The determination is a matter of inference, hence, the test is one of logic,
common sense and experience.
3. Relevance also requires that the immediate fact proved must have a
connection to the ultimate fact in issue; e.g. ultimate fact is negligence,
immediate fact may be: driving beyond the speed limit.
TEST OF COMPETENCE
1. Those not excluded by law/rules in a particular case, thus, the test of
competence is the LAW/RULES
2. In relation to evidence in general, it refers to the eligibility of the evidence to
be received as such
FRUIT OF THE POISONOUS TREE DOCTRINE

1. When evidence is not competent—excluded by the law or the rules—it is
considered to be a fruit of the poisonous tree. It is inadmissible in evidence.
2. Bar areas on this doctrine:******
a. It applies only where the primary source is shown to have been
unlawfully obtained or was the result of an illegal act. Hence, since compulsory
HIV testing is provided for by law, the results of such testing cannot be
considered fruits of the poisonous tree.3
b. The doctrine of the fruit of the poisonous tree can only be invoked by the
torture victim as his defense in a crime filed against him, but the doctrine cannot
be used by the defense counsel in a torture case filed by the said torture victim.4
RELEVANCY, COMPETENCE & CREDIBILITY OF A WITNESS

1. Relevancy: Evidence on the CREDIBILITY of a witness is always relevant
because it has the inherent tendency to prove/disprove the truthfulness of his
assertion and consequently, the probative value of the proffered evidence.
2. Competence: when applied to a witness, it refers to the qualifications of the
witness/eligibility to take the stand and testify
*EG: Objections based on competence: a. leading; b. hearsay; c. parol.
ADMISSIBILITY OF EVIDENCE ON COLLATERAL MATTERS

*GR: Evidence on collateral matters shall not be allowed,
3
a. If the result of a test shows that a person is HIV positive, and the prosecution offers such result in
evidence to prove the qualifying circumstance under the information for qualified rape, should the
court reject such result on the ground that it is the fruit of a poisonous tree? Explain. (8%)(2005 Bar
Question): The fruits of the poisonous tree doctrine applies only where the primary source is
shown to have been unlawfully obtained or was the result of an illegal act (PP v. Alicando, G.R.
No. 117487, 251 SCRA 293 [1995]) Since the rights of the accused are not violated because the
compulsory testing is authorized by law, the result of the testing cannot be considered to be the
fruit of a poisonous tree and can be offered in evidence to prove the qualifying circumstance under
the information for qualified rape under Republic Act No. 8353.
4
Dominique was accused of committing a violation of the Human Security Act. He was detained
incommunicado, deprived of sleep, and subjected to water torture. He later allegedly confessed his
guilt via an affidavit. After trial, he was acquitted on the ground that his confession was obtained
through torture, hence, inadmissible as evidence. In a subsequent criminal case for torture against those
who deprived him of sleep and subjected him to water torture, Dominique was asked to testify and to,
among other things, identify his above-said affidavit of confession. As he was about to identify the
affidavit, the defense counsel objected on the ground that the affidavit is a fruit of a poisonous tree.
Can the objection be sustained? Explain. (Bar 2010)
No, the objection may not be sustained on the ground stated, because the affiant was only to
identify the affidavit which is not yet being offered in evidence. The doctrine of the fruit of the
poisonous tree can only be invoked by Dominique as his defense in the crime of Violation of Human
Security Act filed against him but not by the accused in a torture case filed by him. In the instant
case, the presentation of the affidavit cannot be objected to by the defense counsel on the ground that
it is a fruit of the poisonous tree because the same is used in Domingo’s favour.
*XPN: except when it tends in any ***REASONABLE degree to establish the

probability or improbability of the fact in issue ((as when it would have the effect
of corroborating/supplementing facts previously established by direct
evidence)
*NB: a matter is collateral when it is on a PARALLEL/DIVERGING line,
merely additional/auxiliary; connotes an absence of a direct connection between
the evidence and the matter in dispute
ON THE WAIVER OF THE RULES ON EVIDENCE (ROE);

WAIVER OF ADMISSIBILITY.
***ROE may be waived in the following circumstances:
1. When an otherwise objectionable evidence is not objected to—the evidence
becomes admissible because of the waiver. NB: Admissibility is waived by
***FAILURE TO OBJECT. But the court may or may not consider such
evidence depending on its probative value or weight. *****Admissibility is
different from probative weight of the evidence.
2. Rules on Evidence waived via STIPULATION by the parties , in accordance
with Article 6 of the NCC, as long as:
a. no law5/principles of morality, good customs and public policy are
transgressed; and
b. no rights of 3rd persons are violated.
ADMISSIBILITY vs. PROBATIVE VALUE (Weight)

1. Admissibility is different from probative weight of the evidence; though a party
may have failed to object and the evidence was admitted, the court may or may not
consider such evidence depending on its probative value or weight.
2. Admissibility of the evidence - refers to the question of WON the evidence
is to be considered at all; depends on its relevance and competence
5
***The barangay captain reported to the police that X was illegally keeping in his house in the
barangay an Armalite M16 rifle. On the strength of that information, the police conducted a
search of the house of X and indeed found said rifle. The police raiders seized the rifle and brought X
to the police station. During the investigation, he voluntarily signed a Sworn Statement that he was
possessing said rifle without license or authority to possess, and a Waiver of Right to Counsel.
During the trial of X for illegal possession of firearm, the prosecution submitted in evidence the rifle,
Sworn Statement and Waiver of Right to Counsel. Individually rule on the admissibility in evidence of
the:
a) Rifle; [2%]: not admissible in evidence because it was seized without a proper search
warrant. A warrantless search is not justified. There was time to secure a search warrant. (People v.
Encinada, G.R. No. 116720, October 2, 1997 and other cases.)
b) Sworn Statement; (2%]: not admissible in evidence because it was taken without informing
him of his custodial rights and without the assistance of counsel which should be independent
and competent and preferably of the choice of the accused. (PP v. Januario, 267 SCRA 608)
c) Waiver of Right to Counsel of X. [1%] (1998 Bar Question): not admissible because it was
made without the assistance of counsel of his choice (PP v. Gomez, 270 SCRA433.)
3. Probative value of the evidence - refers to the question of WON it proves an

issue; depends on its tendency to convince/pursuade.
ADMISSIBLE EVIDENCE vs. CREDIBLE EVIDENCE

1. Evidence is admissble when it is relevant to the issue and is not excluded by
the law or rules
2. Admissible evidence is not necessarily credible evidence; the term
"admissible" means that the evidence is of such character that the court, pursuant
to the rules of evidence, is bound to receive it or to allow it to be introduced at the
trial, however, it does not guarantee credibility.
3. Credibility refers to his capacity of being believed; refers to worthiness of
belief or that quality which renders a witness worthy of belief; in ordinary usage,
it means “believability”; A witness may be competent but he is not credible. EG:
a father is competent but when he testifies for his son, he may not be that credible.
MORE ON PROBATIVE VALUE & CREDIBILITY

1. For evidence to be worthy of credit: it must not only proceed from a (1)
credible source but must, in addition, be (2) credible in itself; the evidence must
be (3) natural, reasonable and probable as to make it easy to believe; with
regard to the value of the testimony of a witness, its (4) conformity to the
knowledge and common experience of mankind.
2. What is repugnant to the standards of human knowledge, observation and
experience becomes incredible and must lie outside judicial cognizance
3. Factual findings of the trial courts with regard to the (a) credibility of the
witnesses, (b) the probative weight of their testimonies, and the conclusions
drawn from the same, are accorded great respect and even finality; they assume
greater weight if affirmed by the CA
*said findings are considered generally conclusive and binding upon the
Supreme Court, unless it be manifestly shown that the trial court had
a. overlooked (oversight) or
b. arbitrarily disregarded facts and circumstances of significance
(arbitrariness); or
c. the trial judge did not hear the testimonies himself (lack of evidence)
4. Youth and immaturity are generally badges of truth and sincerity (People vs.
Aycardo)
5. Testimonies of child victims are normally given full weight and credit since
when a woman, more so if she is a minor, says that she has been raped, she says in
effect all that is necessary to show that rape was committed (People vs. Aguilar)
6. It is unrealistic to expect uniform reactions from rape victims (People vs.
Navarette)
7. The sole testimony of a rape victim, if credible, natural, convincing and

consistent with human nature and the normal course of things, suffices to
convict (People vs. Rubio)
8. In determining the value and credibility of evidence, witnesses are to be
weighed, not numbered
9. It is settled that discrepancies between statements of the affiant in his

affidavit and those made by him on the witness stand do not necessarily
discredit the said witness since ex parte affidavits are generally incomplete, and
generally subordinated in importance to testimony in open court (People vs.
Angelio)
MULTIPLE ADMISSIBILITY
1. *****When a proffered evidence is admissible for 2 or more purposes; EG:
declaration of a dying person may be offered as:
a. a dying declaration;
b. part of the res gestae; or
c. declaration against interest
2. It applies also when evidence may be inadmissible for one purpose but
admissible for another; EG: *****a person's bad reputation for truth, honesty
or integrity is objectionable if offered to prove that he committed the crime
charged but admissible to impeach his credibility as a witness.
CONDITIONAL ADMISSIBILITY
1. When the relevance of the evidence is NOT APPARENT at the time it is
offered but may be readily seen when connected to other pieces of evidence
not yet offered, the proponent of the evidence may ask the court that said
evidence be CONDITIONALLY ADMITTED in the meantime, subject to the
condition that he is going to establish its relevancy and competency at a later
time.
2. If the connection is not shown as promised, the court may, upon motion of the
adverse party, STRIKE OUT from the record the evidence conditionally
admitted.
CURATIVE ADMISSIBILITY
1. It allows a party to introduce an OTHERWISE INADMISSIBLE
evidence to answer the opposing party's previous introduction of inadmissible
evidence if it would remove any unfair prejudice caused by the admission of
the earlier inadmissible evidence
2. Dean Riano: it should not be made to apply where the evidence was
admitted without objection because the failure to object constitutes a waiver of
the inadmissibility of the evidence; in our jurisdiction (JN), inadmissible
evidence not objected to becomes admissible.
INADMISSIBLE EVIDENCE UNDER THE ANTI-WIRETAPPING

LAW [RA 4200]
1. Evidence obtained in violation of RA 4200 shall not be admissible in evidence
in the ff proceedings: a) judicial, b) quasi-judicial, c) legislative, d)
administrative hearing/investigation
2. It is not well-settled whether illegally wire-tapped recordings are admissible in
impeachment proceedings; however, according to CJ Puno in his Concurring
and Dissenting Opinion in the case of Francisco vs House of Representatives: "If
an impeachment proceeding is a class of its own (sui generis), it is certainly not a
judicial… [Thus,] [i]f the said nature of impeachment proceedings is to be adopted
by the SC, there would seem to be no reason therefore, to prevent the
admissibility of illegally-procured recordings in an impeachment case.
3. Evidence considered inadmissible if obtained in violation of RA 4200:
a) any communication or spoken word,
b) the existence, contents, substance, purport, or meaning of the
communication or spoken word or any part thereof, or
c) any information contained, obtained or secured by any person in violation
of Secs. 1, 2, and 3 of said law.
4. RA 4200 does not consider it unlawful to record open and public
communications; what the law protects are private conversations and
communications; it is considered unlawful to
a) secretly overhear,
b) intercept or
c) *****record private communication or spoken word when doing so
without the authority of all6 the parties to such private communication; if
only one party authorizes the recording and the other does not, there is a violation
of the law.
5. certain modes of recording private conversations:
a) tapping any wire or cable,
b) using a dictaphone, dictagraph, detectaphone, walkie-talkie, tape recorder,
or any device otherwise described
6. other unlawful acts:
6
Sample problem: AA sued for annulment of his marriage with BB. During trial, AA offered in
evidence cassette tapes of alleged telephone conversations of BB with her lover. The tapes were
recordings made by tapping AA’s telephone line, with AA’s consent and obviously without BB's
or her lover's. BB vehemently objected to their admission, on the ground that neither BB nor her lover
consented to the wire tap. *****The court admitted the tapes, ruling that the recorded conversations
are nonetheless relevant to the issues involved. Was the court correct in admitting the cassette tapes in
evidence? Explain. (1996 Bar Question):
No, because the tape recordings made by tapping AA’s telephone line without the consent of
BB or that of her lover was a violation of the Anti-Wire Tapping Law. (RA No. 4200; Salcedo-
Ortanez v. CA, 235 SCRA 111)
a) knowingly possess any tape record, etc. of any communication obtained in

violation of the law,
b) replay the same to any other person,
c) willfully or knowingly aid, permit or cause to be done the acts described
7. ***the acts mentioned would not be a violation of the law if done by a peace
officer authorized by a written order of the court in cases involving
a. (crimes against govt): treason, rebellion, conspiracy and proposal to
commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition,
inciting to sedition
b. (war-related) espionage, provoking war and disloyalty in case of war,
c. (on the seas) piracy, mutiny in the high seas
d. (personal) kidnapping.
8. Surveillance of suspects, interception and recording of communications under
the Human Security Act of 2007: notwithstanding the provisions of RA 4200, a
police or law enforcement official may listen to, intercept and record, any
communication, message, conversation, discussion, or written or spoken
words between the ff:
a. members of a judicially declared and outlawed terrorist organization,
association, or group of persons
b. any person charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism
***Any of the above acts may not be done without a written order from
the CA.
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COMMON MATTERS UNDER IV-V-VI
ON JUDICAL NOTICE & ADMISSIONS 13

JUDICIAL ADMISSIONS (JA) vs. EXTRAJUDICIAL ADMISSIONS (EJA) 13
ADMISSION vs. CONFESSION 13
CONFESSION 14
REQUISITES FOR VALID EXTRAJUDICIAL CONFESSION; 14
————————————————————————————————
ON JUDICAL NOTICE & ADMISSIONS

1. They are covered by Rule 129: What need not be proved
2. Main purpose: to expedite the proceedings; through judicial notice, evidence is
no longer needed to be presented since such is already admitted by the court.
***
JUDICIAL ADMISSIONS (JA) vs. EXTRAJUDICIAL ADMISSIONS
(EJA)
or NON-JUDICIAL ADMISSIONS (NJA); THEIR EVIDENTIARY EFFECTS
1. JA: need no proof; it is conclusive upon the party making the admission; it is
part of the doctrine of estoppel; you can only free yourself from that JA when
you show that:
a. it is a palpable mistake or
b. that no such admission was made.
2. EJA: must be offered in evidence; these are not made in the course of the
proceedings but outside; EJA/NJA include:
a. Res inter alios acta rule;
b. Confessions;
c. Similar acts as evidence
*Is an EJA admissible against the party making it? Sec 26: Yes, it may be
offered in evidence against him.
*But is an EJA admissible against others? Sec 28: No, because it should not
prejudice the rights of others.
3. Sample problems:
a. Give an example of a JA that is not admissible against the admitter: a JA
that was shown to be a PALPABLE MISTAKE;
b. When may the court consider an evidence that has not been formally
offered? *****The following do not need not be established or proven:
i. matters of judicial notice;
ii. conclusive presumptions;
iii. judicial admissions.
ADMISSION vs. CONFESSION

1. Admission: general; about facts; can be implied.
2. Confession: an admission that acknowledges guilt in relation to a criminal
offense, hence, it cannot be implied; a type of admission
CONFESSION
1. The declaration of an accused acknowledging his guilt of the offense charged,
or of any offense necessarily included therein, may be given in evidence against
him [Rule 130, Section 33]
2. Is an extra-judicial confession in itself sufficient for conviction? ***No, unless
it is corroborated by evidence of corpus delicti [Rule 133, Section 3].
3. ***Reason for the rule against the admission of illegally obtained extrajudicial
confession: An illegally obtained extrajudicial confession nullifies the
intrinsic validity of the confession and renders it unreliable as evidence of the
truth. (Moran, vol. 5. p. 257). It is the fruit of a poisonous tree.
REQUISITES FOR VALID EXTRAJUDICIAL CONFESSION;

1. [] RA 7438, Section 2. Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial investigation shall at all
times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under his order or his
place, who arrests, detains or investigates any person for the commission of an
offense shall inform the latter, in a language known to and understood by him,
of his rights to remain silent and to have competent and independent
counsel, preferably of his own choice, who shall at all times be allowed to confer
privately with the person arrested, detained or under custodial investigation. If such
person cannot afford the services of his own counsel, he must be provided with
a competent and independent counsel by the investigating officer. lawphi1Ÿ
(c) The custodial investigation report shall be reduced to writing by the

investigating officer, provided that before such report is signed, or thumbmarked
if the person arrested or detained does not know how to read and write, it shall be
read and adequately explained to him by his counsel or by the assisting counsel
provided by the investigating officer in the language or dialect known to such
arrested or detained person, otherwise, such investigation report shall be null
and void and of no effect whatsoever.
(d) (see below) Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing and signed by such
person in the presence of his counsel or in the latter's absence, upon a valid
waiver, and in the presence of any of the parents, elder brothers and sisters, his
spouse, the municipal mayor, the municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him; otherwise, such extrajudicial

confession shall be inadmissible as evidence in any proceeding.
(e) Any waiver by a person arrested or detained under the provisions of
Article 125 of the Revised Penal Code, or under custodial investigation, shall be in
writing and signed by such person in the presence of his counsel; otherwise the
waiver shall be null and void and of no effect.
(f) Any person arrested or detained or under custodial investigation shall be
allowed visits by or conferences with any member of his immediate family,
or any medical doctor or priest or religious minister chosen by him or by any
member of his immediate family or by his counsel, or by any national non-
governmental organization duly accredited by the Commission on Human Rights
or by any international non-governmental organization duly accredited by the Office
of the President. The person's "immediate family" shall include his or her
spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and guardian or ward.
As used in this Act, "custodial investigation" shall include the practice of
issuing an "invitation" to a person who is investigated in connection with an
offense he is suspected to have committed, without prejudice to the liability
of the "inviting" officer for any violation of law.
2. Breaking down Section 2 (d) [] ******Any extrajudicial confession7 made by a
person arrested, detained or under custodial investigation shall be:8
[Requirements9]
7
Q: Give the reasons underlying the adoption of the following rules of evidence: (1997 Bar Question)
4. The rule against the admission of illegally obtained extrajudicial confession: An illegally obtained
extrajudicial confession nullifies the intrinsic validity of the confession and renders it unreliable as
evidence of the truth. (Moran, vol. 5. p. 257). It is the fruit of a poisonous tree.
8
The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was
the last person seen with the woman when she was still alive, Carlito was arrested within five hours
after the discovery of the cadaver and brought to the police station. The crime laboratory determined
that the woman had been raped. While in police custody, Carlito broke down in the presence of an
assisting counsel and orally confessed to the investigator that he had raped and killed the woman,
detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely
remorseful. During the trial, the State presented the investigator to testify on the oral confession of
Carlito. Is the oral confession admissible as evidence, of guilt? (4%) (2008 Bar Question):
*****No, the oral confession is not admissible as evidence of guilt of Carlito because he was
already under arrest and in police custody when he made the extrajudicial confession. The
mandates of Rep. Act No. 7438, particularly Sections 2, par. (d), have not been complied with.
Noncompliance with said par. (d) of the law expressly renders the extrajudicial confession
inadmissible as evidence in any proceeding. He was not informed of his right to be warned and he
was not informed of the Miranda rights particularly the right to remain silent. Additionally, it does
not appear that counsel present is his counsel of his choice.
9
Q: What are the requirements in order that an admission of guilt of an accused during a custodial
investigation be admitted in evidence? 2.5% (2006 Bar Question) SUGGESTED ANSWER: An
admission of guilt during a custodial investigation is a confession. To be admissible in evidence,
the requirements are:******
a. the confession must be voluntary;
a. in writing and10
b. signed by such person in the presence of
i. his counsel or in the latter's absence, upon a valid waiver, and
ii. in the presence of any of the parents, elder brothers and sisters, his
spouse, the municipal mayor, the municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him;
******otherwise, such extrajudicial confession shall be inadmissible as
evidence in any proceeding.
3. ***Just remember always: Waiver of the right to a lawyer must be done in
writing and in the presence of competent and independent counsel. (People v.
Mahinay , 302 SCRA 455 11999); People v. Espiritu, 302 SCRA 533 (1999)
ON CORPUS DELICTI
1. Corpus delicti (CD): “body of the crime”: it refers to the elements of the crime,
that is, the crime is actually committed.
2. But SC has determined what the corpus delicti is in the following:
a. Sazota case: in homicide/murder, the CD does not necessarily mean
the actual body, because the death of the person could be proven even if the
body is not found.
b. What if AA who was charged with illegal possession of drugs signed a
receipt voluntarily containing an itemized enumeration of the sachets of shabu
confiscated from him, saying “I admit that the shabu listed herein were the ones
confiscated from my person”. Is the receipt admissible to prove liability for the
offense charged? *****Yes, it is an extrajudicial confession—an admission of
guilt. The same is relevant to the case. However, it is not competent because it
was not done in the presence of counsel (that’s Sir’s answer: is it not supposed
to be NO, since it is not competent, albeit it is relevant, since admissibility has
those two aspects?)
————————————————————————————————
b. the confession must be made with the assistance of competent and independent counsel;
c. the confession must be express;
d. the confession must be in writing (People vs. Principe, 381 SCRA 642 [2002]).
10
X was arrested for the alleged murder of a 6-year Old lad. He was read his Miranda rights
immediately upon being apprehended. In the course of his detention, X was subjected to three hours of
non-stop interrogation. He remained quiet until, on the 3rd hour, he answered "yes" to the
question of whether "he prayed for forgiveness for shooting down the boy." The trial court)
interpreting X's answer as an admission of guilt, convicted him. On appeal, X's counsel faulted the trial
court in its interpretation of his client's answer, arguing that X invoked his Miranda rights when he
remained quiet for the first two hours of questioning. Rule on the assignment of error. (3%) (2010 Bar
Question) SUGGESTED ANSWER:
The assignment of error invoked by X's counsel is impressed with merit since there has
been no express waiver of X's Miranda rights. In order to have a valid waiver of the Miranda rights,
the same must be in writing and made in the presence of his counsel. The uncounseled
extrajudicial confession of X being without a valid waiver of his Miranda rights, is inadmissible,
as well as any information derived therefrom.
IV. Judicial Notice
MANDATORY vs. DISCRETIONARY JUDICIAL NOTICE 18

JUDICIAL NOTICE vs. JUDICIAL KNOWLEDGE 18
ON MANDATORY JUDICIAL NOTICE 18
******MATTERS OF MANDATORY JUDICIAL NOTICE 19
HOW ABOUT FOREIGN LAWS? 19
MATTERS OF DISCRETIONARY JUDICIAL NOTICE; REQUISITES 19
JUDICIAL NOTICE OF RECORDS OF OTHER CASES 21
OTHER MATTERS OF JUDICIAL NOTICE 22
THOSE THAT ARE NOT MATTERS OF JUDICIAL NOTICE 22
———————————————————————————————
ON JUDICIAL NOTICE IN GENERAL

1. Function of Judicial Notice: to abbreviate litigation by the admission of
matters that need no evidence because judicial notice is a substitute for formal
proof of a matter by evidence; it takes the place of proof and is of equal force.
MANDATORY vs. DISCRETIONARY JUDICIAL NOTICE

1. Mandatory: no motion or hearing is necessary for the court to take judicial
notice because this is a matter which the court ought to take judicial notice of.
See the list, infra.
2. Discretionary: matters which are of
a. public knowledge,11 or are
b. capable of unquestionable demonstration, or
c. ought to be known to judges because of their judicial functions.
JUDICIAL NOTICE vs. JUDICIAL KNOWLEDGE

1. Judicial Notice and Knowledge of the Judge: judicial notice is not judicial
knowledge; the mere personal knowledge of the judge is not the judicial
knowledge of the court and he is not authorized to make his individual
11
In rendering a decision, should a court take into consideration the possible effect of its verdict upon
the political stability and economic welfare of the nation? (2003 Bar Question):
******No, because a court is required to take into consideration only the legal issues and the
evidence admitted in the case. The political stability and economic welfare of the nation are
extraneous to the case. They can have persuasive influence but they are not the main factors that
should be considered in deciding a case. A decision should be based on the law, rules of procedure,
justice and equity. However, in exceptional cases the court may consider the political stability and
economic welfare of the nation when these are capable of being taken into judicial notice of and
are relevant to the case.
knowledge of a fact, not generally or professionally known, as the basis of his

action;
2. Judicial notice is not limited by the actual/personal knowledge of the
judge.
ON MANDATORY JUDICIAL NOTICE

1. Main characteristic: to expedite proceedings; through judicial notice, evidence
is no longer needed to be presented since such is already admitted by the
court.
2. Based on the maxim, "what is known need not be proved"; hence, when the
rule is invoked, the court may dispense with the presentation of evidence on
judicially cognizable facts.
******MATTERS OF MANDATORY JUDICIAL NOTICE

1. existence and territorial extent of states, their political history, forms of
government and symbols of nationality,
2. the law of nations,
3. the admiralty and maritime courts of the world and their seals,
4. the political constitution and history of the Philippines, the official acts of
legislative,12 executive and judicial departments of the Philippines,
*includes ordinances made by LGUs (need not be proven in court).
*When are oral official acts considered as public documents? - When they are recorded
5. the laws of nature,
6. the measure of time, and
7. the geographical divisions.
HOW ABOUT FOREIGN LAWS?

1. They are considered “matters of fact”, hence, they have to be pleaded and
proven in court.
a. GR: *****The foreign law MUST BE PLEADED & PROVED AS
FACT. The party whose cause of action or defense depends on the foreign has
the BURDEN OF PROVING the foreign law (i.e., the foreign law must be
proved like any other FACT in dispute between the parties)
b. ******XPN: the COURT MAY TAKE JUDICIAL NOTICE OF the
foreign laws which are ALREADY WITHIN ITS ACTUAL KNOWLEDGE,
such as, when:
i. they are WELL & GENERALLY KNOWN
12
A court may take judicial notice of: (2012 BAR)
a. theTwitteraccountofPresidentAquino.
b. a Committee Report issued by the Congressional Committee on Labor Relations.
c. the effects of taking aspirin everyday.
d. thearbitralawardissuedbyInternationalCourtofArbitration.
ii. or they have been ACTUALLY RULED UPON in OTHER

CASES BEFORE it and NONE of the PARTIES concerned do not claim
otherwise. [PCIB v. Escolin]
[Plus other instances provided in the bar13]
iii. when the Philippine courts are evidently familiar14 with the
foreign law (Moran, Vol. 5, p. 34,1980 edition):
iv. when the foreign law refers to the law of nations (Sec. 1 of Rule
129) and
v. when it refers to a published treatise, periodical or pamphlet on the
subject of law if the court takes judicial notice of the fact that the writer thereof
is recognized in his profession or calling as expert on the subject (Sec. 4(5, Rule 130).
[The Philippine court can also take judicial notice of a foreign law:]
vi. when the foreign statute is accepted by the Philippine government
(Republic v. Guanzon, 61 SCRA 360);
viii. when a foreign judgment containing foreign law is
recognized for enforcement (Sec. 48, Rule 39); and 3) if it refers to common
law doctrines and rules from which many of our laws were derived [Alzua v. Johnson
(21 Phil. 308)].
2. *****How do you prove a foreign law? A written foreign law may be evidenced by
a. by an official publication or
b. by a copy attested by the officer having the legal custody of the record
(or by his deputy)
c. and if the record is NOT kept in PH, it must be
i. accompanied by a certificate issued by the proper diplomatic
or consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and
13
***(1997 Bar Question): Give three instances when a Philippine court can take judicial notice of a
foreign law. Answer:
a. when the Philippine courts are evidently familiar with the foreign law (Moran, Vol. 5, p.
34,1980 edition):
b. when the foreign law refers to the law of nations (Sec. 1 of Rule 129) and
c. when it refers to a published treatise, periodical or pamphlet on the subject of law if the court
takes judicial notice of the fact that the writer thereof is recognized in his profession or calling as
expert on the subject (Sec. 4(5, Rule 130).
14
Explain briefly whether the Regional Trial Court may take judicial notice of the following: (2005 Bar
Question)
c) Foreign laws: The RTC may not generally take judicial notice of foreign laws (In re Estate
of Johnson, 39 Phil. 156 [1918]); 54 Phil. 610 [1930]), which must be proved like any other matter of
fact (Lieng v. Syquia, 16 Phil. 137 [1910]) except in a few instances, when the court in the exercise of its
sound judicial discretion, may take notice of foreign laws where Philippine courts are evidently
familiar with them, such as the Spanish Civil Code, which had taken effect in the Philippines, and
other allied legislation (Pardo v. Republic 85 Phil. 324 [19507; Delgado v. Republic L-2546, [January 28,
1950]).
ii. authenticated by the seal of his office [Sec. 24, Rule 132; Zalamea
v. CA; cf. Vda. De Catalan v. Catalan-Lee, February 8, 2012].
3. How about when foreign law was not proven? The doctrine of
PROCESSUAL PRESUMPTION applies—in the absence of proof, the
foreign law is presumed to be the same as the laws of the jurisdiction hearing the
case, i.e., same as our local laws.
***Suppose a foreign law was pleaded as part of the defense of defendant
but no evidence was presented to prove the existence of said law, what is the
presumption to be taken by the court as to the wordings of said law? The
presumption is that, the wordings of the foreign law are the same as the
local law (Northwest Airlines v. CA 241 SCRA 192). This is known as the
doctrine of PROCESSUAL PRESUMPTION.
MATTERS OF DISCRETIONARY JUDICIAL NOTICE; REQUISITES

1. Discretionary:15 matters which are of16
a. public knowledge, or are
b. capable of unquestionable demonstration,17 or
c. ought to be known18 to judges because of their judicial functions;
2. Elements [just a rewording of 1]:
a. The matter must be one of common knowledge;
15
A court may take judicial notice of matters which are of public knowledge, or are capable to
unquestionable demonstration, or ought to be known to judges because of their judicial functions.
16
Question)
a) The street name of methamphetamine hydrochloride is shabu: The Regional Trial Court
may MOTU PROPIO take judicial notice of such considering the chemical composition of shabu
[PP v. Macasling, 222 SCRA 630 (1993]).
b) Ordinances approved by municipalities under its territorial jurisdiction: The RTC may not
take judicial notice of ordinances approved by municipalities under its territorial jurisdiction in
absence of statutory authority, except on appeal from the municipal trial courts which took judicial
notice of the ordinance in question. (U.S. 37 Phil. 126 [1917]; US v. Hernandez 31 Phil. 342 [1915]).
e) Rape may be committed even in public places: The RTC may take judicial notice of the fact
that rape may be committed even in public places. The “public setting" of the rape is not an
indication of consent (PP v. Tiongson 194 SCRA 257 [1991]). The Supreme Court has taken judicial
notice of the fact that a man overcome by perversity and beastly passion chooses neither the time,
place, occasion nor victim. [PP v. Barcelona 191 SCRA 100 1990]
17
Question)
d) Rules and Regulations issued by quasi-judicial bodies implementing statutes: The RTC may
take judicial notice of Rules and Regulations issued by quasi-judicial bodies implementing statutes, because
they are capable of unquestionable demonstration (Lalchand Chattamalv. Insular Collector of
Customs, G.R. No. 16347 [Nov. 3, 1920J).
18
Which of the following matters is NOT A PROPER SUBJECT of judicial notice? (2011 BAR)
(A) Persons have killed even without motive.
(B) Municipal ordinances in the municipalities where the MCTC sits.
(C) Teleconferencing is now a way of conducting business transactions.
(D) British law on succession personally known to the presiding judge.
b. The matter must be settled beyond reasonable doubt (if there is any
uncertainty about the matter, then evidence must be adduced);
c. The knowledge must exist within the JN of the court. NB: principal
guide - notoriety [famous for being bad]
MATTERS OF DISCRETIONARY JUDICIAL NOTICE NEED TO BE

HEARD
1. Any matter can be heard during the trial: the court, on its own initiative, or on
request of a party, may announce its intention to take judicial notice of any matter
and allow the parties to be heard thereon;
2. After trial and before judgment or on appeal, only matters that are DECISIVE
of a material issue can be heard: the proper court, on its own initiative or on
request of a party, may take judicial notice of any matter and allow the parties to
be heard thereon if such matter is decisive of a material issue in the case.
3. Implication: hearing is required only for matters of DISCRETIONARY
judicial notice.
JUDICIAL NOTICE OF RECORDS OF OTHER CASES

1. GR: No Judicial Notice of records of other cases; while courts may take
judicial notice of its own acts and records in the same case, as a rule, they are not
authorized to take judicial notice of the contents of the records of other
cases, even when such cases have been tried or are pending in the same court
and before the same judge.
2. XPNS:
a) when in the absence of any objection, and with the knowledge of the
opposing party, the contents of said other case are clearly referred to by title and
number in a pending action and adopted or read into the record of the latter
b) when the original of the other case or any part of it is actually
withdrawn from the archives at the court's discretion upon the request, or with the
consent, of the parties, and admitted as part of the record of the pending case.
OTHER MATTERS OF JUDICIAL NOTICE

1. The court has taken judicial notice of the practices of banks and other financial
institutions
2. Judicial notice could be taken of the financial condition of the government.
THOSE THAT ARE NOT MATTERS OF JUDICIAL NOTICE

1. Management contract entered into by a GOCC cannot be considered an
official act of the executive department because it was entered into while
performing a proprietary function, thus, it is not among those matters which the
courts can take judicial notice of.
2. Post office practices are not proper subjects of judicial notice

3. A court cannot take judicial notice of an administrative regulation or of a
statute that is not yet effective.
4. Judicial notice of the age of a victim is improper.
————————————————————————————————
V. Judicial Admissions
ELEMENTS OF JUDICIAL ADMISSIONS (JA)***** 24

More on “IN THE COURSE OF THE PROCEEDINGS”; Scenarios 24
HOW TO CONTRADICT JUDICIAL ADMISSIONS 24
EFFECT OF JUDICIAL ADMISSIONS (JA)**** 26
RULE WHEN NO MORE FACTUM PROBANDUM EXISTS AFTER JA 26
IMPLIED JUDICIAL ADMISSIONS 27
————————————————————————————————
ELEMENTS OF JUDICIAL ADMISSIONS (JA)*****

1. verbal or written; hence, it can be oral admissions; made in open court19 or
implied admissions; NB: but if done during pre-trial, it must be written and signed
by the accused and his counsel.20
2. made by the party; only parties can make JA, not witnesses; admission of
counsel is considered admission of party; if one specifically denies the
genuineness of the signature in a document by another person (EG: signature of
one’s father who is the party in the complaint), there is no judicial admission,
because he has to be a party!
3. in the course of the proceedings (see explanation in the next thought unit);
4. in the same case; not a different case
More on “IN THE COURSE OF THE PROCEEDINGS”; Scenarios

1. Filing of pleadings; admissions made in a motion are judicial admissions which
are binding on the party who made them; but admissions in drafted documents
19
Which of the following admissions made by a party in the course of judicial proceedings is a judicial
admission? (2011 BAR)
(A) Admissions made in a pleading signed by the party and his counsel intended to be filed.
(B) An admission made in a pleading in another case between the same parties.
(C) Admission made by counsel in open court.
(D) Admissions made in a complaint superseded by an amended complaint.
20
Q: Bembol was charged with rape. Bembol’s father, Ramil, approached Artemon, the victim’s father,
during the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon
refused the offer. xxx During the pre-trial, Bembol personally offered to settle the case for P1 Million
to the private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is
Bembol’s offer a judicial admission of his guilt? (3%)(2008 Bar Question) SUGGESTED ANSWER:
No. The offer is not a judicial admission of guilt because it has not been reduced in
writing or signed by the accused. The Rule on pre-trial in criminal cases (Rule 118, Sec. 2, Rules of
Court) requires that all agreements or admissions made or entered during the pre-trial conference
shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used
against the accused.
made for purposes of filing a pleading but were never filed are not judicial
admissions.
2. Averments in the pleadings which are not deemed admissions:
a. immaterial allegations,
b. conclusions,
c. non-ultimate facts in the pleading as well as
d. the amount of unliquidated damages
3. When a pleading is amended, the amended pleading supersedes the pleading
that it amends and the admissions in the seperseded pleading may be received in
evidence against the pleader; admissions in superseded pleadings are to be
considered as extrajudicial admissions which must be proven; also—
admissions in dismissed pleadings are merely extrajudicial admissions. NB:
******[Ching vs CA: admissions in amended and superseded pleadings are deemed
extrajudicial admissions—they are no longer judicial admissions—hence, to be
used as against the pleader, they have to be formally offered in evidence]21
4. Admissions obtained through depositions, written interrogatories or requests
for admission are also considered judicial admissions.
5. A motion to dismiss hypothetically admits the truth of the allegations of the
complaint, however, the admission extends only to such matters of fact that have
been sufficiently pleaded; only material allegation, not conclusions in a complaint, are
deemed admitted.
6. Field inspection by the court in the presence of the parties;
7. GR: Admissions by a counsel are generally conclusive upon the Client
******XPNS— in cases of:
a. where reckless or gross negligence of counsel deprives the client due
process of law, or
b. when its application will result in outright deprivation of the client's
liberty or property, or
c. when the interests of justice so require
21
***In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the defendant,
through his lawyer, filed an answer therein admitting the averment in the complaint that the land was
acquired by the plaintiff through inheritance from his parents, the former owners thereof.
Subsequently, the defendant changed his lawyer and, with leave of court, amended the answer. In the
amended answer, the above-mentioned admission no longer appears; instead, the alleged
ownership of the land by the plaintiff was denied coupled with the allegation that the defendant is the
owner of the land for the reason that he bought the same from the plaintiff’s parents during their
lifetime. After trial, the Regional Trial Court rendered a decision upholding the defendant’s ownership
of the land. On appeal, the plaintiff contended that the defendant is bound by the admission
contained in his original answer. Is the contention of plaintiff correct? Why? (1993 Bar Question)
No, because pleadings that have been amended disappear from the record, lose their
status as pleadings and cease to be judicial admissions. While they may nonetheless be utilized
as against the pleader as extrajudicial admissions, they must, in order to have such effect, be
formally offered in evidence. [Director of Lands vs. Court of Appeals, 196 SCRA 94).
8. During pre-trial (conference), parties are allowed to make stipulation of facts—

as long as the admission was made by a party to the case
*Admissions in the Pre-trial of Civil Cases may be made in:
a. stipulations or admissions of facts,
b. pre-trial briefs; NB: But pretrial in a criminal case is different: it is a
judicial admission but it is not admissible. Why? To be admissible, it must be
i. set forth in writing (cannot be oral);
ii. signed by the counsel and the accused.22
******NB: the foregoing requirements do not apply to stipulation
of facts made during the trial since the same are automatically reduced in
writing and the attorney employed has prima facie authority to make
relevant admissions by pleadings, by oral or written stipulation, which, unless
allowed to be withdrawn, are conclusive.
HOW TO CONTRADICT JUDICIAL ADMISSIONS

*The admission may be contradicted only by showing that it was made through:
1. That the admission was a palpable mistake or that
*a mistake that is "clear to the mind or plain to see"/"readily perceived by
the senses or the mind"
2. That no such admission was made.
*NB: it doesn't mean you did not say something (ow, you are obviously
lying), but you didn't mean it that way, i.e., you were taken out of context)
*when the statement of a party is taken out of context or his statement was
made not in the sense it is made to appear by the other party; here, the party does
not deny making a statement, he denies the meaning attached to his
statement, a meaning made to appear by the adverse party as an admission.
EFFECT OF JUDICIAL ADMISSIONS (JA)****

1. JA cannot be contradicted by the admitter who is the party himself and
binds the person who makes the same;
2. JA does not require proof;
3. It is conclusive upon the party making the admission; it is part of the doctrine of
estoppel;
4. It may not be contradicted, except it was shown that it was made through, i.e.,
it can be rebutted in two ways:
a. palpable mistake or that
b. no such admission was made.
22
[Rule 118, Section 2. Pre-trial agreement. — All agreements or admissions made or entered during the
pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise,
they cannot be used against the accused]
RULE WHEN NO MORE FACTUM PROBANDUM EXISTS AFTER JA

*see meaning of factum probandum, infra, under the section on burden of proof
1. GR: if there is no more factum probandum due to JA, the concerned party
can file a Judgment on the Pleadings: [Rule 34, Sec. 1 Judgment on the
pleadings. — Where an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party's pleading, the court may; on motion of
that party, direct judgment on such pleading]
2. ****XPN: However, the material facts alleged in the complaint shall always
be proved in actions for
a. declaration of nullity or
b. annulment of marriage or for
c. legal separation.
IMPLIED JUDICIAL ADMISSIONS

1. Defendant failed to specifically deny the material allegations in the complaint:
hence, they are deemed JA: [Rule 8, Section 11. Allegations not specifically denied
deemed admitted. — Material averment in the complaint, other than those as to the
amount of unliquidated damages, shall be DEEMED ADMITTED when not
specifically denied. Allegations of usury in a complaint to recover usurious
INTEREST are deemed admitted if not denied under oath]
a. “complaint” includes not just original complaint but also cross, counter,
3P-complaints.
b. If only a GENERAL DENIAL is made (EG: “I vehemently and
specifically deny all the material allegations of the complaint”), that constitutes a
JA. A NEGATIVE PREGNANT is an admission.
c. EG of a specific denial: admit the liability but dispute the amount:
“Plaintiff claims the liability of the defendant under the contract and alleges that
he spent 5M due to the breach of defendant”; an actual damage which must be
proven in court (Sec. 11 Rule 8), hence, there is still factum probandum, that
is, prove the actual amount.
d. NB: not all allegations not specifically denied are deemed admitted: only the
material allegations are deemed admitted! Immaterial allegations are not
deemed admitted.
e. Conclusions are not deemed admitted too (when what was alleged was
a conclusion), because conclusions are not allegations of facts—if you do not
deny them, they are not deemed admitted; it is for the court to conclude, not for
the party who files the pleading.
f. If there is nothing more to prove, because everything is deemed admitted,
one can file a Motion for Judgment on the Pleadings.
2. When denial must be made UNDER OATH, i.e., specific denials are not
enough:
a. a complaint to recover usurious interest [r8s11: this means Rule 8,
Section 11) must be denied under oath, otherwise, there will be an implied
admission to usury. But if usury is simply mentioned (i.e., not usurious

interest), it is enough to deny it simply—no need to deny it under oath;
b. complaints involving actionable documents (AD). It’s an AD if it is
the BASIS OF THE ACTION.
i. EG: foreclosure of REM. Evidence: Deed of REM executed by
defendant: it is the basis of the action, hence, it is an AD. The Answer must
specifically deny the genuineness and due execution of the under oath.
[Rule 8, Section 8]
ii. EG: When a defendant only specifically denies the promissory
note, it is tantamount to a judicial admission. Hence, he can no longer present
a witness to testify that his signature was a forgery. Why? He should have
specifically denied the genuineness and due execution of the promissory note—
an AD—under oath. Without the latter, he deemed to have admitted its
genuineness and due execution.
*Oath is not needed to contest actionable documents when:
i. the adverse party does not appear to be a party to the
instrument, as when there is substitution due to death of the original party;
(there is no admission if one specifically denies genuineness of the signature of
another person: EG: son denying the signature of of his deceased father (the
father being the party concerned);
ii. compliance with an order for an inspection of the original
instrument is refused; hence there is no implied admission when it is merely
specifically denied (no need to do special denial under oath).
c. When is there no judicial admission even if there were no specific
denials made? When someone does not file a Reply [Rule 6, Sec. 10: “…if a
party does not file such reply, all the new matters alleged in the answer are
deemed controverted”). Hence, there is no need to file a reply to an answer.
But when do you advise the filing of a reply to an answer? When the answer
invokes an actionable document—you have to deny its genuineness and due
execution under oath!
3. Defendant denied but he did not follow any of the modes of denial under
Rule 8, Sec 10, .e.g., it must be specific to be a denial; otherwise, it’s an implied JA;
if denied but categorized as negative pregnant (I deny all the paragraphs
vehemently: a general denial is an admission): it's a JA. [Rule 8, Section 10. Specific
denial. — A defendant must specify each material allegation of fact the truth of
which he does not admit and, whenever practicable, shall set forth the substance of
the matters upon which he relies to support his denial. Where a defendant desires to
deny only a part of an averment, he shall specify so much of it as is true and material
and shall deny only the remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material averment made to
the complaint, he shall so state, and this shall have the effect of a denial.]
————————————————————————————————
VI. Extrajudicial Admissions;23 res inter alios acta
RES INTER ALIOS ACTA (RIAA) 30

First branch of RIAA 30
Second branch of RIAA 31
XPN1 TO RIAA: ADMISSION BY CONSPIRATOR 32
OFFER OF COMPROMISE [Rule 130, Section 27] 32
XPN2 to RIAA: ADMISSION BY CO-PARTNER or AGENT [Rule 130, Section 29]33
XPN3 to RIAA: ADMISSION BY PRIVIES [Rule 130, Section 31]. 36
ADMISSION BY SILENCE [Rule 130. Section 32]***** 36
ON UNACCEPTED OFFER [Rule 130, Section 35]. 36
————————————————————————————————
RES INTER ALIOS ACTA (RIAA)

1. ******Latin, short: THINGS DONE, AMONG OTHERS.
[] Latin, long: Res inter alios acta, aliis nec nocet nec prodest (Latin for "a
thing done between others does not harm or benefit others") is a law doctrine
which holds that a contract cannot adversely affect the rights of one who is
not a party to the contract. [TOM: only the parties are affected by the contract;
in criminal law, the admissions of a person can only be used against him, not
against others—see first branch of RIAA]24
23
******Distinguish extrajudicial admission from extrajudicial confession in criminal cases. (1996 Bar
Question) Answer: An extrajudicial admission is a statement of fact which does not directly involve
an acknowledgment of guilt or criminal intent, while an extrajudicial confession is a declaration of
an accused that he has committed or participated in the commission of a crime.
24
Q: ******A vicarious admission is considered an exception to the hearsay rule. It, however, does
not cover: (2014)
(A) admission by a conspirator
(B) admission by a privy
(C) judicial admission
(D) adoptive admission
A: (C) Judicial admission. *****Judicial admission is not covered by the Rule on vicarious
admission which are considered exceptions to the Res Inter Alios Acta Rule. Under the Res Inter
Alios Acta Rule, the rights of a party cannot be prejudiced by the act, declaration or omission of
another (Section 38, Rule 130, Rules of Court). It is not only rightly inconvenient, but also manifestly
unjust, that a man should be bound by the acts of mere unauthorized strangers, and if a party
ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence
against him (5 Moran, p. 237 1980 ed.). *****The exceptions are admission by a co-partner or
agent (Section 29); admission by conspirator (Section 30); admission by privies; (Section 31); which
are collectively classified by Senator Salonga as “vicarious admissions”. (Vide Gilbert, Sec. 332;
Remedial Law V, Herrera, page 398).
2. Two branches of res inter allies acta

a. Rule 130, Sections 26 & 28
b. Rule 130, Section 34
First branch of RIAA

1. Extrajudicial admissions (EJA) made by a person as to a RELEVANT FACT
can be used against him only, not against other parties. This is because
because EJA can only prejudice the party making the admission, not third
parties—even if it is part of a conspiracy (if the exception as to conspiracy does not
exist, for example, the statement was not made during the conspiracy, infra).
Bases:
a. Rule 130, Section 26;25
b. Rule 130, Section 28.26
2. ******But if the same was repeated27 in court (when the same was asked to
repeat the statement in open court)—they become judicial28 statements; RIAA
rule does not apply anymore—it is now a judicial (not extrajudicial, where RIAA
belongs) testimony of a person with personal knowledge of the facts; and
especially when cross-examination has been conducted.29
[] T/F. ******Under the doctrine of adoptive admission, a third party's statement becomes
the admission of the party embracing or espousing it. (2009 Bar Question) TRUE. The effect or
consequence of the admission will bind also the party who adopted or espoused the same, as applied in
Estrada v. Desierto, 356 SCRA 108 [2001]). An adoptive admission is a party's reaction to a
statement or action by another person when it is reasonable to treat the party's reaction as an
admission of something stated or implied by the other person.
25
[] Admissions of a PARTY: Rule 130, Section 26. Admission of a party. — The act, declaration or
omission of a party as to a relevant fact may be given in evidence against him.
26
[] Rule 130, Section 28. Admission by third party. — The rights of a party cannot be prejudiced by an
act, declaration, or omission of another, except as hereinafter provided.
27
(1998 Bar Question) 1. If the accused on the witness stand repeats his earlier uncounseled
extrajudicial confession implicating his co-accused in the crime charged, is that testimony admissible in
evidence against the latter? (3%) Yes. *****The accused can testify by repeating his earlier
uncounseled extrajudicial confession, because he can be subjected to cross-examination.
28
AA, BB & CC robbed a bank; two months after, all were arrested; during TRIAL, AA admitted his
participation and implicated BB & CC. The counsels for the latter promptly objected invoking the
RIAA rule. Decide on the objection: I will overrule the objection. *****RIAA does not apply to
judicial statements. It only refers to extrajudicial admissions. Since the admission of AA was made during
trial, the same has been rendered outside the ambit of the RIAA rule.
29
[] Bar 2003: X and Y were charged with murder. Upon application of the prosecution, Y was
discharged from the Information to be utilized as a state witness. The prosecutor presented Y as
witness but forgot to state the purpose of his testimony much less offer it in evidence. Y testified
that he and X conspired to kill the victim but it was X who actually shot the victim. The testimony of
Y was the only material evidence establishing the guilt of X. Y was thoroughly cross-examined by
the defense counsel. After the prosecution rested its case, the defense filed a motion for demurrer
to evidence based on the following grounds: a) The testimony of Y should be excluded because its
purpose was not initially stated and it was not formally offered in evidence as required by Section 34,
Rule 132 of Rules of Evidence; and b) Y’s testimony is not admissible against X pursuant to the rule
on “res inter alios acta”. Rule on the motion for demurrer to evidence on the above grounds: The
Second branch of RIAA

1. *****Previous conduct is not admissible to prove the same or similar thing
at another time.30 Basis: [] Section 34. Similar acts as evidence. — Evidence that
one did or did not do a certain thing at one time is not admissible to prove that he
did or did not do the same or similar thing at another time; but it may be received
to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or
usage, and the like.
2. But it may be received to prove a SPECIFIC intent or knowledge.
XPN1 TO RIAA: ADMISSION BY CONSPIRATOR

1. ******Now, RIAA does not apply if it’s an “admission by a conspirator”
[] Section 30. Admission by conspirator. — The act or declaration of a
conspirator relating to the conspiracy and during31 its existence, may be given
in evidence against the co-conspirator after the conspiracy is shown by evidence
other than such act of declaration.
2. ******Elements of this admission (must concur):
a. Statement/declaration must be made during32 the existence of the
conspiracy; (NB: if the robbery has been a month ago, and one of the robbers
made a statement about it, this element is missing.)
demurrer to the evidence should be denied because:

a) The testimony of Y should not be excluded because the defense counsel did not object
to his testimony despite the fact that the prosecutor forgot to state its purpose or offer it in evidence.
Moreover, the defense counsel thoroughly cross-examined Y and thus waived the objection.
b) ****The res inter alios acta rule does not apply because Y testified in open court and
was subjected to cross examination.
30
Ben testified that Jaime, charged with robbery, has committed bag-snatching three times on the
same street in the last six months. Can the court admit this testimony as evidence against Jaime? (2011
BAR)
(A) No, since there is no showing that Ben witnessed the past three robberies.
(B) Yes, as evidence of his past propensity for committing robbery.
(C) Yes, as evidence of a pattern of criminal behavior proving his guilt of the present offense.
(D) No, since evidence of guilt of a past crime is not evidence of guilt of a present crime.
31
Henry testified that a month after the robbery Asiong, one of the accused, told him that Carlos was
one of those who committed the crime with him. Is Henry’s testimony regarding what Asiong told him
admissible in evidence against Carlos? (2011 BAR)
(A) No, since it is hearsay.
(B) No, since Asiong did not make the statement during the conspiracy.
(C) Yes, since it constitutes admission against a co-conspirator.
(D) Yes, since it part of the res gestae.
32
Q: During custodial investigation at the Western Police District, Mario Margal was informed of his
constitutional right to remain silent and to have competent and independent counsel. He decided to
waive his right to counsel and proceeded to make a statement admitting commission of a robbery. In
the same statement, he implicated Antonio Carreon, his co-conspirator in the crime. (1991 Bar
Question)
b. Statement must relate to the conspiracy

c. Conspiracy must be proven by another independent evidence aside
from the declaration
3. If all the elements are present, the admission can be applied to all the other
parties to the crime.
CONFESSION
*see notes on Judicial Admission v. Confession, supra.
OFFER OF COMPROMISE [Rule 130, Section 27]

1. Offer of compromise in the following cases is NOT an admission of
liability:******
a. In civil cases, an offer of compromise is not an admission of any
liability, and is not admissible in evidence against the offeror. NB: *****The
reason for the rule against the admission of an offer of compromise in civil
case as an admission of any liability is that parties are encouraged to enter into
compromises.33 Courts should endeavor to persuade the litigants in a civil case
to agree upon some fair compromise. (Art. 2029, Civil Code). During pre-trial,
courts should direct the parties to consider the possibility of an amicable
settlement. (Sec. 1 (a) of former Rule 20: Sec. 2 (a) of new Rule 18).
b. In criminal cases involving CULPA—those committed committed
with/by imprudence, negligence, lack of foresight, lack of skill; these are Quasi-Offenses
under Art 365 RPC.34
[] Is Margal’s statement admissible in evidence against him? Answer: No, because under the
Constitution, the right of Margal to remain silent and to counsel during custodial investigation
cannot be waived except in writing and in the presence of counsel, and any confession or
admission in violation of this provision is inadmissible in evidence against him. (Sec. 12 of Art.
Ill)
[] Is it admissible against Carreon as an exception to the res inter alios acta rule? Answer: No,
because even assuming that the conspiracy is shown by evidence other than the statement of
Margal, the statement was made after the conspiracy had ceased. (Sec. 30 of Rule 130; People v.
Cabrera. 57 SCRA 714)
33
5. The reason for the rule against the admission of an offer of compromise in civil case as an
admission of any liability is that parties are encouraged to enter into compromises. Courts should
endeavor to persuade the litigants in a civil case to agree upon some fair compromise. (Art. 2029,
Civil Code). During pre-trial, courts should direct the parties to consider the possibility of an
amicable settlement. (Sec. 1 (a) of former Rule 20: Sec. 2 (a) of new Rule 18).
34
Q: A, while driving his car, ran over B. A visited B at the hospital and offered to pay for his
hospitalization expenses. After the filing of the criminal case against A for serious physical injuries
through reckless imprudence. A‘s Insurance carrier offered to pay for the injuries and damages suffered
by B. The offer was rejected because B considered the amount offered as inadequate.
a. Is the offer by A to pay the hospitalization expenses of B admissible in evidence? The offer
by A to pay the hospitalization expenses of B is not admissible in evidence to prove his guilt in
both the civil and criminal cases. (Rule 130, Sec. 27. fourth par.).
c. Even if the crime is due to DOLO, the civil aspect can be

compromised; if the latter is compromised, the prosecutor is not barred from
pursuing the criminal aspect of the crime because the latter cannot be
compromised. In practice, once compromised, the prosecutor would say there is
no more witness for the prosecution, hence, there is insufficiency of evidence [Art
2034 NCC: only civil aspect can be compromised]
d. A plea of guilty later35 withdrawn,36 or an unaccepted offer of a plea
of guilty to lesser offense, is not admissible in evidence against the accused who
made the plea or offer.
e. An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or criminal
liability for the injury. NB: otherwise, no one will volunteer; in the US, this is
known as the GOOD SAMARITAN RULE.
2. Offer of compromise in the following cases is an IMPLIED ADMISSION of
guilt:******
a. In criminal cases, except those involving quasi-offenses (criminal
negligence) or those allowed by law to be compromised, an offer of compromise
by the accused may be received in evidence as an implied admission of
b. Is the offer by A’s insurance carrier to pay for the injuries and damages of B admissible in
evidence? (1996 Bar Question). No. It is irrelevant. *****The obligation of the insurance company is
based on the contract of insurance and is not admissible in evidence against the accused because
it was not offered by the accused but by the insurance company which is not his agent.
35
Which of the following statements is not accurate? (2012 BAR)
a. A plea of guilty later withdrawn is admissible in evidence against the accused who made the plea.
b. An unaccepted offer of a plea of guilty to a lesser offense is inadmissible in evidence against
the accused.
c. An offer to pay or payment of medical expenses arising from injury is not evidence or proof
of civil/criminal liability for the injury.
d. In civil cases, an offer of compromise by the accused is admissible as an implied admission of
guilt.
[] TOM Suggested answer is (d) but (a) is also correct—it should have been “inadmissible”.
36
*an improvident (thoughtless) plea of guilty withdrawn
guilt.37,38 NB: in one bar problem, an offer to marry the victim by the accused is
regarded as an implied admission of guilt and admissible as such.39
b. In other words, criminal cases involving DOLO—those committed with
malice or deliberate intent—cannot be compromised, hence, an offer of
compromise is an implied admission of guilt. But note that if it’s another person
who offered the compromise, say the father of the accused, there is no implied
admission of guilt. And even if the accused agreed to settle during pre-trial but the
same is not written and signed by him and his counsel, there is no implied
admission of guilt.40
37
Q: X. charged with rape with homicide, offered P 100,000.00 as amicable settlement to the family
of the victim. The family refused. During the trial, the prosecution presented in evidence X's offer of
compromise. What is the legal implication of such offer? Explain. (1996 Bar Question) Answer:
*****The offer of P100,000.00 as amicable settlement in a criminal case for rape with
homicide is an implied admission of guilt. It does not fall within the exceptions of quasi-
offenses or those allowed by law to be compromised. (Sec. 27 of Rule 130)
38
******TOM: even if it’s not the accused who approached but he yielded to the offer, it is still an
implied admission of guilt: Q: Pedro was charged with homicide for having hacked Ramon to death.
Before the case could be tried, the heirs of Ramon sought out Pedro and discussed with him the
possibility of settlement of the case. Pedro agreed to a settlement. When the heirs asked how much
he was willing to pay, Pedro offered P30,000 which the heirs accepted. Is the agreement to settle as well
as the offer to pay P30,000 by Pedro admissible in evidence against him as an implied admission of
guilt? Explain. (1989 Bar Question) Answer:
Yes. Under the Rules on Evidence, in criminal cases which are not allowed by law to be
compromised, an offer of compromise by the accused may be received in evidence as an implied
admission of guilt. Since a criminal case for homicide is not allowed by law to be compromised,
Pedro’s offer of P30,000 for the settlement of the case, which the heirs accepted, is admissible in
evidence against him as an implied admission of guilt. (Sec. 24 of Rule 130)
Another acceptable Answer: No. Pedro’s offer was merely to buy peace. Since it was the
heirs of Ramon and no Pedro who initially offered to settle the case, and Pedro’s offer of P30,000
was in reply to the question of the heirs as to how much he was willing to pay, which, amount the heirs
accepted, said offer and agreement to settle is not admissible in evidence against him.
39
Q: A was accused of having raped X. Rule on the admissibility of the following pieces of evidence:
1. an offer of A to marry X; and(3%): A's offer to marry X is admissible in evidence as an
implied admission of guilt because rape cases are not allowed to be compromised. (Sec. 27 of
Rule 130; People us. Domingo, 226 SCRA 156.)
40
***Bembol was charged with rape. Bembol's father, Ramil, approached Artemon, the victim's
father, during the preliminary investigation and offered P1 Million to Artemon to settle the case.
Artemon refused the offer. (2008)
a. During trial, the prosecution presented Artemon to testify on Ramil's offer and thereby
establish an implied admission of guilt. Is Ramil's offer to settle admissible in evidence? No. the offer
to settle not being made by the accused or with his participation is not admissible against him
under the rule of res inter alios acta. ****No implied admission of guilt can be drawn from efforts to
settle a criminal case out of court, where the accused had no participation in such negotiation
(People v. Godoy, 250 SCRA 676 [1995]).
b. During the pre-trial, Bembol personally offered to settle the case for P1 Million to the
private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is
Bembol's offer a judicial admission of his guilt? No. *****The offer is not a judicial admission of
guilt because it has not been reduced in writing or signed by the accused. The Rule on pre-trial in
criminal cases (Rule 118, Sec. 2, Rules of Court) requires that all agreements or admissions made or entered
XPN2 to RIAA: ADMISSION BY CO-PARTNER or AGENT [Rule 130,

Section 29]
1. The act or declaration of a partner or agent of the party may be given in
evidence against such party, if it is done:
a. within the scope of his authority and
b. during41 the existence of the partnership or agency,
c. after the partnership or agency is shown by evidence other than such act or
declaration.
2. The same rule applies to the act or declaration of a joint owner, joint debtor,
or other person jointly interested with the party.
XPN3 to RIAA: ADMISSION BY PRIVIES [Rule 130, Section 31].

The act, declaration or omission of someone who holds title of the property is
evidence against the one who derives title from him, when:
1. one derives title to property from another;
2. the other holds the title in relation to the property.
ADMISSION BY SILENCE [Rule 130. Section 32]*****

An act or declaration may be given in evidence against another when:
1. The act or declaration was made in the presence and within the hearing or
observation of a party;
2. The said party does or says nothing when the act or declaration is such as
naturally to call for action or comment if not true, and when proper and possible
for him to do so
*natural reaction!
ON UNACCEPTED OFFER [Rule 130, Section 35].

*Elements to make an offer in writing equivalent to production and tender of
money, instrument or property:
1. There is an offer in writing
a. to pay a particular sum of money or
b. to deliver a written instrument or specific personal property,
2. Such is rejected without valid cause.
during the pre-trial conference shall be reduced in writing and signed by the accused and counsel,
otherwise, they cannot be used against the accused.
41
In which of the following situations is the declaration of a deceased person against his interest NOT
ADMISSIBLE against him or his successors and against third persons? (2011 BAR)
(A) Declaration of a joint debtor while the debt subsisted.
(B) Declaration of a joint owner in the course of ownership.
(C) Declaration of a former co-partner after the partnership has been dissolved.
(D) Declaration of an agent within the scope of his authority.
ON THE TYPES OF EVIDENCES
1. Types of Evidences
a. Object/Real
b. Documentary
c. Testimonial
2. Which is the most superior type of evidence?
a. the Rules do not establish a hierarchy of superiority—they
complement one other.
b. however, an object in itself will not be admitted in evidence—it has to be
identified and authenticated through a witness, i.e., an object evidence has to be
sponsored by a witness.
3. [] Bar 2005: ******May a private document be offered and admitted in evidence
both as documentary evidence and as object evidence? YES. A private
document may be offered and admitted in evidence both as documentary evidence
and as object evidence, ***depending on the PURPOSE of the offer.
a. Objects as evidence are those addressed to the senses of the court. (Sec.
1, Rule 130, Rules of Court.)
b. Documentary evidence consists of writings or any material containing
letters, words, numbers, figures, symbols or other modes of written
expressions, offered as proof of their contents. (Sec. 2, Rule 130, Rules of Court).
c. Examples:
i. A tombstone may be offered in evidence to prove what is written
on it and if the same tombstone is found on a tomb, then it is object evidence. It
can be considered as both documentary and object evidence. (See Gupit, Jr.,
Revised Rules of Evidence, 1989, p. 12.)
ii. *****Hence, a deed of donation is not necessarily a
documentary evidence. If the purpose for its presentation is that “it was the thing
found on the floor”, it is an object evidence; if it is the stipulations of the deed that are
being offered in evidence, it is a documentary evidence. In the same way, if what
is written on the body of a person is what is being offered in evidence, it is a
documentary evidence, but if it is the mere body itself, it is an object evidence.
d. Why is this important? It spells out the principles of evidence that are
applicable. If it is an object evidence, your objections will revolve around the fact
that the thing is not a real evidence—never42 use the best evidence and parole
42
7. ***At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked P100.00 bills used in the "buy-bust" operation. Ace objects to
the introduction of the photocopy on the ground that the Best Evidence Rule prohibits the
introduction of secondary evidence in lieu of the original. (1994 Bar Question)
a. Is the photocopy real (object) evidence or documentary evidence? The photocopy of the
marked bills is real (object) evidence not documentary evidence, because it is addressed to the
senses of the court, it is not presented to prove its contents.
evidence rules (they both apply only to documentary evidence), and hearsay rule
(which applies to both documentary and testimonial evidence).
————————————————————————————————
b. Is the photocopy admissible in evidence? ******Yes, the photocopy is admissible in

evidence, since it is offered as an object evidence. The best evidence rule does not apply to object
or real evidence. [People v. Tandoy, 192 SCRA 28).
VII. Object/Real Evidence
OBJECT (REAL) EVIDENCE 40

REQUISITES FOR ADMISSIBILITY OF OBJECT EVIDENCE (OE)*** 40
QUALIFICATIONS OF AUTHENTICATING WITNESS 41
FORMAL OFFER OF OBJECT EVIDENCE (OE) 41
OBJECT EVIDENCE & THE RIGHT AGAINST SELF-INCRIMINATION (RASI) 41
ON DEMONSTRATIVE EVIDENCE (DE) 41
CATEGORIES OF OBJECTS 42
CHAIN OF CUSTODY 42
***ON WARRANTLESS ARRESTS 42
ON DNA TESTING 46
OTHER TESTS 47
————————————————————————————————
OBJECT (REAL) EVIDENCE

Object/Real Evidence. Rule 130, Section 1. Object as evidence. — Objects as
evidence are those addressed to the senses of the court. When an object is relevant to
the fact in issue, it may be exhibited to, examined or viewed by the court.
ON OBJECT EVIDENCE
1. Nature [Rule 130, Section 1] Objects as evidence are those addressed to the
senses of the court. When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court.
2. Not purely visual, because senses include: hearing, taste, smell and touch;
sound can be used as object evidence for infringement of a musical composition
3. Refers to the real thing itself, a tangible thing. It is not a replica, a recollection of
perception, verbal description of something, or a mere representation of something. This
is to enable the court to have its own firsthand perception of the evidence.
EG: presenting the human body as evidence to show an injury like a missing limb;
OJ Simpson's case wherein he was asked to wear a glove found in the crime scene.
The glove did not fit, hence the statement "if it doesn't fit, you must acquit."
4. This shows the very persuasive effect of object evidence because once it is
admitted, object evidence becomes evidence of the highest order and speaks
more eloquently than witnesses put together.
5. Where the physical evidence runs counter to testimonial evidence, the physical
evidence should prevail [BPI v. Reyes, 544 SCRA 206]
6. Other names for Object Evidence
a. Real Evidence
b. Autoptic Proference
c. Prophylactic
d. Demonstrative
REQUISITES FOR ADMISSIBILITY OF OBJECT EVIDENCE (OE)***

1. Must be relevant (relationship to the fact in issue) and competent (not
excluded by the rules or law). (Sec. 3 Rule 128)
2. Must be authenticated by a competent witness (to comply with the element of
competence).
*To prove that the evidence presented is the actual object it is claimed to be, OE
must be authenticated by a witness.
*NB: a private document that more than 30 yrs. old under Rule 132, sec. 21
no longer needs authentication, but it still needs a witness to testify as to its
characteristics.
QUALIFICATIONS OF AUTHENTICATING WITNESS

1. Witness must have capacity to identify the object as the very thing involved in
the litigation.
2. Capacity refers to Sec. 36, Rule 130, he "can testify only to those facts which
he knows of his personal knowledge, that is, those which are derived from his own
perception, except as otherwise provided in these rules."
3. Usual problem in OE: showing that the object sought to be admitted is the real
thing. This problem of authentication is commonly called as "laying the foundation"
for the evidence.
FORMAL OFFER OF OBJECT EVIDENCE (OE)

1. OE must be formally offered as evidence & the purpose for the offer must be
specified.
2. This is a vital act before the admission because ***”The court shall consider
no evidence which has not been formally offered. The purpose for which the
evidence is offered must be specified" Sec. 32, Rule 132
OBJECT EVIDENCE & THE RIGHT AGAINST SELF-

INCRIMINATION (RASI)
1. The right (RASI) cannot be invoked against OE because testimonial
compulsion is not involved.
2. ”[the right]... is simply a prohibition against legal process to extract from the
[accused's] own lips, against his will admission of his guilt and not when the
evidence is not an incriminating statement but an OE" (People v. Malimit, 264
SCRA 167)
3. More discussion on RASI, infra.
ON DEMONSTRATIVE EVIDENCE (DE)

1. not the actual thing but represents or demonstrates the real thing.
*this kind of evidence appears to have been incorporated in OE though not
really a real evidence.
2. its admissibility depends on laying the proper foundation for evidence.
*does it accurately represent the object it seeks to demonstrate or represent? If
yes, then it is admissible provided it is relevant and competent.
*EG: a map, photograph
a. for photographs, it is considered competent when properly authenticated by a
witness familiar with the scene or person portrayed testifying that it faithfully
represents what it depicts.
b. under the Rules on Electronic Evidence (REE), photos and motion
pictures are admissible when (more on REE, infra):***
i. presented, displayed, and shown in court;
ii. identified, explained, or authenticated by:
(a) person who made the recording,
(b) some other person competent to testify.
3. Personal note (Lau): it seems that general/common requirement for the
admissibility for DE are the following:
a. exhibited, examined, or viewed by the court;
b. identified, explained, or authenticated by:
(a) person who made the recording,
(b) some other person competent to testify.
4. Ocular inspection: if it cannot be viewed in court, ocular inspection may be
done. "View" includes viewing outside of court.
CATEGORIES OF OBJECTS
1. Unique objects - those having readily identifiable marks; EG: serial number
of a gun; So long as the witness testifies that the object has unique characteristics
asserting that it is the same object—that it is substantially the same when he first
saw it, the requisite of authentication is satisfied.
2. Objects made unique - those that are made readily identifiable; witness
must identify the same in court if he claims that he made the thing acquire a unique
characteristic like placing identifying marks on it.
3. Non-unique objects - no identifying marks and cannot be marked. EG:
drops of blood, drugs, etc.
*Chain of custody applies (immediately infra)
CHAIN OF CUSTODY
1. Must be established for non-unique objects
a. to guaranty the integrity of the evidence
b. and prevent introduction of evidence that is not authentic.
*this becomes irrelevant when the exhibit is positively identified.
2. Links (as in chains) refers to the people who handled or had custody of the
evidence; it must be shown that the links handled the evidence to prevent
substitution and how it was transferred to another.
[] *****In People v. Kamad, the Court identified the links that the
prosecution must establish in the chain of custody in a buy-bust situation to be as
follows:43
a. first, the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer;
b. second, the turnover of the illegal drug seized by the apprehending officer
to the investigating officer;
c. third, the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and
d. fourth, the turnover and submission of the marked illegal drug seized
by the forensic chemist to the court.
3. Definition under the Comprehensive Dangerous Drugs Act (CDDA): Section
21. Board Regulation No. 1, series of 2002 defines chain of custody as:***
a. the duly-recorded authorized movements and custody
b. of seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment
c. of each stage,
d. from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction.
*NB, PP v. Beran, 15 Jan 2014: "while a perfect chain of custody is
almost always impossible to achieve, an unbroken chain becomes
indispensable and essential in the prosecution of drug cases owing to its
susceptibility to alteration, tampering, contamination and even substitution and
exchange.” Moreover, as the investigator of the case, PO3 Sia claimed that he
personally took the drug to the laboratory for testing, but there is no showing
43
Q: Discuss the "chain of custody" principle with respect to evidence seized under R.A. 9165 or the
Comprehensive Dangerous Drugs Act of 2002. (2012 BAR)
A: In prosecutions involving narcotics and other illegal substances, the substance itself
constitutes part of the corpus delicti of the offense and the fact of its existence is vital to sustain a
judgment of conviction beyond reasonable doubt. The chain of custody requirement is essential to
ensure that doubts regarding the identity of the evidence are removed through the monitoring
and tracking of the movements of the seized drugs from the accused, to the police, to the forensic
chemist, and finally to the court (People v. Sitco, G.R. No. 178202, May 14, 2010). Ergo, the existence
of the dangerous drug is a condition sine qua non for conviction (People v. De Guzman y Danzil, G.R.
No. 186498, March 26, 2010). The failure to establish, through convincing proof, that the integrity of
the seized items has been adequately preserved through an unbroken chain of custody is enough to
engender reasonable doubt on the guilt of an accused (Id.). *****Nonetheless, non-compliance
with the procedure shall not render void and invalid the seizure and custody of the drugs when:
(1) such non-compliance is attended by justifiable grounds; and (2) the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending team. There must be proof that
these two (2) requirements were met before such non-compliance may be said to fall within the scope
of the proviso (People v. Dela Cruz, G.R. No. 177222, October 29, 2008).
who the laboratory technician was who received the drug from him. The
records also show that he submitted the sachet to the laboratory only on the
next day, without explaining how he preserved his exclusive custody thereof
overnight. All these leave us with no conclusion but that there is serious doubt
that the integrity and evidentiary value of the seized item have not been fatally
compromised.
4. Such record of movements and custody of seized item shall include
a. the identity and signature of the person who held temporary custody of
the seized item,
b. the date and time when such transfer of custody were made in the course
of safekeeping and use in court as evidence, and
c. the final disposition.
5. As a method of authenticating evidence, the chain of custody rule requires that
the admission of the exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be
6. Procedure under Sec. 21, CDDA
a. Duties of the apprehending team having initial custody: [] PP vs. Dahil:
Section 21 of R.A. No. 9165: The said provision requires the apprehending team,
after seizure and confiscation, to immediately (NB: failure of the authorities to
immediately mark the seized drugs would cast reasonable doubt on the
authenticity of the corpus delicti):***
i. conduct a physically inventory; and
ii. photograph the same in the presence of
(a) the accused or the person/s from whom such items were
confiscated and/or seized,
(b) or his/her representative or counsel,
(c) a representative from the media and the DOJ, and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof.
*Marking: affixing on the drugs by the apprehending officer of
his initials or other identifying signs, such marking are to be used by the
succeeding handlers of the drugs for reference to forestall planting of evidence
b. within 24 hours must be submitted to PDEA forensic lab.
c. examiner required to issue a receipt of the drugs, and a certification of
the forensic laboratory shall be done underneath
d. after filing of the criminal case - the court within 72 hrs conduct an
ocular inspection of the drugs after which within 24 hrs. PDEA shall proceed
with its destruction in the presence of the persons mentioned in (a).
e. Dangerous Drugs Board to issue a sworn certification as to the fact of the
destruction.
7. ******Effect of non-compliance; still admissible as evidence if:
a. non-compliance was based on justifiable grounds;44

b. apprehending officer/team must have properly preserved the integrity
and evidentiary value of the seized items. NB: important because the drug is the
corpus delicti of the crime (body of the crime) and it must be established
beyond reasonable doubt.45
******Importance: the issue of non-compliance with Sec. 21 is not an
issue of admissibility but of probative value.
8. Elements in the prosecution for sale of Dangerous Drugs
a. identity of the buyer and seller, the object, and the consideration;
b. the delivery of the thing sold and the payment
44
Arvin was caught in flagrante delicto selling drugs for P200,000.00. The police officers confiscated
the drugs and the money and brought them to the police station where they prepared the inventory
duly signed by police officer Oscar Moreno. They were, however, unable to take pictures of the
items. Will this deficiency destroy the chain of custody rule in the drug case? (2011 BAR)
(A) No, a breach of the chain of custody rule in drug cases, if satisfactorily explained, will not
negate conviction.
(B) No, a breach of the chain of custody rule may be offset by presentation in court of the drugs.
(C) Yes, chain of custody in drug cases must be strictly observed at all times to preserve the integrity of
the confiscated items.
(D) Yes, compliance with the chain of custody rule in drug cases is the only way to prove the accused’s
guilt beyond reasonable doubt.
45
In a case for illegal possession of dangerous drugs, the prosecution has rested but you saw from the
records that the illegal substance allegedly involved has not been identified by any of the prosecution
witnesses nor has it been the subject of any stipulation. Should you now proceed posthaste to the
presentation of defense evidence or consider some other remedy? Explain the remedial steps you
propose to undertake. (2013 BAR)
A: I will first file a motion for leave to file demurrer to evidence within five (5) days from the
time the prosecution rested its case. If the same is granted, then I will file a demurrer to evidence within
ten (10) days from notice on the ground of insufficiency of evidence of the prosecution (Sec. 23, Rule
119).
In People v. De Guzman, G.R. No. 186498, March 26, 2010, the Supreme Court held that in
prosecution for violation of the dangerous Drugs Act, the existence of the dangerous drug is a
condition sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime.
The identity of the prohibited drug must be established with moral certainty. Apart from the showing
that the elements of possession or sale are present, the fact that the substance illegally possessed
and sold in the first place is the same substance offered in court as exhibit must likewise be
established with the same degree of certitude as that needed to sustain a guilty verdict. The corpus
delicti should be identified with unwavering exactitude.
Similarly, in People v. Sitco, G.R. No. 178202, May 14, 2010, the High Court held that in
prosecutions involving narcotics and other illegal substances, the substance itself constitute part of the
corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction
beyond reasonable doubt. Of chief concern in drug cases then is the requirement that the prosecution
prove that what was seized by police officers is the same item presented in court. This identification
must be established with moral certainty and is a function of the rule of chain of custody. The chain of
custody requirement is essential to ensure that doubts regarding the identity of the evidence are
removed through the monitoring and tracking of the movements of the seized drugs from the accused,
to the police, to the forensic chemist, and finally to the court.
*what is material is the proof that the transaction actually took place,
coupled with the presentation in court of the corpus delicti.
*absence of marked money does not forestall the prosecution as long as the
transaction is adequately proven.
[] *******In buy-bust operations, the informer’s testimony is not necessary
to convict someone of violation of the Dangerous Drugs Act if there are
testimonies of two (2) Narcom agents who spearheaded the operation.46
***ON WARRANTLESS ARRESTS

1. GR: For a valid search, there has to be a search warrant (SW) or warrant of
arrest (WA);
2. XPN: cases of valid warrantless arrest or valid warrantless searches [Sec 5,
Rule 113, Rules on Criminal Procedure (RCP),
ROC]. Citizen’s arrest apply.
a. In flagrante delicto arrest: caught in the act. When IN HIS PRESENCE
the person has committed, is actually committing or is attempting to commit an
offense. There is PERSONAL KNOWLEDGE of the crime. Eg: buy & bust and
entrapment operations
b. Arrest in hot pursuit: There is PERSONAL KNOWLEDGE OF
FACTS OR CIRCUMSTANCES, when taken together, he has probable cause to
believe the person to be arrested has committed the crime.
c. Arrest of an escapee: The person to be arrested is a prisoner—detained
or convicted—and he has escaped from prison or while being transferred from
one confinement to another.
3. Sample problem: if accused was arrested with out warrant on suspicion that
he is carrying prohibited drugs; he signed a receipt containing a list of the
confiscated items acknowledging they came from him:
a. Prosecution: what argument may you advance for admission of evidence?
The receipt he signed is admissible to prove liability for the offense charged. It is
an extrajudicial confession—an admission of guilt.
b. Defense: what arguments will you advance to prevent the admission of
evidence? The seized drugs are incompetent evidence. They are fruits of the
poisonous tree as they were obtained without a valid warrant.
46
On the basis of the testimonies of Narcom agents, James and Tony, who spearheaded the “buy-bust"
operation by posing as buyers after a tip from a civilian informer, Steve, Bob was convicted of violation
of the Dangerous Drugs Act. On appeal. Bob claims that he is entitled to an acquittal as the
prosecution willfully suppressed evidence in not presenting the informer, Steve, in court. Decide Bob’s
contention. (1994 Bar Question) Answer:
Bob’s contention is not correct. The prosecution could not be considered to have willfully
suppressed evidence in not presenting in court the informer in the buy-bust operation. The informer’s
testimony is not necessary in convicting Bob of violation of the Dangerous Drugs Act because there
were the testimonies of two (2) Narcom agents who spearheaded the operation.
ON DNA TESTING
*See special rules, infra
OTHER TESTS
1. Paraffin Tests
a. Considered as inconclusive.47 It only establishes the presence or
absence of nitrates but cannot determine its source. The presence of nitrates is
only an indication of the possibility that a person has fired a gun, since nitrates
are also found in substances other than gunpowder such as tobacco.
b. It is only considered as a corroborative evidence, neither proving nor
disproving that a person did indeed fire a gun.
2. Polygraph Tests
a. courts reject the results of such tests when offered in evidence to establish the
guilt of the accused, because it has not yet attained scientific acceptance as a
reliable and accurate means of ascertaining the truth or deception.
————————————————————————————————
47
Q: At the homicide trial, the prosecution proposed that accused Joey undergo a series of paraffin
tests to determine whether he fired his service pistol at the time the victim, Lyn, was shot to death. The
defense objected on the ground that Joey's submission of his hands for paraffin test, or the
Inspection of any part of his body for that matter, would violate his right against self-incrimination.
(1994 Bar Question):
i. How would you rule on the objection? The objection should be overruled. *****Submission
to the paraffin test is not a violation of the right against self-incrimination because it involves only
an examination of a part of the body. What violates the right against self-incrimination is testimonial
compulsion.
ii. Is the result of the paraffin test admissible in evidence? *****The result of the paraffin test is
admissible in evidence although it is not conclusive and is not the only evidence that should be
considered.
VIII. Documentary Evidence
MEANING OF DOCUMENTARY EVIDENCE (DE) 48

[Rule 130, Section 2] 48
OBJECT vs. DOCUMENTARY EVIDENCE 48
***BER vs PER 48
ON THE BEST EVIDENCE RULE (BER) 49
REQUISITES FOR BER TO APPLY****** 50
WHEN BER IS NOT APPLICABLE***** 51
EXCEPTIONS TO THE INTRODUCTION OF THE ORIGINAL DOC 51
LAYING DOWN THE BASIS FOR THE EXCEPTIONS 52
HOW DUE EXECUTION & AUTHENTICITY OF A DOCUMENT IS PROVED
52
MEANING OF ORIGINAL DOCUMENT [Rule 130, Section 4] 53
PARTY WHO CALLS FOR DOCUMENT NOT BOUND TO OFFER IT 54
PAROL EVIDENCE RULE 54
PAROL EVIDENCE RULE (PER) 54
GENERAL RULE ON PAROL EVIDENCE [Rule 130, Section 9]. 55
EXCEPTIONS: INTRODUCTION OF PAROL EVIDENCE***** 56
SOME NUANCES ON THE PER 56
————————————————————————————————
MEANING OF DOCUMENTARY EVIDENCE (DE)

[Rule 130, Section 2]
1. Documents as evidence consist of the following offered as proof of their
contents:
a. writing
b. or any material containing letters, words, numbers, figures, symbols or other
modes of written expression
OBJECT vs. DOCUMENTARY EVIDENCE

*When is evidence offered as object or documentary? It depends on the purpose
for which it is offered:
1. If offered to prove its existence, it is an object evidence.
2. If offered as proof of its contents, it is documentary.
RULES UNDER DOCUMENTARY EVIDENCE

1. Best Evidence Rule
2. Parol Evidence Rule
***BER vs PER
BEST EVIDENCE RULE PAROL EVIDENCE RULE
if you want to know the content of the if you want to know the agreement, look at the
agreement, show the original written agreement
if you do not have the original, lay the basis if you want to prove something outside the
written agreement, put it in issue in the pleading
Preference of the original over secondary Presupposes that the original is available
evidence
Precludes admission Precludes admission of other evidence other
o than the contents of the document itself
f
s
e
c
o
n
d
a
r
y
e
v
i
d
e
n
c
e
May be invoked by Only parties (and their successors-in-interest) to
any party WON the document can invoke the rule
privy to the
document involved
applies to all forms Only written agreements, including wills
o
f
w
r
i
t
i
n
g
ON THE BEST EVIDENCE RULE (BER)48

or ORIGINAL 49EVIDENCE RULE
1. *****Meaning: simply put, the rule states that when the subject of inquiry is
the CONTENTS of the document, the original must be produced, i.e., no
evidence shall be admissible other than the original document itself.
2. ***Reason for the rule: This Rule is adopted for the prevention and detection
of FRAUD and is declared to be essential to the pure administration of
Justice. (Moran, Vol. 5, p. 12.) If a party is in possession of such evidence and withholds it,
the presumption naturally arises that the better evidence is withheld for
fraudulent purposes. (Francisco, Revised Rules of Court vol. VII, Part I, pp.
121,122)
3. Summary of BER*****
a. Show the original document
b. If you cannot show the original, provide reasons for it. EG: it is lost,
destroyed, unavailable, in the hands of the other party, etc (see XPNS, infra).
c. Lay the basis for not presenting the original [Sec 5-7, R130]: show proof
of its existence and due execution, and the cause of its unavailability (how it got
lost, for example) without bad faith on his part;
d. Then one may now prove its contents by a copy, recital of its contents in
some authentic document, or by the testimony of witnesses. not necessarily in this
order as recently ruled by SC, although the Rules provide otherwise [Sec 5, Rule
130]
48
3. Best Evidence Rule: This Rule is adopted for the prevention of fraud and is declared to be essential
to the pure administration of Justice. (Moran, Vol. 5, p. 12.) *****If a party is in possession of such
evidence and withholds it, the presumption naturally arises that the better evidence is withheld for
fraudulent purposes. (Francisco, Revised Rules of Court vol. VII, Part I, pp. 121,122)
49
*****[] Bar 1993: Why is the “Best Evidence Rule" often described as a misnomer? Because it
merely requires the best evidence available and in the absence thereof, allows the introduction of
secondary evidence. Besides, it is applicable only to documentary evidence and not to testimonial
and object evidence. It may be better called the original evidence rule.
REQUISITES FOR BER TO APPLY******

1. The (object) matter of inquiry involves a DOCUMENT50; NB: it does not
mean that when a document is involved, BER automatically applies; the second
requisite has to be present;51
2. The matter of inquiry is the CONTENTS52 of the document, not the truth
of such content. The rule cannot be invoked unless the contents of a writing is the
subject of judicial inquiry—in such case, the best evidence is the original writing
itself.
WHEN BER IS NOT APPLICABLE*****

*when the issue does NOT INVOLVE THE CONTENTS of a writing.
1. Thus, BER does not apply when the document is only a COLLATERAL —the
specific purpose of introduction is not to establish its terms but the following:
a. execution
b. existence or the
c. circumstances surrounding its execution.
2. When the purpose is to rebut an earlier testimony of the defendant that the
plaintiff never had any previous transaction with him, the latter can offer as
exhibit a photocopy of a deed of sale between him and the defendant, because
BER does not apply. The photocopy here is offered as an object, not
documentary, evidence. It is only offered to prove the existence of a previous
50
BAR 2017: Q: Police officers arrested Mr. Druggie in a buy-bust operation and confiscated from him
10 sachets of shabu and several marked genuine peso bills worth P5,000.00 used as the buy-bust money
during the buy-bust operation. At the trial of Mr. Druggie for violation of R.A. No. 9165 (Comprehensive
Dangerous Drug Act of 2002), the Prosecution offered in evidence, among others, photocopies of the
confiscated marked genuine peso bills. The photocopies were offered to prove that Mr. Druggie had
engaged at the time of his arrest in the illegal selling of dangerous drugs. Invoking the Best Evidence Rule,
Atty. Maya Bang, the defense counsel, objected to the admissibility of the photocopies of the
confiscated marked genuine peso bills. Should the trial judge sustain the objection of the defense
counsel? Briefly explain your answer. SUGGESTED ANSWER: No, the trial judge should not sustain
the objection that invokes the best evidence rule. The Supreme Court has held that the best evidence
rule applies only to documentary evidence, not to object or testimonial evidence. Here the
marked money is object, not documentary, evidence since it is being offered to prove not its
contents but its existence and use in the buy-bust operation. [People v. Tandoy, 192 SCRA 28
(1990)] (Jurist Review Center, Inc.)
51
Bar 1994: At the trial of AA for the violation of the Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked bills used in the “buy-bust” operation. AA objects to the
introduction of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of
secondary evidence in lieu of the original: is the photocopy admissible in evidence?
YES, the photocopy of the bills being object evidence is admissible in evidence without
violation of the best evidence rule. BER applies only to documentary evidence and not to object
evidence. [People vs. Tandoy; and the Ace Vergel case]
52
******if a deed of sale of a car is used to prove that the car in the possession of someone and the
same car is DESCRIBED in the deed of sale, an objection based on BER is proper! Why? It calls for
a description of the car—part of the contents of the deed of sale.
transaction—it was not presented for the examination of its contents. BER applies only to
documentary evidence.
*Does BER apply to Object Evidence? NO. it only applies to documentary
evidence. May BER be waived? Yes, if it is not raised in the trial.
EXCEPTIONS TO THE INTRODUCTION OF THE ORIGINAL DOC

1. GR: Original Document only: [Rule 130, Section 3. Original document must be
produced; exceptions. — When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself]
2. XPNs [Rule 130, Section 3: except in the following cases]*****
(a) When the original has been lost or destroyed, or cannot be produced
in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it after reasonable
notice;
(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be
established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.
LAYING DOWN THE BASIS FOR THE EXCEPTIONS

*****or lay the foundation, i.e., justify why you cannot present the original
1. When the original has been lost/destroyed/cannot be produced in court: the
offeror must show:53
a. proof of its existence and due execution; Order of proof: existence, execution, loss,
and contents.
b. the cause of its unavailability54 (i.e., loss, destruction, cannot be produced
in court).
53
[] Bar 1992: Ajax Power Corporation, a utility company, sued in the Regional Trial Court to enforce a
supposed right of way over a property owned by Simplicio. At the ensuing trial, Ajax presented its retired
field auditor who testified that he knew for a fact that a certain sum of money was periodically paid to
Simplicio for some time as consideration for a right of way pursuant to a written contract. The original
contract was not presented. Instead, a purported copy, identified by the retired field auditor as such,
was formally offered as part of his testimony. Rejected by the trial court, it was finally made the subject of an offer
of proof by Ajax. Can Ajax validly claim that it had sufficiently met its burden of proving the existence
of the contract establishing its right of way? Explain.******
NO, Ajax had not sufficiently met its burden of proving the existence of the written
contract because it had not laid the BASIS for the admission of a purported copy thereof as
secondary evidence. Ajax should have shown:
a. proof of its existence and due execution;
b. the cause of its unavailability (i.e., loss, destruction, cannot be produced in court).
c. that there is no bad faith on its part
54
EG: i. the original is beyond the jurisdiction of the court; ii. immovable objects (tombstones)
c. that there is no bad faith on his part55

2. When the original is in the custody or under the control of the party against
whom the evidence is offered. Lay the basis:
a. (the original exists): offer proof of the existence and execution of the
document;
b. the document is in the custody or under the control of adverse party,
c. the adverse party was given reasonable notice to produce it.
d. in spite of such notice, the adverse party fails to produce the document.
3. When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
4. When the original is a public record. Lay the basis [Rule 130, Section 7]
a. the original of document is in the custody of public officer or is recorded in a
public office,
b. its contents may be proved by a certified copy
c. issued by the public officer in custody thereof.
HOW DUE EXECUTION & AUTHENTICITY OF A DOCUMENT IS

PROVED
1. either by anyone who saw the document executed or written;
2. or by evidence of the genuineness of the signature or handwriting of the maker.
ONCE THE EXCEPTIONS (loss/destruction/in the custody-control of adverse

party) ARE ALLOWED, HE MAY PROVE ITS CONTENTS BY
SECONDARY EVIDENCE, in the following order:56
55
****EG: The loan may be proved by the photocopy as long as AA lays the basis for the introduction
of secondary evidence, to wit: a) the existence and due execution of the original, and b) the loss of the
original, (c) without bad faith on his part.
56
[] Bar 1997: When A loaned a sum of money to B, A typed a single copy of the promissory note,
which they both signed. A made two photo (xeroxed) copies of the promissory note, giving one
copy to B and retaining the other copy. A entrusted the typewritten copy to his counsel for
safekeeping. The copy with A’s counsel was destroyed when the law office was burned.****
a. In an action to collect on the promissory note, which is deemed to be the "original" copy for
the purpose of the "Best Evidence Rule"? ******The copy that was signed and lost is the only
original" copy for purposes of the Best Evidence Rule. (Sec. 4[b] of Rule 130).
b. Can the photocopies in the hands of the parties be considered "duplicate original copies"?
No. They are not duplicate original copies because there are photocopies which were not signed
(Mahilum v. Court of Appeals, 17 SCRA 462). They constitute secondary evidence. (Sec. 5 of Rule
130).
c. As counsel for A, how will you prove the loan given to A and B? The loan given by A to B
may be proved by secondary evidence through the xeroxed copies of the promissory note. ******The
rules provide that when the original document is lost or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and the cause of its unavailability without bad
faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated. (Sec. 5 of Rule 130). NB: SC explained
that the order does not have to be followed as per discretion of the court.
1. a copy, or
2. by a recital of its contents in some authentic document, or
3. by the testimony of witnesses in the order stated.
*****NB: SC explained that the order does not have to be followed as per
discretion of the court.
MEANING OF ORIGINAL DOCUMENT [Rule 130, Section 4]

1. Below are original documents
(a) The original of the document is one the contents of which are the
subject of inquiry.
(b) When a document is in two or more copies executed at or about the same
time, with identical contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries are likewise
equally regarded as originals.
2. If the original cannot be presented in evidence:
a. Find a legal excuse for failure
b. present secondary evidence (lay the basis, supra).
PARTY WHO CALLS FOR DOCUMENT NOT BOUND TO OFFER IT

[Rule 130, Section 8].
— A party who calls for the production of a document and inspects the same is not
obliged to offer it as evidence.
————————————————————————————————
PAROL57 EVIDENCE RULE58
Parol Evidence Rule. Rule 130, Section 9. Evidence of written agreements. —

******When the terms of an agreement have been reduced to writing, it is
CONSIDERED AS CONTAINING ALL THE TERMS AGREED UPON and there can
57
Parole evidence is an: (2014)
(A) agreement not included in the document
(B) oral agreement not included in the document
(C)agreement included in the document
(D)oral agreement included in the document
A: (B) oral agreement not included in the document. Under Section 9 of Rule 130 of the Rules of
Court, when the terms of an agreement are reduced in writing, it is deemed to contain all the
terms agreed upon and no evidence of such terms can be admitted other than the contents of
the said written agreement (Financial Building Corporation v. Rudlin International Corporation,
G.R. No. 164186, October 4, 2010) [TOM: parole in Italian means words]
58
2. Parol Evidence Rule: *****It is designed to give certainty to a transaction which has been
reduced to writing, because written evidence is much more certain and accurate than that which
rests on fleeting memory only. (Francisco, Revised Rules of Court, Vol. VII, Part I. p. 154)
be, between the parties and their successors in interest, no evidence of such terms
other than the contents of the written agreement.
******However, a party may present evidence to modify, explain or add to the
terms of written agreement if he PUTS IN ISSUE59 in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement
of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
****NB for parol evidence rule: The term “agreement” includes wills.60
PAROL EVIDENCE RULE (PER)

1. What PER means: *****parol evidence means offering extrinsic evidence
(aliunde) that would MODIFY, EXPLAIN OR ADD to the terms of the
written agreement.
59
[] Bar 2001: Pedro filed a complaint against Lucio for the recovery of a sum of money based on a
promissory note executed by Lucio. In his complaint, Pedro alleged that although the promissory
note says that it is payable within 120 days, the truth is that the note is payable immediately after
90 days but that if Pedro is willing, he may, upon request of Lucio give the latter up to 120 days to pay
the note. During the hearing, Pedro testified that the truth is that the agreement between him and
Lucio is for the latter to pay immediately after ninety day's time. Also, since the original note was with
Lucio and the latter would not surrender to Pedro the original note which Lucio kept in a place about
one day's trip from where he received the notice to produce the note and in spite of such notice to
produce the same within six hours from receipt of such notice, Lucio failed to do so. Pedro presented
a copy of the note which was executed at the same time as the original and with identical contents.
a) Over the objection of Lucio, ****will Pedro be allowed to testify as to the true agreement or
contents of the promissory note? Why? (2%): ******Yes, because Pedro has ALLEGED in his
complaint that the promissory note does not express the true intent and agreement of the parties.
This is an exception to the parol evidence rule. [Sec. 9(b) of Rule 130, Rules of Court)
b) Over the objection of Lucio, can Pedro present a copy of the promissory note and have it
admitted as valid evidence in his favor? Why? (3%) YES. ****The copy in the possession of Pedro is a
duplicate original because it was executed at the same time as the original and with identical
contents. [Sec. 4 (b) of Rules 130). Moreover, the failure of Lucio to produce the original of the note
is excusable because he was not given reasonable notice, a requirement under the Rules before
secondary evidence may be presented. (Sec. 6 of Rule 130, Rules of Court).
***Note: The promissory note is an actionable document and the original or a copy thereof
should have been attached to the complaint (Sec. 7 of Rule 8, 1997 Rules of Civil Procedure). In such a
case, the genuineness and due execution of the note, if not denied under oath, would be deemed
admitted. (Sec. 8 of Rule 9,1997; Rules of Civil Procedure)
60
The Parole Evidence Rule applies to: (2012 BAR)
a. subsequentagreementsplacedonissue.
b. written agreements or contractual documents.
c. judgment on a compromise agreement.
d. willandtestaments.
Alternative Answer: d. will and testaments
*the origin of PER is contract law, hence, look at Section 9—it refers to
agreements; but there is one document which is not an agreement but it is
considered as one for the purpose of PER—wills.
2. ***Reason for the rule: It is designed to give CERTAINTY to a transaction
which has been reduced to writing, because written evidence is much more
certain and accurate than that which rests on fleeting memory only. (Francisco,
Revised Rules of Court, Vol. VII, Part I. p. 154)
3. Coverage: (applies to agreements and wills) only contracts which the parties
have decided to set forth in writing; PER comes into play ipso facto when the
parties execute a written contract. ****Hence, when the terms of an agreement
are merely oral, the parol evidence rule should not be applied.
4. The rule comes into play when the issue of the litigation are the TERMS OF
THE AGREEMENT.
****GR: not all writings call for the application of the rule—the writing
must EMBODY an agreement; hence, parol evidence does not apply to oral
agreements, public writing, private writing, express trust.
*XPN. Wills (under the last par of Rule 130, Sec 9, the term “agreement”
includes wills.)
GENERAL RULE ON PAROL EVIDENCE [Rule 130, Section 9].

1. *****When the terms of an agreement have been reduced to writing, it is considered
as containing all the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of the
written agreement.
*thus, being the final agreement, any extraneous or “parol evidence” (evidence
aliunde) is inadmissible to (a) modify, (b) explain, (c) add to the terms of the
agreement.
*Ratio for the rule: to preserve the reliability and protect the sanctity of
the written agreement
****Waiver of PER: when the party fails to object during the trial
*Admission vs. Credibility: however, even if admitted, the parol evidence
may or may not be given probative value or credibility.
EXCEPTIONS: INTRODUCTION OF PAROL EVIDENCE*****

*Introduction of parol evidence: it means offering EXTRINSIC evidence that
would modify, explain or add to the terms of the agreement.
*How to introduce parol evidence/evidence aliunde: a party may present evidence
to modify, explain or add to the terms of written agreement if he PUTS IN
ISSUE in his pleading: (NB: if it’s not duly pleaded, a party will be barred from
offering extrinsic evidence.)
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
*Intrinsic/LATENT ambiguity: the ambiguity is not apparent on the face
of the document but lies on the person or thing that is the subject of the
document; EG: XX puts in his will that he shall bequeath a parcel of land to his
nephew John Doe. On its face, the disposition is clear. However, the ambiguity
may arise if there are two or more nephews of XX named John Doe. In this
case, parol evidence is admissible to determine who among the nephews is the
rightful devisee.
*****NB: if the ambiguity is patent/obvious, PER does not apply. EG: the
will says I bequeath “one of my houses”—that’s an extrinsic ambiguity and the
court cannot substitute the will of the testator, hence, PER cannot apply. The
testimony of another person is considered parole evidence, and, thus, barred. If in
the example, supra, it says, “my only nephew, John Doe”—that’s a patent
ambiguity where PER does not apply.
*Mistake or imperfection in the agreement: MISTAKE as to the true
agreement of the parties NOT THE FAILURE of meeting of minds
otherwise, the contract may be subject to annulment for vitiation of consent.
(b) The failure of the written agreement to express the true intent and agreement of the
parties thereto;
*****If the true intention of the parties is not expressed in the written
agreement, one of the parties may ask for the REFORMATION of the
instrument (not the contract!) and and PUT IN ISSUE in the pleading the
mistake or imperfection in the written agreement. In that way, the plaintiff may
introduce parol evidence to show the real intention of the parties.
*NB: Instances when reformation of the instrument NOT allowed:
i. simple donations inter vivos wherein no condition is imposed;
ii. wills;
iii. the real agreement is void. [Art 1366 NCC]
****EG: when two parties do not agree as to the purchase price, say, one
claims it’s 1M and the other 10M,
i. the first REMEDIAL STEP to prove the true price is to file an
action to REFORM the INSTRUMENT (not the contract);
ii. Then file a COMPLAINT where you put in issue the true intent
of the parties (or one of the 4 items here)
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.
*EG: If there is a deed of sale for a 100M sale, how can the buyer claim that
it is now just 50M when the seller sued him for 100M? ****The buyer has to
“put in issue” in his answer any of the matters indicated under Sec 9, par 2 of
Rule 130. He may claim, for example, that there was a mistake in the written
agreement, or the written agreement fails to express their true intent, or the
written agreement in invalid, or they agreed on other terms—that it has been
reduced to 50M—after the execution of the written agreement. By doing so, the
buyer may now introduce parol evidence to prove that the selling price has
been reduced to 50M.
SOME NUANCES ON THE PER

1. ****Non-parties (third parties) cannot invoke PER: a total stranger to the
writing is not bound by its terms and is allowed to introduce extrinsic or parol
evidence against its efficacy. The rule applies only to the parties of the
agreement and those who are PRIVY to a party or successors-in-interest.
2. Is there a particular form required? None, the rule applies WON the
document is PRIVATE OR PUBLIC. Thus, even if a promissory note is not
in the formalities prescribed by law, the rule applies.***
————————————————————————————————
IX. Authentication & Proof of Documents
ON DOCUMENTS 59
PUBLIC & PRIVATE DOCUMENTS 59
ON NOTARIZED DOCUMENTS 59
FOUR INSTANCES WHEN AUTHENTICATION IS NOT REQUIRED 61
WHEN AUTHENTICATION OF PRIVATE DOCUMENT REQUIRED [S20 R132]:***** 62
PROVING THE GENUINENESS OF A HANDWRITING [Rule 132, Section 22]. 62
ON PUBLIC DOCUMENTS AS EVIDENCE [Rule 132, Section 23]. 63
PROOF OF OFFICIAL RECORD [Rule 132, Sec 24] 63
PROOF OF LACK OF RECORD [Sec 28, Rule 132] 64
ON CHURCH REGISTRIES 65
ON IMPEACHMENT OF JUDICIAL RECORD [Rule 132, Sec 29] 65
————————————————————————————————
PRELIMINARIES ON AUTHENTICATION & PROOF OF DOCUMENTS

1. Why the need for the rule? An evidence presented in court is not presumed
authentic.***
2. It is not enough to produce the original document—one has to authenticate it.
This is true only for documentary and object evidences—there is no need to
‘authenticate’ testimonial evidences, since the witnesses themselves appear in
court.
ON DOCUMENTS
1. What is a document? A deed, instrument or other duly-authorized paper by
which something is proved, evidenced or set forth (Bermejo v. Barrios,
February 27, 1970).
2. If a document is offered as proof of its contents, it is a documentary evidence,
otherwise, it is merely object evidence. *****Hence, there is no need to authenticate
every private document. Such is needed only when you offer it as authentic.
3. Registration of contracts; Contracts required to be registered for validity***
a. donation of an immovable [Art. 749, NCC];
b. donation of a movable with a value exceeding P5,000 [Art. 748, NCC];
c. Partnership where immovable property or real rights are contributed [Art. 1771,
NCC].
PUBLIC & PRIVATE DOCUMENTS

******For evidentiary purposes, public documents are those enumerated
under Sec. 19, Rule 132
[] Section 19. Classes of Documents. — For the purpose of their presentation

evidence, documents are either public or private.
a. Public documents are:*****
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;61
(b) Documents acknowledged before a notary public except last
wills and testaments; and
(c) Public records, kept in the Philippines, of private documents
required by law to the entered therein. [Section 27. An authorized public record of a
private document may be proved by the original record, or by a copy thereof,
attested by the legal custodian of the record, with an appropriate certificate that such
officer has the custody; ***NB: the public document/record does not refer to the
private document itself but the public record of that private document.]
b. All other writings are private.
PUBLIC vs. PRIVATE DOCUMENTS***

1. What is the significance of the difference between public and private
document? ****public documents are presumed authentic; there is no need to
prove their authenticity;
******Public documents are self-authenticating. Private documents are
not, thus Sec. 20 applies for them to be authenticated; Sec. 2062 does not apply to
public documents because the latter are admissible without further proof of its
due execution.
2. *****Is it necessary to prove the authenticity of every private document?
No, check the PURPOSE by which it is offered:
61
Bearing in mind the distinction between private and public document, which of the following is
admissible in evidence without further proof of due execution or genuineness? (2011 BAR)
(A) Baptismal certificates.
(B) Official record of the Philippine Embassy in Singapore certified by the Vice- Consul with
official seal.
(C) Documents acknowledged before a Notary Public in Hong Kong.
(D) Unblemished receipt dated December 20, 1985 signed by the promisee, showing payment of a loan,
found among the well-kept file of the promissor.
62
Section 20. Proof of private document. — Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
[] A private document may be considered as evidence when it is sequentially: (2012 BAR)
a. marked, identified, authenticated.
b. identified, marked and offeredinevidence.
c. ******marked, identified, authenticated and offered in evidence.
d. marked, authenticated and offered in evidence.
a. if you are offering it to prove that it is genuine and authentic, you have
to prove its due execution and authenticity.
b. if not, all you have to do is to IDENTIFY it.
*EG: you found a Deed of Sale (lost & found)—you only have to identify it.
But if you are saying it is the true deed of sale, you have to prove its due execution
& authenticity.
3. When are oral official acts considered as public documents? When they are
recorded.
4. What private document remains to be private notwithstanding its
notarization? Wills.
ON NOTARIZED DOCUMENTS
1. They are considered as public documents under Sec 19, Rule 132: Documents
acknowledged before a notary public except last wills and testaments;
2. ***There is a PRESUMPTION OF REGULARITY in documents
acknowledged before a notary public… the certificate of acknowledgment
being PRIMA FACIE evidence of the execution of the instrument or document
involved;
3. It is a *****PRIMA FACIE evidence of the truth of the facts stated therein
and a ***CONCLUSIVE PRESUMPTION of its existence and due execution. [
a. the notarial seal converts a document from private to a public
instrument. However, irregular notarization or the lack thereof, does not
necessarily affect the validity of the contract reflected in the document. It simply remains
to be a private document which must be proved to be authentic if offered as authentic to
be admissible.
b. one who denies the due execution of a deed where one’s signature appears
has the burden of proving that contrary to the recital in the jurat, one never
appeared before the notary public and acknowledged the deed to be a voluntary
act (Sps. Santos v. Sps. Lumbao, March 28, 2007)
4. Sample problem: Plaintiff presented a notarized affidavit of Mr. XX to prove
the facts stated therein (Mr XX was abroad). Opposing counsel promptly objected
on hearsay grounds:
a. Plaintiff argued that being a public document, it is presumed genuine,
authentic & PF evidence of the facts stated therein. Decide: It is true that the
notarized document is considered a public document, and thereby a PF evidence
of the truths stated therein. However, the regularity of its notarization or the lack
of it can be questioned because Mr XX was abroad, i.e., he did not appear before
the notary public rendering the notarization irregular. With that, the document
remains to be a private document and so it must be proved authentic if offered as
authentic to be admissible.
b. When is a proponent of a private document not required to prove its
authenticity? See next item.
FOUR INSTANCES WHEN AUTHENTICATION IS NOT REQUIRED

******
1. When the document is not offered as authentic.
2. When it is an ancient document under Sec. 21, Rule 132; Elements:63
a. the private document is more than thirty years old,
b. it is produced from the custody in which it would naturally be found if
genuine, and
c. it is unblemished by any alterations or circumstances of suspicion.
3. When the genuineness and authenticity of an actionable document were not
specifically denied under oath by the adverse party (Sec. 8, Rule 8)
4. When the genuineness and authenticity have been admitted under Sec. 4 Rule
129 (judicial admissions).
WHEN AUTHENTICATION OF PRIVATE DOCUMENT REQUIRED

[S20 R132]:*****
1. If the private document is offered as authentic, there is a need to prove its due
execution and authenticity, either by (***two ways of proving due execution and
authenticity):
a. relying on the personal knowledge of a witness: By anyone who saw
the document executed or written (attesting because it was executed or signed in his
presence);
b. witness testifies or shows evidence that the signature or handwriting of the maker
is genuine: By evidence of the genuineness of the signature or handwriting
of the maker.
2. If not offered as authentic, it only needs to be identified as that which it is
claimed to be (EG. “I found this document in the drawer of my table”).
3. Iow, manner of authentication of a private document only applies if the
document is offered as authentic as when it is offered to prove that the
document was truly executed by the person purported to have made the same.
Then, apply number 1. If no, apply number 2.
63
Q: In the trial court of a case on July 5, 1990, plaintiff offered in evidence a receipt dated July 7, 1959
issued by defendant company which was found in a cabinet for receipts of payment. It is without any
blemish or alteration. As no witness testified on the execution and authenticity of the document,
defendant moved for the exclusion of this receipt notwithstanding that it is a private writing. Should
the said motion be granted? Explain your answers. (1990 Bar Question):
******No, because when a private document is more than thirty years old and is produced
from custody in which it would naturally be found if genuine and is unblemished by any
alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (Sec. 21
of Rule 132).
PROVING THE GENUINENESS OF A HANDWRITING [Rule 132,

Section 22].
*****The handwriting of a person may be proved by any witness who believes it to
be the handwriting of such person because
1. he has seen the person write,
2. or he has acquired knowledge of the handwriting of such person because he
has seen writing purporting to be his upon which the witness has acted or been
charged.
3. by a comparison, made by the witness or the court, with writings admitted
or treated as genuine by the party against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge.
*NB: Expert testimony helps but it is not required.
ON PUBLIC DOCUMENTS AS EVIDENCE [Rule 132, Section 23].

1. *****When a public officer, in the performance of his duty, makes an entry in
the public record, the document of such entry is deemed PRIMA FACIE
evidence of the facts in the entry.
2. Examples
a. a chemistry report of NBI’s crime laboratory or a detailed map made
by the head of the Bureau of Lands made pursuant to a legal mandate are PF
EVIDENCE OF THE FACTS stated therein because such report/map were
made in the performance of their duty—they are transformed into public
documents as provided for under Sec 23.
b. A motion for execution of a final and executory judgment is not a
contentious motion that requires a three-day notice before resolution. Such a motion
may be granted ex parte [Far Eastern Surety v. Hernandez]. ******Moreover, the
sheriff’s return is a public document made in the performance of a duty by a
public officer and is prima facie evidence of the facts stated therein. Hence,
there is no need for the sheriff to testify unless defendant had presented
evidence contradicting the sheriff’s return.64
64
In a civil case, plaintiff filed on April 19, 1991, an ex parte motion for execution of judgment. Upon
receiving it, the presiding judge examined the record and issued on the same day an order granting the
motion since, as stated in his order, “the judgment is now final and executory because the sheriffs
return shows that the decision was properly served upon the defendant on April 3, 1991, and no appeal
was perfected on time." The defendant then filed a motion to set aside the order of execution,
contending that the order is void on two grounds: (1) it violates the rule on three-day notice for
motions; and (2) the date of service, April 3,1991, entered in the sheriffs return is a typographical error
because service was actually made on April 8. 1991, so that when the court ordered execution on April
19,1991, the decision was not yet final and executory. At the hearing of the motion, the defendant cited
several cases on the need to notify the adverse party before a contentious motion can be resolved. He
further argued that the sheriff’s return, being hearsay, has to be confirmed by the sheriff on the
witness stand when an entry therein is assailed, because in that situation the proponent of the return
has the burden of proving its correctness. This cannot be done unless the sheriff testifies in court and is
PROOF OF OFFICIAL RECORD [Rule 132, Sec 24]

1. While a public document does not require the authentication imposed upon a
private document, there is a necessity for showing to the court that indeed a
record of the official acts of official bodies, tribunals or of public officers
exists (done through sec. 24 and 26).
*Is an SPA executed and acknowledged before a notary public of the State
of Washington, USA considered a public document under Sec. 24?
- No, it is not one of those who can issue the certificate mentioned in
Sec. 24. Non-compliance with said provision will render the SPA inadmissible.
***Failure to have the SPA authenticated is not a mere technicality but a
question of jurisdiction.
2. The record of public documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, may be evidenced
a. by an official publication thereof or
b. by a copy attested by the officer having the legal custody of the
record, or by his deputy, and
c. (additional requirement if the record is not kept in PH) accompanied
i. by a certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the foreign country in
which the record is kept, and
ii. authenticated by the seal of his office.
3. ON FOREIGN JUDGMENTS (EG: divorces)****
a. a divorce obtained abroad is proven by the divorce decree itself.
Indeed, the best evidence of the judgment is the judgment itself.
b. Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public or official record of a foreign country by
either
i. by an official publication or
ii. by a copy attested by the officer (or by his deputy) having the
legal custody of the record
If the record is NOT kept in PH, it must be
i. accompanied by a certificate issued by the proper diplomatic
or consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and
correspondingly subjected to cross-examination. The sheriff was not presented in court as a witness.
Decide the motion to set aside the order of execution, with reasons. (1992 Bar Question):
Motion to set aside order of execution denied. A motion for execution of a final and executory
judgment is not a contentious motion that requires a three-day notice before resolution. Such a motion
may be granted ex parte [Far Eastern Surety v. Hernandez]. Moreover, the sheriff’s return is a public
document made in the performance of a duty by a public officer and is prima facie evidence of the
facts stated therein. (Sec. 23 of Rule 132) Hence there was no need for the sheriff to testify unless
defendant had presented evidence contradicting the sheriff’s return.
ii. authenticated by the seal of his office [cf. Vda. De Catalan v.

Catalan-Lee, February 8, 2012].
*See foreign law, supra.
PROOF OF LACK OF RECORD [Sec 28, Rule 132]

[] Section 28. Proof of lack of record. — A written statement signed by an officer
having the custody of an official record or by his deputy that after diligent
search no record or entry of a specified tenor is found to exist in the records of
his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry.65
ON CHURCH REGISTRIES
1. It is well-settled that Church registries of births, marriages, and deaths made
subsequent to the promulgation of General Orders No. 68 and the passage of Act
No. 190 are no longer public writings, nor are they kept by duly authorized
public officials. ***They are private writings and their authenticity must
therefore be proved as are all other private writings in accordance with the
rules of evidence. (Llemos v. Llemos, January 26, 2007).
ON IMPEACHMENT OF JUDICIAL RECORD [Rule 132, Sec 29]

1. A judicial record refers to the record of judicial proceedings. It does not only
include official entries or files or the official acts of a judicial officer, but also the
judgment of the court (Citing Black's law dictionary, 5th ed.)
2. Any judicial record may be impeached by evidence of:
65
X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was
arrested by police operatives. They seized from his person a handgun. A charge for illegal possession of
firearm was also filed against him. In a press conference called by the police, X admitted that he had
robbed the victim of jewelry valued at P500.000.00. The robbery and illegal possession of firearm cases
were tried jointly. The prosecution presented in evidence a newspaper clipping of the report to the
reporter who was present during the press conference stating that X Admitted the robbery. It likewise
presented a certification of the PNP Firearms and Explosives Office attesting that the accused had
no license to carry any firearm. The certifying officer, however, was not presented as a witness.
Both pieces of evidence were objected to by the defense.
(a) ******Is the newspaper clipping admissible in evidence against X? The bar answer says yes,
but Feria v. CA 15 Feb 2000 says no: ***newspaper articles amount to "hearsay evidence, twice
removed" and are therefore not only inadmissible but without any probative value at all whether
objected to or not, unless offered for a purpose other than proving the truth of the matter asserted.
(Feria: in this case, the news article is admissible only as evidence that such publication does
exist with the tenor of the news therein stated.)
(b) Is the certification of the PNP Firearm and Explosives Office without the certifying
officer testifying on it admissible in evidence against X? (2003 Bar Question): *****Yes, the
certification is admissible in evidence against X because a written statement signed by an officer
having the custody of an official record or by his deputy that after diligent search no record or entry
of a specified tenor is found to exist in the records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the records of his office contain no such record or
entry. (Sec. 28 of Rule 132).
(a) want of jurisdiction in the court or judicial officer,

(b) collusion between the parties, or
(c) fraud in the party offering the record, in respect to the proceedings.
SEAL [Rule 132, Sec 32]

1. There shall be no difference between sealed and unsealed private
documents insofar as their admissibility as evidence is concerned.
2. Authentication of a private document does not require a seal—there is no
difference between a sealed and an unsealed document insofar as their admissibility is concerned.
X. Testimonial Evidence
ON QUALIFICATIONS OF WITNESSES 67
THE FOLLOWING ARE NOT GROUNDS FOR DISQUALIFICATION 68
COMPETENCY vs. CREDIBILITY OF A WITNESS 68
DISQUALIFICATIONS OF WITNESSES 69
D1. DISQUALIFICATION BY REASON OF MENTAL CAPACITY OR IMMATURITY 70
D2. MARITAL DISQUALIFICATION RULE 70
MARITAL DISQUALIFICTION vs. PRIVILEGED (marital privilege) COMMUNICATION 70
DISQUALIFICATIONS BY REASON OF PRIVILEGED COMMUNICATION (DPC) 72
D3. DPC BETWEEN HUSBAND & WIFE [Rule 130, Sec 24(a)] 73
D4. DPC BETWEEN AN ATTORNEY & HIS CLIENT 75
D5. DPC BETWEEN PHYSICIAN & PATIENT 77
D6. DPC BETWEEN MINISTER/PRIEST & CONFESSANT/PENITENT 78
D7. DPC OF A PUBLIC OFFICER 80
D8. DISQ BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY 80
TESTIMONIAL PRIVILEGE RULE/PARENTAL AND FILIAL PRIVILEGE RULE 80
HEARSAY RULE 81
MEANING OF HEARSAY [Rule 130, Section 36]***** 82
REASONS FOR EXCLUDING HEARSAY EVIDENCE*** 82
ELEMENTS OF HEARSAY***** 84
INDEPENDENTLY RELEVANT STATEMENTS/OPERATIVE ACTS**** 84
SOME NUANCES OF HEARSAY 84
EXCEPTIONS TO THE HEARSAY RULE 86
E1. DYING DECLARATION/ANTE-MORTEM STATEMENTS*** 86
E2. PART OF RES GESTAE*** 87
E3. DECLARATION AGAINST INTEREST 91
E4. DECLARATION ABOUT PEDIGREE 94
E5. FAMILY PEDIGREE 95
E6. COMMON REPUTATION 95
E7. BUSINESS RECORDS RULE 97
E8. ENTRIES IN OFFICIAL RECORDS 97
E9. COMMERCIAL LISTS 98
E10. LEARNED TREATISES 98
E11. PRIOR TESTIMONY/DEPOSITION 98
Summary of the Elements of Admissible Hearsays 99

OPINION RULE [Rule 130, Section 48] 99
RULE ON CHARACTER EVIDENCE [Rule 130, C(8)] 101
———————————————————————————————
C. TESTIMONIAL EVIDENCE
1. Qualification of Witnesses (Sec 20-24)
2. Testimonial Privilege (Sec 25)
3. Admissions and Confessions (Sec 26-33)
4. Previous Conduct as Evidence (Sec 34-35)
5. Testimonial Knowledge (Sec 36)
6. Exceptions To The Hearsay Rule (Sec 37-47)
7. Opinion Rule (Sec 48-50)
8. Character Evidence (Sec 51)
ON QUALIFICATIONS OF WITNESSES66
******Who can be witnesses: [Rule 130, Section 20] all persons who:
1. can perceive, and
2. in perceiving, can make their known perception to others (NB: if he does not
remember, he does not qualify)
3. he must take an oath or affirmation [Sec 1, Rule 132] (NB: if he does not want
to take an oath, he cannot testify)
THE FOLLOWING ARE NOT GROUNDS FOR DISQUALIFICATION

[Rule 130, Sec 20, par 2]******
1. Religious or political belief; NB: May not affect your qualification but your
credibility.
66
T/F. The One-Day Examination of Witness Rule abbreviates court proceedings by having a witness
fully examined in only one day during trial. (2009 Bar Question) SUGGESTED ANSWER:
TRUE. Par. 5(i) of Supreme Court A.M. No. 03.1.09- SC requires that a witness has to be
fully examined in one (1) day only. This rule shall be strictly adhered to subject to the courts
discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable
reasons. On the last hearing day allotted for each party, he is required to make his formal offer
of evidence after the presentation of his last witness and the opposing party is required to
immediately interpose his objection thereto. Thereafter, the judge shall make the ruling on the
offer of evidence in open court. However, the judge has the discretion to allow the offer of
evidence in writing in conformity with Section 35, Rule 132.
ALTERNATIVE ANSWER: FALSE. This rule is not absolute: it will still allow the trial judge
the discretion whether to extend the direct and/or cross examination for justifiable reasons or not. The
exercise of this discretion may still result in wranglings as to the proper exercise of the trial court's
discretion, which can delay the proceedings.
2. Interest in the outcome of the case; EG: close relationship67—parents can

testify if the child is involved—may not affect your qualification but your credibility.
3. Conviction of a crime68
***unless otherwise provided by law,69 it shall not be ground for disqualification.
COMPETENCY vs. CREDIBILITY OF A WITNESS70

*A witness may be competent, and yet give incredible testimony; he may be
incompetent, and yet his evidence, if received, is perfectly credible.
1. Competency refers to his qualifications; After the competence of a witness is
allowed, the consideration of his credibility follows.
67
[] Bar 1994: Al was accused of raping Lourdes. Only Lourdes testified on how the crime was
perpetrated. On the other hand, the defense presented Al’s wife, son and daughter to testify that Al was
with them when the alleged crime took place. The prosecution interposed timely objection to the
testimonies on the ground of obvious bias due to the witnesses’ close relationship with the accused. If
you were the Judge:
a. How would you rule on the objection? I would overrule the objection. Close relationship to
a party is not a ground to disqualify a witness. (Sec. 20. Rule 130)
b. Will the fact that the version of the defense is corroborated by three witnesses suffice to
acquit Al? Why? No. *****Witnesses are not numbered but weighed. Positive identification
prevails over the defense of alibi. Alibi is easily fabricated and must be proved clearly and convincingly.
(People v. Gani. 139 SCRA 301 [1985])
68
[] Bar 1994: Louise is being charged with the frustrated murder of Roy. The prosecution's lone
witness, Mariter, testified to having seen Louise prepare the poison which she later surreptitiously
poured into Roy’s wine glass. Louise sought the disqualification of Mariter as witness on account
of her previous conviction for perjury.
a. Rule on Louise’s contention: The contention of Louise is not correct. Mariter cannot be
disqualified from being a witness on account of her previous conviction of perjury. *****Previous
conviction is not a disqualification because, in this case, it is not so provided by law. (Sec. 20, Rule
130).
b. Can Mariter be utilized as state witness if she is a co-accused in the criminal case? Mariter,
*****however, cannot be utilized as a state witness if she is a co-accused in a criminal case because an
accused can be discharged to become a state witness if among five requirements, the accused has not at any time
been convicted of any offense involving moral turpitude. (Sec. 17, Rule 119).
[] Correctly complete the sentence: A lone witness --- (2012 BAR)
a. iscredibleonlyifcorroborated.
b. isnevercredible.
c. may be believed even if not corroborated.
d. isalwayscredible.
69
Considering the qualifications required of a would-be witness, who among the following is
INCOMPETENT to testify? (2011 BAR)
(A) A person under the influence of drugs when the event he is asked to testify on took place.
(B) A person convicted of perjury who will testify as an attesting witness to a will.
(C) A deaf and dumb.
(D) A mental retardate.
70
Q: Distinguish clearly but briefly between:b. Competency of the witness and credibility of the
witness. Competency of the witness refers to a witness who can perceive, and perceiving, can
make known his perception to others (Sec. 20 of Rule 130), while credibility of the witness refers to
a witness whose testimony is believable.
2. Credibility refers to his capacity of being believed; refers to worthiness of

belief or that quality which renders a witness worthy of belief; in ordinary usage, it
means “believability”; A witness may be competent but he is not credible.
EG: a father is competent but when he testifies for his son, he may not be that
credible.
3. ***IOW, competency of the witness refers to a witness who can perceive,
and perceiving, can make known his perception to others (Sec. 20 of Rule
130), while credibility of the witness refers to a witness whose testimony is
believable.
————————————————————————————————
DISQUALIFICATIONS OF WITNESSES
D1. DISQUALIFICATION BY REASON OF MENTAL CAPACITY OR

IMMATURITY
a. DISQUALIFICATION BY MENTAL INCAPACITY: those whose
mental condition, at the time of their production for examination, is such that
they are incapable of intelligently making known their perception to others; NB:
*****to be disqualified, you must be mentally incapacitated at the time you are
called to testify, not at the time it happened. What is affected in the latter is his
credibility, not his disqualification.
b. DISQUALIFICATION BY MENTAL IMMATURITY: Children whose
mental maturity is such as to render them incapable of perceiving the facts
respecting which they are examined and of relating them truthfully. NB:
reckoning point of time is at the point of perception.
******This is now modified by the Rule on the Examination of
Child Witnesses, i.e., a child ENJOYS THE PRESUMPTION OF BEING
COMPETENT. Anyone who questions him has the burden of proving that he is
not competent—the court will conduct a competency examination.
D2. MARITAL DISQUALIFICATION RULE

[Disqualification by reason of marriage; Rule 130, Section 22]
a. *****During [even prior71 to] their marriage, neither the husband nor
the wife may TESTIFY for or against the other without the consent of the affected
71
Q: Ody sued spouses Cesar and Baby for a sum of money and damages. At the trial, Ody called
Baby as his first witness. Baby objected, joined by Cesar, on the ground that she may not be
compelled to testify against her husband. Ody insisted and contended that after all, she would just be
questioned about a conference they had with the barangay captain, a matter which is not confidential in
nature. The trial court ruled in favor of Ody. Was the ruling proper? No. Under the Rules on Evidence,
a wife cannot be examined for or against her husband without his consent, except in a civil case by one
against the other, or in a criminal case for a crime committed by one against the other. Since the case
spouse, except in a civil72 case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter’s direct descendants73 or ascendants.
b. Policy of the State: protect the integrity of the family—hence avoid
one spouse turning against the other spouse. A spouse is not allowed to testify
FOR or AGAINST the other one—if he objects, you cannot testify but if he does not
object, you can testify. NB: Why include “for” a party? To avoid them falling into
perjury.
c. Sec. 22 presupposes that the spouse is a PARTY to the case—you
cannot testify for/against someone if he is not a party to the case; the one who
testifies does not have to be a party to the case (but his/her spouse is); the
martial disqualification rule can only be availed of by the spouse who is a party
to a case, and not by a co-accused or co-plaintiff or co-defendant.
d. Take note that testimony should be made DURING the marriage for
it to be objectionable. It is objectionable even if the crime happened before the
marriage. *****If the H&W are merely separated, there is still a valid marriage,
hence, the rule applies.
e. Instance when objection can be overruled:
was filed by Ody against the spouses Cesar and Baby, Baby cannot be compelled to testify for or
against Cesar without his consent. (Lemma vs. Rodriguez, 23 SCRA 1166).
[] Will your answer be the same if the matters to be testified on were known to Baby or
acquired by her prior to her marriage to Cesar? Explain. (1989 Bar Question) Answer: The answer
would be the same if the matters to be testified on were known to Baby or acquired by her prior
to her marriage to Cesar, *****because the marital disqualification may be invoked with respect
to testimony on any fact. It is immaterial whether such matters were known to Baby before or after
her marriage to Cesar.
72
[] ***C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of
marriage under Article 36 of the Family Code. In the trial, the following testified over the objection of
W: C, H and D, a doctor of medicine who used to treat W. Rule on W’s objections which are the
following:
a. H cannot testify against her because of the rule on marital privilege? ******The rule of marital
privilege cannot be invoked in the annulment case under Rule 36 of the Family Code because it is a
civil case filed by one against the other (Sec 22 Rule 130. Rules of Court);
73
Q: Vida and Romeo are legally married. Romeo is charged in court with the crime of serious physical
injuries committed against Selmo, son of Vida, step-son of Romeo. Vida witnessed the infliction of the
injuries on Selmo by Romeo. The public prosecutor called Vida to the witness stand and offered her
testimony as an eyewitness. Counsel for Romeo objected on the ground of the marital disqualification
rule under the Rules of Court.
A. Is the objection valid? (3%) No. While neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse, one exception is if the testimony of the
spouse is in a criminal case for a crime committed by one against the other or the latter’s direct
descendants or ascendants. (Sec. 22, Rule 130, Rules of Court). The case falls under this exception
because Selma is the direct descendant of the spouse Vida.
B. Will your answer be the same if Vida-s testimony is offered in a civil case for recovery of
personal property filed by Selmo against Romeo? (2%) (2000 Bar Question) SUGGESTED ANSWER:
No. The marital disqualification rule applies this time. The exception provided by the rules is in a civil
case by one spouse against the other. The case here involves a case by Selmo for the recovery of
personal property against Vida’s spouse, Romeo.
i. in a civil case: spouse can testify despite objection against the other
if the civil case is between them;
ii. debt (civil) case: wife can testify if the debt is by the husband with
the wife’s father, i.e., it is not between the spouses.
iii. in a criminal case: they do not have to be the contesting
parties—can be spouse’s direct descendants/ascendants; but the one who
committed the crime must be the husband or wife against the
descendants/ascendants.
a) if husband killed the child of the wife during her first
marriage, can the wife testify against the husband? Yes (the son is a direct descendant)
b) if H killed brother of W, and the W is presented to testify:
Can H object? Yes, because brother is a collateral relative—he is neither a direct
descendant or ascendant.
c) *****if H initiated a criminal suit against his father in
law (father of his wife) and the wife was offered by the defense to testify for her
father and against him, may H validly object to prevent his wife’s testimony? Yes,
because the situation is not covered by the exception provided for under Sec 22,
Rule 130: it was the father-in-law who committed the crime, not the
husband; hence, before the wife can be presented, H’s consent is needed.
f. Note that if the one who objected is the co-accused or co-plaintiff or co-
defendant, not the spouse, the objection should be overruled because this rule
can only be availed of by the spouse. Note that the objection should be
sustained in so far as the spouse’s testimony concerns his spouse who is a co-
accused.74
g. compare this (Sec 22) with Sec 24(a): infra.
MARITAL DISQUALIFICTION vs.75 PRIVILEGED (marital privilege)

COMMUNICATION
******
74
Sample problem: murder case; wife (W) was called as witness; accused were her husband (H) and her
brother in law (BL). H gave no consent and promptly objected. Decide: ******The court shall sustain
the objection but only in so far as W’s testimony on H is concerned. As to W’s testimony
against BL, the same shall be allowed as the marital disqualification rule does not apply.
75
[] Bar 2010: On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To
prove the qualifying circumstance of evident premeditation, the prosecution introduced on December
11, 2009 a text message, which Mabini’s estranged wife Gregoria had sent to Emilio on the eve of
his death, reading: "Honey,pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k."
a. A subpoena ad testificandum was served on Gregoria for her to be presented for the purpose
of identifying her cellphone and the text message. Mabini objected to her presentation on the ground
of marital privilege. Resolve: The objection should be sustained on the ground of the marital
disqualification rule (Rule 130, Sec. 22), not on the ground of the “marital privilege” communication
rule (Rule 130, Sec. 24). *****The marriage between Mabini and Georgia is still subsisting and the
situation at bar does not come under the exceptions to the disqualification by reason of marriage.
[TOM: the answer is not responsive to the question. Suggested answer: Mabini is wrong in using the
Section 22: MDR Section 24(a): PCR

Marital Disqualification Rule (by means Disqualification Rule by means of Privileged
of marriage) Communication between husband & wife
cannot TESTIFY for or against the other cannot be EXAMINED without the consent of the other
without the consent of the affected spouse as to any communication received in confidence by
one from the other during the marriage
presupposes that the spouse is a spouse need not be a party to the case, as long as the
PARTY to the case—the prohibition is a examination is directed against the spouse—what is prohibited is
testimony for or against the other the examination of a spouse as to matters received in
confidence by one from the other during the marriage
prohibition is only during the marriage duration of prohibition is perpetual
Does not refer to confidential There is privileged communication—refers to
information shared between the spouses. confidential info between the spouses, during the marriage
it includes facts, occurrences or information even applies only to confidential information received during
prior to the marriage the marriage
if marriage is annuled, spouse can no even if marriage is annuled, spouse can still object.
longer object
DISQUALIFICATIONS BY REASON OF PRIVILEGED

COMMUNICATION (DPC)
[Rule 130, Sec 24]
ground of marital privilege because the confidential information is being shared between
Gregoria and Emilio, not between Gregoria and Mabini; if at all, what Mabini can invoke is the
marital disqualification rule, since he is still the husband of Gregoria].
b. Suppose Mabini’s objection in question (a) was sustained. The prosecution thereupon
announced that it would be presenting Emilio’s wife Graciana to identify Emilio’s cellphone bearing
Gregoria’s text message. Mabini objected again. Rule on the objection: The objection should be
overruled. *****The testimony of Graciana is not covered by the said marital disqualification rule
because she is not the wife of Mabini. Besides, Graciana will identifiy only the cellphone as that of
her husband Emilio, not the messages therein which to her are hearsay.
c. If Mabini’s objection in question (b) was overruled, can he object to the presentation of the
text message on the ground that it is hearsay? *****No, Gregoria’s text message in Emilio’s cellphone
is not covered by the hearsay rule because it is regarded in the rules of evidence as independently
relevant statement: the text message is not to prove the truth of the fact alleged therein but only as
to the circumstances of whether or not premeditation exists.
d. Suppose that shortly before he expired, Emilio was able to send a text message to his wife
Graciana reading "Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2." Is this text
message admissible as a dying declaration? Explain: Yes, the text message is admissible as a dying
declaration since the same came from the victim who “shortly” expired and it is in respect of the
cause and circumstance of his death. The decisive factor that the message was made and sent under
consciousness of an impending death, is evidently attendant from the victim’s statement: “D na me
makakahinga” and the fact that he died shortly after he sent the message.
***The enumerated persons cannot testify as to matters learned in confidence in the

following cases:
1. husband and wife;
2. attorney-client;
3. physician-patient;
4. minister/priest/confessor-penitent;
5. public officer when public interest demands it
******NB: Feb 14, 2012 per curiam76 decision based on privileged
communication: [] In sum, Philippine law, rules and jurisprudence prohibit the
disclosure of confidential or privileged information under well-defined rules. At
the most basic level and subject to the principle of comity, Members of the
Court, and Court officials and employees may not be compelled to testify on
matters that are part of the internal deliberations and actions of the Court in
the exercise of their adjudicatory functions and duties, while testimony on
matters external to their adjudicatory functions and duties may be
compelled by compulsory processes.
To summarize these rules, the following are privileged documents or
communications, and are not subject to disclosure:
(1) Court actions such as the result of the raffle of cases and the
actions taken by the Court on each case included in the agenda of the Court’s
session on acts done material to pending cases, except where a party litigant
requests information on the result of the raffle of the case, pursuant to Rule 7,
Section 3 of the IRSC;
(2) Court deliberations or the deliberations of the Members in court
sessions on cases and matters pending before the Court;
(3) Court records which are “predecisional” and “deliberative” in
nature, in particular, documents and other communications which are part of or
related to the deliberative process, i.e., notes, drafts, research papers, internal
discussions, internal memoranda, records of internal deliberations, and similar
papers.
(4) Confidential Information secured by justices, judges, court officials
and employees in the course of their official functions, mentioned in (2) and (3)
above, are privileged even after their term of office.
(5) Records of cases that are still pending for decision are privileged
materials that cannot be disclosed, except only for pleadings, orders and
resolutions that have been made available by the court to the general public.
(6) The principle of comity or inter-departmental courtesy demands that
the highest officials of each department be exempt from the compulsory processes
of the other departments.
76
Resolution dated FEBRUARY 14, 2012, which reads as follows: “In Re: Production of Court
Records and Documents and the Attendance of Court officials and employees as witnesses under the
subpoenas of February 10, 2012 and the various letters for the Impeachment Prosecution Panel dated
January 19 and 25, 2012.
(7) These privileges belong to the Supreme Court as an institution, not

to any justice or judge in his or her individual capacity. Since the Court is
higher than the individual justices or judges, no sitting or retired justice or
judge, not even the Chief Justice, may claim exception without the consent
of the Court.
D3. DPC BETWEEN HUSBAND & WIFE [Rule 130, Sec 24(a)]
[] The husband or the wife, during or77 after the marriage, cannot be
EXAMINED without the consent of the other as to any communication received in
confidence by one from the other during the marriage except in a civil case by one
77
Q: Allan and Narita were married on 1 August 1989. After two months Narita told Allan in
confidence that 10-year old Liza whom she claimed to be her niece was actually her daughter by a
certain Basilio, a married man. In 1992 Narita obtained a judicial decree of nullity of her marriage with
Allan on the latter’s psychological incapacity to fulfill his marital obligations. When the decree became
final, Liza, assisted by Narita, filed ten (10) cases of rape against Allan purportedly committed in 1991.
During the trial Narita was called to the witness stand to testify as a witness against Allan who objected
thereto on the ground of marital disqualification.
A. As public prosecutor, how would you meet the objection? Explain. *****The objection
should be overruled because the ground of marital disqualification may be invoked only during
the marriage. When Narita was called to the witness stand, the judicial decree of nullity of her
marriage had already become final. (Sec. 22, Rule 130)
B. Suppose Narita’s testimony was offered while the decision nullifying her marriage to Allan
was pending appeal, would your answer be different? Explain. No, because this ground may not be
invoked in a criminal case for a crime committed by one against the other or the latter's direct
descendants or ascendants. In this case Liza was the daughter of Narita. (Sec. 24 (a), Rule 130)
C. Suppose Narita died during the pendency of the appeal, and soon after, the legal wife of
Basilio sued for legal separation on sexual infidelity in view of Basilio's love affair with Narita. At
the trial Allan was called by Basilio’s wife to testify that Narita confided to him (Allan) during
their marriage that Liza was her love child by Basilio. As counsel for Basilio, can you validly object
to the presentation of Allan as a witness for the plaintiff? Explain. (1995 Bar Question) Yes, I could
validly object to the presentation of Allan as a witness on the ground that the communication of Narita
was a privileged marital communication which could be invoked during or after the marriage.
Moreover, the testimony of Allan would be hearsay.
against the other, or in a criminal case for a crime committed by one against the other or
the latter’s direct descendants78 or ascendants;79
*Elements:
a. there must be a valid marriage; if there is no valid marriage, say it’s same-
sex, the rule cannot be invoked.
b. the communication was made in confidence during the marriage;
c. the spouse did not give consent to such examination.
*Sample problem: Mrs. WW (legal wife of Mr. WW) and Mr. PP (husband
of Mrs. PP) were jointly accused of adultery. During the trial, Mrs. PP was
offered as a prosecution witness against both accused. Mr. PP objects arguing that
his relationship to Mrs. WW had been the subject of a confidential information
between him and Mrs. PP. As judge, will you allow the testimony of Mrs. PP?
Yes. The disqualification rule on confidential information shared between the
spouses does not apply in a criminal case committed by one against the other. In
the instant case, Mr. PP was jointly accused of adultery with Mrs. WW, such crime
being ultimately a crime committed by the husband against the wife. Hence, Mrs.
PP’s testimony is outside the ambit of the privileged communication
disqualification rule. [RPC [] Art. 333. Who are guilty of adultery. — Adultery is
committed by any married woman who shall have sexual intercourse with a
man not her husband and by the man who has carnal knowledge of her knowing
her to be married, even if the marriage be subsequently declared void.]
78
Q: XYZ, an alien, was criminally charged ol promoting and facilitating child prostitution and other
sexual abuses under Rep. Act No. 7610. The principal witness against him was his Filipina wife, ABC.
Earlier, she had complained that XYZ’s hotel was being used as a center for sex tourism and child
trafficking. The defense counsel for XYZ objected to the testimony of ABC at the trial of the child
prostitution case and the introduction of the affidavits she executed against her husband as a violation
of espousal confidentiality and marital privilege rule. It turned out that DEF, the minor daughter of
ABC by her first husband who was a Filipino, was molested by XYZ earlier. Thus, ABC had filed for
legal separation from XYZ since last year. May the court admit the testimony and affidavits of the wife,
ABC, against her husband, XYZ, in the criminal case involving child prostitution? Reason. (5%) (2004
Bar Question) SUGGESTEDANSWER:
Yes. The court may admit the testimony and affidavits of the wife against her husband in the
criminal case where it involves child prostitution of the wife's daughter. It is not covered by the marital
privilege rule. One exception thereof is where the crime is committed by one against the other or the
latter’s direct descendants or ascendants. (Sec. 22, Rule 130). A crime by the husband against the
daughter is a crime against the wife and directly attacks or vitally impairs the conjugal relation.
(Ordono v. Daquigan, 62 SCRA 270 [1975]).
79
Q: At A’s trial for B’s murder, the defense attempts to present as its witness his widow, X. She
is to testify that just before B died, she approached his sprawled and bloodied husband and asked
who stabbed him. B, conscious of his impending death, named Y as his assailant. The
prosecution moves to stop X from testifying because her testimony (1) is hearsay, and (2) will be
violative of the rule on privileged marital communication. Rule on the prosecution’s motion. Explain.
(1996 Bar Question) Answer:
I will deny the prosecution's motion. The testimony of X is admissible as a dying declaration,
which is an exception to the hearsay rule. (Sec. 37 of Rule 130) Moreover, it is not a privileged
marital communication. (Sec. 24-A of Rule 130)
D4. DPC BETWEEN AN ATTORNEY & HIS CLIENT

[] An attorney cannot, without the consent of his client, be EXAMINED as
to any communication80 made by the client to him, or his advice given thereon
in the course of, or with a view to, professional employment, nor can an
attorney’s secretary, stenographer, or clerk be EXAMINED, without the consent
of the client and his employer, concerning any fact the knowledge of which has
been acquired in such capacity;
a. lawyer has no right to divulge… applies to secretary/clerks, etc. The privilege is
OWNED BY THE CLIENT.81 You can use this to prevent an opposing
80
[] Bar 2008: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping
tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board
inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims
and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from
the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the five (5)
victims filed an action for damages against SPS. Plaintiffs' counsel sent written interrogatories to
Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the
exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and
information asked are privileged communication. Is the contention tenable? Explain.
Yes, the contention of counsel for SPS is tenable considering that he was acting in his
professional capacity in bringing about the statement he obtained from witnesses and the memoranda
he made. *****The notes, memoranda, and writings made by counsel in pursuance of his
pursuance of his professional duty, form part of his private and confidential files in the cases
handled by him; hence privileged (Air Philippines Corp. v. Pennswell, Inc., 540 SCRA 215 [2007]).
81
[] Bar 2008: On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of P3
Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that
Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on
August 16, 2008; and that both visits concerned the swindling of Petronilo. During the trial of
Edgardo, the RTC issued a subpoena ad testificandum to Edgardo's lawyer for him to testify on the
conversations during their first and second meetings. May the subpoena be quashed on the ground of
privileged communication? Explain fully:
No. ******The privilege can be invoked during the trial, but not to quash the subpoena.
The privilege is owned by the client. The latter can object when the lawyer is being examined
on ANY communication he made to him.
[ALTERNATIVE: No, The subpoena may not be simply quashed on the allegation that the
testimony to be elicited constitutes privileged communication. It may be noted that the accused
committed the crime of swindling on August 15, 2008, whereas he first visited his lawyer on
August 14, 2008 or before he committed the swindling. Clearly the conversations the accused had
with his lawyer during such first visit, before he committed the swindling cannot be protected by the
privilege between attorney and client because the crime had not been committed yet and it is
no part of a lawyer’s professional duty to assist or aid in the commission of a crime; hence not in
the course of professional employment.
The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after the
swindling was committed may also suffer from the same infirmity as the conversations had during
their first meeting inasmuch as there could not be a complaint made immediately after the estafa
was committed. The privilege covering a lawyer-client relation under Sec. 24, (par(b), Rule 130, may not
be invoked, as it is not a ground for quashal of a subpoena ad testificandum under Section 4, Rule
21 of the Rules of Court. Although the subpoena ad testificandum may not be quashed [when] the
counsel from being the counsel of the other party… because of the privileged
communication between them and their former client.
b. NB: WORK PRODUCT DOCTRINE is wider in scope vs. privileged
communication.
c. Privilege communication does not apply to future crimes to be committed
by the present client.82
D5. DPC BETWEEN PHYSICIAN & PATIENT

a. [] A person authorized to practice medicine, surgery or obstetrics
[psychiatrists are not included?83] cannot in a civil case, without the consent of
privilege covers conversations “with a view to professional employment." It can be invoked at the trial
but not to quash the subpoena.]
82
This is from a Legal Ethics bar question: A mayor charged with Homicide engaged your services
as his lawyer. Since there is only one witness to the incident, the mayor disclosed to you his plan to
kill the lone witness through a contrived vehicular accident. (1998 Bar)
a. What are the moral and legal obligations to the mayor, and to the authorities? [3%] A.
******It is the duty of an attorney to divulge the communication of his client as to his announced
intention to commit a crime to the proper authorities to prevent the act or to protect the person
against whom it is threatened. [NB – this should be in addition to his duty advice his client against
doing such crime]
b. Should the killing push through and you are certain that the mayor is the one responsible, are
you under obligation to disclose to the authorities what was confided to you? Is this not a
privileged communication between client and attorney? 12%) A. Public policy and the lawyer's duty to
counsel obedience to the law forbid that an attorney should assist in the commission of a crime or
permit the relation of attorney and client to conceal a wrongdoing. He owes it to himself and to
the public to use his best efforts to restrain his client from doing any unlawful act and if,
notwithstanding his advise, his client proceeds to execute the illegal deed, he may disclose it or be
examined as to any communication relating thereto. *****There is privileged communication only
as to crimes already committed before its communication to the lawyer.
83
Q: For over a year, Nenita had been estranged from her husband Walter because of the latter’s
suspicion that she was having an affair with Vladimir, a barangay kagawad who lived in nearby
Mandaluyong. Nenita lived in the meantime with her sister in Makati. One day, the house of Nenita’s
sister inexplicably burned almost to the ground. Nenita and her sister were caught inside the house
but Nenita survived as she fled in time, while her sister tried to save belongings and was caught
inside when the house collapsed. As she was running away from the burning house, Nenita was
surprised to see her husband also running away from the scene. Dr. Carlos, Walter’s psychiatrist
who lived near the burned house and whom Walter medically consulted after the fire, also saw
Walter in the vicinity some minutes before the fire. Coincidentally, Fr. Platino, the parish priest
who regularly hears Walter’s confession and who heard it after the fire, also encountered him
not too far away from the burned house. Walter was charged with arson and at his trial, the
prosecution moved to introduce the testimonies of Nenita, the doctor and the priest-confessor, who all
saw Walter at the vicinity of the fire at about the time of the fire.
a) May the testimony of Nenita be allowed over the objection of Walter? (2013 BAR) A: NO.
Nenita may not be allowed to testify against Walter. Under the Marital Disqualification Rule, during
their marriage, neither the husband nor the wife may testify for or against the other without the
consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter's direct descendants or ascendants (Sec. 22, Rule
130). The foregoing exceptions cannot apply since it only extends to a criminal case of one
spouse against the other or the latter’s direct ascendants or descendants. Clearly, Nenita is not
the patient, be EXAMINED as to any advice or treatment given by him or any

information which he may have acquired in attending such patient in a
professional capacity, which information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient;
b. *****take note that this only applies to CIVIL CASES.84
c. NB: The privilege bars only the physician, not other persons. (Krohn v.
CA, 233 SCRA 146)85
the offended party and her sister is not her direct ascendant or descendant for her to fall within
the exception.
b) May the testimony of Dr. Carlos, Walter’s psychiatrist, be allowed over Walter’s objection?
(2013 BAR) A: YES. The testimony of Walter’s psychiatrist may be allowed. The privileged
communication contemplated under Sec. 24 (c) Rule 130 of the Rules on Evidence involves only
persons authorized to practice medicine, surgery or obstetrics. It does not include a
Psychiatrist. Moreover, the privileged communication applies only in civil cases and not in a
criminal case for arson. Besides, the subject of the testimony of Dr. Carlos was not in connection
with the advice or treatment given by him to Walter, or any information he acquired in attending to
Walter in a professional capacity. The testimony of Dr. Carlos is limited only to what he perceived
at the vicinity of the fire and at about the time of the fire.
c) May the testimony of Fr. Platino, the priest-confessor, be allowed over Walter’s objection?
(2013 BAR) A: YES. The Priest can testify over the objection of Walter. The disqualification
requires that the same were made pursuant to a religious duty enjoined in the course of discipline
of the sect or denomination to which they belong and must be confidential and penitential in
character, e.g., under the seal of confession (Sec. 24 (d) Rule 130). Here, the testimony of Fr. Platino
was not previously subject of a confession of Walter or an advice given by him to Walter in his
professional character. The testimony was merely limited to what Fr. Platino perceived “at the
vicinity of the fire and at about the time of the fire.” Hence, Fr. Platino may be allowed to testify.
84
following:
c. D cannot testify against her because of the doctrine of privileged communication between patient
and physician: D, as doctor who used to treat W, is disqualified to testify against W over her objection
as to any advice or treatment given by him or any information which he may have acquired in his
professional capacity. (Sec 24(c), Rule 130 Rules of Court)
85
BAR 2016: Q: John filed a petition for declaration of nullity of his marriage to Anne on the ground
of psychological incapacity under Article 36 of the Family Code. He obtained a copy of the confidential
psychiatric evaluation report on his wife from the secretary of the psychiatrist. Can he testify on the
said report without offending the rule on privileged communication? Explain.
SUGGESTED ANSWER: Yes, John can testify on the psychiatric report without offending the rule
on privileged communication. In a case involving similar facts, the Supreme Court held that there is no
violation of physician-patient privilege since the one testifying is not the psychiatrist. The privilege bars
only the physician, not other persons. (Krohn v. Court of Appeals, 233 SCRA 146). There is no
violation of marital communication privilege since the report is not a confidential communication
between spouses. There is also no violation of the marital disqualification rule since the case involves
an exception, that is, a civil case by one spouse against the other. (Jurist Review Center, Inc.)
D6. DPC BETWEEN MINISTER/PRIEST &

CONFESSANT/PENITENT
[] A minister or priest cannot, without the consent of the person making the
confession, be EXAMINED as to any confession made to or any advice given by
him in his professional character in the course of discipline enjoined by the church
to which the minister or priest belongs;
D7. DPC OF A PUBLIC OFFICER

[] A public officer cannot be examined during his term of office or afterwards,
as to communications made to him in official confidence, when the court finds that
the public interest would suffer by the disclosure.
D8. DISQ BY REASON OF DEATH OR INSANITY OF ADVERSE

PARTY
[Rule 130, Section 23] ***
a. This is otherwise known as the SURVIVORSHIP
DISQUALIFICATION RULE or DEAD MAN’s STATUTE.86 This covers
not only a dead man but also someone who BECAME OF UNSOUND MIND; an
offshoot of our propensity to borrow from a foreign country.
b. ****Reason for the Dead Man Rule:87 If death has closed the lips of
one party, the policy of the law is to close the lips of the other. (Goni v. Court
86
1. DeadManRule? *****If death has closed the lips of one party, the policy of the law is to close
the lips of the other. (Goni v. Court of Appeals, L-77434. September 23.1986.144 SCRA 222). This is
to prevent the temptation to perjury because death has already sealed the lips of the party.
87
Q: Before the Regional Trial Court of Pasig is Special Proceedings No. 0001, entitled, “In Re:
Intestate Estate of Pedro Santos, deceased, Ana Santos, Petitioner.” The Notice to Creditors to file
their claims against the estate of the deceased was duly published. Creditor Alfredo Cruz duly filed
his claim for a P10,000.00 loan to the deceased which became due and payable before his death
as evidenced by his (deceased’s) promissory note. At the hearing of the Creditor’s Claim of Alfredo
Cruz, he (Cruz) testified and duly identified the Promissory Note. Counsel objected to the testimony
of Mr. Cruz claiming that he (Cruz) cannot testify as to matters against the estate of a deceased
person.
A. Is the objection valid? Explain. ******The objection is not valid because the
authentication of the promissory note of the deceased is not covered by the rule on surviving
parties or the dead man’s statute. Authentication is not a matter of fact on which the claimant’s
lips are sealed.
B. Who are the persons disqualified to testify by reason of interest or relationship, as to
matters in which they are interested, directly or indirectly? (1988 Bar Question) Answer:
- Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against the estate of such deceased person
or against such person of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound mind. (Dead man’s Rule)
- A husband can not be examined for or against his wife without her consent; nor a
wife for or against her husband without his consent, except in a civil case by one against the other, or in
of Appeals, L-77434. September 23.1986.144 SCRA 222). This is to prevent the

temptation to perjury because death has already sealed the lips of the party.
c. REQUISITES for it to apply:******
i. There must be a CIVIL CASE which is a CLAIM
ii. The defendant88 is the ESTATE or the Executor/Administrator
(E/A) of the estate.
iii. The plaintiff is CLAIMING against the estate; NB: the rule does
not apply to other witnesses.89
***But if the estate is the one collecting, this does not apply. For
this to apply, it has to be the estate that is being collected from.
d. It is designed to protect the estate of the deceased or the person of
unsound mind from FRAUDULENT CLAIMS of the survivor—because he
(deceased/insane) cannot object anymore: to level the playing field since the
dead/insane person cannot answer back anymore.
e. Survivor cannot testify as to any matter of fact occurring before the death
of such deceased person or before such person became of unsound mind. What is
prohibited is the party/his assignors… and so if there are witnesses, the
latter can testify.***
TESTIMONIAL PRIVILEGE RULE/PARENTAL AND FILIAL

PRIVILEGE RULE
[] Parental and filial privilege. — No person may be compelled to testify
against his parents, other direct ascendants, children or other direct
descendants.
1. Can a parent testify against a child/descendant, or a child against his
parents/ascendant? Yes, but he cannot be compelled. NB: *****if prosecution
moved to subpoena the son to testify about the extent of the business activities
a criminal case for a crime committed by one against the other. (Sec. 20(a) and (b) of Rule 130 (Marital
Disqualification).
88
In which of the following cases is the testimony in a case involving a deceased barred by the
Survivorship Disqualification Rule or Dead Man Statute? (2011 BAR)
(A) Testimony against the heirs of the deceased defendant who are substituted for the latter.
(B) The testimony of a mere witness who is neither a party to the case nor is in privity with the latter.
(C) The testimony of an oppositor in a land registration case filed by the decedent’s heirs.
(D) The testimony is offered to prove a claim less than what is established under a written document
signed by the decedent.
89
The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose
had said to her, in a claim filed by Pedro against the estate of Jose. (3%) (2007 Bar Question)
SUGGESTED ANSWER: False. *****The said rule bars only parties-plaintiff and their
assignors, or persons prosecuting a claim against the estate of a deceased; it does not cover Maria
who is a mere witness. Furthermore, the disqualification is in respect of any matter of fact
occurring before the death of said deceased (Sec. 23, Rule 130, Rules of Court, Razon v. Intermediate
Appellate Court, 207 SCRA 234 [1992]). It is Pedro who filed the claim against the estate of Jose.
of his father, who is accused in large scale estafa, can the court deny the motion on
the basis of the FILIAL PRIVILEGE RULE? No. It is the CHILD who should
invoke such privilege, NOT THE COURT.90 It is a purely personal privilege
which must only be invoked by the son. He may testify if he wants to although
he may not be compelled to do so (Sec. 25, Rule 130).
2. But as regards a child, this has been MODIFIED under Art 215 FC, if the
child’s/descendant’s testimony is indispensable in a crime committed against him
or against a parent by another parent, he can be required to testify:
[] Art. 215. No descendant shall be compelled, in a criminal case, to
testify against his parents and grandparents, except when such testimony is
INDISPENSABLE in a crime against the descendant or by one parent
against the other.
————————————————————————————————
HEARSAY RULE91
MEANING OF HEARSAY [Rule 130, Section 36]*****

1. Testimony generally confined to personal knowledge; hearsay excluded. — A
witness can testify only to those facts:92
90
following:
b. C cannot testify against her because of the doctrine on parental privilege: The doctrine of
parental privilege cannot be invoked by W as against the testimony of C, their child. ***C may not
be compelled to testify but he is free to testify against her. (Sec 25 Rule 130. Rules of Court;
Art.215 Family Code)
91
What is the hearsay rule? (5%) (2007 Bar Question) SUGGESTED ANSWER: *****The hearsay rule
is a rule of evidence to the effect that a witness can testify only to those facts which he knows of
his own knowledge or derived from his own perceptions, except as otherwise provided in the Rules of
Court (Rule 130, Sec. 36, Rules of Court).
[] (1999 Bar Question) 1. Define hearsay evidence? (2%) Hearsay evidence may be defined as
evidence that consists of testimony not coming from personal knowledge (Sec. 36, Rule 130, Rules
of Court). Hearsay testimony is the testimony of a witness as to what he has heard other persons say
about the facts in issue.
92
Q: A foreign dog trained to sniff dangerous drugs from packages, was hired by FDP Corporation, a
door to door forwarder company, to sniff packages in their depot at the international airport. In one of
the routinary inspections of packages waiting to be send to the United States of America
(USA), the dog sat beside one of the packages, a signal that the package contained dangerous
drugs. Thereafter, the guards opened the package and found two (2) kilograms of cocaine. The owner
objected of the package was arrested and charges were filed against him. During the trial, the
prosecution, through the trainer who was present during the incident and an expert in this kind of field,
testified that the dog was highly trained to sniff packages to determine if the contents were dangerous
drugs and the sniffing technique of their highly trained dogs was accepted worldwide and had been
successful in dangerous drugs operations. The prosecution moved to admit this evidence to justify the
opening of the package. The accused objected on the grounds that : (i) the guards had no personal
a. which he knows of his personal knowledge;93

b. that is, which are derived from his own perception,
c. except as otherwise provided in these rules. (Sections 37-42).
2. Definition and Rationale – Evidence is called hearsay when its probative force
depends, in whole or in part, on the competency and credibility of some
persons other than the witness by whom it is sought to produce it.
3. When evidence is hearsay – ***presupposes lack of personal knowledge of
the truth of the fact asserted by the witness.94
knowledge of the contents of the package before it was opened; (ii) the testimony of the trainer of the
dog is hearsay; and (iii) the accused could not cross-examine the dog. Decide. (2014)
A: The objections of the accused should be overruled. ******An evidence is admissible
when it is relevant to the issue and is not excluded by the law or the rules (Section 3, Rule 128).
Under Section 36, Rules 130 of the Rules of Court, a witness can testify only to those which he
knows of his personal knowledge and derived from his own perception. The contention that the
guards had no personal knowledge of the contents of the package before it was opened is without
merit. The guards can testify as to the facts [that] surround the opening of the package since they
have personal knowledge of the circumstances thereof, being physically present at the time of
its discovery. On the other hand, the testimony of the trainer of the dog is not hearsay based on
the following grounds:
a. He has personal knowledge of the facts in issue, having witnessed the same;
b. Hearsay merely contemplates an out-of-court declaration of a person which is being
offered to prove the truthfulness and veracity of the facts asserted therein;
c. He is an expert witness, hence, his testimony may constitute an exception to the
hearsay rule;
d. The accused has the opportunity to cross-examine him; and
e. ******Testimony of a witness as to statements made by nonhuman declarants does
not violate the rule against hearsay. The law permits the so-called “non-human evidence” on the
ground that machines and animals, unlike humans, lack a conscious motivation to tell
falsehoods, and because the workings of machines can be explained by human witnesses who
are then subject to cross-examination by opposing counsel. (City of Webster Groves v. Quick. 323
S.W. 2d 386 [Mo. 1959]; Buck v. State, 138 P. 2d 115 [Okla. 1943]; Herrera, 1999). Conversely, the
accused may not argue that he cannot cross-examine the dog as the Constitutional right to
confrontation refers only to witnesses. As alluded, the human witnesses who have explained the
workings of the non-human evidence is the one that should be cross-examined. Hence, the contention
of the accused that the he could not cross-examine the dog is misplaced. Ergo, there is no doubt that
the evidence of the prosecution is admissible for being relevant and competent.
93
To prove the identity of the assailant in a crime of homicide, a police officer testified that, Andy,
who did not testify in court, pointed a finger at the accused in a police lineup. Is the police officer’s
testimony regarding Andy's identification of the accused admissible evidence? (2011 BAR)
(A) Yes, since it is based on his personal knowledge of Andy’s identification of the accused.
(B) Yes, since it constitutes an independently relevant statement.
(C) No, since the police had the accused identified without warning him of his rights.
(D) No, since the testimony is hearsay.
94
When caught, X readily admitted to the Forestry Ranger that he cut the trees. Such a statement may
be admitted and is not necessarily hearsay because: (2012 BAR)
a. itisajudicialadmissionofguilt.
b. itshowsthestatementwastrue.
c. it will form part of the circumstantial evidence to convict.
d. it proves that such a statement was made.
4. This is the PH version of the HEARSAY EVIDENCE RULE: you cannot

testify based on the knowledge of another.95
REASONS FOR EXCLUDING HEARSAY EVIDENCE***

1. absence of cross examination;
2. absence of demeanor evidence, and
3. absence of the oath. (Estrada v. Desierto, April 3, 2001)
***in short, testimony is unreliable: a person who has no personal
knowledge cannot be examined in court; he cannot be subject to cross-examination.
*reliability based on the personal knowledge of the witness is the
substantive prerequisite for accepting testimonial evidence. If his testimony if
based on what others have told him, his testimony would be excluded by reason of
this rule;
ELEMENTS OF HEARSAY*****
1. There must be an out-of-court statement (whether written, oral, or by
conduct, as long as that conduct is intended by the actor as an assertion).
2. The statement (made out of court) is repeated and offered by the witness in
court to prove the truth of the matters asserted by the statement (this is the
purpose for which the evidence is offered); NB – this is what one should look out
for to determine whether it is excluded as hearsay or not.
INDEPENDENTLY RELEVANT STATEMENTS/OPERATIVE

ACTS****
1. There are statements that are admissible for some relevant reason
independent of their truth and falsity. They are relevant because the statement
itself is either96
95
*EG: PP told WW that he saw JJ shot MM. Who has personal knowledge? PP. Who has to testify in
court? PP, even if WW knows everything about the story because PP told him. Hence ‘move to
discharge’ WW if he is the one who testifies. What he will give is an INCOMPETENT evidence, i.e.,
it is excluded by the rules. ***However, if WW will only testify as to the TENOR of the statement
(not as to the TRUTH of it), that it not hearsay. Because it is not offered to prove the truth of what PP
told him. His replies to the questions should always be: “PP said that; PP told me that”. He never claims
any personal knowledge. Hence, get to know the PURPOSE of the testimony. IOW, if his purpose is
to attest to the truth of what he heard, not of what he knows personally, it is admissible. *****This is an
INDEPENDENTLY RELEVANT statement and is acceptable. See more infra on other purposes
as to the acceptability of an apparently hearsay statement (under ‘elements’).
96
*EG: PP told WW that he saw JJ shot MM. Who has personal knowledge? PP. Who has to testify in
court? PP, even if WW knows everything about the story because PP told him. Hence ‘move to
discharge’ WW if he is the one who testifies. What he will give is an INCOMPETENT evidence, i.e.,
it is excluded by the rules. ***However, if WW will only testify as to the TENOR of the statement
(not as to the TRUTH of it), that it not hearsay. Because it is not offered to prove the truth of what PP
told him. His replies to the questions should always be: “PP said that; PP told me that”. He never claims
any personal knowledge. Hence, get to know the PURPOSE of the testimony. IOW, if his purpose is
to attest to the truth of what he heard, not of what he knows personally, it is admissible. *****This is an
a. the very fact in issue or

b. a circumstantial evidence to the fact in issue.
2. These are:
a. The declarant's state of mind, knowledge, belief, intention, ill-will, and
other emotions, physical conditions;
b. The listener's state of mind or reaction,
c. That the mere fact that it was said,
d. The tenor97 of the statement,98
e. Statements which may identify the date, place, and person in question
f. Statements showing lack of credibility of a witness
3. *****Example of an out-court-statement that is not excluded as hearsay – the
testimony was offered that AA shot BB, this was related by CC to DD and DD is
currently on the witness stand. If the testimony was offered to prove that AA shot
BB, it is hearsay. However, if it is offered for some other purpose (it should
not be excluded on the ground that it was hearsay), like:
a. to prove CC was alive,
INDEPENDENTLY RELEVANT statement and is acceptable. See more infra on other purposes
as to the acceptability of an apparently hearsay statement (under ‘elements’).
97
[] (1999 Bar Question) 3. A overheard B call X a thief. In an action for defamation filed by X
against B, is the testimony of A offered to prove the fact of utterance i.e., that B called X a thief,
admissible in evidence? Explain. (2%) Yes. The testimony of A who overheard B call X a thief is
admissible in evidence as an independently relevant statement. ******It is offered in evidence only
to prove the tenor thereof, not to prove the truth of the facts asserted therein. Independently
relevant statements include statements which are on the very facts in issue or those which are
circumstantial evidence thereof. The hearsay rule does not apply. (See People vs. Gaddi, 170 SCRA
649.)
98
Q: Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his sister, Carla. Carla
brought Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it
was Alberto w'ho shot Betty. Betty died while undergoing emergency surgery. At the trial of the
parricide charges filed against Alberto, the prosecutor sought to present Domingo as witness, to testify
on what Carla told him. The defense counsel objected on the ground that Domingo’s testimony is
inadmissible for being hearsay. Rule on the objection with reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER: Objection overruled. The disclosure received by Domingo from
Carla may be regarded as independently relevant statement which is not covered by the hearsay rule;
hence admissible. The statement may be received not as evidence of the truth of what was stated but
only as to the tenor thereof and the occurence when it was said, independently of whether it was true
or false. (People v. Cloud, 333 Phil. 306[1996]; People v. Malibiran, etal., G.R. No. 178301, April 24,
2009)
[TOM prefers the alternative answer because the mere invocation of the “tenor” of the
statement does not bring it out of the hearsay rule—why not just present Carla herself?]
ALTERNATIVE ANSWER: Objection sustained. The disclosure made by Carla has no other
probative value except to identify who shot Betty. Its tenor is irrelevant to the incident, and the same
was made not to a police investigator of the occurrence but to a nurse whose concern is only to attend
to the patient. Hence, the disclosure does not qualify as independently relevant statement and therefore,
hearsay. The nurse is competent to testify only on the condition of Betty when rushed to the
hospital but not as to who caused the injury. The prosecution should call on Carla as the best
witness to the incident.
b. his state of mind (the declarant)

c. or the state of mind of the listener,
d. or that the mere fact that it was said,
e. or the tenor of the statement.99
SOME NUANCES OF HEARSAY

1. Scope – may be written or oral statements (Malayan Insurance v. Alberto,
February 1, 2012)
2. ****Subject to waiver – hearsay evidence if not objected to is admissible.
3. Newspaper articles amount to hearsay evidence, twice removed and are
without probative value at all unless offered for a purpose other than proving
the truth of the matter stated therein (Feria v. CA, February 15, 2000)
EXCEPTIONS100 TO THE HEARSAY RULE101

*these are the ADMISSIBLE HEARSAYS; yes, they are still hearsays, but they
are admissible
99
[] Bar 2010: On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To
prove the qualifying circumstance of evident premeditation, the prosecution introduced on December
11, 2009 a text message, which Mabini’s estranged wife Gregoria had sent to Emilio on the eve of
his death, reading: "Honey,pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k."
c. If Mabini’s objection in question (b: not important here; search for same problem, supra) was
overruled, can he object to the presentation of the text message on the ground that it is hearsay?
*****No, Gregoria’s text message in Emilio’s cellphone is not covered by the hearsay rule because it
is regarded in the rules of evidence as independently relevant statement: the text message is not to
prove the truth of the fact alleged therein but only as to the circumstances of whether or not
premeditation exists.
d. Suppose that shortly before he expired, Emilio was able to send a text message to his wife
Graciana reading "Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2." Is this text
message admissible as a dying declaration? Explain: Yes, the text message is admissible as a dying
declaration since the same came from the victim who “shortly” expired and it is in respect of the
cause and circumstance of his death. The decisive factor that the message was made and sent under
consciousness of an impending death, is evidently attendant from the victim’s statement: “D na me
makakahinga” and the fact that he died shortly after he sent the message.
100
[] (1999 Bar Question) 2. What are the exceptions to the hearsay rule? (2%) *****The
exceptions to the hearsay rule are: dying declaration, declaration against interest, act or declaration
about pedigree, family reputation or tradition regarding pedigree, common reputation, part of the res
gestae, entries in the course of business, entries in official records, commercial lists and the like, learned
treatises, and testimony or deposition at a former proceeding. (Secs. 37 to 47, Rule 130, Rules of Court)
101
Q: In relation to the hearsay rule, what do the following rules of evidence have in common? (5%)
(2007 Bar Question)
a. The rule on statements that are part of the res gestae: The evidence although hearsay, are
allowed by the Rules as exceptions to the hearsay rule;
b. The rule on dying declarations: The facts involved are admissible in evidence for reasons of
necessity and trustworthiness;
c. The rule on admissions against interest: The witness is testifying on facts which are not of
his own knowledge or derived from his own perception. [TOM thinks this is wrong, see related
notes, infra]
*most common exceptions are Sections 37 & 42

*if we do not accept these, it is hard to prove anything in court: especially
common reputation and learned treatises…
*why admit these hearsays? for EXPEDIENCY; because we do not know
everything in this world personally.
E1. DYING DECLARATION/ANTE-MORTEM STATEMENTS***

1. [] Section 37. The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his
death is the subject of inquiry, as evidence of the CAUSE and surrounding
CIRCUMSTANCES of such death.102
2. Rationale – No person who knows of his impending death would make a careless and
false accusation (People v. Cabtalan, February 15, 2012). *****It is based on
necessity because death renders it impossible for the deceased to be taking the witness stand;
and trustworthiness because the declaration is made in extremity, when the party is at the
point of death when the mind is induced by considerations to speak the truth; why admit this
hearsay? ***because one who is dying will not lie; he will tell the truth—he
would not want to die with a black lie on his lips.
3. ******Elements; Requisites103 must concur [PP vs. Gatarin, 7 April 2014]104
102
Q: While sleeping under a tree, Kintanar was stabbed several times by a man, sustaining multiple
stab wounds on his chest with blood spurting therefrom. Bathed in his own blood, Kintanar rushed to
his house where he was met by his wife. Kintanar informed his wife that it was Gonzales who stabbed
him. On the way to the hospital, Kintanar kept on saying that it was Gonzales who stabbed him. He
died while undergoing surgery at the hospital. Convicted for the killing of Kintanar, Gonzales
questioned the admission in evidence of the ante-mortem statement of Kintanar to his wife. He argued
that from the abovecited facts, there is no indication that the aforesaid statement was made by the
victim under consciousness of an impending death. Can the subject statement be considered a dying
declaration? Why? (1993 Bar Question) Answer:
Yes, the statement that it was Gonzales who stabbed him can be considered a dying
declaration because it concerned the crime and surrounding circumstances of declarant's
death; it was made with consciousness of impending death as shown by the fact that he died while
undergoing surgery at the hospital; the declarant was competent as a witness; and the declaration was
offered in a criminal case in which declarant was the victim.
Alternative Answer: Even if the statement cannot be considered a dying declaration, it was
admissible as part of the res gestae.
103
Bar 1998: The requisites for the admissibility of a dying declaration are: (a) the declaration is made
by the deceased under the consciousness of his impending death; (b) the deceased was at the
time competent as a witness; (c) the declaration concerns the cause and surrounding
circumstances of the declarant’s death; and (d) the declaration is offered in a (criminal) case
wherein the declarant's death is the subject of inquiry. (People us. Santos, 270 SCRA 650.)
ALTERNATIVE ANSWER: The declaration of a dying person, made under the consciousness
of an impending death, maybe received in any case wherein his death is the subject of inquiry, as
evidence of the cause and surrounding circumstances of such death. (See. 37 of Rule 130.)
104
Q: One evening, at 9:00 o’clock, just as he reached the gate of his house in Apas, Cebu City, and as
soon as he alighted from his car to open the gate. Carlos was shot by Tito, who had been waiting
behind a coconut tree nearby, with a .38 caliber revolver. Carlos was hit at the sternum of the second
rib. Hearing the .shot, Marilyn, Carlos* wife ran out toward the gate and found Carlos lying on the
a. The declaration concerns the CAUSE & SURROUNDING

CIRCUMSTANCES of the declarant’s death;105 106 not only the cause but also
the circumstances of his death; wrt to his own death, it is a dying declaration;
*****but if it is concerning about the death of another person, it is NOT a
dying declaration107, it is part of res gestae (Sec 42)—because it has a degree of
reliability; the mind has no chance to fabricate; NB: before it was only applicable
in criminal cases;
ground, with blood splattered on his chest. With her son, Y. she brought Carlos to the Cebu Doctors’
Hospital. In the car, although he was in a semi-conscious state. Carlos told Marilyn that it was Tito who
shot him, Carlos was brought to the emergency room. However, two (2) hours later, he expired. Tito
was then charged with murder before the RTC of Cebu. Marilyn was presented as witness for the
prosecution, but her testimony regarding the above statement of Carlos was objected to under the
hearsay rule. The court overruled the objection on the ground that the statement may be considered as
a dying declaration. (1991 Bar Question) Is the ruling correct? Answer:
Yes, because all the requisites to admissibility of a dying declaration are present. The fact
that Carlos died two hours after he was shot shows that his statement to Marilyn while being brought
to the hospital, that it was Tito who shot him, was made under consciousness of impending death.
[] ******What are the requisites to admissibility of a dying declaration? Answer:
a. It must concern the cause and the surrounding circumstances of declarant’s death;
b. It was made under consciousness of impending death;
c. The declarant was competent as a witness;
d. The declaration is offered in a civil or criminal case in which the declarant was a victim.
(Sec. 37 of Rule 130; People v. Sagario, 14 SCRA 468).
105
NB: ******if he confesses that he is the father of an illegitimate child, it is not a dying declaration
because it is not about the circumstances of his death; hence, if it is not about the circumstances of
his death, it is not a dying declaration, as when he says that this or that is his child, or that this or that
fellow robbed a bank (not related to his death); a dying declaration is APPLICABLE TO ANY CASE.
[] X was shot by Y in the course of a robbery. On the brink of death, X told W, a barangay
tanod, that it was Y who shot and held him up. In the trial for robbery with homicide, X's declaration
can be admitted only as a dying declaration: (2012 BAR)
a. toproverobbery.
b. to prove homicide.
c. to prove robbery and homicide.
d. toprovethe"corpusdelicti"
107
BAR 2017: Q: Immediately before he died of gunshot wounds to his chest, Venancio told the
attending physician, in a very feeble voice, that it was Arnulfo, his co-worker, who had shot him.
Venancio added that it was also Arnulfo who had shot Vicente, the man whose cadaver was lying on
the bed beside him. In the prosecution of Arnulfo for the criminal killing of Venancio and Vicente, are
all the statements of Venancio admissible as dying declarations? Explain your answer. SUGGESTED
ANSWER: No, not all the statements of Venancio are admissible as dying declarations. Under the
Rules on Evidence, a dying declaration is admissible as an exception to the hearsay rule provided that
such declaration relates to the cause of the declarant’s death. Venancio’s statement that it was
Arnulfo who shot him is admissible as a dying declaration. The same related to Venancio’s own
demise. It may be inferred that Venancio had consciousness of his impending death since he suffered
gunshot wounds to his chest which would necessarily be mortal wounds. However, Venancio’s
statement that it was Arnulfo who shot Vicente is not admissible as a dying declaration since it
did not relate to the cause of the declarant’s death but to the death of another person. (Jurist
Review Center, Inc.)
b. It is made when DEATH APPEARS to be IMMINENT and the

declarant is under a CONSCIOUSNESS of IMPENDING DEATH; mere
consciousness of death is not enough—it must be impending, i.e., it is near
and certain. This consciousness may be proven by other evidence other that the
words of the declarant himself such as the nature of the injury and the conduct of
the declarant;108 EG: if while dying with a gunshot, he is talking about a tennis
game next week—he does not have this requisite consciousness; but if he
entrusts his loved ones, he is conscious of an impending death; *****if the dying
person—although there is a bolo embedded in his chest and is actually lying in a
pool of his own blood—says he is okay, and died five minutes later, his
statement is HEARSAY if repeated by the policeman who spoke to him.
NB: But though not admissible as a dying declaration, the same may be
admitted as part of res gestae.109
c. The declarant would have been COMPETENT to testify had he/she
SURVIVED; he must have personal knowledge of the facts. A dying
declaration, was not meant to confer competency on an otherwise
incompetent witness. EG: if he was shot at the back, how can he pinpoint
the accused without even seeing him?
d. The dying declaration is offered in a CASE in which the SUBJECT OF
INQUIRY involves the declarant’s death; Applicability – such statement may
be received in any case wherein death is the subject of the inquiry.
e. (The 5th requisite is not found in PP vs. Gatarin]: Declarant should
have died; his death must be from that cause.110 (NB: ****if declarant survives,
108
The admissibility of the first declaration depends upon the STATE OF MIND of the deceased
when the declaration was made, and NOT UPON THE LENGTH OF TIME THAT ELAPSED between the
infliction of the wound and the declarant's death [People v. Lara, December 3, 1929]; thus, the same is
admissible even if the person recovered sufficiently to engender the belief that he was going to live,
where death resulted from the same injury; ******It is not a declaration of a person who died, but a
declaration of a person who is dying, made under the consciousness of an impending death.
109
Statements made by a person while a startling occurrence is taking place or immediately prior
or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part
of the res gestae (Sec. 42, Rule 130).
110
Q: Alejo was stabbed in the abdomen. He immediately called for help and a policeman promptly
approached him. He told the policeman that he felt he would die from the serious wound inflicted on
him by Danilo who has a grudge against him. He was brought to a hospital for treatment where, on
the same day he was shot and killed by someone whose identity could not be established by an eye-
witness. Eventually. Danilo was charged in court for the death of Alejo. The prosecution had to build
its case on circumstantial evidence. At the ensuing trial, the policeman was presented to testify on the
declaration made to him by Alejo. The defense objected. Meeting the objection, the prosecution argued
for the admissiblity of the evidence as a dying declaration (ante mortem statement) or as part of the res
gestae, either of which, when deemed competent evidence as an exception to the hearsay rule, would
demonstrably be relevant to the ultimate fact in issue, the guilt of Danilo for the death of Alejo. The
defense countered by arguing that no facts relating to the stabbing can be relevant to the shooting.
Is the contention of the prosecution with respect to relevancy and competency of evidence correct?
Discuss fully. (1992 Bar Question) Suggested Answer:
the statement may nevertheless be admissible as part of the res gestae). NB:
it does not have to be in writing.111
4. What if not all elements are present? Can it still be made admissible? Not
admissible as a dying declaration, but admissible as part of the res gestae [Sec 42,
infra]. NB: Nowhere in the rules prohibit the admissibility of a dying declaration of
the offended party in favor of the accused. It does not create a conclusive
presumption of credibility of the admitted declaration. EG: if the victim says “I
am okay” but still died after a startling occurrence, the statement he made offered
in evidence is not a dying declaration; however, it is admissible as part of the res
gestae
5. ******How to discredit a dying declaration:
a. Not all of the elements are present112;
b. Impeach the dying declarant because he is a witness, as to his bad
general reputation as to honesty, integrity or truth; he does not become
suddenly good when he was dying… [TOM: well, there is a possibility of last-
minute-conversion!]
6. Note that a dying declaration can be used not only to inculpate someone, but
also to exculpate him. In can be used in favor of the accused.
7. *****A dying declaration can be used in any case, not just a criminal case, as
long as the inquiry is the death of the dying person. [] Rule 130, Section 37. Dying
declaration. — The declaration of a dying person, made under
the consciousness of an impending death, may be received in ANY CASE
wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.
No. The contention of the prosecution is not correct. *****The statement of Alejo that it was
Danilo who stabbed him is not admissible as a dying declaration, because it did not concern the
cause and surrounding circumstances of his death. Alejo did not die from the serious wound
inflicted on him. The cause of his death was the shot fired by an unknown person. Neither is the
statement admissible as part of the res gestae, because Danilo was charged with the death of
Alejo and the cause of the death was not the stabbing by Danilo. (Secs. 37 and 42 of Rule 130)
111
[] (1999 Bar Question) 4. The accused was charged with robbery and homicide. The victim
suffered several stab wounds. It appears that eleven (11) hours after the crime, while the victim was
being brought to the hospital in a jeep, with his brother and a policeman as companions, the victim
was asked certain questions which he answered, pointing to the accused as his assailant. His
answers were put down in writing, but since he was a in a critical condition, his brother and the
policeman signed the statement. Is the statement admissible as a dying declaration? Explain. (2%)
*****Yes. The statement is admissible as a dying declaration if the victim subsequently died and his
answers were made under the consciousness of impending death. (Sec. 37 of Rule 130) The fact
that he did not sign the statement point to the accused as his assailant, because he was in critical
condition, does not affect its admissibility as a dying declaration. ******A dying declaration need
not be in writing (People v. Viovicente, 286 SCRA 1.)
112
E2. PART OF RES GESTAE***

1. [] Section 42. Part of res gestae. — Statements made by a person while a startling
occurrence is taking place or immediately113 prior or subsequent thereto with
respect to the circumstances thereof, may be given in evidence as part of res gestae.
So, also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae. (36a)
2. Meaning: the events, circumstances, remarks, etc., that relate to a particular case,
especially as constituting admissible evidence in a court of law.
a. Latin: THINGS DONE.
b. Rationale: it is anchored on the theory that the statement was uttered
under circumstances where the ***opportunity to fabricate is absent. The
statement is a reflex action rather than a deliberate act. Thus, the declaration
was made under conditions suggestive of truth.
3. NB: An inadmissible dying declaration may be admissible as part of the
res gestate for the following reasons:
a. it was made immediately after: no room to invent/fabricate;
b. it was a statement describing the event;
113
Q: Two (2) hours after Lt. Yap of the 2nd Air Division, PAF, at the Mactan Air Base in Lapulapu
City, was shot with a .45 caliber pistol, his Division Commander, Brig. Gen. A, visited him at the Cebu
Doctors’ Hospital in Cebu City where he was immediately brought for treatment of the gunshot
wound. Lt. Yap told A that it was Jose Comen who shot him. Forthwith, A, who is a law graduate, took
the initiative of taking down in long hand the statement of Lt. Yap. The latter narrated the events
surrounding the Incident and categorically stated that it was Jose Comen who shot him. Lt. Yap signed
the statement in the presence of A and the attending nurse. Ten (10) days later, Lt. Yap died as a
consequence of the gunshot wound. An information for murder was filed against Jose Comen.
At the trial, the above statement of Lt. Yap marked as Exh. T, was presented and identified by A who
did not, however, testify that Lt. Yap read it, or that it was read to him before he (Yap) signed it. A
nevertheless, testified that, as above stated, Lt. Yap told him that it was Jose Comen who shot him. The
defense objected to the testimony of A and to the admission of Exh. “X” on the ground that they are
hearsay. The prosecution contended that both are exceptions to the hearsay rule as they are part of res
gestae. (1991 Bar Question) Answer: No, because the statement of Lt. Yap to A, that it was Jose
Comen who shot him, was given two hours after he was shot. *****Hence, it could not be considered
as part of the res gestae, because the' rule refers to statements made by a person while a startling
occurrence is taking into place or immediately prior or subsequent thereto. (Sec. 36 of Rule 130)
[] If the statement cannot be admitted as part of the res gestae, may it be considered as a dying
declaration? *****Neither could it be considered as a dying declaration because it was not made
under consciousness of impending death, since he died ten days later. Another Answer: It could
be considered as a dying declaration if the gravity of the wounds inflicted would indicate that the
statement was made under consciousness of impending death.
[] If the testimony of A as to the revelation of Lt. Yap is not admissible for being hearsay, may
it be admitted as an independently relevant statement? Answer: *****It may not be considered as an
independently relevant statement, because the same is being presented to establish the truth of
the fact asserted therein and not merely the tenor thereof. (People vs. Gaddi, 170 SCRA 649)
c. under emotional excitement114 (due to a startling occurrence)—tends to

be accurate because it is made under the influence of the said event. NB: under American
case law, if the person is emotionally distressed, the testimony may not describe
the event accurately.
4. ******Test of admissibility - the test of admissibility of evidence as part of the
res gestae is, therefore, whether the act, declaration, exclamation is SO
INTIMATELY INTERWOVEN or CONNECTED with the principal fact or
event that it characterizes as to be regarded as a part of the transaction itself,
and also whether it clearly negates any premeditation or purpose to manufacture
testimony (People v. Villarico, April 4, 2011).115
5. ***Under the rules, it is limited only to: (1) spontaneous statements and (2)
verbal act
I. Elements for admissibility of spontaneous statements; A declaration
made spontaneously after a startling occurrence is deemed as part of the res gestae
when – (SBO)
a. The principal act, the res gestae, is a STARTLING
occurrence;116 Must be of such nature as to cause an excited reaction in an
average individual
114
To prove that Susan stabbed her husband Elmer, Rico testified that he heard Leon running down
the street, shouting excitedly, "Sinasaksak daw ni Susan ang asawa niya! (I heard that Susan is stabbing
her husband!)" Is Leon's statement as narrated by Rico admissible? (2011 BAR)
(A) No, since the startling event had passed.
(B) Yes, as part of the res gestae.
(C) No, since the excited statement is itself hearsay.
(D) Yes, as an independently relevant statement.
115 115
[] Bar 2005: Dencio barged into the house of Marcela, tied her to a chair and robbed her of
assorted pieces of jewelry and money. Dencio then brought Candida, Marcela’s maid, to a bedroom
where he raped her. Marcela could hear Candida crying and pleading; “Huwag! Maawa ka sa akin!”After
raping Candida, Dencio fled from the house with loot. Candida then untied Marcela and rushed to the
police station about a kilometer away and told Police Officer Roberto Maawa that Dencio had barged
into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida
also related to the police officer that despite her pleas, Dencio had raped her. The policemen noticed
that Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape.
During the trial, Candida can no longer be located.
a) If the prosecutor presents Police Officer Roberto Maawa to testify on what Candida had
told him, would such testimony of the policemen be hearsay? Explain. (1999, 2009): No. The testimony
of the policemen is not hearsay. It is part of the res gestae. It is also an independently relevant
statement. The police officer testified his own personal knowledge, not to the truth of Candida’s
statement, i.e., that she told him, despite her pleas, Dencio has raped her. (People v. Gaddi, GR No.
74065, February 27, 1989)
116
Q: While passing by a dark uninhabited part of their barangay, PO2 Asintado observed shadows and
heard screams from a distance. PO2 Asintado hid himself behind the bushes and saw a man beating a
woman whom he recognized as his neighbour, Kulasa. When Kulasa was already in agony the man
stabbed her and she fell on the ground. The man hurriedly left thereafter. PO2 Asintado immediately
went to Kulasa’s rescue. Kulasa who was then in a state of hysteria, kept mentioning to PO2 Asintado
“Si Rene, gusto akong patayin! Sinaksak niya ako!” When PO2 Asintado was about to carry her, Kulasa
refused and said “Kaya ko. Mababaw lang to. Habulin mo si Rene.” The following day, Rene learned of
b. The statements were made BEFORE the declarant had time to

contrive or devise; thus the statement should have been made while the event
was occurring or immediately thereafter; NB: the statement must be heard
directly by the witness.117
c. The statements concern the OCCURRENCE in question and its
immediately attending circumstances. (the statement and the event cannot be
taken separately)
II. Elements of admissibility for verbal acts (EMA)
a. principal act to be characterized was EQUIVOCAL; if the act
were unequivocal, it ceases to be part of res gestae.
b. the equivocal act must be MATERIAL to the issue
Kulasa’s death and, bothered by his conscience, surrendered to the authorities with his counsel. As his
surrender was broadcasted all over media, Rene opted to release his statement to the press which goes:
“I believe that I am entitled to the presumption of innocence until my guilt is proven beyond
reasonable doubt. Although I admit that I performed acts that may take one’s life away, I hope and
pray that justice will be served in the right way. God bless us all.
(Sgd.) Rene” The trial court convicted Rene of homicide on the basis of PO2 Asintado’s testimony,
Kulasa’s statements, and Rene’s statement to the press. On appeal, Rene raises the following errors:
a. The trial courterred in giving weight to PO2 Asintado’s testimony, as the latter did not have
personal knowledge of the facts in issue, and violated Rene’s right to due process when it considered
Kulasa’s statements despite lack of opportunity for her cross-examination. A: The trial court did not err
in giving weight to PO2 Asintado’s testimony. While a witness can only testify as to those facts
which he has personal knowledge, the Rules provide that a statement made under the
influence of a startling event witnessed by the person who made the declaration before he had time
to think and make up a story, or to concoct or contrive a falsehood, or to fabricate an account, and
without any undue influence in obtaining it, aside from referring to the event in question or its
immediate attending circumstances, is an exception being part of res gestae (Belbis, Jr., v. People,
G.R. No. 181052, November 14, 2012). In the case, the statements made by PO2 Asintado constitutes
part of res gestae since the same were made without any opportunity to fabricate and while a startling
occurrence was actually taking place. *****In addition, the statement of PO2 Asintado may fall within
the purview of the doctrine of independent relevant statement, where only the fact that such
statements were made is relevant, and the truth and falsity thereof is immaterial (People v.
Malibiran, G.R. No. 178301, April 24, 2009). On the other hand, Kulasa’s statements are also
admissible as part of res gestae since the same were made under the influence of a startling event and
without any opportunity to concoct or devise a falsehood.
b. The trial court erred in holding that Rene’s statement to the press was a confession which,
standing alone, would be sufficient to warrant a conviction. Resolve. (2014) A: ******The trial court
did not err in holding that Rene’s statement to the press is a confession. Rene’s confessions to
the media were properly admitted because statements spontaneously made by a suspect to news
reporters on a televised interview are deemed voluntary and are admissible in evidence (People v.
Hipona, G.R. No. 185709, February 18, 2010).
117
Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident. Julieta, a
witness in court, testifies that Romeo told her (Julieta) that he (Romeo) heard Antonio, a witness to the
accident, give an excited account of the accident immediately after its occurrence. Is Julieta’s
testimony admissible against Romeo over proper and timely objection? Why? (Bar 2002):
*****No, Julieta’s testimony is not admissible against Romeo, because while the excited account
of Antonio, a witness to the accident, was told to Romeo, it was only Romeo who told Julieta about it,
which makes it hearsay.
c. statement must ACCOMPANY the equivocal activity; the

statement gives a legal significance to the equivocal act
*the statement must explain the act to give it legal significance;
*EG: the act of receiving money accompanied by a statement like
“thank you, I'll pay you in a month”118
[] Main distinctions between a verbal act and a spontaneous statement
spontaneous statement verbal acts
may be prior to or simultaneous with, statement must 'accompany' the equivocal act which
or subsequent to the startling event evidently means that it must be contemporaneous with the act
E3. DECLARATION AGAINST INTEREST

1. [] Section 38. The declaration made by a person deceased, or unable to testify,
against the interest of the declarant, if the fact is asserted in the declaration was at
the time it was made so far contrary to declarant’s own interest, that a
reasonable man in his position would not have made the declaration unless he
believed it to be true, may be received in evidence against himself or his
successors in interest and against third persons.
2. Elements (DFAN)
a. Declarant is DEAD or UNABLE to testify; His unavailability to testify
must be so that he is outside the jurisdiction of the court and his whereabouts
are unknown. If known, his deposition may be taken and the exception will not
apply. Serious physical or mental impairments may also be a ground for
unavailability.
b. That it refers to a FACT AGAINST the INTERESTS of the declarant;
c. That the time he made said declaration the declarant was AWARE119 that
it was contrary to his aforesaid interest; and
d. That the declarant had NO MOTIVE to testify and he believed such
declaration to be true.
118
To prove payment of a debt, Bong testified that he heard Ambo say, as the latter was handing
over money to Tessie, that it was in payment of debt. Is Bong’s testimony admissible in evidence?
(2011 BAR)
(A) Yes, since what Ambo said and did is an independently relevant statement.
(B) No, since what Ambo said and did was not in response to a startling occurrence.
(C) No, since Bong’s testimony of what Ambo said and did is hearsay.
(D)Yes, since Ambo’s statement and action, subject of Bong’s testimony, constitutes a verbal
act.
119
Which of the following is NOT REQUIRED of a declaration against interest as an exception to
the hearsay rule? (2011 BAR)
(A) The declarant had no motive to falsify and believed such declaration to be true.
(B) The declarant is dead or unable to testify.
(C) The declaration relates to a fact against the interest of the declarant.
(D) At the time he made said declaration he was unaware that the same was contrary to his
aforesaid interest.
E4. DECLARATION ABOUT PEDIGREE

[] Section 39. Act or declaration about pedigree. — The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another
person RELATED to him by BIRTH or MARRIAGE, may be received in
evidence where it occurred before the controversy, and the relationship between
the two persons is shown by evidence other than such act or declaration. The
word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates
when and the places where these fast occurred, and the names of the relatives. It
embraces also facts of family history intimately connected with pedigree.
*Elements (DRPEM)
a. The declarant is already DEAD or UNABLE to testify;
b. The declarant must be a RELATIVE of the person whose pedigree is
in question;
c. The PEDIGREE of a person must be at issue;
d. The relationship between the declarant and the person whose pedigree is
in question must be shown by EVIDENCE OTHER THAN such act or
declaration; and
e. Declaration must be MADE BEFORE the CONTROVERSY has
occurred.
E5. FAMILY PEDIGREE

[] Section 40. Family reputation or tradition regarding pedigree. — The reputation or
tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or
affinity. *****Entries in family bibles120 or other family books or charts,
120
Q: Linda and spouses Amulfo and Regina Ceres were co-owners of a parcel of land. Linda
died intestate and without any issue. Ten (10) persons headed by Jocelyn, claiming to be the
collateral relatives of the deceased Linda, filed an action for partition with the Regional Trial Court
praying for the segregation of Linda’s 1/2 share, submitting in support of their petition the
baptismal certificates of seven of the petitioners, a family bible belonging to Linda in which the
names of the petitioners have been entered, a photocopy of the birth certificate of Jocelyn, and a
certification of the local civil registrar that its office had been completely razed by fire. The spouses
Ceres refused to partition on the following grounds [Discuss each of the five (5) arguments briefly
but completely.] (10%) (2000 Bar Question):
1) the baptismal certificates of the parish priest are evidence only of the administration of
the sacrament of baptism and they do not prove filiation of the alleged collateral relatives of the
deceased: The baptismal certificate can show filiation or prove pedigree. It is one of the other
means allowed under the Rules of Court and special laws to show pedigree. (Trinidad v. Court of
Appeals, 289 SCRA 188 11998]; Heirs of Ignacio Conti v. Court of Appeals, 300 SCRA 34511998)).
2) entry in the family bible is hearsay: Entries in the family bible may be received as evidence
of pedigree. (Sec. 40, Rule 130, Rules of Court).
3) the certification of the registrar on non-availability of the records of birth does not prove
filiation: he certification by the civil registrar of the non-availability of records is needed to justify
engravings on rings, family portraits and the like, may be received as evidence
of pedigree. (34a)
*Elements: (CEM)
a. There is a CONTROVERSY in respect to the pedigree of any of the
members of the family;
b. The reputation or tradition of the pedigree EXISTED previous to the
controversy; and
c. The witness testifying to the reputation or tradition regarding the
pedigree of the person must be a MEMBER of the family of said person.
***Linda and spouses Arnulfo and Regina Ceres were co-owners of a parcel of
land. Linda died intestate and without any issue. Ten (10) persons headed by
Jocelyn, claiming to be the collateral relatives of the deceased Linda, filed an action
for partition with the RTC praying for the segregation of Linda’s 1⁄2 share,
submitting in support for their petition the baptismal certificates of seven of the
petitioners, a family bible belonging to Linda in which the names of the
petitioners have been entered, a photocopy of the birth certificate of Jocelyn, and a
certification of the local civil registrar that its office had been completely razed by
fire. The spouses Ceres refused partition on the following grounds: 1) the
baptismal certificates of the parish priest are evidence only of the administration of
the sacrament of baptism and they do not prove filiation of the alleged collateral
relatives of the deceased; 2) entry in the family bible is hearsay; 3) the certification
of the registrar on non-availability of the records of birth does not prove filiation;
4) in partition case where filiation to the deceased is in dispute, prior and separate
judicial declaration of heirship in a settlement of estate proceedings is necessary;
and 5) there is need for publication as real property is involved. As counsel for
Jocelyn and her co-petitioners, the argue against the objections of the spouses
Ceres so as to convince the court to allow the partition. Discuss each of the five
(5) arguments briefly but completely (2000)
a. The baptismal certificate can show the filiation or prove pedigree. It
is one of the other means allowed under the Rules of Court and special laws to
show pedigree (Trinidad v Court of appeals, 289 SCRA 188 (1998); Heirs of
ILgnacio Conti v Court of Appeals, 300 SCRA 345 (1998);
b. Entries in the family bible may be received as evidence of pedigree
(Sec 40, Rule 130, Rules of Court)
the presentation of secondary evidence, which is the photocopy of the birth certificate of Jocelyn.
(Heirs of Ignacio Conti v. Court of Appeals, supra.)
4) in partition cases where filiation to the deceased is in dispute, prior and separate judicial
declaration of heirship in a settlement of estate proceedings is necessary: Declaration of heirship in a
settlement proceeding is not necessary. It can be made in the ordinary action for partition wherein the
heirs are exercising the right pertaining to the decedent, their predecessor-in-interest, to ask for
partition as co-owners (Id.).
5) there is need for publication as real property is involved: Even if real property is involved,
no publication is necessary, because what is sought is the mere segregation of Linda’s share in the
property. (Sec. 1 of Rule 69; Id.)
c. The certification by the civil registrar of the non-availability of

records is needed to justify the presentation of secondary evidence, which is
the photocopy of the birth certificate of Jocelyn (Heirs of Ignacio Conti v Court of
Appeals, supra)
d. Declaration of heirship in a settlement proceeding is not necessary. It
can be made in the ordinary action for partition wherein the heirs are exercising
the right pertaining to the decedent, their predecessor-in- interest, to ask for
partition as co-owners (Id)
e. Even if real property is involved, no publication is necessary, because
what is sought is the mere segregation of Linda’s share in the property (Sec1
of Rule 69 Id)
E6. COMMON REPUTATION

[] Section 41. Common reputation. — Common reputation existing previous to the
controversy, respecting facts of public or general interest more than thirty years
old, or respecting marriage or moral character, may be given in evidence.
Monuments and inscriptions in public places may be received as evidence of
common reputation.
*Why is “common reputation” admissible? because of its trustworthiness.
***The following may be established by common reputation –
a. Matters of public interest > 30 yrs old;
b. Matters of general interest > 30 yrs old;
c. Matters respecting marriage or moral character and related facts;
d. Individual character.
E7. BUSINESS RECORDS RULE

[] Section 43. Entries in the course of business. — Entries made at, or near the time
of transactions to which they refer, by a person deceased, or unable to testify,
who was in a position to know the facts therein stated, may be received as
prima facie evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or regular course of
business or duty.
*Based on the entries of business records, a new accountant can testify. This is for
convenience, otherwise, will you have to resurrect the dead accountant who had
personal knowledge of the accounts?
*Elements for admissibility (DAPPO)
a. The person who made the entry must be DEAD or UNABLE to testify;
b. The entries were made AT or NEAR the time of the transactions to
which they refer;
c. The entrant was in a POSITION to know the facts stated in the
entries;
d. The entries were made in his PROFESSIONAL capacity or in the
performance of a duty, whether legal, contractual, moral or religious; and
e. The entries were made in the ORDINARY or regular COURSE of

business or duty.
E8. ENTRIES IN OFFICIAL RECORDS

[] Section 44. Entries in official records. — Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law, are prima facie evidence of
the facts therein stated. (38)
*Elements [Francisco]: (PPK)
a. That it was made by a PUBLIC officer or by another person specially
enjoined by law to do so;
b. That it was made by a public officer in the PERFORMANCE of his
duty or by another person in the performance of a duty specifically enjoined
by law; and
c. The public officer or the other person had sufficient KNOWLEDGE of
the facts stated by him which he must have acquired personally or through
official information. (Francisco)
E9. COMMERCIAL LISTS

[] Section 45. Commercial lists and the like. — Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list, register, periodical,
or other published compilation is admissible as tending to prove the truth of any
relevant matter so stated if that compilation is published for use by persons
engaged in that occupation and is generally used and relied upon by them therein.
*Elements (ICPR)
a. Statements of matters of INTEREST to persons engaged in an
occupation;
b. The statements must be CONTAINED in a list, register, periodical,
or other published compilation;
c. That compilation is PUBLISHED for use by persons engaged in that
occupation; and
d. Is generally RELIED upon by them.
E10. LEARNED TREATISES

[] Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is admissible as tending to prove the truth of
a matter stated therein if the court takes judicial notice, or a witness expert in
the subject testifies, that the writer of the statement in the treatise, periodical or
pamphlet is recognized in his profession or calling as expert in the subject. (40a)
*You do not have to prove that 1 + 1 = 2.
*Requisites: Either – (CA)
a. COURT takes judicial notice of it; or
b. A WITNESS, expert in the subject, testifies that the writer of the

statement in the treatise, periodical, or pamphlet is recognized in his profession
or calling as expert in the subject.
E11. PRIOR TESTIMONY/DEPOSITION

[] Section 47. Testimony or deposition at a former proceeding. — The testimony or
deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject
matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine him. (41a)
*Elements (DFSSA)
a. The witness is DECEASED or UNABLE to testify;
b. His testimony or deposition was given in a FORMER case or
proceeding, judicial or administrative, between the same parties or those
representing the same interests;
c. The former case involved the SAME subject as that in the present case,
although on different causes;
d. The issue testified to be the witness in the former trial is the SAME issue
involved in the present case;
e. The ADVERSE party had an opportunity to cross-examine the
witness in the former case
Summary of the Elements of Admissible Hearsays

1. The declaration concerns the CAUSE & SURROUNDING
CIRCUMSTANCES of the declarant’s death;
2. It is made when DEATH APPEARS to be IMMINENT and the
Dying
declarant is under a CONSCIOUSNESS of IMPENDING DEATH;
declaration 3. The declarant would have been COMPETENT to testify had
[PP vs. he/she SURVIVED;
Gatarin, 7 4. The dying declaration is offered in a CASE in which the SUBJECT
April 2014]
OF INQUIRY involves the declarant’s death.
5. [The 5th requisite is not found in PP vs. Gatarin]: Declarant should
have died. (NB: if declarant survives, the statement may nevertheless
be admissible as part of the res gestae).
1. Declarant is DEAD or UNABLE to testify;
2. That it refers to a FACT AGAINST the INTERESTS of the
Declaration declarant;
against
interest
3. That the time he made said declaration the declarant was AWARE
[DIAN] that it was contrary to his aforesaid interest; and
4. That the declarant had NO MOTIVE to testify and he believed
such declaration to be true.
1. The declarant is already DEAD or UNABLE to testify;

2. The declarant must be a RELATIVE of the person whose
pedigree is in question;
Act/declara 3. The PEDIGREE of a person must be at issue;
tion about
pedigree
4. The relationship between the declarant and the person whose
[DR-PEB] pedigree is in question must be shown by EVIDENCE OTHER
THAN such act or declaration; and
5. Declaration must be MADE BEFORE the CONTROVERSY
has occurred.
1. There is a CONTROVERSY in respect to the pedigree of any of
Family the members of the family;
reputation 2. The reputation or tradition of the pedigree EXISTED previous
or tradition
regarding
to the controversy; and
pedigree 3. The witness testifying to the reputation or tradition regarding the
[CEM] pedigree of the person must be a MEMBER of the family of said
person.
The following may be established by common reputation –
1. Matters of public interest > 30 yrs old;
Common
2. Matters of general interest > 30 yrs old;
reputation
3. Matters respecting marriage or moral character and related facts;
4. Individual character.
A declaration made spontaneously after a startling occurrence is deemed as part of the
res gestae when –
Res gestate- 1. The principal act, the res gestae, is a STARTLING occurrence;
spontaneous 2. The statements were made BEFORE the declarant had time to
statements
[SBO] contrive or devise; and
3. The statements concern the OCCURRENCE in question and its
immediately attending circumstances.
1. principal act to be characterized was EQUIVOCAL
Res gestate- 2. the equivocal act must be MATERIAL to the issue
verbal acts
[EMA] 3. statement must ACCOMPANY the equivocal activity; the
statement gives a legal significance to the equivocal act
1. The person who made the entry must be DEAD or UNABLE to

testify;
2. The entries were made AT or NEAR the time of the
Entries in transactions to which they refer;
the 3. The entrant was in a POSITION to know the facts stated in the
ordinary
course of
entries;
business 4. The entries were made in his PROFESSIONAL capacity or in
[DAPPO] the performance of a duty, whether legal, contractual, moral or religious;
and
5. The entries were made in the ORDINARY or regular COURSE
of business or duty.
1. That it was made by a PUBLIC officer or by another person specially enjoined
by law to do so;
Entries in
2. That it was made by a public officer in the PERFORMANCE of his duty or by
official
another person in the performance of a duty specifically enjoined by law; and
records
3. The public officer or the other person had sufficient KNOWLEDGE of the facts
[PPK]
stated by him which he must have acquired personally or through official information.
(Francisco)
1. Statements of matters of interest to persons engaged in an occupation;
Commercia
2. The statements must be contained in a list, register, periodical, or other
l lists and
published compilation;
the like
3. That compilation is published for use by persons engaged in that occupation; and
[ICPR]
4. Is generally relied upon by them.
Either – 1. Court takes judicial notice of it; or 2. A witness, expert in the subject,
Learned
testifies that the writer of the statement in the treatise, periodical, or pamphlet is
treatises
recognized in his profession or calling as expert in the subject.
1. The witness is deceased or unable to testify;
2. His testimony or deposition was given in a former case or proceeding, judicial or
Testimony
administrative, between the same parties or those representing the same interests;
or
3. The former case involved the same subject as that in the present case, although on
deposition
different causes;
at a former
4. The issue testified to be the witness in the former trial is the same issue involved in
proceeding
the present case;
[DFSSA]
5. The adverse party had an opportunity to cross-examine the witness in the former
case
———————————————————————————————
OPINION RULE [Rule 130, Section 48]

1. GR: The opinion of witness is not admissible, except as indicated in the
following sections [Sections 49 & 50]; why? because a witness is supposed to
testify only about ultimate facts (facts personally observed by him), he is not
supposed to testify about his own conclusions or opinions (it is for the court to draw
conclusions from the facts testified thereto).121 Who can do that? an expert
witness is the one who can testify on his opinions; and the court is the one who
is supposed to make conclusions, not the witness.
2. XPNS:******
a. OPINION OF EXPERT WITNESSES [Section 49]: The opinion of a
witness on a matter requiring SPECIAL knowledge, skill, experience or
training which he shown to posses, may be received in evidence. Courts are not
bound by the opinion of the expert witness, as their opinions are not ordinarily
conclusive. ******The exception only provides their admissibility not
probative weight. The probative force of the testimony of an expert does not lie
in a mere statement of his theory or opinion, but rather in the aid that he can
render to the courts in showing the facts which serve as a basis for his criterion
and the reasons upon which the logic of his conclusion is founded (Dizon v.
Tuazon, July 9, 2008)
b. OPINION OF ORDINARY WITNESSES [Section 50]: The opinion
of a witness for which proper basis is given, may be received in evidence
regarding******
(a) the identity of a person about whom he has adequate
knowledge; EG: do you know this person? you do not have to be an expert on
human facial anatomy (to object that way is absurd).
(b) A handwriting with which he has sufficient familiarity; EG: I
saw him write it; or you testify through comparison.
(c) The mental sanity of a person with whom he is sufficiently
acquainted.
d. The witness may also testify on his impressions of the (EBCA)
emotion, behavior, condition or appearance122 of a person.123
121
In a case, the prosecutor asked the medical expert the question, "Assuming that the assailant was
behind the deceased before he attacked him, would you say that treachery attended the killing?" Is this
hypothetical question permissible? (2011 BAR)
(A) *****No, since it asks for his legal opinion.
(B) Yes, but conditionally, subject to subsequent proof that the assailant was indeed behind the
deceased at that time.
(C) Yes, since hypothetical questions may be asked of an expert witness.
(D) No, since the medical expert has no personal knowledge of the fact.
122
[] Bar 1994: At Nolan’s trial for possession and use of the prohibited drugs, known as “shabu his
girlfriend Kin, testified that on a particular day, she would see Nolan very prim and proper, alert and
sharp, but that three days after, he would appear haggard, tired and overly nervous at the slightest
sound he would hear. Nolan objects to the admissibility of Kim’s testimony on the ground that
Kim merely stated her opinion without having been first qualified as expert witness. Should you
as a judge exclude the testimony of Kim?
No, the testimony of Kim should not be excluded. ******Even though Kim is not an expert
witness, Kim may testify on her impressions of the emotion, behavior, condition or appearance
of a person. (Sec 50, last par Rule 130)
123
[] Bar 2005: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted
pieces of jewelry and money. Dencio then brought Candida, Marcela’s maid, to a bedroom where he
3. Difference between hearsay and opinion evidence124

Hearsay Opinion Evidence
One not based on one's personal perception but Based on personal knowledge or
based on the knowledge of others to prove the personal conclusions of the witness
truth of the matter asserted in an out-of-court based on his skill, training or
declaration experience
————————————————————————————————
RULE ON CHARACTER EVIDENCE [Rule 130, C(8)]

1. *****General Rule: Character evidence not generally admissible [Rule 130,
Section 51]
a. Definition of character evidence: Evidence regarding someone's
general personality traits or propensities, of a praiseworthy or blameworthy nature;
evidence of a person's moral standing in a community. Character evidence is
usually, but not always, prohibited if offered to show that the person acted in
conformity with that character. (Black’s)
b. ******Rationale for inadmissibility – character is generally irrelevant in
determining a controversy because the evidence of a person's character or trait is
not admissible to prove that a person acted in conformity with such character
or trait in a particular occasion.
c. *****It also seeks to discourage introduction of PROPENSITY
evidence (evidence that one acts in accordance with one's character). Ground for
objection: It’s an improper character evidence, your honor! :)
raped her. Marcela could hear Candida crying and pleading; “Huwag! Maawa ka sa akin!”After raping
Candida, Dencio fled from the house with loot. Candida then untied Marcela and rushed to the police
station about a kilometer away and told Police Officer Roberto Maawa that Dencio had barged into the
house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida also
related to the police officer that despite her pleas, Dencio had raped her. The policemen noticed that
Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape.
During the trial, Candida can no longer be located.
b) If the police officer will testify that he noticed Candida to be hysterical and on the verge
of collapse, would such testimony be considered as opinion, hence, inadmissible? Explain. No. It
cannot be considered as an opinion, because he was testifying on what he actually observed. The
last paragraph of Sec 50, RULE 130, Revised Rules of Evidence, expressly provides that a witness
may testify on his impressions of the emotion, behavior, condition or appearance of a person.
124
*****Distinguish clearly but briefly between: Hearsay evidence and opinion evidence. Hearsay
evidence consists of testimony that is not based on personal knowledge of the person testifying, (see
Sec. 36, Rule 130), while opinion evidence is expert evidence based on the personal knowledge
skill, experience or training of the person testifying (Sec. 49, Id.) and evidence of an ordinary witness
on limited matters (Sec. 50, Id.)
[] Questions of law and questions of fact. (2004 Bar Question) *****A question of law is when
the doubt or difference arises as to what the law is on a certain set of facts, while a question of fact is
when the doubt or difference arises as to the truth or falsehood of alleged facts. (Ramos v. Pepsi-
Cola Bottling Co. of the Phil., 19 SCRA 289, [1967]
2. Exceptions:******
(a) CRIM: In Criminal Cases:
(1) ACCUSED: The accused may prove his good moral character
which is pertinent to the moral trait involved in the offense charged, even
before125 his character is attacked (Sec. 51 Rule 130)
(2) ACCUSED: Unless in rebuttal, the prosecution may not prove his
bad moral character which is pertinent to the moral trait involved in the offense
charged. *****IOW,126 the prosecution cannot initiate proof of the bad
character of the accused. It can only do so by way of rebuttal or if it involves a
prior conviction by final judgment.127
(3) OFFENDED PARTY: The good or bad moral character of the
offended party may be proved if it tends to establish in any reasonable degree
the probability or improbability of the offense charged.128
(b) CIVIL-PARTY: In Civil Cases: Evidence of the moral character of a
party in civil case is admissible only when pertinent to the issue of character involved
in the case.
125
Character evidence is admissible (2011 BAR)
(A) in criminal cases, the accused may prove his good moral character if pertinent to the moral
trait involved in the offense charged.
(B) in criminal cases, the prosecution may prove the bad moral character of the accused to prove his
criminal predisposition.
(C) in criminal cases, the bad moral character of the offended party may not be proved.
(D) when it is evidence of the good character of a witness even prior to impeachment.
126
IOW = in other words [I just thought you won’t remember what this means at this point] :)
127
***[] Bar 2010: In a prosecution for murder, the prosecutor asks accused Darwin if he had been
previously arrested for violation of the Anti- Graft and Corrupt Practices Act. As defense counsel,
you object. The trial court asks you on what ground/s. Respond:
The objection is on the ground that the fact sought to be elicited by the prosecution is
irrelevant and immaterial to the offense under prosecution and trial. Moreover, the Rules do not
allow the prosecution to adduce evidence of bad moral character of the accused pertinent to the
offense charged, except on rebuttal and only if it involves a prior conviction by final judgment (Rule
130, Sec. 51, Rules of Court).
128
[] Bar 2002: D was prosecuted for homicide for allegedly beating up V to death with an iron pipe:
i. May the prosecution introduce evidence that V had a good reputation for peacefulness and
non-violence? Why? *****The prosecution may introduce evidence of the good or even bad moral
character of the victim if it tends to establish in any reasonable degree the probability or improbability of
the offense charged. (Rule 130 sec 51 a (3). In this case, the evidence is not relevant (TOM: why not?
If he is a peaceful person, he won’t get engaged in violence).
ii. May D introduce evidence of specific violent acts by V? Why? Yes, D may introduce
evidence of specific violent acts by V. Evidence that one did or did not do a certain thing at one
time is not admissible to prove that he did or did not do the same or a similar thing at another
time; but it may be received to prove a SPECIFIC intent or knowledge, identity, plan, system,
scheme, habit, custom or usage, and the like. (Rule 130, Section 34. Similar acts as evidence. —
Evidence that one did or did not do a certain thing at one time is not admissible to prove that he
did or did not do the same or similar thing at another time; but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like.)
(c) WITNESS: In the case provided for in Rule 132, Section 14. Evidence of
good character of witness. — Evidence of the good character of a witness is not
admissible until such character has been impeached.129 Why? Because he is
presumed to be truthful and of good character. It is only after his character has
been attacked can he prove his being good.
————————————————————————————————
129
To bolster the credibility of the witness, the following questions were asked in his judicial affidavit:
were you awarded the Catholic Award for Honesty? and were you the one cited by the President for
his charitable deeds? Are these objectionable?
Yes. *****Evidence of the good character of a witness is not admissible until such
character has been impeached (it is your way of gaining back his reputation). These are
IMPROPER CHARACTER EVIDENCES. This is because he is presumed to be truthful and of
good character. It is only after his character has been attacked can he prove his being good.
XI. Examination of Witnesses
TWO RULES ON THE EXAMINATION OF WITNESSES [Rule 132, Section 1]

106
AS TO OATH OR AFFIRMATION 106
RECORDING OF THE PROCEEDINGS [Rule 132, Section 2] 107
RIGHTS & OBLIGATIONS OF A WITNESS 107
CAN A WITNESS REFUSE TO ANSWER? NO & YES. 108
ON THE RIGHT AGAINST SELF-INCRIMINATION (RASI) 108
WHEN WITNESS MAY REFER TO MEMORANDUM [Sec 16]*** 109
ORDER OF THE EXAMINATION 110
ON DIRECT EXAMINATION BY THE PROPONENT 111
ON CROSS-EXAMINATION 112
RE-DIRECT EXAMINATION 113
RE-CROSS EXAMINATION 113
RECALLING WITNESS 114
LEADING QUESTIONS 114
MISLEADING QUESTION 114
ON IMPEACHING A WITNESS 115
IMPEACHING AN ADVERSE PARTY’S WITNESS [Sec 11, R132] 115
EXPLANATION OF THE 3 WAYS OF IMPEACHING A WITNESS 115
LAYING THE PREDICATE ON PRIOR INCONSISTENT STATEMENTS116
ON PARTICULAR WRONGFUL ACTS [Sec 11, R132] 118
PARTY MAY NOT IMPEACH HIS OWN WITNESS [Rule 132, Sec 12] 119
————————————————————————————————
TWO RULES ON THE EXAMINATION OF WITNESSES [Rule 132,

Section 1]
1. GR: examination must be done in open court;
*XPN: unless the question calls for a different mode, the answer of the
witness shall be given orally.
a. Testimony need not be given in open court under Sec. 15, Rule on
Summary Procedure (RSP) where affidavits of parties shall constitute the direct
testimony;
b. Depositions need not be taken in open court. They may be taken before
a notary public (Sec. 10, Rule 23) or any person authorized to administer oaths
(Sec. 14, Rule 23);
c. In civil cases under RSP, the parties are merely required to submit the
affidavits of their witnesses and other pieces of evidence on the factual issues,
together with their position papers, setting forth the law and the facts relied
thereon (Sec. 9, RSP);
d. In criminal cases, either party may utilize as part of its evidence the
testimony of a witness who is deceased, who can not with due diligence be
found in the Philippines, unavailable or otherwise unable to testify, given in
another case or proceeding, judicial or administrative, involving the same parties
and subject matter, the adverse party having the opportunity to cross-examine
him. (Sec. 1[f] Rule 115);
e. Judicial affidavits shall take the place of the testimony of witnesses.
(Sec. 2 Judicial Affidavit Rule)
2. GR - The answers of the witness should be given orally.
*****XPNS:
i. A witness is incapacitated to speak;
ii. The question calls for a different mode of answer.130
AS TO OATH OR AFFIRMATION
*Option to take an oath or affirmation is on the witness not the court
1. Oath – outward pledge made under an immediate sense of responsibility to God
or a solemn appeal to the Supreme Being in attestation of the truth of some
statement.
2. Affirmation – a substitute for an oath, and is a solemn and formal
declaration that the witness will tell the truth
*Witness may be barred if he refuses to take an oath or affirmation
*NB: it is one of the requisites to be a witness
RECORDING OF THE PROCEEDINGS [Rule 132, Section 2]

1. What should be recorded: The entire proceedings of a trial or hearing,
including:
a. The questions propounded to a witness and his answers thereto;
130
Which of the following is admissible? (2013 BAR)
(A) The affidavit of an affiant stating that he witnessed the execution of a deed of sale but the affiant
was not presented as a witness in the trial.
(B) The extra judicial admission made by a conspirator against his co-conspirator after the conspiracy
has ended.
(C) The testimony of a party’s witness regarding email messages the witness received from the
opposing party.
(D) The testimony of a police officer that he had been told by his informants that there were sachets of
shabu in the pocket of the defendant.
(E) None of the above.
b. The statements made by the

i. judge or any of the
ii. parties,
iii. counsel, or
iv. witnesses
with reference to the case.
2. Effect of certification of the transcript by the stenographer, stenotypist or
recorder: Deemed PRIMA FACIE a correct statement of such proceedings.
RIGHTS & OBLIGATIONS OF A WITNESS

[] Section 3. Rights and obligations of a witness. — ****A witness must answer
questions, although his answer may tend to establish a claim against him. However, it is the
right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions,
and from harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) ****Not to give an answer which will tend to subject him to a penalty for
an offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless it
to be the very fact at issue or to a fact from which the fact in issue would be
presumed. ****But a witness must answer to the fact of his previous final
conviction for an offense.
CAN A WITNESS REFUSE TO ANSWER? NO & YES.

1. NO: in a civil case.
*****Can a witness for the prosecution be asked by the defense counsel if

he has an unpaid debt in favor of the accused? Yes. If witness refuses to answer,
the court can order him to answer—even if it will establish a liability, as Sec 3,
Rule 132 provides, “although his answer may tend to establish a claim against him”. Why?
the nature of the liability is only civil, and no person can be jailed for non-
payment of debt (and poll tax), hence, the right against self-incrimination
does not apply. But if it will subject him to criminal penalty, yes, he may refuse
[number 4 of Sec 3, Rule 132].
2. YES: if answer will tend to open him to criminal liability—because it will fall
under his right against self-incrimination; what is referred to is criminal penalty;
hence, he cannot refuse if it will open him only to administrative penalty,
unless the latter involves a criminal penalty.
ON THE RIGHT AGAINST SELF-INCRIMINATION (RASI)

***NB: this right refers to the right against TESTIMONIAL compulsion
ONLY. See nuances as to the accused vs. ordinary witness, infra. Details on this
topic are under the Rights of the Accused (Part II).
1. Accused: he can refuse to testify;131 he can refuse to be a witness; but if he
is given IMMUNITY from prosecution—he cannot refuse.
*If the witness is the accused, he may totally refuse to take the stand. A
mere witness cannot altogether refuse to take the stand. Before he refuses to
answer, he must first wait for the incriminating question before he can refuse
[Bagadiong v. Gonzales 94 scra 906]
*NB: a witness admitted into the witness protection program cannot
refuse to testify or give evidence or produce books, documents, records or
writings necessary for the prosecution of the offense or offenses for which he has
been admitted on the ground of the RASI [Sec. 14 RA 6981]
*NB on IMMUNITY STATUTES (IS). Section 17 of the Bill of Rights
cannot be invoked anymore because of the grant of immunity in exchange for
one’s testimony; even if he may incriminate himself, no harm may fall upon
him anymore given his immunity. Two types of IS:
a. Transactional Immunity. Broader in scope in its protection: witness can no
longer be prosecuted for any crime whatsoever arising out of the act;
b. Use and Derivative-Use Immunity. Limited scope: witness is only
assured that his PARTICULAR testimony and the evidence derived from it will not be
used against him in a subsequent prosecution. But if there are other independent
evidences, they may be used against him.
*In [Mapa v. SB]: IS are not a bonanza from the government. Those given
the privilege pay the high price for it: the surrender of their previous right to be
silent.
- Should be given liberal interpretation in favor of the accused
- The government has the right to solve crimes but it must do it rightly.
2. Ordinary witness who is not an accused:
*GR: he cannot refuse to sit on the witness stand when ordered by the
court; Sec 1, Rule 71 (refusal to be sworn as a witness; and refusal to answer as a
witness). Otherwise, he will be charged of DIRECT CONTEMPT (if it’s in the
131
Q: X, the accused, was called by the prosecution as the first witness to testify for the government. X
refused to take the stand invoking his privilege against self- incrimination. On the other hand, the
prosecution contends that X may be compelled to take the witness stand and claim the privilege only as
each question, requiring an incriminatory answer is put to him. Can the court order X to testify?
Explain. (1996 Bar Question) Answer:
No, the court cannot order X to testify because he is the accused and he is exempt from being
compelled to be a witness against himself (Sec. 1-E of Rule 115; Cabal vs. Kapunan, 6 SCRA 1059; Chavez
vs. Court of Appeals 24 SCRA 663). ******If he were an ordinary witness, not an accused, he could be ordered to
testify and he could claim the privilege against self-incrimination only as each question requiring an
incriminatory answer is put to him. (Badiong vs. Gonzales, 94 SCRA 906)
presence of the court) or INDIRECT CONTEMPT (Sec 3: for refusal to obey a

subpoena duly-served).
- ***to invoke his RASI, he has to wait for the question first before
he says no; he cannot give a blanket refusal to answer all possible questions. But
when he is asked a question that will incriminate him, he can refuse.
*XPN: (he cannot refuse the subpoena for him to testify in court) unless he
lives more than 100 km away from the place of trial [VIATORY RIGHT of
witnesses: this applies only to civil cases, because in criminal cases, the accused has
the right to have compulsory process in his favor]
3. Note that RASI applies to TESTIMONIAL COMPULSION; hence an
accused can be required to give a sample of his hair, blood, etc.; or he can be asked
to wear clothes (to see if they fit; say gloves found in the crime scene; Bar 1994:
can he refuse to wear shorts? No, its not testimonial compulsion), or expel
morphine from his mouth: why? because they do not involve testimonial
compulsion.
*But he cannot be compelled to re-enact the crime: because it is almost
saying, “this is how I committed the crime”
*Villaflor case: can a pregnant woman refuse to undergo physical
examination for a crime of adultery, invoking her RASI? NO. This does not
involve RASI because if one is pregnant, the evidence is already there—there
is not testimonial compulsion involved.
*Samson vs. Beltran: accused of forgery; no other evidence except a sample
signature, hence, this is covered by RASI—because it is equivalent to
testimonial compulsion; writing one’s signature is not only a mechanical act—it
involves the use of the intellect. But if the signature is only confirmatory, it is
not part of RASI.
WHEN WITNESS MAY REFER TO MEMORANDUM [Sec 16]***

[] Section 16. When witness may refer to memorandum. — A witness may be
allowed to refresh132 his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was fresh in his
memory and knew that the same was correctly written or recorded; but in such
case the writing or record must be produced and may be inspected by the
132
[] BAR 1996: X states on direct examination that he once knew the facts being asked but he cannot
recall them now. When handed a written record of the facts he testifies that the facts are correctly
stated, but that he has never seen the writing before. Is the writing admissible as past recollection
recorded? Explain. (1996)
******No, because for the written record to be admissible as past recollection recorded, it
must have been written or recorded by X or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same
was correctly written or recorded. (Sec 16, Rule 132) But in this case, X has never seen the writing
before.
adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in
evidence. So, also, a witness may testify from such writing or record, though he
retain no recollection of the particular facts, if he is able to swear that the writing or
record correctly stated the transaction when made; but such evidence must be
received with caution.133
Sample problem: on direct exam of a police crime investigator, he was asked
about the characteristic of the pistol he found in the crime scene. He then took
a notebook and proceeded to read:
a. As defense counsel, would you object to the reading of the notebook?
Why? Yes. While it is true that a witness may refer to anything written or recorded by
himself or under his direction, such as the notebook in question, the same must
be produced and may be inspected by the adverse party. In the instant case,
there is no showing that as defense counsel, I was allowed to see a copy of
the said notebook. At any rate, the judge may decide to allow the said reading of the
notebook and give me the right to inspect the same and cross-examine the witness. In
either case, objecting to the same is a sign of diligence on my part to make sure that I
prevent unnecessary evidence against my client to prosper without objection.
b. During offer of exhibits, objection was made on “that piece of paper”
because it was an incompetent evidence; how would you rule on the objection? I
will overrule the objection. ******Objection to evidence offered orally must be
made immediately after the offer is made. It was not the piece of paper that
was offered in evidence but the oral testimony of the witness. Since the
objection was only raised during offer of exhibits, the same was not seasonably
made, hence, it won’t prosper.
————————————————————————————————
ORDER OF THE EXAMINATION
[] Section 4. Order in the examination of an individual witness. — The order in which

the individual witness may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
133
Sample problem: on direct exam of a police crime investigator, he was asked about the
characteristic of the pistol he found in the crime scene. He then took a notebook and proceeded
to read:
a. As defense counsel, would you object to the reading of the notebook? Why? Yes. While it is
true that a witness may refer to anything written or recorded by himself or under his direction, such as the
notebook in question, the same must be produced and may be inspected by the adverse party. In
the instant case, there is no showing that as defense counsel, I was allowed to see a copy of the
said notebook. At any rate, the judge may decide to allow the said reading of the notebook and give me the right to
inspect the same and cross-examine the witness. In either case, objecting to the same is a sign of diligence
on my part to make sure that I prevent unnecessary evidence against my client to prosper without
objection.
(c) Re-direct-examination by the proponent;

(d) Re-cross-examination by the opponent.
ON DIRECT EXAMINATION BY THE PROPONENT

[] Section 5. Direct examination. — Direct examination is the examination-in-
chief of a witness by the party presenting him on the facts relevant to the issue.
1. purpose: to ELICIT FACTS about the client's cause of action or defense. This
examination is now subject to the Judicial Affidavit Rule.134
2. RE: Death or absence of a witness
a. GR: the testimony of a witness, given on direct examination, should be
stricken where there is not an adequate opportunity for cross-examination, as
where the witness by reason of his death, illness, or absence cannot be subjected to
cross-examination. [People v. Seneris, August 6, 1980]
b. Exception:
i. There is GOOD EXCUSE: absence of a witness is not enough to
warrant striking his testimony for failure to appear for further cross-examination
where the witness has already been sufficiently cross-examined, or the
matter on which further cross-examination is sought is not in controversy. It has been
held that a referee has no power to strike the examination of a witness on his
failure to appear for cross-examination where a GOOD EXCUSE is given [ibid];
ii. Due to causes attributable to the cross-examining party, hence,
tantamount to a WAIVER: Waiver of the right to cross-examine: the witness
was not cross-examined because of causes attributable135 to the cross-
examining party and the witness had always made himself available for
cross-examination [De la Paz, v. IAC 1987]
134
*****A narrative testimony is usually objected to but the court may allow such testimony if: (2012
BAR)
a. it would expedite trial and give the court a clearer understanding of the matters
related;
b. thewitnessisofadvancedage;
c. the testimony relates to family genealogy;
d. thewitnessvolunteersinformationnotsoughtbytheexaminer.
Alternative Answer: b. the witness is of advanced age
135
Witness A was examined on direct examination by the prosecutor. The defense counsel however
employed dilatory tactics and was able to secure numerous postponements of A's cross examination. A
suffered a stroke and became incapacitated. His uncompleted testimony may therefore be: (2012 BAR)
a. ordered stricken from the record.
b. allowedtoremainintherecord.
c. held in abeyance until he recovers.
d. notbegivenanyprobativeweight.
Suggested Answer is (a). Alternative Answer (b) allowed to remain in the record. [TOM: You can argue
for (b) because the delay was due to causes attributable to the cross-examining party].
ON CROSS-EXAMINATION
[] Section 6. Cross-examination; its purpose and extent. — Upon the termination of the
direct examination, the witness may be cross-examined by the adverse party as to
a. any matters stated in the direct examination,
b. or connected therewith,
with sufficient fullness and freedom to test his
i. accuracy
ii. and truthfulness
iii. and freedom from interest or bias,
iv. or the reverse,
c. and to elicit all important facts bearing upon the issue.
1. Two purposes of cross-examination:
a. To bring out the facts favorable to counsel's client not established in the
direct testimony.
b. *****To enable counsel to impeach or to impair the credibility of the
witness.
2. Scope of the cross exam
a. GR on witnesses: the scope of the cross-examination is NOT
CONFINED to the matters stated by the witness in the direct examination.
This is because the rule allows questions designed to test the accuracy and
truthfulness of the witness, his freedom from interest or bias, or the reverse, and to elicit all
import facts bearing upon the issue.
****hence, as to bias, the adverse counsel can ask the witness of the
other party during cross-examination if he is related by consanguinity to the plaintiff,
even if the same was not the subject of the direct examination.
b. When witness is the accused or a hostile witness: but if the witness
has been declared a hostile witness by the court, the adverse party can ask him
leading questions but only on matters mentioned in his examination-in-chief (see Sec 12,
infra); the same limited scope of cross-examination is imposed upon the cross-
examiner where the witness examined is an accused because he is subject to
cross-examination on matters covered by the direct exam (Sec. 1[d] Rule 115)
RE-DIRECT EXAMINATION
[] Section 7. Re-direct examination; its purpose and extent. — After the cross-
examination of the witness has been concluded, he may be re-examined by the
party calling him, to explain or supplement his answers given during the cross-
examination. On re-direct-examination, questions on matters not dealt with during the
cross-examination, may be allowed by the court in its discretion.136
136
Bar 1997: A. Aside from asking a witness to explain and supplement his answer in the cross-
examination, can the proponent ask in re-direct examination questions on matters not dealt with
during cross-examination? *****Yes, on redirect examination, questions on matters not dealt with
during the cross-examination may be allowed by the court in its discretion. (Sec. 7 of Rule 132).
1. In re-direct examination, the counsel may elicit testimony to correct or repel

any wrong impression or inferences that may have been created in the cross-
examination.
2. It may also be an opportunity to rehabilitate a witness whose credibility has
been damaged.
RE-CROSS EXAMINATION
[] Section 8. Re-cross-examination. — Upon the conclusion of the re-direct
examination, the adverse party may re-cross-examine the witness on matters
stated in his re-direct examination, and also on such other matters137 as may
be allowed by the court in its discretion.
RECALLING WITNESS
[] Section 9. Recalling witness. — After the examination of a witness by both sides
has been concluded, the witness cannot be recalled without leave138 of the
court. The court will grant or withhold leave in its discretion, as the interests of
justice may require.
LEADING QUESTIONS
1. *****Leading questions are prohibited in direct139 exams, but it is a question
of choice in a cross exam.
a. Why not allowed? Because it is unfair—it is as if the lawyer is the one
testifying by suggesting the answer; it is a question that is framed in such a way
that the question indicates to the witness the answer desired. In direct and
re-direct, leading questions are inappropriate when the witness is asked to testify
about a major element of the cause of action or defense;
137
Bar 1997: B. Aside from asking the witness on matters stated in his re-direct examination, can the
opponent in his re-cross-examination ask questions on matters not dealt with during the re-direct?
*****Yes, the opponent in his re-cross-examination may also ask questions on such other matters
as may be allowed by the court in its discretion. (Sec. 8. Rule 132)
138
Bar 1997: C. After plaintiff has formally submitted his evidence, he realized that he had forgotten
to present what he considered an important evidence. Can he recall a witness? *****Yes, after
formally submitting his evidence, the plaintiff can recall a witness with leave of court. The court may
grant or withhold leave in its discretion as the interests of justice may require. (Sec. 9. Rule 132).
139
A. Delia sued Victor for personal injuries which she allegedly sustained when she was struck by a car
driven by Victor. May the court receive in evidence, over proper and timely objection by Delia, a
certified true copy of a judgment of acquittal in a criminal prosecution charging Victor with hit-and-run
driving in connection with Delia’s injuries? Why? (3%) *****If the judgment of acquittal in the
criminal case finds that the act or omission from which the civil liability may arise does not exist,
the court may receive it in evidence over the objection by Delia. [Rule 111, sec. 2, last paragraph].
B. Is this question on direct examination objectionable: “What happened on July 12, 1999”?
Why? (2%) SUGGESTED ANSWER: The question is objectionable because it has no basis, unless
before the question is asked the proper basis is laid.
b. In cross, a leading question is one of the types that should be employed

for such question enable the counsel to get the witness to agree with his client's version
of the facts (a “why” question is not usually recommended). In cross, a leading
question invites the witness to deliver an unwanted “lecture” in the
courtroom.
2. But you can sometimes ask a leading question (in a direct exam140) in the
following cases:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty in getting direct and intelligible answers from a
witness who is
i. ignorant,
ii. or a child of tender years; NB: ******for child witnesses Sec. 10 is
modified by Sec. 20 of RECW, where the court may allow leading question in all
stages of examination of a child under the condition that the same will further the interest of
justice.
iii. or is of feeble mind,
iv. or a deaf-mute;
(d) Of an unwilling or hostile141 witness; or
(e) Of a witness who is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a partnership or association which is
an adverse party. NB: because because this is equivalent to a cross exam.
MISLEADING QUESTION
[] A misleading question is one which assumes as true a fact not yet testified
to by the witness, or contrary to that which he has previously stated. *****It is
not allowed.
————————————————————————————————
ON IMPEACHING A WITNESS
IMPEACHING AN ADVERSE PARTY’S WITNESS [Sec 11, R132]

1. Re-wording of the 3 ways of impeaching a witness (explained individually,
infra):*****
a. by (offering) CONTRADICTORY evidence,
b. by evidence of his BAD GENERAL REPUTATION as to HIT: truth,
honestly, or integrity
c. by showing that he made a PRIOR INCONSISTENT STATEMENT
with what he said in court, i.e, he made CONTRADICTORY statements.
140
*****NB: Normally, you object to a leading question, especially when the judge does not stop it.
***NB: he is supposed to be your witness but he made a sudden turn around; but it is the court which will
141
declare him a hostile witness first—not the lawyer—then he you can ask him leading questions.
2. Backgrounder: To impeach a witness means destroying the credibility of a

witness (that’s also the purpose).
a. Why? Because the witness is a messenger of facts—if he is tainted, it
is probable that the message is also tainted. Destroying credibility is vital
because it is linked to the ability and willingness to tell the truth.
b. WON his message will be believed depends a lot on his credibility.
c. It is basically a technique employed usually as part of the cross-
examination to discredit a witness by attacking his credibility.
*The one who impeaches the witness is called an impeaching witness.
3. Sample problem: *****During cross exam of adverse party’s witness, he was
asked if he was convicted of false testimony. He said yes but it is on appeal.
Upon objection, it was disallowed since the conviction is not yet final.
a. How can you restore in the record the same Q&A? I can impeach him
by the particular wrongful act of his conviction of false testimony under the
rules on impeaching the adverse party’s witness. Since I have done it through
Q&A, such method is allowed by the court as I examined the witness himself
who had the prior conviction, not another witness. If the same is still excluded, I
can make a tender of excluded evidence at the end of the trial.
b. What if a witness was asked about the reputation of the accused and the
witness for the prosecution said: he is reputed to be a very quarrelsome person.
What will you do? I will object because *****evidence as to his bad general
reputation is limited to three matters: truth, honesty and integrity. As to his
being quarrelsome, it is not covered by any of the three and so it should be
excluded.
EXPLANATION OF THE 3 WAYS OF IMPEACHING A WITNESS

1. Impeachment by (offering) CONTRADICTORY evidence,
a. In short: if someone says it’s black, show evidence it’s white.
b. Basic Rule: observe Fairness
i. fairness demands that the impeaching matter be raised in the
cross-examination of the witness ought to be impeached by allowing him to
admit or deny a matter to be used as the basis for impeachment by contradictory
evidence;
ii. Normally the basis of the impeachment is the direct testimony.
The intention of the cross-examiner is to show that there were allegations
made that do not correspond to the real facts of the case;
iii. This may also be used to contradict conclusions made by expert
witnesses during their testimonies (by calling another expert to testify to a
contrary conclusion).
2. Impeachment by evidence (of his BAD GENERAL REPUTATION as to HIT)

that his general reputation for truth, honestly, or integrity is bad.
a. this refers not to his general character because a person’s character

is generally not relevant; as a rule, CHARACTER EVIDENCE IS
INADMISSIBLE; Sec. 11 does not allow impeachment by evidence of bad
character*****
i. character: what one really is; made up of the things that an
individual actually is and does;
ii. reputation: an impression of the community; what people think
an individual is and what they say about him; but reputation as to being irritable,
aggressive, quarrelsome, violent, etc. do not count—it should be reputation for
HIT: honesty, integrity or truth. You cannot just be asked about the person’s
reputation—you have to show you really know him. And so ask: what is his
reputation as to honesty?
b. when a witness testifies, he puts his credibility at issue because the
weight of his testimony depends upon his credibility; Evidence of bad
reputation for the purpose of impeachment should refer only to HIT: honesty,
integrity or truth.142
c. On Evidence of the good character of a witness.
[] Section 14. Evidence of good character of witness. — Evidence of the
good character of a witness is not admissible until such character has been
impeached.
*Before you praise your witness, he should have been impeached
first—it is your way of gaining back his reputation. But you have to wait before he
is destroyed before your build him up.
*The party calling a witness cannot initiate proof of his good
character (can be properly objected as ***“improper character evidence”). This
is because he is presumed to be truthful and of good character. It is only after
his character has been attacked can he prove his being good.
*This rule refers to a mere witness, NOT to an accused in a
criminal case. In a criminal case, the accused may prove his good moral
142
BAR 2017: Q: In an attempt to discredit and impeach a Prosecution witness in a homicide case, the
defense counsel called to the stand a person who had been the boyhood friend and next-door neighbor
of the Prosecution witness for 30 years. One question that the defense counsel asked of the impeaching
witness was: "Can you tell this Honorable Court about the general reputation of the prosecution witness in your
community for aggressiveness and violent tendencies?" Would you, as the trial prosecutor, interpose your
objection to the question of the defense counsel? Explain your answer. SUGGESTED ANSWER:
Yes, I as the trial prosecutor, would interpose my objection to defense counsel’s question on the
ground of improper impeachment. Under the Law on Evidence, an adverse party’s witness may be
properly impeached by reputation evidence provided that it is to the effect that the witness’s general
reputation for honesty, truth, or integrity was bad. [S11 R132] The reputation must only be on
character for truthfulness or untruthfulness. [Cordial v. People, 166 SCRA 17] Here the evidence is
not on the Prosecution witness’s general reputation for honesty, truth, or integrity but on his
aggressive and violent tendencies. The evidence had nothing to do with the witness’s character
for truthfulness or untruthfulness. Hence the impeachment was improper. (Jurist Review Center, Inc.)
character relevant to the offense charged even before his character is attacked (Sec. 51
Rule 130). However, the prosecution cannot initiate proof of the bad
character of the accused. It can only do so by way of rebuttal (Ibid.)
3. Impeachment by PRIOR INCONSISTENT STATEMENTS [Rule 13]—by

(showing he made a statement before that is inconsistent with what he said in
court;
a. there is a PRIOR INCONSISTENT STATEMENT with what he said in
court;
b. (he made CONTRADICTORY statements) evidence that he has made at
other times statements inconsistent with his present testimony, but not by
evidence of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has been
convicted of an offense.
*These refer to the statements made by a witness on an earlier
occasion which contradict the statements he makes during the trial.
c. Before you impeach him by prior inconsistent statements, you have to lay
the predicate (foundation).
LAYING THE PREDICATE ON PRIOR INCONSISTENT

STATEMENTS
1. ******Before you impeach a witness by prior inconsistent statements, you have
to LAY THE PREDICATE under Section 13.143 He has to be given a chance
to explain as part of due process.
2. The purpose of laying the predicate is to allow the witness to admit or deny
the prior statement and afford him an opportunity to explain the same.
3. Section 13, Rule 132 is about LAYING THE PREDICATE (not laying the
basis as it is in Best Evidence Rule before presenting secondary evidence); laying
the predicate is a jurisprudential term compared to laying the basis, but both are
laying the foundation.
Laying the predicate – refers to the foundation for the impeachment. This is
a preliminary requirement before the impeachment prospers. Elements of the
foundation:*****
a. the alleged statements must be related to the witness including the
circumstances of the times and places and the persons present.
b. If the statements are in writing they must be shown to him;
143
Q: In the examination of witnesses, what is meant by “laying the predicate"? (1996 Bar Question)
Answer: ******“Laying the predicate" is the procedure of impeaching a witness by evidence of prior
inconsistent statements. Before such a witness can be impeached, the prior statements must be
related to him, with the circumstances of the times and places and the persons present, and he
must be asked whether he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to him before any question is put to him concerning
them. (Sec. 13 of Rule 132)
c. he must be asked whether he made such statements and also to

explain them if he admits making those statements. ****The mere presentation
of the prior declarations of a witness without the same having been read to the
witness while he was testifying in court is insufficient for the desired
impeachment of his testimony [People v. De Guzman, March 30, 1998]. It is
insufficient if he was not given the ample opportunity to explain the
supposed discrepancy. This rule is founded not only upon common sense, but is
essential to protect the character of the witness.
ON PARTICULAR WRONGFUL ACTS [Sec 11, R132]

1. A witness may not be impeached by evidence of PARTICULAR
WRONGFUL ACTS. There is only one particular wrongful act which could be
used in impeaching you if there is ALREADY A CONVICTION. This
particularly wrongful act can be elicited*****
a. from a Q&A
b. or from records of the case. (how to say it: objection, your honour; or
move to strike out, your honour!)
2. Summary of the rule*****
*GR a witness may not be impeached by evidence of particular
wrongful acts.
*XPN: Prior conviction of an offense shown:
i. by his examination: examining another witness to elicit from his
lips the prior conviction of another witness is NOT the correct proceeding. The
rule is clear that it should be by examination of the witness, the one whose prior
conviction is the subject of the inquiry (Q&A)
ii. by presenting the record of his prior conviction. (records)
PARTY MAY NOT IMPEACH HIS OWN WITNESS [Rule 132, Sec 12]
1. GR: a party producing the witness is barred from impeaching his own
witness (Sec. 12)
2. Exceptions:
a. Unwilling or hostile witness: the determination of unwillingness or
hostility is a matter of judicial evaluation and the declaration shall be made only
i. if the court is satisfied that the witness possesses an interest
adverse to the party calling him
ii. or there is adequate showing that the reluctance of the witness is
unjustified,
iii. or that he misled the party into calling him as witness (Sec. 12).
b. A witness who is an adverse party or an officer, director, or managing agent of
a public or private corporation or of a partnership or association which is an
adverse party.
*Impeachment of the adverse party as a witness: that the witness is
the adverse party does not necessarily mean that the calling party will not be
bound by the former's testimony. The fact remains that it was at his instance
that his adversary was put on the witness stand. Unlike an ordinary witness, the
calling party may impeach an adverse witness in all respects as if he had been
called by the adverse party, except by evidence of his bad character. Under a
rule permitting the impeachment of an adverse witness, although the calling party
does not vouch for the witness' veracity, he is nonetheless bound by his
testimony if it is not contradicted or remains unrebutted [Gaw v. Chua, April
18, 2008]
————————————————————————————————
X. Burden of Proof [Rule 131]
PROOF vs. EVIDENCE 121

BURDEN OF PROOF vs. BURDEN OF EVIDENCE 121
EQUIPOISE DOCTRINE 121
FACTUM PROBANS vs. FACTUM PROBANDUM 122
FALSUS IN UNO vs. FALSUS IN OMNIBUS 123
————————————————————————————————
Rule 131, Section 1. — Burden of proof is the DUTY of a party to present

evidence on the facts in issue necessary to establish his claim or defense by
the amount of evidence required by law.
PROOF vs. EVIDENCE

1. Proof: the mere probative effect (RESULT) of an evidence; there can be proof
only because there is evidence; Proof is the EFFECT of evidence—if there is evidence,
there is proof
******You don’t say, “I want you to evidence it”; you say, “I want you to
prove it”. Inasmuch as you do not say, “What is your proof?”; you say, “What is
your evidence?”
2. Evidence: (MEDIUM of PROOF) the means of having a fact proved or
disproved. As defined in the rules, Evidence is
a. the means,
b. sanctioned by these rules,
c. of ascertaining (the TRUTH)
d. in a judicial proceeding
e. the truth respecting a matter of fact.
BURDEN OF PROOF vs.144 BURDEN OF EVIDENCE

1. ******Burden of proof (BOP) is the duty of a party to present evidence on the
facts in issue necessary to ESTABLISH HIS CLAIM OR DEFENSE by the
amount of evidence required by law. (Sec. 1 of Rule 131); aka ONUS
PROBANDI; refers to the obligation of a party to a litigation to persuade the
court that he is entitled to relief; it lies with the party who asserts his/her right,
144
Burden of proof and burden of evidence. (2004 Bar Question) SUGGESTED ANSWER:
Burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence required by law. (Sec. 1 of Rule 131),
while burden of evidence is the duty of a party to go forward with the evidence to overthrow
primafacie evidence established against him. (See Bautista v. Sarmiento, 138 SCRA 587 [1985]).
alleges the existence of a fact or thing necessary in the prosecution or defense of

an action, establishes a claim or a defense [cf. Sec 1, Rule 131]
*BOP IS FIXED; BOP is fixed by the pleadings;
a. the burden to prove the claim is on the plaintiff; the claim of the
plaintiff is spelled out in his Complaint
b. the burden to prove the defense is on the defendant; while the
defenses of the defendant is found in his Answer to the complaint.
*Tests for determining where BoP lies
a. to ask which party to an action or suit will fail if he offers no evidence
competent to show the facts averred as the basis for the relief he seeks to obtain
b. it lies with the party who wants to establish a legal right in his favor
or with the party who makes the allegations
*BOP in a civil case is the burden of a PARTY to prove his claim
(plaintiff) or defense (defendant); hence it is a duty of a party, not of the
plantiff/defendant.
*In a criminal case, BOP the guilt of the accused: quantum of proof
required: BRD (moral certainty)
2. Burden of evidence (BOE) is the duty of a party to go forward with the
evidence to OVERTHROW prima facie EVIDENCE ESTABLISHED
AGAINST HIM. [Bautista vs. Sarmiento 1985]; it comes about DURING THE
TRIAL—the act of coming forward with an evidence to disprove the evidence of
the other
*BOE IS NOT FIXED: it depends on the progress of the trial; BOE
may shift from one side to the other as the exigencies of the trial require, and
shifts with alternating frequency
3. Distinctions****
a. BOP is fixed; BOE changes from time to time according to the
evidentiary situations. If plaintiff during course of trial presented convincing
evidence, defendant has BOE to rebut the evidence; if otherwise, plaintiff has
obligation to rebut the evidence.
EQUIPOISE DOCTRINE
1. ******Equipoise is the equivalent of EQUIPONDERANCE of evidence.
When the scale shall stand upon an equipoise (balance of interests) and there is
nothing in the evidence which shall incline it to one side or the other, the court will find for
the defendant. (Moran, Vol. 6, p. 134)145
145
(1995 Bar Question) Answer: Equipoise is the equivalent of equiponderance of evidence. When the
scale shall stand upon an equipoise and there is nothing in the evidence which shall incline it to one
side or the other, the court will find for the defendant. (Moran, Vol. 6, p. 134)
The Constitution provides that no person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal protection of the law. (Sec.
1, Art. III).
a. refers to a situation where the evidence of the parties is EVENLY

BALANCED, or there is doubt on which side the evidence preponderates (or
weighs more heavily); in such a case, the decision should be against the party
with the burden of proof (Rivera vs. CA)
b. in criminal cases, the rule provides that where the evidence is evenly
balanced, the constitutional presumption of innocence TILTS THE SCALES
IN FAVOR OF THE ACCUSED
2. The rule is not applicable where the evidence presented is not equally weighty,
such as where the evidence of the prosecution is overwhelming (Malana vs.
People)
3. Constitutional basis: The Constitution provides that no person shall be
deprived of life, liberty or property without DUE PROCESS of law, nor shall
any person be denied the EQUAL PROTECTION of the law. (Sec. 1, Art. III).
In a criminal case its constitutional basis is the PRESUMPTION OF
INNOCENCE and the REQUIREMENT OF PROOF BEYOND REASONABLE
DOUBT FOR CONVICTION.
4. Procedural basis: Sec 1, Rule 131 on burden of proof: Burden of proof is the
duty of a party to present evidence on the facts in issue necessary to establish
his claim or defense by the, amount of evidence required by law.
FACTUM PROBANS vs. FACTUM PROBANDUM

1. ******Factum probans: (the evidence) refers to the material/FACTS
EVIDENCING the fact to be established; refers to the probative or
evidentiary FACT TENDING TO PROVE the fact in issue; in short, it refers
to the EVIDENCE to be used to prove the fact in issue.; it is the fact/material
EVIDENCING the fact/proposition to be established or the
PROBATIVE/EVIDENTIARY FACT TENDING TO PROVE the fact in
issue.
2. Factum probandum: (what you are supposed to prove, i.e., the ELEMENTS
of the cause of action); refers to the FACT TO BE PROVEN, or the
fact/proposition to be established; in other words, it refers to the cause of
oction (coa)—the matters to be proved. (EG: collection for sum of money: prove
the debt, its maturity, demand, non payment); the fact/proposition TO BE
ESTABLISHED or the fact TO BE PROVED
a. in civil cases it refers to the elements of either the cause of action or the defense
b. in criminal cases it refers to to all matters w/c the prosecution must prove beyond
reasonable doubt
3. Illustration for both: If PP claims to have been injured by the negligence of DD,
who denies having been negligent, the negligence of DD and the causal
In a criminal case its constitutional basis is the presumption of innocence and the
requirement of proof beyond reasonable doubt for conviction.
connection between such negligence, and the injuries of DP taken as a whole

constitute the Factum Probandum (the cause of action); the evidence offered by
PP, whether it be object, documentary or testimonial, constitute the materials to
prove the liability of DD. The totality of the evidence to prove the liability refers
to the Factum Probans.
MORE ON FACTUM PROBANDUM

1. The following do not qualify as factum probandum because they need not
be established or proven:****
a. matters of judicial notice;
b. conclusive presumptions;
c. judicial admissions; if the defendant admits his negligence in his answer
to the complaint, there is no more need to prove negligence. Hence, negligence
ceases to be a factum probandum in this case.
****Note that mere filing of a complaint does not create FP—one has
to wait for the Answer. If defendant denies all the allegations, there is FP; if he
admits all, there is no FP—there is nothing more to prove, hence, there could be
Judgment on the Pleadings.
*From CrimPro, wait for the arraignment. See number 3, infra.
2. How will factum probandum arise in an action for damages based on
contractual breach?
a. In a criminal proceeding – when defendant pleads not guilty
*****Mere filing of an Information does not create a factum
probandum. One has to wait for an Answer or make a plea of Non-Guilty. For
pleas of guilt, there is no more factum probandum for non-capital offenses, but
there is still a factum probandum for capital offenses.
b. In a civil proceeding – through specific denial but it’s based on an
actionable document (it has to be done under oath).
3. When factum probandum still arises in a criminal proceeding even when the
accused pleads guilty:
a. For non-capital offenses: there is no more factum probandum. However,
there is still a need to present evidence to determine the penalty to be imposed
(r116s4) [] Rule 116 Section 4. Plea of guilty to non-capital offense; reception of
evidence, discretionary. — When the accused pleads guilty to a non-capital
offense, the court may receive evidence from the parties to determine the
penalty to be imposed.
b. But in capital offenses, there is still factum probandum. The Rules require
the judge, even if there is an admission of guilt, to conduct a searching inquiry
and require the prosecution to prove his guilty and degree of culpability: [] Rule
116, Section 3. Plea of guilty to capital offense; reception of evidence. — When
the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to prove his guilt and the
precise degree of culpability. The accused may present evidence in his behalf.
FALSUS IN UNO vs. FALSUS IN OMNIBUS

1. Latin for: “false in one thing, false in everything” (if you lie in one, you lie in all);
the doctrine means that if the testimony of a witness on a material issue is willfully
false and given with intention to deceive, the jury may disregard all the
witness' testimony
2. This is NOT a rule of evidence—it is only used by the court for the purpose
of assessing credibility; because it does not mean that if you lie in one, you lie in
all; hence, it is only used to assess credibility.
3. It is not an absolute rule of law and is, in fact, rarely applied in modern
jurisprudence (People vs. Batin)
4. Interpretation is not strict: while the witnesses may differ in their recollections
of an incident, it does not necessarily follow from their disagreements that all of
them should be disbelieved as liars and their testimonies completely discarded. It is
not a positive rule of law. The witness must have a conscious and deliberate
intention to falsify a material point.
XI. Presumptions [Rule 131]
PRELIMINARIES ON PRESUMPTIONS 126

ON CONCLUSIVE PRESUMPTIONS 126
ON DISPUTABLE PRESUMPTIONS 126
————————————————————————————————
PRELIMINARIES ON PRESUMPTIONS
1. Concept of Presumptions
a. a presumption is an assumption of fact (but note that usually when you
PRESUME, you have a legal basis; use ASSUME, when you merely infer)
resulting from a rule of law which requires such fact to be assumed from another
fact or group of facts found or otherwise established in the action; it is an
inference of the existence or non-existence of a fact which the courts are
permitted to draw from the proof of other facts.
b. presumptions are not evidence; they merely affect the burden of
offering evidence.
2. Inference vs. Presumption
a. an inference is a factual conclusion which can rationally be drawn
from other facts—a result of the reasoning process; it need not have a legal
effect because it is not mandated by law;
b. on the other hand, a presumption is a rule of law directing that if a
party proves certain facts (the basic facts) at a trial or hearing, the factfinder must
also accept an additional fact (the presumed fact) as proven unless
sufficient evidence is introduced tending to rebut the presumed fact; in a
sense, it is an inference which is mandatory unless rebutted
3. Kinds of Presumptions
a. Presumptions of law or presumption juris - an assumption which the
law requires to be made from a certain set of facts; may be either:
a) conclusive (presumptions juris et de jure) or
b) disputable (presumptions juris tantum)
b. Presumptions of fact or presumption hominis - when the assumption
is made from the facts without any direction or positive requirement of law;
actually a mere inference;
ON CONCLUSIVE PRESUMPTIONS
1. Conclusive Presumptions: when the presumptions become irrebuttable upon
the presentation of the evidence and any evidence tending to rebut the
presumption is not admissible; they are inferences which the law makes so
peremptory that it will not allow them to be overturned by any contrary proof
however strong (Datalift Movers, Inc. vs. Belgravia Realty); such presumption
rests upon ***ground of expediency or public policy so compelling in character
as to override the requirement of proof;
2. Conclusive presumptions under the Rules are ***based on the doctrine of
estoppel; also the basis of partnership and corporation by estoppel.
3. Estoppel: an equitable presumption rooted upon natural justice, prevents
persons from going back on their own acts and representations, to the
prejudice of others who have relied on them; the essential elements of estoppel
in pais/estoppel by conduct may be considered in relation to the party invoking
estoppel in his favor in relation to the party to be estopped:
a) conduct amounting to false representation/concealment of material facts
b) intent, or at least, expectation, that this conduct shall be acted upon by, or
at least influence, the other party
c) knowledge, actual or constructive, of the real facts
*in relation to the party claiming the estoppel:

a) lack of knowledge and of the means of knowledge of truth as to the facts
in question
b) reliance, in good faith, upon the conduct or statements of the party to be
estopped
c) action or inaction based thereon of such character as to change the
position or status of the party claiming the estoppel, to his injury, detriment or
prejudice
THE TWO CONCLUSIVE PRESUMPTIONS ARE [Rule 131, Sec 2]

(a) Whenever a party has, by his own declaration, act, or omission, intentionally
and deliberately led another to believe a particular thing true, and to act upon
such belief, he cannot, in any litigation arising out of such declaration, act or
omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of
commencement of the relation of landlord and tenant between them.146 NB: as
long as the lessor-lessee relationship between the parties exists, the lessee
cannot, by any proof, however strong, overturn the conclusive presumption that
the lessor has valid title to or better right of possession to the subject leased
premises than it has.147
146
Under the Rules on Evidence, the following is a conclusive presumption and therefore cannot be
contradicted by evidence. (2012 BAR)
a. Apersonintendstheordinaryconsequencesofhisvoluntaryact.
b. Officialdutyhasbeenregularlyperformed.
c. A tenant cannot deny his landlord's title during the tenancy period.
d. Awritingistrulydated.
147
In his appellee's brief, defendant-lessee not only controverted the issue on rentals raised by
plaintiff-lessor but also assailed the judgment of the trial court on the ground that the same was totally
ON DISPUTABLE PRESUMPTIONS
1. Disputable Presumptions: a presumption is disputable or rebuttable if it may be
contradicted or overcome by other evidence; when evidence that rebuts the
presumption is introduced, the force of the presumption disappears
2. Notes on the relevant presumptions under Rule 131, Sec 3:

a. On letter (m): *****presumption that official duty has been regularly
performed does not apply in a petition for a writ of amparo; constitutional
presumption of innocence is enjoyed by the accused until final conviction and in
this regard, the prosecution's case must rise and fall on its own merits and cannot
draw strength from the weakness of the defense.
b. On letter (e) ****presumption that evidence willfully suppressed would
be adverse if produced does not apply if,
i. the evidence is at the disposal of both parties,
ii. the suppression was not willful,
iii. it is merely corroborative or cumulative,
iv. the suppression is an exercise of a privilege
THE DISPUTABLE PRESUMPTIONS

Disputable presumptions. Section 3. — The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
***
(i) That prior rents or installments had been paid when a receipt for
the later one is produced;
(j) That a person found in possession of a thing taken in the doing of a
recent wrongful act is the taker and the doer of the whole act; otherwise, that
contrary to the admitted evidence showing him to be the owner of the property entitled to possession
of the premises. Can the appellate court consider the issue of ownership raised by the appellee?
*****No, because a lessee he is estopped from raising the question of ownership. (Art. 1456,
Civil Code; Sec. 2(b), Rule 131; Fije vs. CA, 233 SCRA 587). [] Art. 1456. If property is acquired
through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied
trust for the benefit of the person from whom the property comes. (TOM: does not seem to be related
to the problem!)
things which a person possess, or exercises acts of ownership over, are owned by
him;
(k) That a person in possession of an order on himself for the payment of
the money, or the delivery of anything, has paid the money or delivered the thing
accordingly;
***
(l) That a person acting in a public office was regularly appointed or
elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or
elsewhere, was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court
and passed upon by it; and in like manner that all matters within an issue raised in a
dispute submitted for arbitration were laid before the arbitrators and passed upon
by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
***
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient

consideration;
(t) That an endorsement of negotiable instrument was made before the
instrument was overdue and at the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the
mail;
(w) That after an absence of seven years, it being unknown whether or not the
absentee still lives, he is considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.
The following shall be considered dead for all purposes including the
division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft
with is missing, who has not been heard of for four years since the loss of the vessel or
aircraft;
(2) A member of the armed forces who has taken part in armed hostilities,
and has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and whose existence has not been known for four years;
(4) If a married person has been absent for four consecutive years, the
spouse present may contract a subsequent marriage if he or she has well-founded belief
that the absent spouse is already death. In case of disappearance, where there is a danger of
death the circumstances hereinabove provided, an absence of only two years shall be
sufficient for the purpose of contracting a subsequent marriage. However, in any case,
before marrying again, the spouse present must institute a summary proceedings as
provided in the Family Code and in the rules for declaration of presumptive death of
the absentee, without prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in was
conformable to the law or fact;
(y) That things have happened according to the ordinary course of nature
and the ordinary habits of life;
(z) That persons acting as copartners have entered into a contract of copartnership;
(aa) That a man and woman deporting themselves as husband and wife have
entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to
marry each other and who live exclusively with each other as husband and wife without
the benefit of marriage or under void marriage, has been obtained by their joint
efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not
capacitated to marry each other and who have acquired property through their actual joint
contribution of money, property or industry, such contributions and their
corresponding shares including joint deposits of money and evidences of credit
are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage
within three hundred days after such termination of the former marriage, these rules
shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have been conceived
during the former marriage, provided it be born within the three hundred days after the
termination of the former marriage.
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have been conceived during such
marriage, even though it be born within the three hundred days after the
termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of
that nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published
by public authority, was so printed or published;
(hh) That a printed or published book, purporting contain reports of cases
adjudged in tribunals of the country where the book is published, contains correct
reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property
to a particular person has actually conveyed it to him when such presumption is
necessary to perfect the title of such person or his successor in interest;
(jj) That except for purposes of succession, when two persons perish in the
same calamity, such as wreck, battle, or conflagration, and it is not shown who died first,
and there are no particular circumstances from which it can be inferred, the survivorship is
determined from the probabilities resulting from the strength and the age of the sexes,
according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have
survived;
2. If both were above the age sixty, the younger is deemed to have
survived;
3. If one is under fifteen and the other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the
male is deemed to have survived, if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those
ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are called
to succeed each other, as to which of them died first, whoever alleges the death of one
prior to the other, shall prove the same; in the absence of proof, they shall be
considered to have died at the same time.
————————————————————————————————
D. No presumption of legitimacy or illegitimacy. Section 4. — There is no presumption

of legitimacy or illegitimacy of a child born after three hundred days following the
dissolution of the marriage or the separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must prove his allegation.
XII. Offer and Objection [Rule 132]
OFFER OF EVIDENCE 132

WHEN TO MAKE AN OFFER 132
WHEN TO MAKE AN OBJECTION 133
IMPORTANCE OF MAKING OBJECTIONS 135
TENDER OF EXCLUDED EVIDENCE 136
————————————————————————————————
COVERAGE OF OFFER148 AND OBJECTION

1. Offer of evidence
2. When to make an offer
3. Objection
4. Tender of excluded evidence
OFFER OF EVIDENCE
1. Offer is made at the end with respect to objects and documents. Make a
formal offer. When there are no more witnesses to present, then present evidence.
2. How to say it? Exhibit A is a Deed of Sale between XX & YY, the purpose is
this or that, the nature is this…
148
One of the exemptions to the *****general rule that evidence not formally offered shall not be
considered is: (2012 BAR)
a. in judgment on the pleadings.
b. evidenceinlandregistrationproceedings.
c. evidence lost/destroyed due to force majeure after being marked, identified and described in
the record.
d. documentaryevidenceprovingaforeignjudgment.
Alternative Answer: b. evidence in land registration proceedings
[] Q: During the pre-trial of a civil case, the parties their [sic] respective documentary evidence.
Among the documents marked by the plaintiff was the Deed of Absolute Sale of the property in
litigation (marked as Exh. “C"). In the course of the trial on the merits, Exh. “C" was identified by
the plaintiff, who was cross-examined thereon by the defendant’s counsel; furthermore, the
contents of Exh. “C" were read into the records by the plaintiff. However, Exh. “C" was not
among those formally offered in evidence by the plaintiff. May the trial court consider Exh. “C"
in the determination of the action? Why? (1993 Bar Question) Answer:
******Yes, because not only was the Deed of Absolute Sale marked by the plaintiff as Exh.
“C" during the pre-trial, it was identified by the plaintiff in the course of the trial and the plaintiff
was cross-examined thereon by the defendant’s counsel. Furthermore, the contents of Exh. “C" were
read into the records by the plaintiff. Hence, the trial court could properly reconsider Exh. “C” In
the determination of the action even though it was not formally offered in evidence. *****This is an
exception to the rule that the court shall consider no evidence which has not been formally
offered (Sec. 35 of Rule 132). (See People vs. Napata, 179 SCRA 403; Tabuena vs. Court of Appeals,
196 SCRA 650.)
3. Offer could be in writing; although it’s better if oral, so the other party cannot
prepare (to object).
4. When directed by the judge, a clerk of court can receive evidence addressed by
the parties in cases where the parties agree in writing.149
5. *****Conditional admittance of evidence is possible.150
6. Effect of failure to make an offer of evidence: *****While the court may not
consider evidence which is not offered, the failure to make a formal offer of
evidence is a technical lapse in procedure that may not be allowed to defeat
substantive justice.151
WHEN TO MAKE AN OFFER

1. *****Note that offer does not happen when you ask that evidence be identified
as “Exhibit A”: that is not an offer—it is a mere identification. An offer is made
at the end.
149
When directed by the judge, a clerk of court can receive evidence addressed by the parties in: (2012
BAR)
a. casewherethejudgeisonleave.
b. smallclaimsproceedings.
c. cases where the parties agree in writing.
d. landregistrationproceedings.
150
During trial, plaintiff offered evidence that appeared irrelevant at that time but he said he was
eventually going to relate to the issue in the case by some future evidence. The defendant
objected. Should the trial court reject the evidence in question on ground of irrelevance? (2011 BAR)
(A) No, it should reserve its ruling until the relevance is shown.
(B) Yes, since the plaintiff could anyway subsequently present the evidence anew.
(C) Yes, since irrelevant evidence is not admissible.
(D) No, it should admit it conditionally until its relevance is shown.
151
Q: G files a complaint for recovery of possession and damages against F. In the course of the
trial, G marked his evidence but his counsel failed to file a formal offer of evidence. F then
presented in evidence tax declarations in the name of his father to establish that his father is a
co-owner of the property. The court ruled in favor of F, saying that G failed to prove sole
ownership of the property in the face of F’s evidence. Was the court correct? Explain briefly.
(5%)(2007 Bar Question)
SUGGESTED ANSWER: No, the trial court is not correct in ruling in favor of F. Tax
Declarations are not by themselves evidence of ownership; hence, they are not sufficient
evidence to warrant a judgment that F’s father is a co-owner of the property. *****Plaintiffs failure to
make a formal offer of his evidence may mean a failure to prove the allegations in his complaint.
However, it does not necessarily result in a judgment awarding co-ownership to the defendant.
While the court may not consider evidence which is not offered, the failure to make a formal offer of
evidence is a technical lapse in procedure that may not be allowed to defeat substantive justice.
In the interest of justice, the court can require G to offer his evidence and specify the purpose thereof.
2. A trial court cannot take into consideration in deciding a case an evidence that
has not been “formally offered”. ******When are the following pieces of
evidence formally offered? (1994, 1997152)153
a) Testimonial evidence: at the time the witness is called to testify;154
b) Documentary & object evidence: after the presentation of a party's
testimonial evidence; may done orally or if allowed by the court, in writing.
3. As to reception of evidence, take note of the following:155
a. Under the Rules of Court: Reception of evidence is not required before
the court can render a judgment when the defendant is declared in default,156
although the court can require the claimant to submit evidence;
152
A trial court cannot take into consideration in deciding a case an evidence that has not been
‘'formally offered". When are the following pieces of evidence formally offered? (1997 Bar Question):
answer, supra.
153
Section 35. When to make offer. — As regards the testimony of a witness, the offer must be made at
the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless allowed by the court to be done in writing.
154
Q: What is the difference between an offer of testimonial evidence and an offer of documentary
evidence? (1994 Bar Question) Answer:
*****An offer of testimonial evidence is made at the time the witness is called to testify,
while an offer of documentary evidence is made after the presentation of a party's testimonial
evidence. (Sec. 35. Rule 132.)
155
Defendant was declared in default by the Regional Trial Court (KTC). Plaintiff was allowed to
present evidence in support of his complaint. Photocopies of official receipts and original copies of
affidavits were presented in court, identified by plaintiff on the witness stand and marked as exhibits.
Said documents were offered by plaintiff and admitted in evidence by the court on the basis of which
the RTC rendered judgment in favor of the plaintiff, pursuant to the relief prayed for. Upon receipt of
the judgment, defendant appeals to the Court of Appeals claiming that the judgment is not valid
because the RTC based its judgment on mere photocopies and affidavits of persons not presented in
court.
a) Is the claim of defendant valid? Explain. (3%): ******The claim of defendant is not valid
because under the 1997 Rules, reception of evidence is not required for the court to render
judgment, although the court may require the claimant to submit evidence (cf. Sec 3, Rule 9, infra).
b) Will your answer be the same if the photocopies of official receipts and photocopies of
affidavits were attached to the position paper submitted by plaintiff in an action for unlawful
detainer filed with the Municipal Trial Court on which basis the court rendered Judgment in favor of
plaintiff? Explain. (2%) (2000 Bar Question): ******The claim of defendant is valid, because
although summary procedure requires merely the submission of position papers, the evidence
submitted with the position paper must be admissible in evidence. (Sec. 9 of the Revised Rule on
Summary Procedure). Photocopies of official receipts and affidavits are not admissible without
proof of loss of the originals. (Sec. 3 of Rule 130)
156
[] Rule 9, Section 3. Default; declaration of. — If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party,
and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed
to render judgment granting the claimant such relief as his pleading may warrant, unless the court
in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to
the clerk of court.
b. Under the Rules on Summary Procedure: although summary procedure

merely requires the submission of position papers, the evidence submitted
with the position paper must be admissible in evidence. (Sec. 9 of the Revised
Rule on Summary Procedure). Photocopies of official receipts and affidavits are
not admissible without proof of loss of the originals. (Sec. 3 of Rule 130)
WHEN TO MAKE AN OBJECTION157

******
1. When offered orally: immediately158 after the offer is made.159
2. On a question propounded in the course of the oral examination of a
157
[] Section 36. Objection. — Objection to evidence offered orally must be made immediately after
the offer is made.
Objection to a question propounded in the course of the oral examination of a witness
shall be made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the
unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.
158
Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed
of his constitutional rights. During the investigation, Edmond refused to give any statement. However,
the arresting officer asked Edmond to acknowledge in writing that six (6) sachets of “shabu” were
confiscated from him. Edmond consented and also signed a receipt for the amount of P3,000.00,
allegedly representing the “purchase price of the shabu.” At the trial, the arresting officer testified and
identified the documents executed and signed by Edmond. Edmond’s lawyer did not object to the
testimony. After the presentation of the testimonial evidence, the prosecutor made a formal offer of
evidence which included the documents signed by Edmond. Edmond’s lawyer objected to the
admissibility of the documents for being the “fruit of the poisoned tree.” Resolve the objection with
reasons. (3%) (2009 Bar Question):
The objection to the admissibility of the documents which the arresting officer asked Edmond
to sign without the benefit of counsel, is well-taken. Said documents having been signed by the
accused while under custodial investigation, imply an “admission” without the benefit of
counsel, that the shabu came from him and that the P3,000.00 was received by him pursuant to the
illegal selling of the drugs. Thus, it was obtained by the arresting officer in clear violation of Sec.
12(3), Art. III of the 1987 Constitution, particularly the right to be assisted by counsel during
custodial investigation. *****Moreover, the objection to the admissibility of the evidence was timely
made, i.e., when the same is formally offered.
159
Sample problem: on direct exam of a police crime investigator, he was asked about the
characteristic of the pistol he found in the crime scene. He then took a notebook and proceeded
to read:
a. As defense counsel, would you object to the reading of the notebook? Why? Yes. While it is
true that a witness may refer to anything written or recorded by himself or under his direction, such as the
notebook in question, the same must be produced and may be inspected by the adverse party. In
the instant case, there is no showing that as defense counsel, I was allowed to see a copy of the
said notebook. At any rate, the judge may decide to allow the said reading of the notebook and give me the right to
inspect the same and cross-examine the witness. In either case, objecting to the same is a sign of diligence
on my part to make sure that I prevent unnecessary evidence against my client to prosper without
objection.
b. During offer of exhibits, objection was made on “that piece of paper” because it was an
incompetent evidence; how would you rule on the objection? I will overrule the objection.
******Objection to evidence offered orally must be made immediately after the offer is made.
witness: as soon as the grounds therefor shall become reasonably apparent.

3. On an offer of evidence in writing: within three (3) days after notice of the
offer unless a different period is allowed by the court.
4. In any case, the grounds for the objections must be specified.
5. Two kinds of objection: evidence is either irrelevant or incompetent.160,161
IMPORTANCE OF MAKING OBJECTIONS

1. to keep out of the record inadmissible evidence;162
2. to avoid a waiver of evidence that is inadmissible—because an inadmissible
evidence if not objected to is deemed waived.
It was not the piece of paper that was offered in evidence but the oral testimony of the witness.
Since the objection was only raised during offer of exhibits, the same was not seasonably made,
hence, it won’t prosper.
160
Q: What are the two kinds of objections? Explain each briefly. Given an example of each.(1997
Bar Question) Answer: Two kinds of objections are: (1) the evidence being presented is not
relevant to the issue; and (2) the evidence is incompetent or excluded by the law or the rules. (Sec. 3,
Rule 138). An example of the first is when the prosecution offers as evidence the alleged offer of an
insurance company to pay for the damages suffered by the victim in a homicide case. (See question
No. 14). Examples of the second are evidence obtained in violation of the Constitutional prohibition
against unreasonable searches and seizures and confessions and admissions in violation of the
rights of a person under custodial investigation.
Alternative Answers:
A. Specific objections: Example: parol evidence and best evidence rule.
B. General Objections: Example: continuing objections (Sec. 37 of Rule 132).
[] The two kinds of objections are: (1) objection to a question propounded in the course of the
oral examination of the witness and (2) objection to an offer of evidence in writing. Objection to a
question propounded in the course of the oral examination of a witness shall be made as soon as the
grounds therefor shall become reasonably apparent, otherwise, it is waived. An offer of
objection in writing shall be made within three (3) days after notice of the offer, unless a different
period is allowed by the court. In both instances the grounds for objection must be specified. An
example of the first is when the witness is being cross-examined and the cross examination is on a
matter not relevant. An example of the second is that the evidence offered is not the best evidence.
161
Q:*****What is the difference between a “broadside" objection and a specific objection to the
admission of documentary evidence? (1994 Bar Question) Answer:
A “broadside" objection to the admission of documentary evidence is to be distinguished
from a specific objection in that a “broadside" objection is a general objection such as
“incompetent, irrelevant and immaterial", while a specific objection is limited to a particular
ground.
Alternative Answer: A “broadside" objection is one which does not specify any ground.
162
Immediately after the witness had been sworn in to testify, without any formal offer of his
testimony, Atty. A started asking questions on direct examination to the witness. The court may
still consider his testimony if: (2012 BAR)
a. the formal offer is done after the direct testimony.
b. the opposing counsel did not object.
c. the witness is an expert witness.
d. the opposing counsel offered to stipulate on the testimony given.
3. NB: Counsel may ask the Judge to specify the ground/s163 relied upon for
sustaining an objection and thereafter move its reconsideration thereof [Sec.
38164]
TENDER OF EXCLUDED EVIDENCE165

1. When evidence was excluded by the court, do not panic, make an offer on
excluded evidence, so that on appeal, a higher court may see where the lower court
has made a mistake.166*****
Q: What is a tender of excluded evidence? (Bar 2017)
- Tender of excluded evidence is the remedy of a party when the evidence he
has offered is excluded by the court.
If documentary or object evidence is excluded by the court, the offeror may
have the same attached to or made part of the record. If the evidence excluded is
oral, the offeror may state for the record the name and other personal
163
***Counsel A objected to a question posed by opposing Counsel B on the grounds that it was
hearsay and it assumed a fact not yet established. The judge banged his gavel and ruled by saying
"Objection Sustained". Can Counsel ask for a reconsideration of the ruling? Why? (2012):
Yes, Counsel B may ask the Judge to specify the ground/s relied upon for sustaining the
objection and thereafter move its reconsideration thereof. (Rule 132, Sec. 38, Rules of Court).
164
[] Section 38. Ruling. — The ruling of the court must be given immediately after the objection is
made, unless the court desires to take a reasonable time to inform itself on the question presented; but
the ruling shall always be made during the trial and at such time as will give the party against whom
it is made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated. However, if the
objection is based on two or more grounds, a ruling sustaining the objection on one or some of
them must specify the ground or grounds relied upon.
165
In the formal offer of evidence (exhibits) of defendant, the court disallowed/excluded two exhibits
upon timely objection for being mere photocopies & not originals. Your client (defendant) wants you
to protect his rights:
a. What arguments will you use for the court to reconsider its order? The documents are NOT
offered to prove their contents, hence BER does not apply. They are merely object evidences. Or if
they are meant to prove their contents, LAY THE BASIS for the presentation of secondary evidence.
b. Despite your arguments, the exhibits were still excluded, what would you do and why? Make
a tender of excluded evidence, so that, on appeal, a higher court may see where the lower court
made a mistake.
166
Q: Aside from the testimonies of three witnesses positively identifying accused X as having
stabbed to death Y, the prosecution seeks to present another witness, A which it believes as
material and competent to prove its case. X's counsel object to A's proposed testimony as being
irrelevant. The court sustained the objection. If you were the prosecutor, what course of act ion
would you pursue to the end that the proposed testimony of A would form part of the record for
purposes of review? Explain. (1996 Bar Question) Answer:
******I would make a tender of excluded evidence by stating for the record the name and
other personal circumstances of the witness and the substance of the proposed testimony. (Sec.
40 of Rule 132)
circumstances of the witness and the substance of the proposed testimony. (S40
R132). (Jurist Review Center, Inc.)
2. This is jurisprudentially called OFFER OF PROOF.167

*NB: offer of evidence is different [Section 34]—offer of proof is the offer
of excluded evidence [Section 40].
167
Q: *****Distinguish formal offer of evidence from offer of proof. (1991 Bar Question) Answer:
A formal offer of the testimony of a witness is made at the time the witness is called to
testify, while a formal offer of documentary and object evidence is made after the presentation of a
party’s testimonial evidence. (Sec. 35 of Rule 132)
On the other hand, if documents or things offered in evidence are excluded by the court,
the offer of proof is made by having the same attached to or made part of the record; and if the
evidence excluded is oral, the offer of proof is made by stating for the record the name and other
personal circumstances of the witness and the substance of the proposed testimony. (Sec. 40 of
Rule 132)
XIII. Weight & Sufficiency of Evidence [Rule 133]
QUANTUM OF EVIDENCE 139

EVIDENCE IN CIVIL vs. CRIMINAL CASES***** 139
ON PREPONDERANCE OF EVIDENCE 139
ON PROOF BEYOND REASONABLE DOUBT 140
ON REASONABLE DOUBT 141
TWO TYPES OF POSITIVE IDENTIFICATION 141
***ON CIRCUMSTANTIAL EVIDENCE 141
ON CUMULATIVE EVIDENCE 141
ON CORROBORATIVE EVIDENCE 142
POSITIVE & NEGATIVE EVIDENCE 142
ON ALIBI and DENIAL as SELF-SERVING NEGATIVE EVIDENCE 143
ON SUBSTANTIAL EVIDENCE 143
ON CLEAR AND CONVINCING EVIDENCE 143
ON FRAME-UP 144
ON DELAY & INITIAL RELUCTANCE TO REPORT A CRIME 145
ON FLIGHT or NON-FLIGHT OF THE ACCUSED*** 145
————————————————————————————————
QUANTUM OF EVIDENCE
*This refers to the weight and sufficiency of evidence
1. Proof beyond reasonable doubt
2. Preponderance of evidence
3. Substantial evidence
4. Clear and convincing evidence
EVIDENCE IN CIVIL vs. CRIMINAL CASES*****

CIVIL CASE CRIMINAL CASE
Quantum of Proof Preponderance of Evidence Proof Beyond Reasonable Doubt
Presumption of innocence No presumption of innocence Accused presumed innocent
effect of offer of not an admission of liability and may be received as an IMPLIED
compromise not admissible in evidence against ADMISSION of GUILT (except
the offeror those involving quasi-
offenses/those allowed by law to
be compromised)
CIVIL CASE CRIMINAL CASE

Demurrer to evidence*** Dismissal is based on the ground Dismissal is based on
that upon the facts and the law insufficiency of evidence
the plaintiff has shown no right to
relief.
Pre-trial admissions*** admitted without further must be written, signed by the
requirements accused and his counsel.
Privileged communication Cannot be examined as to any no such provision
of a person authorized to advice or treatment given by him or
practice medicine (Rule any information without the
130, sec. 24(c)) consent of the patient
Character evidence (Rule Plaintiff may present such evidence Prosecution may not prove the
130, sec. 51) only “when pertinent to the issue bad moral character of the
of character involved in the case.” accused except in rebuttal.
ON PREPONDERANCE OF EVIDENCE
1. ***Key words: SUPERIOR WEIGHT OF EVIDENCE; Preponderance of
evidence means that the evidence as a whole adduced by one side is superior
to that of the other. This is applicable in civil cases. (Sec. 1 of Rule 133;
Municipality of Moncada v. Cajuigan, 21 Phil. 184 [1912])
2. It means that the weight, credit, and value of the aggregate evidence adduced
by one side is, as a whole, superior to or has greater weight than that of the
other and is usually considered to be synonymous with the term "greater weight of
evidence" or "greater weight of credible evidence"; it is a phrase which means
probability of truth; it is evidence which is more convincing to the court as
worthier of belief than that which is offered in opposition thereto
3. In determining WoN there is preponderance of evidence, the court may
consider the ff: see codal, a to g, infra:
[] Section 1. Preponderance of evidence, how determined. — In civil cases, the
party having burden of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or superior weight of evidence
on the issues involved lies, the court may consider
a. all the facts and circumstances of the case,
b. the witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which there are testifying,
c. the nature of the facts to which they testify,
d. the probability or improbability of their testimony,
e. their interest or want of interest, and also
f. their personal credibility so far as the same may legitimately appear upon
the trial.
g. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number. (1a)
ON PROOF BEYOND REASONABLE DOUBT

1. Key words: MORAL CERTAINTY
2. It does not mean such a degree of proof that excludes all possibility of error,
only moral certainty is required, or that degree of proof which produces
conviction in an unprejudiced mind; the conscience must be satisfied that
the accused is responsible for the offense charged [People vs. Ganguso]
3. Where the evidence admits of 2 interpretations, one of which is consistent
with guilt and the other innocence, the accused must be acquitted.
[] Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused
is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt
a. does not mean such a degree of proof, excluding possibility of error,
produces absolute certainly.
b. Moral certainly only is required, or that degree of proof which produces
conviction in an unprejudiced mind. (2a)
ON REASONABLE DOUBT
1. Reasonable doubt is that state of the case which, after a comparison of all the
evidence, does not lead the judge to have in his mind, a moral certainty of the
truth of the charge
2. Suspicion, no matter how strong, must never sway judgment; when there is
reasonable doubt, the accused must be acquitted even though his innocence
may not have been proven [People vs. Maraorao]
TWO TYPES OF POSITIVE IDENTIFICATION

1. that by DIRECT evidence, through an eyewitness to the very commission of
the act, and
2. that by CIRCUMSTANTIAL evidence, such as where the accused was last seen
with the victim immediately before or after the crime (People vs. Villarico)
***ON CIRCUMSTANTIAL EVIDENCE

1. Direct evidence vs. Indirect/Circumstantial evidence
Direct evidence Circumstantial/indirect evidence
proves a fact without the need to make an indirectly proves a fact in issue through an inference
inference from another fact w/c the fact finder draws from the evidence established
2. In the absence of direct evidence, conviction may be had if the established

circumstances constitute an unbroken chain, consistent with each other, that
inexorably leads to one fair conclusion that the accused committed the crime to
the exclusion of all others.168
3. Requisites: see codal, (a) to (c):
[] Rule 133, Section 4. Circumstantial evidence, when sufficient.169 —
Circumstantial evidence is sufficient for conviction if:******
(a) There is more than one circumstances;170
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. (5)
4. Basic guidelines in the appreciation of circumstantial evidence:
a. it should be acted upon with caution;
b. all the essential facts must be consistent with the hypothesis of guilt;
c. the facts must exclude every other theory but that of guilt;
d. the facts must establish such a certainty of guilt of the accused as to
convince the judge beyond reasonable doubt that the accused is the one who
committed the offense [People vs. Ochate].
ON CUMULATIVE EVIDENCE
1. Cumulative - refers to the same kind and character as that already given and
that tends to prove the same proposition
ON CORROBORATIVE EVIDENCE
1. Corroborative - one that is supplementary to that already given tending to
strengthen or confirm it;
2. It is additional evidence of a different character to the same point.
3. As long as it affirms the previous evidence, although it is of the same kind and
character as the previous one (and therefore considered also as cumulative), it is still
corroborating evidence.
168
Cindy charged her husband, George, with bigamy for a prior subsisting marriage with Teresa. Cindy
presented Ric and Pat, neighbors of George and Teresa in Cebu City, to prove, first, that George and
Teresa cohabited there and, second, that they established a reputation as husband and wife. Can Cindy
prove the bigamy by such evidence? (2011 BAR)
(A) Yes, the circumstantial evidence is enough to support a conviction for bigamy.
(B) No, at least one direct evidence and two circumstantial evidence are required to support a
conviction for bigamy.
(C) No, the circumstantial evidence is not enough to support a conviction for bigamy.
(D) No, the circumstantial evidence cannot overcome the lack of direct evidence in any criminal case.
169
BAR 2017: Q: What elements should concur for circumstantial evidence to be sufficient for
conviction? A: See above.
170
Q: A was accused of having raped X. Rule on the admissibility of the following pieces of evidence:
2. a pair of short pants allegedly left by A at the crime which the court, over the objection of A,
required him to put on, and when he did, it fit him well. (2%) (1998 Bar Question) The pair of short
pants, which fit the accused well is circumstantial evidence of his guilt, although standing alone it
cannot be the basis of conviction. The accused cannot object to the court requiring him to put the
short pants on. It is not part of his right against self- incrimination because it is a mere physical act.
POSITIVE & NEGATIVE EVIDENCE

1. Positive and Negative Evidence are normally associated w/ testimonial evidence
*they may likewise refer to the presence/absence of something
a. an evidence is POSITIVE when a witness affirms that a certain state of
facts exist or that a certain event happened
b. an evidence is NEGATIVE when a witness states that a certain event

did not occur or that the state of facts alleged to exist does not actually exist;
*EG: denial
2. Which has more weight? ***Positive testimony generally enjoys greater weight
and is more credible than negative testimony;
*Reason: a witness who testifies to a negative may have forgotten what
actually occured, while it is impossible to remember what never existed
[Gomez vs. Gomez-Samson]; moreover, evidence that is negative is self-serving
in nature and cannot attain more credibility than the testimonies of witnesses who
can testify on clear and positive evidence [People vs. Larranaga]
ON ALIBI and DENIAL as SELF-SERVING NEGATIVE EVIDENCE

1. Well established is the rule that ***denial and alibi are self-serving negative
evidence; they cannot prevail over the spontaneous, positive,and credible
testimonies of the prosecution witnesses; indeed, alibi is easy to concoct and
difficult to disprove.
2. Positive identification, when categorical and consistent, and without any
ill-motive on the part of the eyewitnessess testifying on the matter, prevails over
alibi and denial (People vs. Camat)
3. See two types of positive identification, supra.
4. For the defense of alibi to prosper, the requirements of time and place must
be strictly met; he must demonstrate by clear and convincing evidence that it was
physically impossible for him to have been at the scene of the crime at the time
the same was committed (People vs. Castro)
*by physical impossibility, the court refers to the distance and the facility
between the situs criminis and the place where the accused says he was when the
crime was committed (People vs. Nuevo)
ON SUBSTANTIAL EVIDENCE
1. ******Key words: ADEQUATE TO SUPPORT A CONCLUSION;171
Substantial evidence is that amount of relevant evidence which a reasonable
171
Q: Distinguish preponderance of evidence from substantial evidence. (2003 Bar Question)
SUGGESTED ANSWER: Preponderance of evidence means that the evidence as a whole
adduced by one side is superior to that of the other. This is applicable in civil cases. (Sec. 1 of Rule
133; Municipality of Moncada v. Cajuigan, 21 Phil. 184 [1912]).
mind might accept as adequate to justify a conclusion. This is applicable in

cases filed before administrative or quasi-judicial bodies. (Sec. 5 of Rule 133)
[] Section 5. Substantial evidence. — In cases filed before administrative
or quasi-judicial bodies, a fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion. (n)
2. Applies to:
a. administrative cases or those filed before administrative
b. and quasi-judicial bodies
c. In a petition for a writ of amparo, the parties may establish their claims
by substantial evidence
3. Absolution from a criminal charge is not a bar to an administrative prosecution
and vice versa [Paredes vs. CA].
ON CLEAR AND CONVINCING EVIDENCE

1. This is a quantum of evidence is not found in the Rules but in jurisprudence
[Govt of Hongkong vs. Olalia]
2. Clear and convincing evidence: lower than BRD but higher than POE.
3. It is usually used to rebut a presumption
a. in bail hearings and
b. extradition cases;
c. also used in disbarment of lawyers
4. it produces in the mind of a trier of fact a firm belief or conviction as to
allegations sought to be established; it is intermediate, being more than
preponderance, but not to the extent of such certainty as is required beyond
reasonable doubt as in criminal cases.
5. When clear and convincing evidence is required:
a. to overcome the conclusive presumption of existence and due
execution of notarized documents (Chua vs. Westmont Bank)172
b. to prove a charge of bias and partiality (Elefant vs. Inting)
c. to establish bad faith (Belle Corp vs. De Leon Banks), fraud (Alfonso
vs. Cebu Country Club), and forgery (Sumbad vs. CA)
d. to establish the justification for killing when self-defense is invoked
by the accused (People vs. Tomolin)
Substantial evidence is that amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. This is applicable in cases filed before administrative or
quasi-judicial bodies. (Sec. 5 of Rule 133)
172
In which of the following instances is the quantum of evidence ERRONEOUSLY applied? (2011
BAR)
(A) in Writ of Amparo cases, substantial evidence.
(B) to satisfy the burden of proof in civil cases, preponderance of evidence.
(C) to overcome a disputable presumption, clear and convincing evidence.
(D) to rebut the presumptive validity of a notarial document, substantial evidence.
e. to overcome the presumption of regularity in the performance of

official duties (People vs. Concepcion)
f. to overcome a disputable presumption.
ON FRAME-UP
1. common and standard defense in most dangerous drugs cases; not looked upon
with favor due to its being conveniently concocted
2. to prosper, the defense must adduce clear and convincing evidence to overcome
the presumption that the government officials have performed their duties in a regular
and proper manner
ON DELAY & INITIAL RELUCTANCE TO REPORT A CRIME

1. It does not render testimonies false or incredible, for the delay may be
explained
a. by the natural reticence of most people and
b. their abhorrence to get involved in a criminal case or
c. because of the inherent fear of reprisal especially if the accused is a man
of power and influence in the community (People vs. Navarro)
ON FLIGHT or NON-FLIGHT OF THE ACCUSED***

1. Non-flight does not signify innocence; it is simply inaction, which may be
due to several factors, and cannot be singularly considered as evidence or a
manifestation determinative of innocence (People vs. Amodia)
2. Flight, when unexplained, is indicative of guilt but its converse is not
necessarily true; but flight per se is not synonymous with guilt and must not
always be attributed to one's consciousness of guilt; in one case where the accused escaped
from detention during the pendency of the case, flight was considered as an
indication of guilt or of his guilty mind, "the wicked flees even when no man
pursues, but the righteous stands fast as bold as a lion" (People vs. Isang)
XIV. OTHER RELEVANT RULES

I. Judicial Affidavit Rule [JAR; A.M. No. 12-8-8-SC; 1 January 2013]
II. Rule on DNA Evidence [DNA; A.M. No. 06-11-5-SC; 15 October 2007]
III. Rules on Electronic Evidence (REE; A.M. No. 01-7-01-SC; 1 August 2001]
IV. Rule on the Examination of Child Witnesses [RCW; A.M. 004-07-SC; 15 Dec
2000]
————————————————————————————————
A. Judicial Affidavit Rule

[JAR; A.M. No. 12-8-8-SC; 1 January 2013]
SCOPE OF JAR 146

ON FILING & SERVICE OF JA & EXHIBITS; MODES OF SERVICE 146
ON THE SWORN ATTESTATION OF THE LAWYER 147
WHEN THERE IS A NEED FOR ISSUANCE OF SUBPOENA 148
OFFER OF TESTIMONY IN JA 148
OBJECTIONS TO TESTIMONY IN JA; COURT RULING 149
APPEARANCE OF WITNESS 149
EFFECT OF FAILURE OF WITNESS TO APPEAR 149
ORAL OFFER & OBJECTIONS TO EXHIBITS 150
APPLICABILITY OF JAR TO CRIMINAL CASES (up to 6 years penalty) 150
EFFECT OF NON-COMPLIANCE WITH THE CONSENT REQT 150
EFFECTS OF FAILURE TO SUBMIT JA & EXHIBITS ON TIME 151
REMEDY IN CASE OF LATE SUBMISSION 152
————————————————————————————————
PRELIMINARIES ON THE JUDICIAL AFFIDAVIT RULE (JAR)

1. Rationale: to decongest the courts of cases and to reduce delays in the
disposition of cases
2. Effectivity: January 1, 2013 following its publication in 2 newspapers of general
circulation not later than September 15, 2012
*the rule shall apply to existing cases; thus, its application is not barred by
the fact that other direct testimonies have already been conducted orally before the
effectivity of the same, the remaining direct testimonies shall hence be done by
means of judicial affidavits (JA)
3. Contents of the Judicial Affidavit173

4. Significance of the use of JA; exhibits
a. the JA shall take the place of the direct testimonies of witnesses
b. to be attached to the JA are the documentary or object evidence of
the parties which shall be marked as Exhibits
i. A, B, C and so on - in the case of the complainant or plaintiff
ii. 1, 2, 3, and so on - in the case of the respondent or the defendant
c. the original of the document or object evidence need not be attached
to the JA; the party or witness may keep the same in his possession after the
exhibit has been identified, marked as an exhibit and authenticated.
*NB: he must warrant in his JA that the copy or reproduction
attached is a faithful copy or reproduction of the original; moreover, he is also
required to bring the original document or object evidence for comparison with
the attached copy, reproduction or pictures, during the preliminary conference;
otherwise, the attached copy, reproduction or pictures shall not be admitted.
SCOPE OF JAR
1. The Rule shall apply to all
a. actions,
b. proceedings or
c. incidents requiring the reception of evidence
2. Thus, the Rule applies to all courts other than the SC; it also applies to non-
judicial bodies, the rule specifies the following courts and bodies:
[] Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence before:
(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit
Courts but shall not apply to small claims cases under A.M. 08-8-7-SC;
(2) The Regional Trial Courts and the Shari'a District Courts;
173
BAR 2016: Q: What are the contents of a judicial affidavit? SUGGESTED ANSWER: The
contents of a judicial affidavit are as follows:
(a) The name, age, residence or business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts or supervises the examination of the
witness and the place where the examination is being held;
(c) A statement that the witness is answering the questions asked of him, fully conscious that he
does so under oath, and that he may face criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:
1. Show the circumstances under which the witness acquired the facts upon which he testifies;
2. Elicit from him those facts which are relevant to the issues that the case presents; and
3. Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or an officer who is
authorized by law to administer the same. (Jurist Review Center, Inc.)
(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals,
and the Shari'a Appellate Courts;
(4) The investigating officers and bodies authorized by the Supreme
Court to receive evidence, including the Integrated Bar of the Philippine
(IBP); and
(5) The special courts and quasi-judicial bodies, whose rules of procedure
are subject to disapproval of the Supreme Court, insofar as their existing rules
of procedure contravene the provisions of this Rule. [By virtue of the Supreme Court's
authority under Section 5 (5), Article VIII, of the 1987 Constitution to disapprove rules of
procedure of special courts and quasi-judicial bodies.]
ON FILING & SERVICE OF JA & EXHIBITS; MODES OF SERVICE

1. The JAs of the witnesses and the documentary or object evidence shall be
filed by the parties with the court and served on the adverse party, not later than
5 days before the pre-trial or preliminary conference or the scheduled
hearing, with respect to motions and incidents.
2. The filing of the JA and its attached exhibits shall be done, not only personally,
but also by licensed courier service; service by mail is not mentioned in the
Rule
3. In criminal cases, the prosecution shall submit the JA of its witnesses not later
than 5 days before the pre-trial; copies of the JA shall be served on the accused
a. In criminal cases, no further JA, documentary or object evidence shall

be admitted at the trial; this means that even before the trial, the prosecution
has to lay down on the table, all its evidence - testimonial, documentary and
object
b. since the accused is already aware of the evidence of the prosecution, he
has the option to submit or not to submit his JA; if he chooses to submit,
submission shall be done within 10 days from receipt of the affidavits of the
prosecution with service upon the public and private prosecutor.
ON THE SWORN ATTESTATION OF THE LAWYER

1. The JA shall also contain a sworn attestation at the end, executed by the
lawyer who conducted and supervised the examination.
2. The sworn attestation shall attest to the following, that:
(1) He faithfully recorded or caused to be recorded the questions he asked and
the corresponding answers that the witness gave; and
(2) Neither he nor any other person then present or assisting him coached
the witness regarding the latter's answers.
3. Effect of False attestation: the same shall subject the lawyer to disciplinary
action, including disbarment.
4. Effect of non-compliance with the attestation requirement: it shall not be

admitted by the court in evidence; however, submission of a compliant
replacement JA may be allowed as in the case provided under Sec 10 (c), infra.
[] (c) The court shall not admit as evidence judicial affidavits that do not
conform to the content requirements of Section 3 and the attestation requirement
of Section 4 above. The court may, however, allow only once the subsequent
submission of the compliant replacement affidavits before the hearing or trial
provided the delay is for a valid reason and would not unduly prejudice the
opposing party and provided further, that public or private counsel responsible for
their preparation and submission pays a fine of not less than P 1,000.00 nor
more than P 5,000.00, at the discretion of the court.
WHEN THERE IS A NEED FOR ISSUANCE OF SUBPOENA

1. A requesting party may avail of himself the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the RoC if a witness:
a. unjustifiably declines to execute a JA
b. refuses without just cause to make relevant books, documents, or other
things under his control available for copying, authentication, and eventual
production in court; the witness referred to here is a government employee or
official, or a requested witness who is neither the witness of the adverse party nor a
hostile witness
2. The rules governing the issuance of a subpoena to the witness shall be the same
as when taking his deposition except that the taking of the JA shall be
understood to be ex parte.
OFFER OF TESTIMONY IN JA
1. Instead of offering the oral testimony of the witness, the party using the JA shall
present the such affidavit and state the purpose of the testimony contained
therein at the start of the presentation of the witness
OBJECTIONS TO TESTIMONY IN JA; COURT RULING

1. The presentation of the JA and the statement of the purpose of the
testimony contained therein will give the adverse party the opportunity to object
to the testimony; he may, on the ground of inadmissibility, move to:
a. disqualify the witness
b. strike out his affidavit
c. strike out any of the answers found in the JA
2. The court is required to promptly rule on the motion of the adverse party; any
excluded answer shall be marked by placing the same in brackets under the
initials of an authorized court personnel; the other party may, however, make a
tender of excluded evidence under Sec. 40, Rule 132 of the RoC
a. the term "promptly" should be taken in its literal context and akin to the
word, "immediately", as used in Sec. 32 of Rule 132 of the RoC
b. the mandate on the giving of an immediate ruling is, however, qualified by

the phrase, "unless the court desires to take a reasonable time to inform itself
on the question presented", found under the same Rule; it is significant to note
that such qualification is not found in the JAR.
APPEARANCE OF WITNESS
1. Despite the submission of the JA and the attached exhibits, the Rule still
requires the appearance of the witness
2. ***Reason: appearance of the witness is necessary because the adverse party
has the right to cross-examine him; a postponement of the cross-examination
is contrary to the spirit of the Rule because the JA have been filed and served
even before the scheduled hearing
3. The court, under the JAR, is not a mere passive entity that merely receives the
evidence from the parties; the Rule integrates an ***element of the inquisitorial
system which allows the court to have an active role in the proceedings; the
questions of the court shall not, therefore, be confined to mere clarificatory
questions.
4. The Rule mandates that the court take an active part in examining the witness
to:
a. determine the credibility of the witness and the truth of his testimony
b. elicit the answers it needs in resolving the case
EFFECT OF FAILURE OF WITNESS TO APPEAR

at the scheduled hearing; failure of counsel to appear
1. The court shall not consider the affidavit of any witness who does not
appear in the scheduled hearing of the case as required; it is as if no JA has been
executed by the absent witness
2. a counsel who fails to appear without a valid cause despite notice shall be
deemed to have waived his client's right to confront by cross-examination,
the witnesses present; based on the rule that the negligence of the counsel binds
his client
*the above rule is not deemed to apply with rigorous strictness; thus, the
same will not apply if it would result in
a. outright deprivation of the client's liberty or property, or
b. where the interests of justice so require
ORAL OFFER & OBJECTIONS TO EXHIBITS

1. The party shall immediately make an oral offer of evidence of his
documentary or object exhibits, piece by piece, in their chronological order,
stating the purpose or purposes for which he offers the particular exhibit; the
offer shall be made upon the termination of the testimony of his last witness
2. It is not necessary to describe each exhibit in the offer of evidence, it is

sufficient that such exhibits are simply cited
3. ***The JAR requires that the offer be made only orally vis-a-vis Sec. 35 of Rule
132 which allows the offer to be made in writing
2. After each piece of exhibit is offered, the adverse party shall state the legal
ground for his objection, if any, to its admission, and the court shall immediately
make its ruling respecting the exhibit.
APPLICABILITY OF JAR TO CRIMINAL CASES (up to 6 years penalty)
1. The JAR shall apply to criminal cases (Sec. 9);

2. Reason: criminal cases are actions which require the reception of evidence
3. ******However, the JAR shall apply to criminal cases where the maximum of
the imposable penalty does not exceed 6 years;174 in other cases, the use of
174
Q: Pedro was charged with theft for stealing Juan's cellphone worth P20,000.00. Prosecutor
Marilag at the pre-trial submitted the judicial affidavit of Juan attaching the receipt for the
purchase of the cellphone to prove civil liability. She also submitted the judicial affidavit of Mario,
an eyewitness who narrated therein how Pedro stole Juan's cellphone. At the trial, Pedro's lawyer
objected to the prosecution's use of judicial affidavits of her witnesses considering the
imposable penalty on the offense with which his client was charged. (2015)
a. Is Pedro’s lawyer correct in objecting to the judicial affidavit of Mario? A: YES, Pedro’s
lawyer is correct in objecting to the judicial affidavit of Mario. ******The Judicial Affidavit Rules
shall apply only to criminal actions where the maximum of the imposable penalty does not
exceed six (6) years (Section 9(a)(1), A.M. No. 12-8-9-SC or the Judicial Affidavit Rule). Here, the
maximum imposable penalty for the crime of theft of a cellphone worth P20,000 is prison mayor in its
minimum to medium periods, or six years and one day to eight years and one day. Thus, Pedro’s lawyer
is correct in objecting to the judicial affidavit of Mario.
b. Is Pedro’s lawyer correct in objecting to the judicial affidavit of Juan? ******A: NO. Pedro’s
lawyer is not correct in objecting to the judicial affidavit of Juan because the Judicial Affidavit Rules
apply with respect to the civil aspect of the actions, regardless of the penalties involved (Section
9, A.M. No. 12-8-8-SC or the Judicial Affidavit Rule). Here the judicial affidavit of Juan was offered
to prove the civil liability of Pedro. Thus, the objection of Pedro’s lawyer to the judicial affidavit of
Juan is not correct.
c. At the conclusion of the prosecution's presentation of evidence, Prosecutor Marilag
orally offered the receipt attached to Juan's judicial affidavit, which the court admitted over the
objection of Pedro's lawyer. After Pedro's presentation of his evidence, the court rendered judgment
finding him guilty as charged and holding him civilly liable for P20,000.00. Pedro's lawyer seasonably
filed a motion for reconsideration of the decision asserting that the court erred in awarding the
civil liability on the basis of Juan's judicial affidavit, documentary evidence which Prosecutor
Marilag failed to orally offer. Is the motion for reconsideration meritorious? A: NO. The motion for
reconsideration is not meritorious. ******The judicial affidavit is not required to be orally offered as
separate documentary evidence, because it is filed in lieu of the direct testimony of the witness. It
is offered, at the time the witness is called to testify, and any objection to it should have been made at
the time the witness was presented (Section 6 and 8, A.M. No. 12-8-8-SC or the Judicial Affidavit Rule).
JAs will depend on the accused, thus, the rule will apply irrespective of the
penalty involved, where the accused agrees to the use of JAs
4. ***With respect to the civil aspect of the criminal action, the JAR shall apply,
irrespective of the penalty involved.
EFFECT OF NON-COMPLIANCE WITH THE CONSENT REQT

UNDER SEC 3.
1. It shall not be admitted by the court in evidence
2. The relevant provision, however, does not absolutely bar the submission of
a compliant replacement JA as long as
a. the replacement is submitted before the hearing or trial
b. and provided further that the following requirements are met, the:
i. (late) submission shall be allowed only once
ii. delay is for a valid reason
iii. delay would not unduly prejudice the opposing party
iv. public or private counsel responsible for the preparation and
submission of the affidavit pays a fine of not less than P1,000 nor more than P5,000, at
the discretion of the court
EFFECTS OF FAILURE TO SUBMIT JA & EXHIBITS ON TIME

1. The party who fails to submit on time shall be deemed to have waived their
submission
2. The waiver would mean that the party who failed submit would have no direct
testimony for that witness and the documentary or object evidence integrated
with such affidavit could not be identified, marked as an exhibit, and
authenticated; in effect, the exhibit could not be offered in evidence
REMEDY IN CASE OF LATE SUBMISSION

1. Failure to submit on time does not mean permanent waiver; the party is given
another chance to submit by moving that the late submission of the JA and its
exhibits be allowed
2. The court may allow late submission of the JA and exhibits provided the
following requisites concur, the:
a. late submission shall be allowed only once
b. delay is for a valid reason
c. late submission would not unduly prejudice the opposing party
d. defaulting party pays a fine of not less than P1,000 nor more than P5,000,
at the discretion of the court
Since the receipt attached to the judicial affidavit was orally offered, there was enough basis for the
court to award civil liability.
B. Rule on DNA Evidence

[DNA; A.M. No. 06-11-5-SC; 15 October 2007]
SIGNIFICANCE OF DNA EVIDENCE 154

IS COMPULSION A RASI INFRINGEMENT?*** 154
USEFUL DEFINITIONS [SEC 3] 154
HOW AN ORDER FOR DNA TESTING IS OBTAINED*** 154
IS THERE AN AUTOMATIC ADMISSION OF DNA EVID AFTER TESTING? 154
POST-CONVICTION DNA TESTING 155
GUIDELINES IN ASSESSING THE PROBATIVE VALUE OF DE *** 155
ARE THE DNA PROFILES OPEN TO PUBLIC SCRUTINY? 157
————————————————————————————————
SIGNIFICANCE OF DNA EVIDENCE

1. It lies in the uniqueness of the genome (totality of the DNA) of a person,
which is unique for the individual, except identical twins.
IS COMPULSION A RASI INFRINGEMENT?***

1. No, The kernel of the right is not against all compulsion, but against testimonial
compulsion. A person may be compelled to submit to fingerprinting,
photographing, paraffin, blood and DNA, as there is no testimonial
compulsion involved. [People v. Yatar, May 19, 2004]
USEFUL DEFINITIONS [SEC 3]

(b) "DNA" means deoxyribonucleic acid, which is the chain of molecules found in
every nucleated cell of the body. The totality of an individual's DNA is unique for
the individual, except identical twins;
***
(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic
information directly generated from DNA testing of biological samples;
***
(d) "DNA profile" means genetic information derived from DNA testing of a
biological sample obtained from a person, which biological sample is clearly
identifiable as originating from that person;
HOW AN ORDER FOR DNA TESTING IS OBTAINED***

1. [] Sec. 4. Application for DNA Testing Order. - The appropriate court may, at
any time, either motu proprio or on application of any person who has a legal
interest in the matter in litigation, order a DNA testing. Such order shall issue
after due hearing and notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample:
(i) was not previously subjected to the type of DNA testing now
requested; or
(ii) was previously subjected to DNA testing, but the results may
require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.
2. Is a court order always required? No, the last part of sec. 4 provides ***“This
Rule shall not preclude a DNA testing, without need of a prior court order, at
the behest of any party, including law enforcement agencies, before a suit or
proceeding is commenced.”
3. Is the order granting DNA testing appealable? NO, the ***order is
immediately executory and not appealable according to Sec. 5: “any petition
for certiorari initiated therefrom shall not, in any way, stay the implementation
therof, unless a higher court issues an injunctive order.”
IS THERE AN AUTOMATIC ADMISSION OF DNA EVID AFTER

TESTING?
1. None, Sec. 5 provides that the testing application shall not be construed as
an automatic admission into evidence of any component of the DNA evidence
that may be obtained as a result of the testing.
2. NB (Lau) – admission as used in Riano's book seems to suggest that it really
refers to its probative value and not to relevance and competence for admissibility;
why? because it seems (as provided by Sec. 4 of the DNA rules) that admissibility
is determined before the order for testing is conducted, not after.
POST-CONVICTION DNA TESTING

1. [] Sec. 6. Post-conviction DNA Testing. - ******Post-conviction DNA testing
may be available, without need of prior court order, to the prosecution or any
person convicted by final and executory judgment provided that:175
(a) a biological sample exists,
175
Bar 2012: ***If a person has already been convicted under a final and executory judgment, may he
still avail of DNA testing?
*Yes; this refers to Post-conviction DNA testing of Sec. 6 of the RDE. Such is available to
(a) the prosecution, or (b) person convicted by a final and executory judgment with the ff
requirements: see (a) to (c), Sec 6, supra.
[] And does it need a prior court order? NO, sec. 6 is explicit on this matter.
(b) such sample is relevant to the case, and

(c) the testing would probably result in the reversal or modification of the
judgment of conviction.
2. [] Sec. 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable
to the Convict. - The convict or the prosecution may file a petition for a writ of
habeas corpus in the court of origin if the results of the post-conviction DNA
testing are favorable to the convict.
In case the court, after due hearing, finds the petition to be meritorious, it
shall reverse or modify the judgment of conviction and order the release of the
convict, unless continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or the
Supreme Court, or with any member of said courts, which may conduct a
hearing thereon or remand the petition to the court of origin and issue the
appropriate orders.
3. Steps to take to undergo post-conviction DNA testing under Sec 6 by counsel:
a. inform the convicted client of the availability of a DNA sample, which is
relevant to his case and would most probably result in the reversal or
modification of his judgment of conviction.
b. subject the client to DNA testing, with or with out prior court order.
c. *****(remedies) if the results are favorable to him? [Section 10], file a
petition for a writ of habeas corpus.
d. if petition is meritorious (after due hearing), the court shall:
i. reverse or modify its judgment of conviction;
ii. and order the release of the convict (unless continued detention is
justified for a lawful cause.)
4. NB: *****As counsel for the victim: how would you oppose his possible release
from confinement?
a. dispute the VERACITY and ACCURACY of the results of the DNA
evidence (see next heading)
b. show proof that his continued detention is justified for a lawful cause.
5. Where is this filed?*****
a. in the court of origin (as a rule)
b. or CA/SC: hearing may be conducted by the courts or by any member
thereof or instead of conducting a hearing, may instead remand the petition to the
court of origin and issue proper orders.
*NB (Lau) – the probable import of sec. 10 is that the petition for the writ
should not be dismissed on the ground that it was filed with the wrong
court (the CA or SC).
GUIDELINES IN ASSESSING THE PROBATIVE VALUE OF DE ***

*NB - This is how you dispute the veracity and accuracy of the results of DNA
evidence, WON there were errors in the ff.176
1. How they were collected;
2. How they were handled;
3. possibility of contamination of samples
4. The procedure followed in analyzing the samples;
5. Whether the proper standards and procedure were followed in conducting the
tests;
6. The qualification of the analyst who conducted the test.177
ARE THE DNA PROFILES OPEN TO PUBLIC SCRUTINY?

1. NO, DNA profiles and all the results or other information obtained from DNA
testing are confidential.
2. A person who discloses such without the proper court order shall be liable
for indirect contempt.***
3. Except upon order of the court, the DNA profiles and other results shall only
be released to any of the ff: (a) to (e), Sec 11:
(a) Person from whom the sample was taken;
(b) Lawyers representing parties in the case or action where the DNA
evidence is offered and presented or sought to be offered and presented;
(c) Lawyers of private complainants in a criminal action;
(d) Duly authorized law enforcement agencies; and
(e) Other persons as determined by the court.
176
TRUE or FALSE. The Vallejo standard refers to jurisprudential norms considered by the court in
assessing the probative value of DNA evidence. (2009 Bar Question): TRUE. *****In People v.
Vallejo, 382 SCRA192 (2002), it was held that in assessing the probative value of DNA evidence,
courts should consider, among others things, the following data:
a. how the samples were collected,
b. how they were handled,
c. the possibility of contamination of the samples,
d. the procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and
e. the qualification of the analyst who conducted the tests.
177
***In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence showing
that the semen found in the private part of the victim was not identical with that of the accused's. As
private prosecutor, how will you dispute the veracity and accuracy of the results of the DNA evidence?
(3%)
As private prosecutor, I shall try to discredit the results of the DNA test by questioning and
impugning the integrity of the DNA profile by showing a flaw/error in obtaining the biological
sample, or in the chain of custody of the biological sample obtained; the testing methodology
employed; the scientific standard observed; the forensic DNA laboratory which conducted the test;
and the qualification, training and experience of the forensic laboratory personnel who conducted the
DNA testing.
4. How? The person from whom the biological sample was taken files a written
verified request to the court that allowed the DNA testing for the disclosure of
the DNA profile of the person and all results or other information obtained from
the DNA testing; the same may be disclosed to the persons named in the written
verified request.
C. Rules on Electronic Evidence

[REE; A.M. No. 01-7-01-SC; 1 August 2001]
***SCOPE/COVERAGE 159
RULE ON ADMISSIBILITY OF ELECTRONIC EVIDENCE 159
MEANING OF ELECTRONIC DOCUMENT/DATA MESAGE 159
PROBATIVE VALUE OF ELECTRONIC DOCUMENTS 160
AS TO THE MANNER OF AUTHENTICATION OF ELECTRONIC DOCUMENTS [Sec 2,
Rule 5]****** 161
AS TO THE MANNER OF AUTHENTICATION OF AUDIO, PHOTOGRAPHIC, VIDEO &
EPHEMERAL EVIDENCE [Rule 11]*** 161
*** 162
EPHEMERAL vs. RECORDED COMMUNICATIONS; Sample Problems 162
————————————————————————————————
***SCOPE/COVERAGE
1. Apply to all civil actions and proceedings, as well as quasi-judicial and
administrative cases [Sec 2, Rules on Electronic Evidence].
*NB: Rules of Court apply only to judicial proceedings.
2. In principle, the REE do not apply to criminal actions. However, in People vs.
Enojas (10 March 2014), the court applied the said rules to criminal cases!
Enojas had superseded Ang vs. CA.
RULE ON ADMISSIBILITY OF ELECTRONIC EVIDENCE

******State the rule on the admissibility of an electronic evidence. (2003 Bar
Question):
1. Whenever a rule of evidence refers to the term writing, document, record,
instrument, memorandum or any other form of writing, such term shall be
deemed to include an electronic document as defined in these Rules. (Sec. 1 of
Rule 3, Rules on Electronic Evidence effective August 1,2001).
2. An electronic document is admissible in evidence if it complies with the
rules on admissibility prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules. (Sec. 2 of Rule 3, Id.).
The authenticity of any private electronic document must be proved by evidence
that it had been digitally signed and other appropriate security measures
have been applied. (Sec. 2 of Rule 5, Id.).
MEANING OF ELECTRONIC DOCUMENT/DATA MESAGE

1. Electronic document and electronic data message mean the same thing: they
refer to information/data that are received, transmitted. stored and produced
electronically.
*NB: photocopies are not electronic documents because they are paper-
based.
[] NPC vs Codilla 4 Apr 2007: what differentiates an electronic
document from a paper-based document is the manner by which the
information is processed; clearly, the information contained in an electronic
document is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.
2. Is the fax/facsimile178 transmission considered an electronic document? No, for
two reasons:
a. when the law was enacted, fax transmissions were not contemplated;
b. and it was originally paper-based (it was a paper-based document).
3. ******When is an electronic evidence regarded as being the equivalent of an
original document under the Best Evidence Rule? (2003 Bar Question): An
electronic document shall be regarded as the equivalent of an original document
under the Best Evidence Rule if it is a printout179 or output readable by sight
or other means, shown to reflect the data accurately. (Sec. 1 of Rule 4).180
178
[] MCC Industrial vs Sangyong Corp, 17 Oct 2007: No. Facsimile transmissions are not, in this
sense, "paperless," but verily are paper-based. “We, therefore, conclude that the terms "electronic data
message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile
transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not
the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic
evidence.”
179
While window-shopping at the mall on August 4, 2008, Dante lost his organizer including his
credit card and billing statement. Two days later, upon reporting the matter to the credit card
company, he learned that a one-way airplane ticket was purchased online using his credit card for a
flight to Milan in mid-August 2008. Upon extensive inquiry with the airline company, Dante discovered
that the plane ticket was under the name of one Dina Meril. Dante approaches you for legal advice.
Suppose an Information is filed against Dina on August 12, 2008 and she is immediately arrested. What
pieces of electronic evidence will Dante have to secure in order to prove the fraudulent online
transaction? (2%) (2010 Bar Question): He will have to present
(a) his report to the bank that he lost his credit card;
(b) that the ticket was purchased after the report of the lost card
(c) the purchase of one-way ticket.
[] Dante should bring an original (or an equivalent copy) printout of:
a) the online ticket purchase using his credit card;
b) the phone call log to show that he already alerted the credit card company of his loss; and
c) his credit card billing statement-bearing the online ticket transaction.
180
***T/F: An electronic document is the equivalent of an original document under the Best Evidence
Rule if it is a printout or output readable by sight or other means, shown to reflect the data
accurately. (2009 Bar Question). TRUE. This statement is embodied in Sec.l, Rule 4 of A.M. No. 01-7-
01-SC, re: Rules on Electronic Evidence.
PROBATIVE VALUE OF ELECTRONIC DOCUMENTS

or their evidentiary weight
*the ff factors may be considered in assessing its weight:
a) reliability of the manner in which it was generated, stored or communicated
b) reliability of the manner in which its originator was identified
c) integrity of the information and communication system
d) familiarity of the witness or the person who made the entry with the
communication or information system
e) nature and quality of the information which went into the communication and
information system
f) other factors which the court may consider
AS TO THE MANNER OF AUTHENTICATION OF ELECTRONIC

DOCUMENTS [Sec 2, Rule 5]******
[] Section 2. Manner of authentication. – Before any private electronic document
offered as authentic is received in evidence, its authenticity must be proved by
any of the following means:
(a) by evidence that it had been digitally signed by the person purported to
have signed the same;181
(b) by evidence that other appropriate security procedures or devices as
may be authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the
satisfaction of the judge.
1. The first two modes are technical. The first is authentication through digital
signatures which, although not well known when the REE was promulgated in
2001, is now fast becoming commonplace.
2. The second is authentication through other security procedures or devices
(retina scan, PDF-8, etc.) as may be authorized by the Supreme Court. No
such other procedures or devices have yet been authorized.
3. The third mode is… the “layman’s approach” to authenticating electronic
document: an electronic document may be authenticated by any “other evidence
showing its integrity and reliability to the satisfaction of the judge.” For
example, the prosecution may present a witness to testify that he saw Y write the
post in his Facebook account because, according to him, he “hate[s] public
officials feasting on the people’s money.” In practical terms, under the layman’s
approach, authenticating an electronic document is just like authenticating a
181
A private electronic document's authenticity may be received in evidence when it is proved by:
(2012 BAR)
a. evidencethatitwaselectronicallynotarized.
b. evidence that it was digitally signed by the person who purportedly signed the same.
c. evidence that it contains electronic data messages.
d. evidencethatamethodorprocesswasutilizedtoverifythesame.
paper-based document under the traditional rules of evidence.

(http://business.inquirer.net/169386/are-social-media-posts-admissible-in-
evidence#ixzz44GFk8GsI)
AS TO THE MANNER OF AUTHENTICATION OF AUDIO,

PHOTOGRAPHIC, VIDEO & EPHEMERAL EVIDENCE [Rule 11]***
1. For audio, photographic and video evidence of events, acts or transactions
[Sec 1, Rule 11]. They shall be admissible provided:
a. it shall be shown, presented or displayed to the court; and
b. it shall be identified, explained or authenticated
i. by the person who made the recording
ii. or by some other person competent to testify on the accuracy
thereof, i.e., or by SOME OTHER COMPETENT PERSON.
2. For ephemeral electronic communications [Sec 2, Rule 11]. They shall be
proven
a. by the testimony of a person
i. who was a party to the same
ii. or has personal knowledge thereof.
c. In the absence or unavailability of such witnesses, other competent
evidence may be admitted.
3. How about RECORDING of the telephone conversation or ephemeral
electronic communication? They shall be authenticated as number 1 (for audio,
photo & video).
4. What if numbers 1 to 3 are recorded or EMBODIED in an electronic
DOCUMENT? Then the provisions of Rule 5 (supra) shall apply.
EPHEMERAL ELECTRONIC COMMUNICATIONS

1. EPHEMERAL electronic communications: the evidence is NOT
RECORDED, e.g., telephone conversations [Sec 1k of the law], streaming audio,
streaming video, text messages.182
***
EPHEMERAL vs. RECORDED COMMUNICATIONS; Sample Problems
1. Why important to distinguish? Proving their existence is different.
2. Ephemeral: Sec 2, Rule 11 (supra)
3. RECORDED: Sec 1, Rule 11.
182
Under the Rules of Electronic Evidence, "ephemeral electronic conversation" refers to the
following, except: (2012 BAR)
a. text messages;
b. telephone conversations;
c. faxed document;
d. online chatroom sessions;
4. Both 2 & 3 are part of Rule 11; How about Facebook posts? They are
considered document pursuant to the functional equivalence and non-
discrimination principles under the E-Commerce Act of 2000 (ECA) and the
Rules on Electronic Evidence (REE): Under these principles, an electronic
document is considered the functional equivalent of a paper-based
document and should not be discriminated against as evidence solely on the
ground that it is not in the standard paper form. Section 12 of the ECA expressly
provides that “nothing in the application of the rules of evidence shall deny
admissibility of an electronic data message or electronic document on the sole
ground that it is in electronic form, or on the ground that it is not the standard
form.” The REE further provides that “[w]henever a rule of evidence refers to the
term of writing, document, record, instrument, memorandum or any other form of
writing, such term shall be deemed to include an electronic document as
defined in these Rules.” (Section 1, Rule 3). In layman’s terms, the Facebook
post in question should be treated as a paper-based document. The legal
question is how to prove or authenticate this Facebook post as evidence in a court
of law.
a. WHEN EPHEMERAL: when the Facebook post is deleted at a certain
point… the post is considered ephemeral electronic communication under the
REE. Section 1(k), Rule 2 of the REE provides that “[e]phemeral electronic
communication” refers to telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and other electronic forms of
communication the evidence of which is not recorded or retained.” Hence,
apply the mode of authentication of ephemeral communications [Rule 11, Sec 2],
supra.
b. Note that they should be treated as paper-based documents, hence, their
authentication should be under Rule 5. But it boils down to the same manner of
authentication if they are deleted. Why? Rule 11, Sec 2 is the same as the third
mode of authentication under Rule 5, which is the layman’s approach for
authenticating electronic evidence (cf:
http://business.inquirer.net/169386/are-social-media-posts-admissible-in-
evidence#ixzz44GGEpN2O)
5. ***What if a videographer, VV, accidentally filmed the accident, but he died
before he could testify:
a. If the prosecutor presents WW, a co-worker of VV, what objection can
the defense counsel interpose? WW has NO PERSONAL KNOWLEDGE;
affects the ACCURACY (similar to hearsay?);
b. How would the prosecutor counter such objection? The Rules provide
that in the absence of the person who made the recording, some other competent
person can testify. WW, being a co-worker, is a competent person.
c. What if VV did not die, what process must he undertake to avoid
objection? He video shall be shown, presented or displayed to the court, and it
shall be identified, explained or authenticated by him [Sec 1, Rule 11].
6. Entrapment operation: accused texted an incriminating statement to an

undercover police officer; how to present this text message in evidence? Since it is
a RECORDED ephemeral communication (text message), it shall be authenticated
as in Sec 1, Rule 11, supra.
————————————————————————————————
D. Rule on the Examination of Child Witnesses

[RECW; A.M. 004-07-SC; 15 Dec 2000]
Live-link TV testimony of a child witness
RECW vs. RULES OF COURT*** 165

PRESUMPTION OF COMPETENCY OF A CHILD 165
BASIC RULES IN THE EXAMINATION OF A CHILD WITNESS 166
PERSONS ACCOMPANYING THE CHILD FOR EMOTIONAL SUPPORT (Sec 11)167
ON LIVE-LINK TV TESTIMONY*** 168
ON VIDEOTAPED DEPOSITION; BASIC FEATURES 168
EXCEPTION TO THE HEARSAY RULE*** 170
***(SEXUAL ABUSE SHIELD RULE) 171
AFFIDAVIT OF RECANTATION/DESISTANCE 172
————————————————————————————————
RECW vs. RULES OF COURT***

1. Under Rule 130, Section 21, there is “Disqualification by reason of mental
incapacity or immaturity”. The child witness falls under “mental immaturity”,
to wit: (b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating them
truthfully. NB: reckoning point of time is at the point of perception.183
2. This Rule is now modified by the Rule on the Examination of Child Witnesses,
i.e., a child ENJOYS THE PRESUMPTION OF BEING COMPETENT.
Anyone who questions it has the burden of proving that the child is not
competent—the court will conduct a competency examination.
3. Another point is that the testimony of a child is CREDIBLE IN ITSELF
and it does not require corroboration. This is a different form of evidence
because usually evidence has to be corroborated to be believed by the court.
4. Also under Section 28 of the new rule (shocking according to Dean Riano): the
testimony of a child describing a child abuse or an attempted child abuse even if
hearsay is generally acceptable.
*NB: this is one of the new exceptions to hearsay rule. But the court has
this warning: it must be received with caution. The party presenting a child must
give caution to the other party if he will present such a child witness.
183
Under the Rules on Examination of a child witness, a child witness is one: (2012 BAR)
a. whois18yearsofageorbelowatthetimeoftestifying.
b. who is below 18 years of age at the time of the incident/crime to be testified on.
c. who is below 18 years of age at the time of the giving of testimony.
d. whois18yearsofageinchildabusecases.
5. Section 8 of RECW is the same as Sec. 1 of Rule 132: examination must be

done in open court:
a. This examination does not refer to the competency examination of the

child [under Sec. 6(c)] but to a situation where the child is already testifying
in court. Under Sec. 6(c) only specified persons are allowed to attend the
competency examination of the child.
b. The court may EXCLUDE the public and persons having no direct
interest in the case, the order shall be made if the court determines on the
record that to testify in open court
i. would cause psychological harm,
ii. hinder the ascertainment of truth,
iii. or result in his inability to effectively communicate due to
embarrassment, fear, or timidity.
c. The court may, motu proprio, exclude the public from the courtroom
if the evidence to be produced during trial is of such character as to be offensive
to decency or public morals. The court may also, on motion of the accused,
exclude the public from trial, except court personnel and the counsel of the
parties. [Sec. 23]
6. Language: When a child does not understand the English or Filipino or is
unable to communicate in said languages due to his developmental level, fear,
shyness, disability, or other similar reason, an interpreter
a. whom the child can understand
b. and who understands the child
may be appointed by the court, motu proprio or upon motion, to interpret
for the child. (Sec. 9[a])
***If a witness or member of the family of the child is the only person
who can serve as an interpreter for the child, he shall not be disqualified and
may serve as the interpreter of the child. The interpreter, however, who is also
a witness, shall TESTIFY AHEAD of the child. (Sec. 9[b])
PRESUMPTION OF COMPETENCY OF A CHILD

1. A presumption exists under Sec. 6 of the Rule that "every child is qualified to
be a witness";184 however, such presumption does not preclude the court from
conducting a competency examination of the child
184
Q: AA, a twelve-year-old girl, while walking alone met BB, a teenage boy who befriended her.
Later, BB brought AA to a nearby shanty where he raped her. The Information for rape filed against
BB states: "On or about October 30, 2015, in the City of S.P. and within the jurisdiction of this
Honorable Court, the accused, a minor, fifteen (15) years old with lewd design and by means of force,
violence and intimidation, did then and there, willfully, unlawfully and feloniously had sexual
intercourse with AA, a minor, twelve (12) years old against the latter's will and consent." At the trial,
the prosecutor called to the witness stand AA as his first witness and manifested that he be allowed to
ask leading questions in conducting his direct examination pursuant to the Rule on the Examination of
2. The examination shall be conducted when the court finds that there is a
substantial doubt on the following matters, the ability of the child to: perceive,
remember, communicate, distinguish truth from falsehood, or appreciate the duty
to tell the truth in court. NB: The doubt that will justify a competency
examination must be a substantial one which must refer to the matters
enumerated above
3. ***The examination may be conducted motu proprio by the court or on motion of
a party.
BASIC RULES IN THE EXAMINATION OF A CHILD WITNESS

1. The examination shall be done in open court when the child is presented in a
hearing or any proceeding [Sec 8]
2. Answers of the witness shall be given orally, except if the witness is [Sec 8]
a. incapacitated to speak, or
b. the question calls for a different mode of answer
3. The party who presents a child witness or the guardian ad litem of such child
witness, may move the court that he be allowed to testify in the manner
provided under the Rules. [Sec 8]
4. An INTERPRETER may be appointed by the court, motu proprio or upon
motion, to interpret for the child when said child [Sec 9]
a. does not understand the English or Filipino language, or
b. is unable to communicate in said languages due to his:
i. developmental level
ii. fear
iii. shyness
iv. disability
a Child Witness. BB's counsel objected on the ground that the prosecutor has not conducted a
competency examination on the witness, a requirement before the rule cited can be applied in the
case. (2015)
a. Is BB’s counsel correct? A: NO. BB’s counsel is not correct. Every child is presumed
qualified to be a witness (Sec. 6, Rule on Examination of Child Witness, A.M. No. 004-07-SC).
******To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the
party challenging his competence (Id.). Here, AA, a twelve (12) year old child who is presumed to
be competent, may be asked leading questions by the prosecutor in conducting his direct
examination pursuant to Rules on Examination of Child Witness and the Revised Rules on Criminal
Procedure (People v. Santos, G.R. No. 171452, October 17, 2008).
b. In order to obviate the counsel's argument on the competency of AA as prosecution witness,
the judge motu proprio conducted his voir dire [French: a preliminary examination of a witness or a
juror by a judge or counsel] examination on AA. Was the action taken by the judge proper?
A: YES, the judge may motu proprio conduct his voir dire examination on AA. Under the Rules on
Examination of Child Witness, ******the court shall conduct a competency examination of a
child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of
the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the
duty to tell the truth in court (Id.).
[] More on voir dire from Wikipedia: Voir dire is a legal phrase that refers to a variety of
procedures connected with jury trials. It originally referred to an oath taken by jurors to tell the truth
(Latin: verum dicere), i.e., to say what is true, what is objectively accurate or subjectively honest, or
both.
v. other similiar reasons

5. A FACILITATOR may be appointed by the court, motu proprio or upon
motion, if the court determines that the child is unable to understand or respond
to questions asked; the facilitator may be any of the following: [Sec 10]
*Appointment of a Facilitator: a person who takes an oath and affirmation,
and to whom questions by the respective counsels are coursed through (him) to
the child witness.
a. child psychologist
b. psychiatrist
c. social worker
d. guidance counselor
e. teacher
f. religious leader
g. parent
h. relative
PERSONS ACCOMPANYING THE CHILD FOR EMOTIONAL

SUPPORT (Sec 11)
1. A child testifying at a judicial proceeding or making a deposition shall have the
right to be accompanied by one or two persons of his own choosing to provide
him emotional support.
2. Support persons shall remain within the view of the child during his testimony.
One of the support persons may accompany the child to the witness stand,
provided the support person does not completely obscure the child from the view
of the opposing party, judge, or hearing officer.
3. ***Condition if the support person is also a witness;
a. His testimony shall be presented AHEAD of the testimony of the child;
b. The court may disapprove the choice if it is sufficiently established that
the attendance of the support person during the testimony of the child would pose
a SUBSTANTIAL RISK of influencing or affecting the content of the testimony
of the child.
ON LIVE-LINK TV TESTIMONY***
1. Summary RE testimony by live-link television (Sec. 25)
a. An application may be made for the testimony of the child to be taken in
a room outside the courtroom and be televised to the courtroom by live-link
television.
b. The application may be made by
i. the prosecutor,
ii. counsel
iii. or guardian ad litem
c. (when?): at least five days before the trial date.
d. ******Court Order: the court may order that the testimony of the child be
taken by live-link television if there is a SUBSTANTIAL LIKELIHOOD185 that
the child would SUFFER TRAUMA from testifying in the PRESENCE of the
accused, his counsel or the prosecutor as the case may be. The trauma must be of
a kind which would IMPAIR the completeness or truthfulness of the
testimony of the child.
2. Where the child is a victim or a witness, an order that his/her testimony be
taken in a room outside the courtroom and be televised to the courtroom by live-
link television may be applied for by the:
a. prosecutor
b. counsel
c. guardian ad litem - but before he may apply for such an order, he shall
consult the prosecutor or counsel and defer to the judgment of the latter two
regarding the necessity of applying for the same; however, this rule is not
absolute because the guardian ad litem may apply for the order despite the
decision of the prosecutor or counsel not to apply, if he is convinced that the
testimony inside the courtroom will cause the child serious emotional
trauma [Sec. 25[a] of the Rule].
3. The court may, motu proprio, hear and determine, with notice to the parties, the
need for taking the testimony of the child through live-link television; the judge
may question the child in the chambers, or in some comfortable place other than
the courtroom, in the presence of the support person, guardian ad litem,
prosecutor and counsel for the parties; ***the questions of the judge shall not
be related to the issue at trial but to the feelings of the child about testifying
in the courtroom
4. The court shall issue an order granting or denying the use of live-link
television but it is required to state the reasons for such order; in issuing the
order, the court shall consider certain factors like the age and level of
development of the child, his physical and mental health and such other factors
enumerated under Sec. 25 of the Rule
5. ***The court may order for a live-link television testimony if there is a
substantial likelihood that the child would suffer trauma from testifying in the
presence of the accused, his counsel or the prosecutor as the case may be; the
trauma must be of a kind which would impair the
a. completeness, or
b. truthfulness of the testimony of the child
6. If the court orders the taking of testimony by live-link television:
a. the child shall testify in a room separate from the courtroom in the
presence of
i. the guardian ad litem;
185
Q: When may the trial court order that the testimony of a child be taken by live-link television?
Explain. (10%) (2005 Bar Question) SUGGESTED ANSWER:
*****The testimony of a child may be taken by live-link television if there is a substantial
likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the
prosecutor as the case maybe. The trauma must be of a kind which would impair the completeness
or truthfulness of the testimony of the child. (Sec. Sec. 25 [f], Rule on Examination of a Child
Witness).
ii. one or both of his support persons;

iii. the facilitator and interpreter, if any;
iv. a court officer appointed by the court;
v. persons necessary to operate the closed-circuit television
equipment;
vi. and other persons whose presence are determined by the court to
be necessary to the welfare and well-being of the child
b. the (i) Judge, (ii) prosecutor, (iii) accused and (iv) counsel for the
parties shall be in the courtroom where the testimony of the child shall be
transmitted by live-link television for their, as well as the public's (unless excluded),
viewing and hearing
c. if it is necessary for the child to identify the accused at trial, the court
may allow the child to enter the courtroom for the limited purpose of
identifying the same, or the court may allow the child to identify the accused by
observing the image of the latter on a television monitor.
ON VIDEOTAPED DEPOSITION; BASIC FEATURES

1. The prosecutor, counsel or guardian ad litem may apply for an order that a
deposition be taken of the testimony of the child and that it be recorded and
preserved on videotape;
2. ***The court shall issue an order that the deposition of the child be taken and
preserved by videotape if it finds out that the child will not be able to testify in
open court at the trial
3. The judge shall preside at the videotaped deposition of a child; objections to
deposition testimony or evidence, or parts thereof, and the grounds for the same
shall be stated and shall be ruled upon at the time of the taking of the deposition;
other persons who may be permitted to be present at the same are:
a. the prosecutor
b. the defense counsel
c. the guardian ad litem
d. the accused, subject to sub-section (E)
e. other persons whose presence is determined by the court to be necessary
for the welfare and well-being of the child
f. one or both of his support persons, the facilitator and interpreter, if any
g. the court stenographer
h. persons necessary to operate the videotape equipment
4. ***The right of the accused during trial, especially the right to confront and
cross-examine the child, shall not be violated during the deposition
5. The court may direct the accused to be excluded from the room in which
deposition is conducted if there is evidence that the child is unable to testify
in the physical presence of the accused; such exclusion entails that the
necessity for the child to view an image of the accused in case of testimony by live-
link television is dispensed with
6. The videotaped deposition shall be preserved and stenographically recorded
and transmitted to the clerk of court where the case is pending and made part of
the record
7. If, at the time of trial, the court finds that the child is unable to testify (for the
reason stated in Sec. 25[f] RCW) or is unavailable for any reason (those described
under Sec. 4[c] ROC), the court may admit into evidence the videotaped
deposition of the child in lieu of his testimony at the trial
8. Take note of the following:
a. Sec. 25 (f) refers to the substantial likelihood that the child will suffer
trauma from testifying in the presence of the accused, his counsel or the
prosecutor
b. Sec. 4 (c) refers to the instances when the deposition of a witness,
whether he be a party or not, may be used for any purpose
9. After the original videotaping but before or during trial, any party may file any
motion for additional videotaping on the ground of newly discovered
evidence which may or may not be granted by the court
EXCEPTION TO THE HEARSAY RULE***

1. Under Sec. 28 of the RCW, a hearsay statement of a child may be admitted in
evidence in any criminal or non-criminal proceeding
2. The testimony is admissible provided***
a. the same be offered in child abuse cases
b. and the statement made by the child is one describing any act or
attempted act of child abuse;
c. aside from the above requirements, the following must likewise be

complied with:
i. the proponent shall make known to the adverse party the
intention to offer such statement and its particulars to provide him a fair
opportunity to object before the hearsay statement may be admitted
ii. if the child is available, the court shall, upon motion of the
adverse party, require the child to be present at the presentation of the hearsay
statement for cross-examination by the adverse party
iii. when the child is unavailable, the fact of such circumstance must
be proved by the proponent and the ***hearsay testimony shall be admitted only
if corroborated by other admissible evidence.
3. In ruling on the admissibility of the hearsay statement, the court shall consider
the (a) time, (b) content, and (c) circumstances surrounding the making of the
statement which would provide sufficient indicia of reliability; certain factors
also to be considered are:
a. motive to lie
b. general character of the declarant child
c. number of persons who heard the statement
d. spontaneity of the making of the statement
e. relationship between the declarant child and the witness
f. remoteness of the possibility of a faulty recollection, and
g. other circumstances surrounding the statement
4. ***Sample problem: NN (10 y/o) described in court what MM (victim in a child
abuse case) told her about the incident. NN’s testimony was offered to prove the
truth of MM’s declaration. It was objected on hearsay grounds & stricken off the
records:
a. as counsel for MM, how would you restore the testimony and put it on
the records? Invoke Sec 28, RECW where a hearsay statement of a child may be
admitted in evidence in any criminal or non-criminal proceeding, as it relates
to a child abuse case where NN described the act or attempt to abuse MM.
Besides, NN described the same in court, where the adverse party could have
invoked his right to cross-examine NN.
b. as adverse counsel, how would you counteract (a)? I will attack the (a)
time, (b) content, and (c) circumstances surrounding the making of the
statement that would weaken their indicia of reliability. Concretely, I would
show proof of NN’s motive to lie, her general character, that no other
persons heard the same, that she was not spontaneous in making the statement,
that she is closely related to the victim, etc. I will also request that NN be
presented for cross-examination, and should she be unavailable, her hearsay
statement will be admitted only if corroborated by other admissible evidence.
ON CHARACTER EVIDENCE IN CHILD ABUSE CASES

***(SEXUAL ABUSE SHIELD RULE)
1. GR: Under Sec. 30 of the RCW, the following are NOT admissible in any
criminal proceeding involving alleged sexual child abuse; evidence offered to
prove:
a. that the alleged victim engaged in other sexual behavior
b. the sexual predisposition of the alleged victim

2. Exception: evidence of SPECIFIC instances of sexual behavior by the
alleged victim is admissible to prove that a person other than the accused was
the source of
a. semen
b. injury, or
c. other physical evidence.
***
Section 31. Protection of privacy and safety. -
(a) Confidentiality of records. - Any record regarding a child shall be
confidential and kept under seal. Except upon written request and order of
the court, a record shall only be released to the following:
(1) Members of the court staff for administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies; and
(6) Other persons as determined by the court.
*Two requirements for the records to be released to these people:
1. written request;
2. order of the court

*NB: the confidentiality of any record regarding a child is protected by the contempt powers
of the court
(b) Protective order. - Any videotape or audiotape of a child that is
part of the court record shall be under a protective order that provides as
follows:
*NB: the protective order of the court does not preclude the viewing of the videotape or
audiotape of the child; it may be viewed by the 1) parties, 2) expert witness, and 3) guardian ad
litem
————————————————————————————————
Other Relevant Concepts
AFFIDAVIT OF RECANTATION/DESISTANCE
1. In People v. Bonaagua, the accused tried to invoke the affidavit of desistance executed by the minor
victim’s mother stating that they would no longer pursue the rape cases against him. But the high court
pointed out that since R.A. No. 8353, or the Anti-Rape Law, took effect in 1997, rape is no longer
considered a crime against chastity. Having been reclassified as a crime against persons, it is no
longer considered a private crime, or one which cannot be prosecuted except upon a complaint filed by
the aggrieved party. Thus, pardon by the offended party of the offender will not extinguish his
criminal liability.
2. “As a rule, a recantation or an affidavit of desistance is viewed with suspicion and reservation.186
Jurisprudence has invariably regarded such affidavit as exceedingly unreliable, because it can easily
be secured from a poor and ignorant witness, usually through intimidation or for monetary
consideration. Moreover, there is always the probability that it would later on be repudiated, and
criminal prosecution would thus be interminable. [PP v. ESTIBAL, 26 Nov 2014]
————————————————————————————————
REFERENCES
1. UST Notes:187 GN, case lists, Bar Q&A’s, lectures of Dean Riano.
2. Contributions of Lau & Kyle (esp. KPL)
186
(1998 Bar Question) 2. What is the probative value of a witness’ Affidavit of Recantation?(2%)
SUGGESTED ANSWER: *****On the probative value of an affidavit of recantation, courts look with
disfavor upon recantations because they can easily be secured from witnesses, usually through
intimidation or for a monetary consideration. Recanted testimony is exceedingly unreliable. There
is always the probability that it will be repudiated. (Molina vs. People, 259 SCRA 138.)
187
These notes were culled mainly from notes (GN), lectures, outlines, case summaries, etc. provided to
students at the UST Faculty of Civil Law, plus researches and updates by those who write them in and
contribute to their present form. Errors are to be attributed to the main author and he is asking you to
send him whatever you think needs to be corrected at tomlawnotes@gmail.com. Aside from that, all
he requests from you is prayers for him, his family and friends. Yes, seriously, if you are happy with
these notes, please send him prayers, generous prayers, if possible. His favorite prayer is the Holy Mass,
and oh, Rosaries :)

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TOM Bar Reviewer in Remedial Law III

UNDER DOCUMENTARY EVIDENCE

UNDER TESTIMONIAL EVIDENCE

THE REVISED RULES ON EVIDENCE

II. General Principles

ON THE DEFINITION OF EVIDENCE 3

ON THE DEFINITION OF EVIDENCE

QOP: Preponderance of evidence Proof beyond reasonable doubt

ON APPLICABILITY OF THE RULES ON EVIDENCE

ON THE LIBERAL CONSTRUCTION2 OF THE RULES ON

III. Admissibility of Evidence

FRUIT OF THE POISONOUS TREE DOCTRINE

RELEVANCY, COMPETENCE & CREDIBILITY OF A WITNESS

ADMISSIBILITY OF EVIDENCE ON COLLATERAL MATTERS

*XPN: except when it tends in any ***REASONABLE degree to establish the

ON THE WAIVER OF THE RULES ON EVIDENCE (ROE);

ADMISSIBILITY vs. PROBATIVE VALUE (Weight)

3. Probative value of the evidence - refers to the question of WON it proves an

ADMISSIBLE EVIDENCE vs. CREDIBLE EVIDENCE

MORE ON PROBATIVE VALUE & CREDIBILITY

7. The sole testimony of a rape victim, if credible, natural, convincing and

9. It is settled that discrepancies between statements of the affiant in his

INADMISSIBLE EVIDENCE UNDER THE ANTI-WIRETAPPING

a) knowingly possess any tape record, etc. of any communication obtained in

COMMON MATTERS UNDER IV-V-VI

ON JUDICAL NOTICE & ADMISSIONS 13

ON JUDICAL NOTICE & ADMISSIONS

ADMISSION vs. CONFESSION

REQUISITES FOR VALID EXTRAJUDICIAL CONFESSION;

(c) The custodial investigation report shall be reduced to writing by the

priest or minister of the gospel as chosen by him; otherwise, such extrajudicial

IV. Judicial Notice

MANDATORY vs. DISCRETIONARY JUDICIAL NOTICE 18

ON JUDICIAL NOTICE IN GENERAL

MANDATORY vs. DISCRETIONARY JUDICIAL NOTICE

JUDICIAL NOTICE vs. JUDICIAL KNOWLEDGE

knowledge of a fact, not generally or professionally known, as the basis of his

ON MANDATORY JUDICIAL NOTICE

******MATTERS OF MANDATORY JUDICIAL NOTICE

HOW ABOUT FOREIGN LAWS?

ii. or they have been ACTUALLY RULED UPON in OTHER

MATTERS OF DISCRETIONARY JUDICIAL NOTICE; REQUISITES

MATTERS OF DISCRETIONARY JUDICIAL NOTICE NEED TO BE

JUDICIAL NOTICE OF RECORDS OF OTHER CASES

OTHER MATTERS OF JUDICIAL NOTICE

2. Judicial notice could be taken of the financial condition of the government.

THOSE THAT ARE NOT MATTERS OF JUDICIAL NOTICE

2. Post office practices are not proper subjects of judicial notice

ELEMENTS OF JUDICIAL ADMISSIONS (JA)***** 24

ELEMENTS OF JUDICIAL ADMISSIONS (JA)*****

More on “IN THE COURSE OF THE PROCEEDINGS”; Scenarios

8. During pre-trial (conference), parties are allowed to make stipulation of facts—

HOW TO CONTRADICT JUDICIAL ADMISSIONS

EFFECT OF JUDICIAL ADMISSIONS (JA)****

RULE WHEN NO MORE FACTUM PROBANDUM EXISTS AFTER JA

IMPLIED JUDICIAL ADMISSIONS

admission to usury. But if usury is simply mentioned (i.e., not usurious

VI. Extrajudicial Admissions;23 res inter alios acta

RES INTER ALIOS ACTA (RIAA) 30

RES INTER ALIOS ACTA (RIAA)

2. Two branches of res inter allies acta

First branch of RIAA

Second branch of RIAA