THE LAW ON EVIDENCE Rules 128 to 134, Revised Rules of Court I. PRELIMINARY CONSIDERATION: A.

Importance of the study of Evidence in Law Enforcement: As an element of our Criminal Justice System, it is the duty of every law enforcement agencies to provide the prosecution with the materials and information (Evidence) necessary in order to support conviction. Every person is entitled to be presumed innocent of a crime or wrong, unless proven otherwise. This is a prima facie presumption which must be overcome by proof beyond reasonable doubt. B. Connecting the chain of events through Evidence during Trial: Trial refers to the examination before a competent tribunal, according to the laws of the land, of the facts in issue in a cause, for the purposes of determining such issue (U.S. v. Raymundo, 14 Phil 416). Evidence helps in the determination of Questions of Facts by helping the judge reconstruct the chain of events from the conception up to the consummation of a criminal design. C. Factum Probandum and Factum Probans Factum Probandum The ultimate facts to be proven. These are the propositions of law. Examples of ultimate facts: 1. murder was committed thru treachery 2. robbery was made through force upon things 3. rape was committed by use of force, threats & violence Factum Probans The evidentiary Facts. These address questions of fact. Examples of evidentiary facts: 1. medico legal report showing exit wounds were in front indicating that victim was shot at the back 2. photographs of destroyed locks indicative of force upon things 3. testimony of the rape victim that she was threatened with a gun The ultimate fact refers to the elements of the crime. These must be alleged in the complaint or information. The ultimate facts are the propositions of law. The evidentiary facts, on the other hand, are those objects, documents or testimonies that are needed to support the ultimate facts. Evidentiary facts addresses factual questions. Thus, the outcome of every trial is determined by:

Propositions of law, and Questions of fact.

D. Proof and Evidence Evidence the means to arrive at a conclusion. Under the Revised Rules of Court, evidence is defined as the means, sanctioned by the rules, for ascertainment in a judicial proceeding, the truth, respecting a matter of fact. Proof the result of introducing evidence. The establishment of a requisite degree of belief in the mind of the judge as to the facts in issue. It refers to the accumulation of evidence sufficient to persuade the trial court. Quantum of evidence the totality of evidence presented for consideration Quantum of proof refers to the degree of proof required in order to arrive at a conclusion. Burden of evidence the duty of a party of going forward with evidence. Burden of proof the duty of the affirmative to prove that which it alleges. Variations on degrees of proof based on type of action: 1. Criminal Action proof beyond reasonable doubt [that degree of proof which produces conviction in an unprejudiced mind] 2. Civil Action preponderance of evidence [evidence of greater weight or more convincing than that which is offered to refute it] 3. Administrative Action sufficiency of evidence [that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion] E. Exclusionary Rule & Fruit of the Poisonous Tree Doctrine 1. Exclusionary Rule (Based on Art. III, Sec. 2 & Sec. 3, Par. (1) & (2), 1987 Constitution): Evidence ILLEGALY OBTAINED are inadmissible for reasons of public policy. This is so because of the constitutional requirement of due process. 2. Fruit of the Poisonous Tree Doctrine: Derivative evidence which is a product of a previous illegal search are tainted with the illegality of the source and is likewise inadmissible. Thus, if PDEA agents entered a house without warrant and obtained several kilos of suspected shabu, the suspected shabu itself is inadmissible under the exclusionary rule. If the authorities sent these suspected shabu to the crime lab and the chemist certifies the presence of methamphetamine hydrochloride in a chemistry report, the testimony of the chemist and the chemistry report are inadmissible under the fruit of the poisonous tree principle. F. Principle of Chain of Custody of Evidence If the evidence is of a type which cannot be easily recognized or can readily be confused or tampered with, the proponent of the object must present evidence of its chain of custody. The proponent need not negate all possibilities of substitution or tampering in the chain of custody, but must show that: 1. The evidence is identified as the same object which was taken from the scene;

2. It was not tampered with, or that any alteration can be sufficiently explained (i.e. discoloration due to the application of ninhydrine solution, etc.); and 3. The persons who have handled the evidence are known and may be examined in court with regard to the object. II. GENERAL PROVISIONS: A. Concepts of evidence: 1. It is a means of ascertainment used to arrive at a legal conclusion 2. It is sanctioned by the rules of court meaning, not excluded by the rules on relevancy and admissibility 3. It is used in a judicial proceeding there is a jural conflict involving different rights asserted by different parties 4. It pertains to the truth respecting a matter of fact evidence represents a claim either for the prosecution or for the defense where issues (clashes of view) are present. Admissibility of Evidence: For evidence to be admissible, it must be: 1) relevant to the issue [relevancy test], and 2) not excluded by the law or rules of court [competency test]. Note: To determine the relevancy of any item of proof, the purpose for which it is sought to be introduced must first be known (There must be a formal offer). Test of relevancy of evidence: Whether or not the factual information tendered for evaluation of the trial court would be helpful in the determination of the factual issue that is disputed. When is evidence relevant? When it has a relation to the fact in issue as to induce belief in its: 1) existence, or 2) non-existence In other words, evidence is relevant when it is: 1) material, and 2) has probative value What is meant by probative value? It is the tendency of the evidence to establish the proposition that it is offered to prove. Collateral Matters not admissible except when it tend in any reasonable degree to establish probability or improbability of the fact in issue. Collateral matters matters other than the fact in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue.

Collateral matters are classified into: 1. Antecedent circumstances facts existing before the commission of the crime [i.e. hatred, bad moral character of the offender, previous plan, conspiracy, etc.] 2. Concomitant circumstances facts existing during the commission of the crime [i.e. opportunity, presence of the accused at the scene of the crime, etc.] 3. Subsequent circumstances facts existing afterthe commission of the crime [i.e. flight, extrajudicial admission to third party, attempt to conceal effects of the crime, possession of stolen property, etc.] Query: Is modus operandi an antecedent, concomitant or subsequent circumstance? B. Judicial Notice, basis of: Judicial notice is based on necessity and expediency. This is so because what is known need not be proved. Different kinds of judicial notices: 1. mandatory 2. discretionary 3. hearing required C. Confession and Admission, distinguished: Confession an acknowledgement of guilt. Admission an acknowledgment of facts. Different kinds of confession/admission: 1. Judicial 2. Extrajudicial 3. Oral 4. Written 5. Voluntary 6. Forced Different kinds of evidence: 1. Relevant evidence evidence having any value in reason as tending to prove any matter provable in an action. 2. Material evidence evidence is material when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings. 3. Competent evidence not excluded by law. 4. Direct evidence proves the fact in issue without aid of inference or presumptions. 5. Circumstantial evidence - the proof of fact or facts from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as necessary or probable consequence. 6. Positive evidence evidence which affirms a fact in issue. 7. Negative evidence - evidence which denies the existence of a fact in issue. 8. Rebutting evidence given to repel, counter act or disprove facts given in evidence by the other party.

9. Primary/Best evidence that which the law regards as affording the greatest certainty. 10. Secondary evidence that which indicates the existence of a more original source of information. 11. Expert evidence the testimony of one possessing knowledge not usually acquired by other persons. 12. Prima facie evidence evidence which can stand alone to support a conviction unless rebutted. 13. Conclusive evidence incontrovertible evidence 14. Cumulative evidence additional evidence of the same kind bearing on the same point. 15. Corroborative evidence additional evidence of a different kind and character tending to prove the same point as that of previously offered evidence. 16. Character evidence evidence of a persons moral standing or personality traits in a community based on reputation or opinion. 17. Demeanor evidence the behavior of a witness on the witness stand during trial to be considered by the judge on the issue of credibility. 18. Demonstrative evidence evidence that has tangible and exemplifying purpose. 19. Hearsay evidence oral testimony or documentary evidence which does not derive its value solely from the credit to be attached to the witness himself. 20. Testimonial evidence oral averments given in open court by the witness. 21. Object/Auotoptic proferrence/Real evidence those addressed to the senses of the court (sight, hearing, smell, touch, taste). 22. Documentary evidence those consisting of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of its contents. Best Evidence Rule: When the subject of the inquiry is the contents of a document, no evidence shall be admissible other than the original of the document. For exceptions, see Sec. 3, Rule 130, Revised Rules of Court. A document is legally considered Original when: 1. It is the subject of an inquiry 2. When in two or more copies executed at or about the same time, with identical contents. 3. When an entry is repeated in ordinary course of business, one being copied from another at or near the time of the transaction. Question: May a fake document be considered as original or authentic? Yes. A forged or spurious document when presented in court for examination is considered as the original fake/forged document. Thus, a mere photocopy of the allegedly forged or spurious document is only secondary to the original questioned document. Secondary Evidence When the original document has been: 1. lost, 2. destroyed, or 3. cannot be produced in court. The offeror without bad faith must:

1. prove its execution or existence, and 2. prove the cause of its unavailability. Secondary evidence may consist of: 1. a copy, 2. recital of its contents in some authentic document, or 3. by testimony of witnesses. When original document is in the custody of: 1. adverse party adverse party must have reasonable notice to produce it. After such notice and satisfactory proof of its existence, he fails to produce it, secondary evidence may be presented. 2. public officer contents may be proved by certified copy issued by the public officer in custody thereof. III. TESTIMONIAL EVIDENCE: Qualifications of witnesses: 1. can perceive 2. can make known their perception to others 3. not disqualified by reason of mental incapacity, immaturity, marriage, privileged communications, or dead mans statute. Res Inter Alios Acta Rule General Rule:The rights of a party cannot be prejudiced by an act, declaration, or omission of another. Exception: 1. admission by a co-partner or agent 2. admission by a conspirator 3. admission by privies 4. admission by silence In the above cases, the admission of one person is admissible as evidence against another. Testimonial Knowledge: General Rule:A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception. Any statement which derives its strength from anothers personal knowledge is hearsay, and is therefore inadmissible. Exceptions: 1. Dying declarations (ante-mortem statements) 2. Declaration against interest 3. Act or declaration about pedigree 4. Family reputation or tradition regarding pedigree 5. Common reputation 6. Part of the res gestae 7. Entries in the course of business 8. Entries in official records

9. Commercial lists and the like 10. Learned treatises 11. Testimony or deposition at a former proceeding 12. Examination of child victim/witness in cases of child abuse IV. BURDEN OF PROOF AND PRESUMPTIONS: Burden of proof 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. Presumption an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known or a conjecture based on past experience as to what course human affairs ordinarily take. 2 kinds of presumptions: 1. Conclusive presumptions [jure et de jure] based on rules of substantive law which cannot be overcome by evidence to the contrary. 2. Disputable presumptions [prima facie presumptions, rebuttable presumptions] based on procedural rules and may be overcome by evidence to the contrary. Kinds of Conclusive Presumptions: 1. Estoppel by record or judgment the preclusion to deny the truth of matters set forth in a record, whether judicial or legislative, and also deny the facts adjudicated by a court of competent jurisdiction (Salud v. CA, 233 SCRA 387). 2. Estoppel by deed a bar which precludes a party to a deed and his privies from asserting as against the other and his privies any right or title in derogation of the deed or denying the truth of any material fact asserted in it (Iriola v. Felices, 30 SCRA 202). 3. Estoppel in pais based upon express representation or statements or upon positive acts or conduct. A party cannot, in the course of litigation or in dealings in pais, be permitted to repudiate his representation or occupy inconsistent positions. 4. Estoppel against Tenant the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. Note: For Kinds of disputable presumptions, see Sec. 3, Rule 131 of the Revised Rules of Court. Presentation of Evidence: The examination of witnesses presented in a trial or hearing shall be done is open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answer of the witness shall be given orally. Rights and Obligations of witnesses: 1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor. 2. Not to be detained longer than the interest of justice requires. 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.

5. Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to the fact from which the fact in issue would be presumed, but a witness must answer to the facts of his previous final conviction for an offense. Order of Examination of individual witnesses: 1. Direct examination by the proponent 2. Cross examination by the opponent 3. Re-direct examination by the proponent 4. Re-cross examination by the opponent Direct examination the examination in chief of a witness by the party presenting him on the facts relevant to the issue. Cross examination the examination by the adverse party of the witness as to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. Re-direct examination second questioning by the proponent to explain or supplement answers given in the cross examination. Re-cross examination second questioning by the adverse party on matters stated on the redirect and also on such matters as may be allowed by court. Different Types of Objectionable Questions: 1. Leading question It is one where the answer is already supplied by the examiner into the mouth of the witness. [Ex. You saw Jose killed Juan because you were present when it happened, didnt you?] 2. Misleading question a question which cannot be answered without making an unintended admission. [Ex. Do you still beat your wife?] 3. Compound question a question which calls for a single answer to more than one question. [Ex. Have you seen and heard him?] 4. Argumentative question a type of leading question which reflects the examiners interpretation of the facts. [Ex. Why were you driving carelessly?] 5. Speculative question a question which assumes a disputed fact not stated by the witness as true. [Ex. The victim cried in pain, didnt he?] 6. Conclusionary question a question which asks for an opinion which the witness is not qualified or permitted to answer. [Ex. Asking a high school drop-out whether the gun used is a Cal. 45 pistol or 9mm pistol] 7. Cumulative question a question which has already been asked and answered. 8. Harassing/Embarrassing question [Ex. Are you a homosexual?] Classes of Documents: Documents are either public or private. Public documents are: 1. The written official acts, or records of the official acts of sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or a foreign country. 2. Documents acknowledged before a notary public except last wills and testaments. 3. Public records (1) kept in the Philippines, or private documents (2) required by law to be entered therein. All other writings are private.