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Purpose of the Rule on Evidence: It is designed to enable the inquiry to proceed with least waste of time and
effort, and at the same time guard against prejudice and arbitrariness.
LawofEvidence Consists of those rules, statutory and judicial, which regulate the acceptance or rejection of
the information to a legal tribunal which will justify a conclusion or judgment upon the matter in issue before it.
It furnishes matter of fact:
1. It prescribes the manner of presenting evidence
2. It fixes the qualification and the privileges of witnesses and the mode of examining them
3. It determines which are logically and in their nature evidential, what classes of things shall not be
received
Evidenceanything that makes evident or clear to the mind, or such things collectively; any ground or reason for
knowledge or certitude in knowledge; proof whether from immediate knowledge or from thought, authority or
testimony; a fact or body of facts on which a proof, belief or judgment is based; that which shows or indicates.
In law, the matter to be proved is the contention of the litigant as to the issue, and it is most fundamental
rule that evidence offered must correspond with the allegations and be confined to the point in issue.
Scope of Law on Evidence
1. Prescribes the manner of presenting evidence
2. Fixes the qualification and privilege of witnesses and mode of examining them
3. Determines among the probative matters things which are logically and in their nature evidential, and
what classes of things shall not be received.
RULE 128
Section 1. Evidence defined.Evidenceisthemeans,sanctionedbytheserules,ofascertainingina
judicial proceeding the truth respecting a matter of fact.
Component Elements:
1. Evidence as a means of ascertainmentEvidencemayrefertotheevidentiary fact or the mannerof
bringing this fact forward before the tribunal, or both.
Wigmoresdefinition: any knowable fact or group of facts, not a legal or logical principle,
considered with a view to its being offered before a legal tribunal for the purpose of producing a
conviction, positive or negative, on the part of the tribunal, as to the truth of a proposition not of law or of
logic, on which the determination of the tribunal is to be asked.
2. Sanctioned by these rulesmeansallowedundertheserulesornotexcludedbytheserules.
3. In a judicial proceedingcontemplatesajuralconflict.
4. The truth respecting a matter of factreferstoanissueoffactandisbothsubstantiveandprocedural.
The manner of proving these facts or acts is procedural and is governed by the rules on evidence.
Evidence Argumentation
The process of presentation or demonstration of
the jural relation between the parties can be
accomplished only by the use of a number of facts,
the final logical result being the establishment of
the total fact.
The invocation by counsel of ordinary rules of logic
and rhetoric in the combination of assumed facts.
Factum Probandum Factum Probans
Ultimate fact to be established , the
PROPOSITION of which evidence may be offered
is given by the rules of substantive law and
pleadings
Material evidencing the proposition. It is the
evidential fact or the fact by which factum
probandum is established.
It becomes the fact in issue only if by substantive It signifies a relation between facts. The difference
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Classification of Rules of Evidence
1. Rules of probative policy toimprovetheprobativevalueoftheevidenceoffered.Itconsistsofthe
following rules:
a. Exclusionary ruleexcludescertainkindsofevidence,ongroundspartlyofrelevancyand
partly of policy
b. Preferential rulesrequiresonekindofevidenceinpreferenceovertheother
c. Analytic rulesrulessubjectcertainkindsofevidencetorigidscrutiny,soastoexposeit
possible weaknesses and shortcomings.
d. Prophylactic rules ruleswhichapplybeforehand,certainmeasurestopreventriskorfalsityor
mistake.
e. Quantitative rules requirecertainkindsofevidencetobeproducedinspecificquantity.
Appreciating the probable weakness of certain kinds of evidence, these require them to be
associated with other evidence when presented.
2. RulesofExtrinsicPolicythese rules seek to exclude useful evidence for the sake of upholding other
policies considered more paramount and are either absolute or conditional
Different Kinds of Evidence
1. Relevant Evidence evidencehavinganyvalueinreasonastendingtoproveanymatterprovableinan
action. It is relevant when it has a tendency to establish the probability or improbability of a fact in issue.
2. Material Evidence Itismaterialwhendirectedtoproveafactinissueasdeterminedbytherulesof
substantive law and pleadings.
3. Competent Evidenceitiscompetentwhennotexcludedbylawinaparticularcase.
4. DirectandCircumstantialEvidenceDirect when it proves the fact in dispute without the aid of any
inference or presumption. Circumstantial when the proof of fact or facts from which, taken either singly
or collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable
consequence. Circumstantial evidence is founded on experience and observed facts and coincidences
establishing a connection between the known and proven facts and the facts sought to be proved.
5. Positive and Negative Evidence Positive when it affirms that a fact did or did not occur while
negative when the witness states that he did not see or know the occurrence of a fact.
6. Rebutting Evidence - that which is given to repel, counteract or disprove facts given in evidence on the
other side.
7. PrimaryorBestandSecondaryEvidencePrimaryorbestevidenceaffords the greatest certainty of
the fact in question. Secondary evidence indicates the existence of more original source of information.
It is that which is inferior to primary evidence, and permitted by law only when the better evidence is not
available.
8. ExpertEvidence It is testimony of one possessing in regard to a particular subject or department of
human activity, knowledge not usually acquired by another person.
9. Prima Facie Evidence itistheevidencewhichstandingaloneunexplainedoruncontroverted,is
sufficient to maintain the proposition affirmed.
10. Conclusive Evidenceincontrovertible
11. Cumulative evidence Additional evidence of the same kind bearing on the same point. Evidence is
not inadmissible simply because it is cumulative but considerable discretion may be exercised by the trial
judge in determining the extent to which such evidence will be received and in limiting the number of
witnesses who may testify to a particular fact.
12. Corroborative Evidence - additional evidence of a different kind and character, tending to prove the
same point.
Evidence Proof
Means of proof Effect of evidence
Means tending to show guilt but all combined might Is the degree and quantity of evidence that
law, it will entitle a person to relief or from which
entitlement may reasonably inferred; otherwise it
becomes immaterial.
would not be in the nature of the proof but in the
nature of facts required to be proved. The latter is
in reality civil or penal law, not evidence.
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Forms of Evidence
1. Testimonial evidenceevidence given in open court by witnesses who have knowledge of the facts
2. Documentaryevidencesuchaspublicrecords,privatewritings,businessrecords,photographs,maps,
and the like
3. Objectevidencetangibleobjectsorexhibits
4. Opiniontestimonyrecitaloffactualdetailsbyqualifiedexpertsineducation,trainingorexperiencein
particular fields.
Individuals and party litigants cannot, by private contract, stipulate rules of evidence that shall be binding
on the courts. Parties to a contract may legally stipulate as to the effect of certain types of evidence on
the contractual rights of the parties, so long as their agreements do not infringe upon the jurisdiction of
the courts.
Section 2. ScopeTherulesofevidenceshallbethesameinallcourtsandinalltrialsandhearings,
except as otherwise provided by law or these rules.
Rules of admissibility are in general the same for the trial of civil and of criminal cases. Whether a matter
is true or false is the same in all cases. This general principle is the basic rule of admissibility of all
evidence.
The rules are applicable in proceedings like judicial, quasi-judicial, administrative and all other
proceedings.
All relevant evidence should be admitted if it is the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs.
Quantum of evidence
1. Criminalcasesproofbeyondreasonabledoubt
2. Civilcasespreponderanceofevidence
3. Administrativesubstantialevidence
Preponderance of Evidence meantsimplyevidencewhichisofgreaterweight,ormoreconvincing,thanthat
which is offered in opposition thereto. The testimony adduced by one side is more credible and conclusive than
that of the other.
Proof beyond reasonable doubt - does not mean such degree of proof as excluding possibility of error and/or
producing absolute certainty. Moral certainty is only required or that degree of proof which produces conviction in
an unprejudiced mind.
Substantialevidence amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.
Section 3. Admissibility of EvidenceEvidenceisadmissiblewhenitisrelevanttotheissueandisnot
excluded by the law or these rules.
Requirements of Admissibility
1. Relevancy - It must be relevant to the issue. Evidence is relevant if it may establish directly or
indirectly the existence or non-existence of the facts in issue.
2. CompetencyitisnotexcludedbytheRulesonEvidence,thelawandtheconstitution.Evidenceis
competent if it is not excluded by any rule of law for the purpose for which it is offered.
Two axioms of admissibility by Wigmore
1. None but facts having rational probative value are admissible. It prescribes merely that whatever is
presented as evidence shall be presented on the hypothesis that it is calculated, according to the
prevailing standards of reasoning, to effect rational persuasion.
or might not be deemed proof thereof produces conviction
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2. All facts having rational probative value are admissible, unless some specific rule forbids. Everything
having a probative value is ipso facto entitled to be assumed to be admissible, and that therefore any rule
of policy which may be valid to exclude it is a superadded and abnormal rule.
Rule on Multiple admissibility
Evidence will be received if it satisfies all the requirements prescribed by law in order that it may be
admissible for the purpose for which it is presented, even if it does not satisfy the other requisites for its
admissibility for other purposes.
Evidence may frequently be admissible as against one party but not as against another.
Rule of Limited Admissibility
Where evidence is admissible for one purpose, it is not rendered inadmissible solely because it is
improper or irrelevant for some other purpose.
Admissibility Weight
Evidence is admissible if it complies with the
requirements of relevancy and competency
Or probative value is determined by the court
Admissibility Credibility
Evidence is admissible if it is relevant to the issue
and is not excluded by the law or these rules.
Depends on the evaluation given to the evidence
by the court in accordance with the guidelines
provided in Rule 133 of the Rules of Court and the
doctrines laid down by the Supreme Court.

Curative admissibility
Improper Evidence admitted on one side without objection, does not give the other side the right to
introduce in reply the same kind of evidence if objected to; however, when a plain and unfair prejudice
would otherwise inure to the opponent, the court may permit him to use a curative counter-evidence to
contradict the improper evidence presented.
Where improper evidence has been received against the objection of the opposing party, it is error for the
court to refuse to allow the latter to contradict it.
Some conclusions:
1. If the inadmissible evidence sought to be answered is irrelevant and not prejudiced-aroused the judge
should refuse to hear answering evidence. But if he does hear it, the party opening the door has no
standing to complain
2. If the evidence, though inadmissible, is relevant to the issues and hence presumably damaging to the
adversaryscase,orthoughirrelevantisprejudicearousingtoamaterialdegree,andiftheadversaryhas
seasonably objected or moved to strike, then the adversary should be entitled to give answering evidence
as of right. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence
3. If again the first inadmissible evidence is relevant, or though irrelevant is prejudice-arousing, but the
adversary has failed to object or to move to strike out where such an objection might avoided the harm,
thentheallowanceofansweringevidenceshouldrestinthejudgesdiscretion.Heshouldweighthe
probable influence of the first evidence, the time and distraction incident to answering it, and the
possibility and effectiveness of an instruction to the jury to disregard it.
4. If the inadmissible evidence is so prejudice-arousing that an objection or motion to strike could not have
erased the harm, then it seems that the adversary should be entitled to answer it as a matter of right.
Conditional Admissibility afactofferedinevidencemayappeartobeimmaterialunlessitisconnectedwith
other facts to be subsequently proved. In such a case, evidence of that fact may be received on condition that the
other facts be afterwards proved. On failure to comply with this condition, the evidence already given shall be
stricken out.
The Exclusionary Rule: a judicially created remedy which provides that evidence obtained in violation of
thedefendantsconstitutionalrightsmustbesuppressedfromthegovernmentscaseinchief.
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Scope of the Exclusionary Rule
The following are the rights protected by the rule:
1. Right against unreasonable search and seizure
2. Right to privacy and inviolability of communication
3. Rights of person under investigation for an offense
4. Right against self-incrimination
Fruit of the poisonous tree doctrine: posits that all evidence derived from an illegal search must be
suppressed, whether it was obtained directly through the illegal search itself, or indirectly using information
obtained in the illegal search.
Likewiseknownasthebutforortaintdoctrinewhichmeansthattheevidencewouldnothavecome
to light but for the illegal action of the police. The test is whether or not the evidence could not have
been obtained but for the illegal action of the police.
Once the primary source (the tree) is shown to have been unlawfully obtained, any secondary or
derivative evidence (the fruit) derived from it is also inadmissible. The rule is based on the principle
that evidence illegally obtained by the State should not be used to gain other evidence because the
original illegally obtained evidence taints all evidence subsequently obtained.
Prohibition against wire-tapping
The law refers to a tap of wire or cable or the use of device or arrangement for the purpose of secretly
overhearing, intercepting or recording the communication. There must be either physical interruption
through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept,
or record the spoken works.
Each party to a telephone conversation takes the risk that the other party may have an extension
telephone and may allow another to overhear the conversation. When such takes place, there has been
no violation of any privacy of which the parties may complain.
This is inadmissible and illegal under RA 4200, there being no consent thereto by both parties to the
conversation. Thus, even a person privy to a communication who records his private conversation with
another without the knowledge of the latter will qualify as a violator under the provision of RA 4200.
Section 4. Relevancy; collateral mattersEvidencemusthavesucharelationtothefactinissueasto
induce belief in its existence or non-existence; Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability or improbability of the fact in
issue.
Relevancyis the initial and true test of admissibility. The trial court will admit only evidence that bears such a
sufficient relationship to the matters in dispute that it may be deemed relevant.
Sole test of relevancy: is whether or not the factual information tendered for communication to the fact finder
would be helpful in the determination of the factual matter that is in dispute between the parties.
The test of relevancy is logical connection where the question is whether evidence is admissible to show
a collateral fact or where proferred evidence is relevant to the collateral issue. Evidence is admissible to
show a collateral fact that tends to prove or disprove a matter of fact which has been made an issue in
the case.
Components of relevant evidence
1. Materialitylookstotherelationbetweenthepropositionsforwhichtheevidenceisofferedandthe
issues of the case. What is in issue is determined mainly by the pleadings, read in the light of the rules of
pleadings and controlled by the substantive law. Issues not raised by the pleadings may be tried by
express or implied consent of the parties.
Test of materiality whethertheevidenceoffereduponamatterproperlyinissue.Whatmattersina
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case are in issue is to be determined mainly by the pleading, the applicable principles of substantive law,
and by pre-trial orders, if any.
2. Probative value/probativenesstendencyofevidencetoestablishthepropositionthatitisofferedto
prove. Probativeness is a matter of common sense, logic and experience.
Relevant evidence is evidence that in some degree advances the inquiry. It is material and probative. As
such it is admissible, at least prima facie. But this relevance does not ensure admissibility.
Degree of Probativeness required: Evidence need not be absolutely determinative of the fact which it is
directed. It need not be conclusive.
Insufficient probativeness: Although evidence need not be very probative to be relevant, it must be sufficiently
probative so that time spent on the matter would not be wasted.
Effect of finding of probativeness: A determination of probativeness, then is the legal conclusion that there
exists a sufficient relationship between the evidence offered and the fact sought to be proved, such that
reasonable persons might be helped in inferring one from the other.
Relevancy is the initial and true test of admissibility, and in the absence of some applicable exclusionary
rule, legalistic defects which would bar the evidence for some other purpose which are inapplicable to the
pupose for which it is offered, do not render it generally inadmissible.
Basic Rule: Evidence even though relevant, should be excluded if its probative value is substantially outweighed
by the risk that its admission will cause (1) undue or unfair prejudice, (2) confusion of the issues, (3) misleading of
the jury, (4) undue delay or waste of time, or (5) needless presentation of cumulative evidence.
Collateral Mattersaremattersotherthanthefactsinissueandwhichareofferedasabasisforinferenceasto
the existence or non-existence of the facts in issue.
Whenapersonsconductisinissuethefactthatthepersonengagedinconductofsamesortona
different occasion may be shown as tending to shed light on some quality of the conduct in question, such
intent, knowledge, good or bad faith, malice or other state of mind or bodily feeling.
Classification of Collateral Matters
1. Antecedent circumstances
a. Moral character, habit or customs
b. Plan, design or conspiracy
There must be motive but if there is no proof thereof, this does not preclude conviction if there is sufficient
proof of guilt. While motive is generally of great importance, it is not absolutely indispensable. While it is a
recognized rule of human conduct that crime is the response of the evil mind to some temptation, and that
men of sound mind are rarely prompted to commit it without some impelling motive, it does not follow, and
it is not the law, that the prosecution, to justify a conviction in a given case.
2. Concomitant Circumstances
a. Opportunityiftheaccusedwastheonlyonewhohadtheopportunitytodotheactcharged,
such circumstance maybe taken against him. Exclusive opportunity is not essential. It is enough
that the person charged had an opportunity to do the act added to the chain of other
circumstances, leads to the inference that he is really the author of such act.
b. Incompatibilitywhenconcomitantcircumstancesareincompatiblewiththedoingofanactby
a person, they may be proved to show that such person is not the author of the act. When it is
impossible for a man to commit the crime charged, because at the time of its commission, he was
at a place far from that of the crime, the accused should be discharged.
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c. Alibi oneoftheweakestdefensesoftheaccused.Adefendantmustnotonlyshowthathewas
present at some other place about the time of the alleged crime, but also that he was at such
other place for so long a time that it was impossible for him to have been at the place where the
crime was committed, either before or after the time he was at such other place.
3. Subsequent Circumstances circumstancestakingplaceafterthedisputedfactoccurredwhichmay
show the truth or falsity of the facts or controversy such as flight, concealment, nervousness, despair,
fingerprint, footprint, articles left by accused, resemblance, bloodstains, offer of compromise, possession
of stolen articles or counterfeit notes.
a. Flightflightoftheaccuseiscompetentevidenceagainsthimashavingatendencytoestablish
his guilt
b. Non-flightnolaworprincipleholdingthatnonflightbyitself,isproof,letaloneconclusiveproof
of innocence. It cannot prevail in the light of positive identification of the accused.
RULE 129
Section 1. Judicial notice, when mandatoryAcourtshalltakejudicialnotice,withouttheintroductionof
evidence, of the existence and the territorial extent of states, their political history, forms of government
and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their
seals, the political constitution and history of the Philippines, the official acts of the legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical
divisions.
The presumption prevails that when a cause is presented at the bar for trial, the Court is uninformed
concerning the facts involved, and it is incumbent upon the litigants to the action to establish by evidence
the facts upon which they rely. Judicial truth is different from actual moral truth.
Judicial Noticecognizanceofcertainfactswhichjudgesmayproperlytakeandactonwithoutproofbecause
they are already known to him. It is based upon convenience and expediency.
Object of the rule: to save time, labor and expense in securing and introducing evidence on matters which are
not ordinarily capable of dispute and are not bona fide disputed, and the tenor of which can safely be assumed
fromthetribunalsgeneralknowledgeorfromaslightsearchonitspast.
In order for a court to take judicial notice of facts commonly known, it is not necessary that a request be
made for it even where the taking of notice is permissive rather than compulsory.
Unless the taking of notice is required by statue or rule of law the court has some discretion whether to
take judicial notice or not.
Legislative Facts Adjudicative Facts
Those which have relevance to legal reasoning
and the lawmaking process whether in the
formulation of a legal principle or ruling of a judge
or court in enactment of a legislative body
Simply the facts of the particular case. These facts
would be subject of proof except that, for one
reason or another, judicial notice may be taken of
themusuallybecausenoreasonableperson
could dispute them.
Facts of the particular case which are
determinative of the outcome of litigation. Such
facts are ordinarily established by evidence unless
they are of such character that by common
acceptance they stand as established without other
proof. It is these facts with which the rules of
Great body of information and expository material
which contributes to rationalization by capable,
intelligent and objectively thinking people in the
process not only of ascertaining what the common
law and social concepts are but also in promoting
their improvement and development.
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Section 2. JudicialNotice,whendiscretionary.A court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges
because of their judicial functions.
TEST OF NOTORIETY: Whether the fact involved is so notoriously known as to make it proper to assume its
existence without proof.
The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is
accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or
those persons familiar with the particular matter in question.
RANGE OF APPLICATION: Laws of the land and foreign laws. The latter must be alleged and proved, except
foreign statute accepted by the government is subject to judicial notice; common law.
Administrative regulations are as a general rule judicially noticed because although they are not
actually notorious, yet they would be capable of unquestionable demonstration, if desired, that no party
would think of imposing a falsity on the tribunal in the face of an intelligent adversary.
Official acts, proclamations, regulations, and reports may be judicially noticed.
Courts will take judicial notice of its own records of case pending before it.
The court is not authorized to take judicial knowledge of the contents of the record of other cases in the
adjudication of cases pending before them or even when said other cases have been heard or are
pending in the same court notwithstanding the fact that both cases may have been heard or are really
pending before the same judge.
Exceptions:
- Without objection or by agreement of the parties, it may be read into records or admitted as part of
the record of the case then pending.
- The other proceedings or causes are so closely interwoven or interdependent.
- Where the interests of the public are in ascertaining the truth are of paramount importance.
- In cases seeking to determine what is reasonable exercise of discretion or whether or not a previous
ruling applicable in a case under consideration.
- Finality of the judgment in another case that was previously pending determination, and therefore, res
judicata.
- Decisions of the CA which affect the case then pending.
The exceptions are applicable only when, in the absence of objection, with the knowledge of the
opposing party, or at the request or with the consent of the parties, the case is clearly referred to or
the original part of the records of the case are actually withdrawn from the archives and admitted as
part of the record of the case then pending.
An appellate court is without authority to take notice or take into consideration, the judicial records of
a case previously decide by the trial court upon which said court did not have opportunity to pass.
An appellate court cannot consult the records in another case to ascertain a fact not shown by the
records of the case before it, but could go to its other decisions for the law that is determinative of or
applicable to the case under review.
Courts will take judicial notice of notorious historical happenings, geographical facts, laws and
phenomenon of nature, and arts and sciences.
To take judicial notice of a custom it must be generally known and established and uniformity acted
upon so as to raise a fair inference that it was known to both contracting parties and that they acted
upon it. A custom must be proved as a fact according to the rules of evidence.
Courts may take judicial notice of religious matters, certain commercial or trade practices, habits,
judicial notice deal
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traits and diseases of men, and diseases and frailties.
Judicial notice of entries in police report was allowed.
Section 3. Judicial notice, when hearing necessary. - 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.
After the trial, and before judgment or on appeal, 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.
Hearing is necessary to afford reasonable opportunity to present evidence.
DISTINCTION BETWEEN JUDICIAL NOTICE OF SOURCES AND JUDICIAL NOTICE OF FACTS: The court
may find that while the source is genuine, the fact recited therein is not clearly indisputable and should, therefore,
be subject to proof.
If evidence is not necessary to establish a fact that is beyond dispute, evidence is not admissible to
contradict the fact of which the court takes notice.
Section 4. Judicialadmissions. An admission verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made.
Admissions should be offered in court to make them available to the court.
Judicial admission: an admission made in the course of the proceedings in the same case, verbal or
written by a party accepting for the purposes of the suit the truth of some alleged fact, which said party
cannot thereafter disprove.
GENERAL RULE: The allegations, statements, or admissions contained in a pleading are conclusive as against
the pleader.
The instrument need not be presented formally in evidence for it may be considered as an admitted fact.
An extrajudicial admission is not conclusive but disputable and must be formally offered in evidence
before the court may consider the admission as evidence.
Judicial admissions under this rule applies only to a pending case and may be made in pleadings either
expressly or impliedly.
The following are NOT deemed admitted: immaterial allegations, incorrect conclusions of facts drawn
from facts set out in the complaint, conclusions of law, general averments contradicted by specific
averments, unliquidated damages.
No admissions may be made in: annulment of marriage and legal separation.
An admission in a pleading in one action may be received in evidence against the pleader or his
successor in interest on the trial of another action to which he is a party and material to the issues
involved in such action.
Allegations in an answer are not necessarily judicial admissions.
There can be no admission as to jurisdiction.
A party is bound by the admission contained on a pleading prepared by his attorney, although he did not
swear to or know of the statements therein and even though he had no actual knowledge of the existence
of the pleading.
However, when a lawyer acts beyond his authority, all he does is null and void although it may be
beneficial to the client.
A stipulation of facts is a judicial admission of all the facts stated therein.
An amended pleading supersedes the original pleading which disappears from the records. So that
defenses in the original pleading not reproduced in the amended pleadings are deemed waived and
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cease to be judicial admissions.
The parties to any action may agree, in writing upon the facts involved in the litigation and require the
judgment of the court upon the facts agreed upon, without the introduction of evidence.
A judicial admission in an affidavit used in the case when relevant, is competent evidence, even if merely
adopted and not made by the party against whom it is used. It may be competent evidence for the
adverse party on the trial of another issue different from that on which it was offered. The affidavit must,
however, be formally offered in evidence in order to render it available.
One who prays for judgment on the pleadings without offering proof as to the truth of his own allegation
and without giving the opposing party an opportunity to introduce evidence must be understood to admit
the truth of all the material and relevant allegations of the opposing party, and to rest his motion for
judgment on those allegations taken together with such of his own as are admitted in the pleadings.
See Rule 26 of the Rules of Court
A plea of guilty admits all the material allegations of the information, including the attendant
circumstances qualifying and/or aggravating the crime.
See Rules 116 regarding plea of guilty to a capital offense and 118 (pre trial agreements must be signed)
of the Rules of Court
RULE 130
Section1:Objectasevidence.Objectasevidencearethoseaddressedtothesensesofthecourt.When
an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
Sources of Evidence
1. TestimonialEvidencethereisaninferencefromthehumanassertiontothefactasserted;testimonyof
man which may be oral or written.
2. Circumstantialevidenceinferencefromthecircumstancetothethingproducingit;thatofany
circumstance not a human assertion nor an autoptic preference from which an inference may be taken as
to the existence or non-existence of a fact in dispute
3. RealEvidenceorautopticpreferenceomissionofanystepofconsciousinferenceorreasoningandin
proceeding by direct self-perception or autopsy; that which is addressed to the senses of the court as
wheretheobjectsareexhibitedforthepersonalobservationofthejudge(evidenceofonesownsenses)
REAL EVIDENCE
Physical or tangible evidence presented to the trier of fact for inspection as relevant to an issue in the
case
Physical evidence is evidence to the highest order. It prevails over testimonial evidence.
Scope of Real Evidence
Includes everything addressed to the five senses (vision, hearing, taste, smell, and touch)

Real Evidence may be Direct of Circumstantial
a. Directcanprovedirectlythefactforitisoffered(e.g.personalinjurycasedirectexhibitionoftheinjury
itself)
b. Circumstantialfactsabouttheobjectareprovedasthebasisforaninferencethatotherfactsaretrue
(e.g.paternitycasecompareappearanceofthebabyandtheallegedfather,thefactthatthechildand
the alleged father look alike, the court may then be asked to draw an inference that the parental
relationship exist)
Admissibility of Real Evidence
Must be relevant
Must not be hearsay
Must not be privileged
Must meet any additional requirement (e.g. it must not be the result of an illegal search and seizure or in
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violation of any pretrial order)
Requirement of Authentication
The real evidence is what it purports to be or more precisely, that it is what its proponent say it is
Authenticwhatitisclaimedtobeeventhoughitconsistsoffalseinformation(falsifiedbookskeptbythe
defendant is authentic if it is introduced by the prosecution for the purpose of showing its falsity)
Relevance
Even if a thing is authentic does not mean that it is relevant
Authentication is necessary:
1. To prevent the introduction of an object different from the one testified about
2. Toinsurethattherehavebeennosignificantchangesintheobjectscondition
Types of Authentication
a. By testimony
b. Chainofcustodyiftherealevidenceisofatypewhichcannoteasilyberecognizedorcanreadilybe
confused or tampered with
HOW? Establish a chain of custody: white powder seized from defendant and prosecution wishes
to testify that it is found by the chemist to be heroin. Seizing officer sealed it in an envelope and signed it,
placed it in a safe box which only he knows the combination, later took it out and delivered it to the
chemist. Chemist testify that he received said envelope from the police officer
Particular types of real evidence
a. Documentary evidence: must comply with the rules of relevance, hearsay, privilege as well as
authentication, best evidence rule and doctrine of completeness
b. Exhibition of injuries
c. Personal appearance
d. Inspection of body
Photographs, Motion Pictures, X-rays, Tape Recordings
All these items fall within the definition of real evidence
Must be authenticated by special testimony showing that they are faithful reproductions of the object or
person depicted
a. Photographs
Must be identified by the photographer as to its production and testified as to the
circumstances under which they were produced
Maps, diagrams and sketches would only be admissible if first shown to be correct
b. X-rays
Authentication must show that the process used is accurate; that the machine itself was in
working order; that it was operated by a qualified operator; and that the evidence has come
through a proper custodial chain
Competency depends on: (1) the science, skill, experience and intelligence of the party taking
the picture and (2) the science, skill, experience and intelligence of the party testifying to it
Maps and Diagrams (Pictorial Communication)
Justified on the ground that they are a form of pictorial reproduction of communication to the senses
which may be used in lieu of descriptive testimony
Foundation must be laid by evidence of the correctness of the representation or the accuracy of the item
used in demonstration
Chart and Tables
Hearsay when prepared out of court
If part of the testimony of the witness it is really a recognition of the principle that the hearsay bar does
not apply when the witness is present in court and subject to cross examination with respect to his
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illustrative material
Drawings and Illustrations
Usable and admissible on the same principles as other types of testimonial aids, and subject to the same
limitations of relevancy, utility, and discretionary control are drawings of various kinds and illustrations of a
pictorial nature, vouched for and received in evidence as part of the testimony of the vouching witness.
Paintings, Drawing and Maps
Authentication: accuracy or likeness must be affirmatively shown by the testimony of the artist or other
competence witness
No presumption of correctness founded on their general use and employment, or on their being
mechanical reproduction by a process which the court will judicially notice as existing as in the case of
photographs.
Admitted not as evidence but to enable the court to better understand the oral testimony
Motion Pictures
Admissible under the same principle governing still pictures and photograph records
A movie tone duly authenticated as an accurate portrayal of the words and actions of a person is
admissible is relevant
Tape Recordings, Wire and Dictaphone
Requirements of admissibility
1. The tape, wire or Dictaphone deice was capable of taking testimony
2. The person operating the device was competent to operate it
3. The recording is authentic and correct
4. The recording had been duly preserved
5. The testimony was voluntarily made
6. The speaker has been correctly identified
This is subject to the limitation of RA 4200 or the Anti-Wire Tapping Law
Paraffin Test Not Conclusive
The presence of gunpowder residue on hands is not conclusive proof that person had recently fire a gun
Excessive perspiration or washing of hands with the use of warm water or vinegar may also remove
gunpowder nitrates on the skin
Conduct of paraffin test after more than 72hrs from the time of the shooting mat not lead to a reliable
result for, by such time, the nitrates could have already been removed by washing or perspiration
View of the object
If object can be brought to the courtroom, the court can have it exhibited before it through a witness who
may present it as an exhibit during his testimony and thereafter the court may have it examined or viewed
in open court during trial in the presence of the parties.
View of the scene
Immovable or inconvenient to remove like buildings machinery animals or other heavy objects, the natural
tendency is for the tribunal to go to the object in its place and there observe it
Inspection or view of the object should be made in the presence of the parties in open court an at all
times subject to the control of the court, if made inside the courtroom or in connection with the trial, if
made outside thereof
Paternity Cases
A comparison of the physical characteristics of the baby and alleged father constitutes real evidence
Note: most courts will permit the exhibition under certain conditions (where child is sufficiently old to
possess settled features)
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Age of Person
If age of a person is in issue, the fact of age should be proved by sworn testimony; but where relative age
is to be determined the court may take into consideration the appearance of the person as the latter is
seen in court.
Demonstration
The court in its discretion may permit experiments or demonstrations to be performed in the courtroom
Requisites:
1. Relevancy
2. The present condition of the object must be the same at the time is issue
Grounds for Excluding Real Evidence
1. Inherent Limitations
a. Relevancy
b. Illegally obtained Evidence
2. Non-inherent Limitations
a. Undue Prejudice: probative value is exceeded by its prejudicial effect
b. Indecency or impropriety
c. Offensiveness to sensibilities
Exception to admissibility of indecent evidence: (1) there should be fair necessity for inspection; (2) the
inspection should take place apart from the public courtroom in the sole presence of the tribunal and the
parties
DEMONSTRATIVE EVIDENCE
Distinguished to Real Evidence: is not the real thing, instead, it has tangible or exemplifying purposes. It
is visual aid.
Distinction not always clear, depends on the use to be made of it
Our rule does not make such distinction: When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court
Types:
a. Selected demonstrative evidence: e.g. existing, genuine handwriting specimens used as
standards of comparison by a handwriting expert
b. Prepared or reproduced demonstrative evidence: made specifically for trial
Testimonial Foundation Required
SCIENTIFIC EVIDENCE
Requirements for admissibility
1. Must be shown that the experiment was conducted under conditions substantially similar to those
existing at the time of the actual event being litigated
2. Expert Testimony
Court may take judicial notice of the reliability of certain scientific tests
Types:
1. Psychiatry and Psychology
2. Toxicology: blood tests, breathalyzer (analyze sample of breath to determine alcoholic content),
nalline test for narcotics use
3. Forensic pathology
4. Photography, motion pictures and videotape
5. Microanalysis
6. Neutron Activation analysis
7. Fingerprinting
8. Firearms identification
9. Question document evidence
10. Polygraph testing
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Parties must all sign a written stipulation agreeing to admission of results
Admissibility still subject to judicial discretion
Right to cross examination
11. Vehicular speed detection
12. Spectographic voice identification
Document as object evidence:
Two types:
o Documentary evidence, where it is produced in court to prove its contents and
o As object evidence, where it is produced to show its existence or condition as for instance
whether it is genuine or forged
Section2:DocumentaryEvidence.DocumentaryEvidenceconsistofwritingsoranymaterial
containing letters, words, numbers, figures, symbols or other modes of written expressions offered as
proof of their contents.
Writinghandwriting,typewriting,printing,photostating,photographingandeveryothermeansofrecordingupon
any tangible thing any form of communication or representation, including letters, words, pictures, sounds or
symbols or any combination thereof,
BEST EVIDENCE RULE
Section 3. Originaldocumentmustbeproducedexceptions. When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document itself, except
in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consist of numerous accounts or other documents which cannot be
examined in court without great loss of time and 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.
General Rule: the exclusion of secondary evidence of the contents of a written instrument; original document
itself must be presented
Exception: some legal excuse can be shown for failure to produce the original writing. ( LCNP)
1. Original has been lost or destroyed or cannot be produced in court- without bad faith on the part
of the offeror;
2. 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;
3. 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 for them is only the general result
of the whole;
4. Original is a public record in the custody of a public officer or is recorded in a public office.
Best evidence rule- misleading name; better referred to as the ORIGINAL WRITITNG RULE.
The duty to produce the original arises only when the subject of the inquiry is the contents of the writing
Limitation Upon Best Evidence Rule:
a. Proof of Collateral Facts Not Within Rule
- Testimony as to the fact of execution or the existence of writings or references to written
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instruments as mere inducementsare not within the rule.
b. The rule requiring production of the original instrument itself does not apply to the proof of facts
evidenced/recorded by the writing rather than to the language or terms of the writing. (Ex: fact of
ownership of land or chattels)
c. The Best Evidence Rule has no application to prove a fact which has an existence independently of
any writing.
- The rule excludes testimony designed to establish the terms of a document but does not exclude
testimony which concerns the document without aiming to establish its terms.
d. The best evidence rule refers merely to proof of what are the contents of a writing and not as proof of
the truth of the facts asserted therein.
- Ex: narration of events in a letter, which recitals are often hearsay--- the letter is not admissible to
prove the truth of its recitals unless it qualifies as an exception to the hearsay rule.
Additional Illustrative Cases where Rule DOES NOT APPLY:
e. To make testimony coherent and intelligible.
- Ex: I was there to get a letter. There is no need to produce the leetr.
f. To admission as to contents of writing and where subject of preliminary cross examination, to lay the
basis for confrontation (LAYING THE PREDICATE)
- Section 16,Rule 132
- First: admission is offered; Second: counsel asks preliminary questions if accused made
statements,etc; Third: counsel asks if he made written statements.
g. Where there is no bona fide dispute on the contents of document and no useful purpose would be
served by its production.
Rule Waived if No Proper Objection Made
- The proper time for making such objection is when the formal offer is made not during the
identification merely of the secondary evidence.
- BUT its admission is still subject to the rules on weight and sufficiency of evidence
Section 4.Originalofdocument.
(a) The original of a 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.
Principles When More Than One Original
- Where there are 2 or more originals, any of them may be used without accounting for the others.
- A COPY however may not be used without accounting for other original copies.
What is the ORIGINAL?
- The original of the document is one the contents of which are the subject of inquiry.
- The original depends upon the issue to be proved.
- Ex: libelous article---- 1. To prove who the author is, the original is the manuscript sent to the
editor; 2. To prove the libelous publication, the original is the article appearing in the newspaper.
The Rule on Duplicate Original
a. When a document is in 2 or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals.
Duplicate Original- a signed carbon copy or duplicate of a document executed at the
same time as the original.
b. 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 entries are likewise equally regarded as originals.
SECONDARY EVIDENCE
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Section 5. When original document is unavailable. Whentheoriginaldocumenthasbeenlostor
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.
Section 5 WHEN ORIGINAL DOCUMENT IS UNAVAILABLE (EXCEPTION 1)
Secondary evidence is admissible when the original documents are unavailable.
The correct order of proof:
1. Existence;
2. Execution;
3. Loss;
4. Contents.
*This order may be changed if necessary in the discretion of the court.
Primary Evidence Outside the Jurisdiction
- Where the original is in another country, if the party seeking to introduce the evidence has shown
himself unable to produce it, secondary evidence is admissible.
Proof of EXECUTION and DELIVERY:by any person or persons-
1. Who executed the document;
2. Before whom its execution was acknowledged;
3. Who was present and saw it executed and delivered;
4. Who after its execution and delivery, saw it and recognized the signatures;
5. To whom the parties to the instrument had previously confessed the execution thereof.
Proof of DESTRUCTION:by any person knowing the fact
Proof of LOSS: by any person/anyone-
1. Who knew the fact of loss;
2. Who has made, in the judgment of the court, a sufficient examination in the place or places where
the document or papers of similar character are usually kept by the persons in whose custody the
document lost was, and has been unable to find it.
3. Who has made investigation which is sufficient to satisfy the court that the instrument is indeed
lost.
Proof of LACK OF RECORD-Section 28,Rule 132
- 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 record 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.
Intentional loss or destruction- inadmissible.
Proof of CONTENTS:by any person-
1. Who signed the document;
2. Who read it;
3. Who heard it read knowing or it being proved from other sources that the document so read was
the one in question;
4. Who was present when the contents of the document were talked over between the parties
thereto to such extent as to give him reasonable full information as to its contents;
5. To whom the parties to the instrument have confessed or stated the contents thereof.
*Warning of SC in Enriquez Case: Counsel should not characterize the document but ask only
knowledge of execution of document.
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Degrees of Secondary Evidence
a. American Rule: the secondary evidence which is admissible is the best secondary evidence
obtainable.
If it appears that there is in existence secondary evidence of a more satisfactory kind
than the secondary evidence which a party offers, he will be required to produce the
better evidence if he can do so ; he will not be permitted to introduce the inferior
secondary evidence offered unless he can show that the better secondary evidence and
the original primary evidence are unavailable.
Ex: copy of lost writing better than oral evidence in relation thereto
b. English Rule: Where the original of a writing has been lost, the copy and oral testimonies
relating to such writing are both secondary evidence, and both are competent evidence in
establishing the contents of the lost writing.
*We have adopted the AMERICAN RULE.
Section 6. Whenoriginaldocumentisinadverseparty`scustodyorcontrol. If the document is in the
custody or under the control of the adverse party, he must have reasonable notice to produce it. If after
such notice and after satisfactory proof of its existence, he fails to produce the document, secondary
evidence may be presented as in the case of its loss.
Section6WHENORIGINALDOCUMENTISINADVERSEPARTYSCUSTODYORCONTROL (EXCEPTION 2)
Requisites: (PRSF)
1. Opponentspossession or controlof the original;
Not necessary to show that the original is in the actual possession of the adversary;
It is sufficient that the circumstances are such as to indicate that the writing is in his
possession or control.
2. Reasonable noticeto the opponent to produce the original;
The giving of notice at the trial satisfies the requirement.
The notice must be so framed that there can be no reasonable doubt as to what papers are
meant. It is sufficient if the adverse party may reasonable understand that a certain document
is required.
3. Satisfactory proof of its existence;
4. Failure or refusal of the opponent to produce the original in court.
Effect of Non-Production After Notice
- Every reasonable intendment will be in favor of secondary evidence, if it is vague or uncertain.
- And it is then too late for the party having possession of the primary evidence to use it in rebuttal.
Voluminous Writings; Summaries In Lieu of Originals (EXCEPTION 3)
- Requisites: (PMG)
1. There must be proof of voluminous character of records;
2. The records and accounts should be made accessible to the adverse partyso that the
correctness of summary may be tested on cross-examination;
3. The general result sought to be proved is one capable of being ascertained by
calculation.
Original is a Public Record in the Custody of a Public Officer or Recorded in a Public Office (EXCEPTION
4)
- Exception to Exception: Upon order of court and where the inspection is shown to be essential to
the just determination of the case or action or proceeding pending.
Meaning that the court will order the production of the original document in the custody of
the public officer.
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Kinds of Secondary Evidence:
- Under Exceptions 1 and 2:
1. By a copy thereof;
2. By a recital of its contents in an authentic document;
3. By recollection of witness.
- Under Exception 3: Summary of the voluminous documents or records.
- Under Exception 4:
1. Certified true copy;
2. Official Publication.
Section 7. Evidenceadmissiblewhenoriginaldocumentisapublicrecord When the original of a
document is in the custody of a public officer or is recorded in a public office, its contents may be proved
by a certified copy issued by the public officer in custody thereof.
When Secondary Evidence Is Inadmissible
- Secondary evidence is inadmissible to take the place of that which has evidentiary force only by
authority of express statutory enactment.
- Ex:notarypublicscertificateofprotest
Effect of Error in Admitting Secondary Evidence
- Error in admitting secondary evidence may be rendered harmless by the subsequent introduction
of the primary evidence to the same point.
Section 8. Party who calls for document not bound to offer it. Apartywhocallsfortheproductionofa
document and inspects the same is not obliged to offer it as evidence.
The mere production of documents upon the trial, pursuant to notice duly served, does not make such
documents evidence; it is not until the party who demanded their production examines them and
OFFERS THEM IN EVIDENCE that they assume the status of evidentiary matter.
PAROL EVIDENCE RULE (Sec. 9)
Sec. 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 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 the written agreement if
he PUTS IN ISSUE IN HIS PLEADING: [ FIVE ]
1. The Failure of the written agreement to express the true intent of the parties thereto;
2. An Intrinsic ambiguity, mistake or imperfection in the written agreement;
3. The Validity of the written agreement;
4. The Existence of other terms agreed to by the parties or their successors in interest after the execution of
the written agreement.
Thetermagreementincludeswills.
NOTE: Exceptions must be alleged in the pleadings and if not alleged parol evidence is inadmissible to prove the
true agreement.
PURPOSE OF THE RULE:
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1. To give stability to a written agreement;
2. To remove the temptation and possibility of perjury;
3. To prevent possible fraud.
REQUISITES:
1. There must be a valid contract;
2. The terms of the agreement must be reduced to writing;
3. The dispute is between parties and their successors in interest; and/or
- The parol evidence rule does not apply and may not properly be invoked by either party to the
litigation against the other, if at least one of the parties to the suit is not a party or privy of a party
to the written instrument in question and does not claim on the instrument or assert a right
originating in the instrument or in the relation established by it. Elsewise stated, the rule is not
applicable where the controversy is between one of the parties to the document and third persons
(Lechugas vs. CA).
4. There is dispute as to the terms of the agreement.
When no timely objection or protest is made to the admission of parol evidence, and when the motion to
strike out said evidence came too late and if the other party against whom such evidence was presented
cross-examined the witness who testified in respect to the contract, said party will be understood to have
waived the benefits of the law. Parol evidence under those facts is competent and admissible. (Abrenica
vs. Gonda, No.10100, August 15, 1916)
ParolEvidence Any evidence aliunde which is intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document.
Evidence Aliunde (Extrinsic Evidence)
It may refer to a testimonial, real or documentary evidence.
NOTE: No express trust concerning an immovable or any interest therein may be proved by parol evidence (Art.
1443, Civil Code).
WHEN PAROL EVIDENCE RULE APPLIES
GENERAL RULE: Parol Evidence Rule applies only to INTEGRATED (finalized) AGREEMENTS (intended by
both parties as the final and exclusive written memorial of their dealings).
THEORY OF INTEGRATION OF JURAL ACTS
Previous acts and contemporaneous transactions of the parties are deemed integrated and merged in the
written instrument which they have executed.
When the parties have reduced their agreement to writing, it is presumed that they have made the writing the
ONLY REPOSITORY and MEMORIAL OF THE TRUTH, and whatever is not found in the writing must be
understood to have been waived and abandoned.
EXCEPTION:
Collateral Oral Agreements
- A contract made prior to or contemporaneous with another agreement and IF ORAL and NOT
INCONSISTENT with written contract IS ADMISSIBLE within the exception to parol evidence rule.
An agreement is collateral if it meets the ff. REQUIREMENTS:
1. It is not a part of the integrated written agreement in any way;
2. It is not inconsistent with the written agreement in any way, including both the express and implied
provisions of the written agreement; and
3. It is not closely connected with the principal transaction as to form part and parcel thereof.
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NOTE: The Parol Evidence Rule does not apply when the COLLATERAL ORAL AGREEMENT refers to
SEPARATE and DISTINCT SUBJECTS.
RATIO: The parties to a contract cannot be presumed to have embodied in a single writing all the agreements
which they had on different subjects.
Rule on Collateral Agreements to Reconvey
at the Time of Execution of Deed of Conveyance
Parol evidence on a collateral agreement to reconvey is allowed where it appears that consideration
indeed was not the only consideration agreed upon by the parties, and that the purchaser succeeded in obtaining
from the vendor a deed of absolute sale under a false promise that he would later execute a deed authorizing the
vendor to repurchase the property within a period of time. Parol evidence is admissible because it tends to prove
fraud and the true considerations of contracts.
PAROLEVIDENCERULEAPPLICABLETOWILLS
The general rule is that no evidence on the terms of the will and its attestation clause is admissible other
than the contents of the will. However, under Art. 789 of the New Civil Code, when there is an imperfect
description in the will, or when no person or property exactly answers the description, mistakes and omissions
must be corrected if the error appears from the contexts of the will or from extrinsic evidence, excluding the oral
declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the
applicationofanyofitsprovisions,thetestatorsintentionistobeascertainedfromthewordsofthewill,taking
into consideration the circumstances under which it was made, excluding such oral declaration.
A Xerox copy of a lost or destroyed will is admissible because comparison can be made with the standard
writing of the testator (Bonilla vs. Aranza).
RULE ON INTRINSIC AMBIGUITY
Intrinsic or Latent Ambiguity whenthewritingonitsfaceappearsclearandunambiguousbutthereare
collateral matters or circumstances which make the meaning uncertain.
Extrinsic or Patent Ambiguity ambiguityisapparentonthefaceofthewritingitselfandrequiressomethingto
be added in order to ascertain the meaning of the words used.
Parol evidence cannot be used to ratify or supplement a void contract
Intermediate Ambiguity wheretheambiguityconsistsintheuseofequivocalwordsdesignatingthepersonor
subject matter, parol evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the
court in arriving at the meaning of the language used. (This kind of ambiguity results from the use of words
susceptible of two interpretation)
INTRINSIC and INTERMEDIATE AMBIGUITIES are curable by evidence aliunde or extraneous evidence.
PATENT AMBIGUITY cannot be cured by evidence aliunde.
PrincipleofFalsa Demonstratio non nocet cum de corpore constat
Anerroneousdescriptiondoesnotspoiltheact.
False description does not injure or vitiate a document, provided that the thing or person intended has
once been sufficiently described.
Where there are two descriptions in a deed, the one having been superadded to the other, and one
description being complete and sufficient of itself while the other which is subordinate and superadded is
incorrect, the incorrect description or feature of circumstance of the description is rejected as surplusage,
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and the complete and correct description is allowed to stand alone.
RULE ON MISTAKE
Parol Evidence is admissible to prove mistake in the execution of a written agreement.
RATIO: It would be unjust and inequitable to allow the enforcement of a written instrument which does not reflect
or disclose the real meeting of the minds of the parties.
Elements of Mistake:
1. It should be a mistake of fact and not a mistake of law;
- Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making
the mistake and consisting in 1) an unconscious ignorance or forgetfulness of a fact, past or present,
material to the contract; or 2) belief in the present existence of a thing material to the contract which
does not exist, or in the past existence of such a thing which has not existed. Mistake of law happens
when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal
effect.
2. It should be mutual or common to both parties to the instrument;
- However, under Art. 1363 NCC when one party was mistaken and the other knew or believed that the
instrument did not state their real agreement; but concealed that fact from the former, the instrument
may be reformed.
3. It should be alleged and proved by clear and convincing evidence.
NOTE: The ground that the written agreement fails to express the true intent of the parties can only be invoked
when the contract is literally ambiguous or obscure in its terms and that the contractual intention of the parties
cannot be understood from the mere reading of the instrument.
RULE ON IMPERFECTION
Where a writing, although embodying an agreement is manifestly incomplete, and is not intended by the
parties to exhibit the whole agreement, but only to define some of its terms, the writing is conclusive as far as it
goes. But such parts of the actual contract as are not embraced within its scope may be established by parol.
Imperfection includes an inaccurate statement in the agreement, or incompleteness in the writing, or the
presence of inconsistent provisions therein.
RULE ON CONDITIONAL AGREEMENTS
Conditions qualifying the operation of a clear and complete written agreement are not allowed, for they
would tend to vary, alter or contradict terms of written agreement.
1. Conditions Precedent Whentheoperationofacontractismadetodependontheoccurrenceofan
event, parol evidence is allowed. May be established by parol evidence because there is no varying of the
terms of the written contract by extrinsic agreement for the reason that there is no contract in existence;
there is nothing to which to apply the excluding rule.
2. Conditions Subsequent maynotbeestablishedbyparolevidence.
Parol Evidence of True Consideration
Parol evidence is admissible to prove fraud and the true consideration of the contract. Parol evidence may be
admitted to prove:
That no consideration was paid or received;
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That the consideration was greater or less than that which is expressed in the writing;
That the consideration has failed;
That a new consideration is agreed upon to take the place of a previous one which failed;
PROVIDED, it does not tend to change the terms of the contract as well as the recital of consideration.
The judicial tendency is toward holding that the recital of consideration or the acknowledgment of
payment in a deed is open to almost unlimited explanation. However, it has been held that where the
consideration stated in the deed is not pecuniary and is SPECIFICALLY CONTRACTUAL in nature, a
different or additional consideration cannot be shown by parol.
Parol Evidence of Warranty in Sales
When the written contract for the sale of personal property is manifestly and complete contract between
the parties and there is no claim of fraud or mistake, parol evidence is INADMISSIBLE.
Where the contract is manifestly incomplete, or when an agreement wholly independent of and collateral
to the written instrument entered into, parol evidence is ADMISSIBLE.
Parol Evidence is ADMISSIBLE to show that an absolute sale or a pacto de retro is an equitable mortgage
in any of the following cases:
1) The price of the sale is unusually inadequate;
2) The vendor remained in possession as lessee or otherwise;
3) Upon the expiration of the right to repurchase, another instrument extending or granting a new period is
executed;
4) The purchaser retains for himself a part of the purchase price;
5) The vendor binds himself to pay the taxes on the thing sold;
6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction
shall secure the payment of a debt or the performance of any other obligation.
Waiver of Parol Evidence Rule
A protest or objection against the admission of any evidence must be made at the proper time i.e. as
soon as the grounds therefore become reasonably apparent, and that if not so made will be understood to
have been waived.
The court cannot disregard evidence which would ordinarily be incompetent under the Rules but has
been rendered admissible by the failure of a party to object thereto.
Cross examination is not a waiver of the parol evidence rule.
Statute of Frauds
The term statute of frauds is descriptive of statutes which require certain classes of contracts to be in writing; its
purpose is to prevent fraud and perjury in the enforcement of obligations depending for their evidence upon the
unassisted memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a
writing signed by the party to be charged.
Its application is limited. It makes only ineffective actions for SPECIFIC PERFORMANCE of the contracts
covered by it.
It does not apply to contracts which are either totally or partially executed BECAUSE the intention of the
parties becomes apparent by their execution, and execution concludes, in most cases, the rights of
parties.
N.B. The statute of frauds simply provides for the manner in which contracts under it shall be proved; the contract
exists and is valid.
Agreements covered by the statute of frauds:
1) Contracts which by their terms are not to be performed within one year from the making of the agreement
- Applies to agreements not to be performed on EITHER side within a year from the making thereof.
2) Promise to answer for the debt, default or miscarriage of another
- Defined as an undertaking by a person, not originally liable, for the purpose of securing or performing the
same duty for which the original debtor continues to be liable.
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- Not limited to defaults arising from contracts but includes liability for tort.
- TEST: if the promisor becomes merely a surety, it must be in writing; if the promisor becomes primarily
liable, the promise is not within the statute.
3) Agreement made in consideration of marriage , other than a mutual promise to marry
4) Sale of personalty for a price not less than P500
- Covers both tangible and intangible
5) Lease of realty for a longer period than one year or sale of realty
6) Representation as to the credit of another
- Must operate to induce the person to whom they are made to enter into contractual relations with a
THIRD PERSON
7) A contract entered into by an agent beyond the scope of his authority is being enforced against the
principal.
Comparison of the Best Evidence Rule, Parol Evidence Rule and the Statute of Frauds
Parol evidence rule forbids varying of contracts. The best evidence rule forbids receiving evidence of the contents
other than the original document (even if it does not vary the document). The Statue of Frauds forbids parol
evidence to prove certain contracts to prevent enforceability.
PAROL EVIDENCE RULE BEST EVIDENCE RULE
Presupposes that the original is
available in court.
Contemplates a situation where the original is not available in
court and/or there is a dispute as to whether said writing is the
original.
Prohibits the varying of the terms
of a written agreement.
Prohibits the introduction of substitutionary evidence in lieu of
the original document regardless of whether or not it varies
the contents of the original.
Can be invoked only when the
controversy is between the parties
to the written agreement, their
privies, or any party directly
affected thereby.
Can be invoked by any party to an action regardless of
whether such party participated or not in the writing involved.
With the exception of wills, applies
only to documents which are
contractual in nature.
Applies to all kinds of writing.
Section 10.InterpretationofawritingaccordingtoitslegalmeaningThe language of a writing is to be
interpreted according to the legal meaning it bears in the place of its execution, unless the parties
intended otherwise.
Generally, rules on interpretation provided by the New Civil Code are followed.
Section 11. Instrumentconstruedsoastogiveeffecttoallprovisions. In the construction of an
instrument where there are several provisions or particulars, such a construction is, if possible, to be
adopted as will give effect to all.
Contracts should be so construed as to harmonize and give effect to the different provisions thereof.
Section 12. Interpretation according to intention; general and particular provisions. - In the construction
of an instrument, the instrument, the intention of the parties is to be pursued; and when a general and a
particular provision are inconsistent, the latter is paramount to the former. So a particular intent will
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control a general one that is inconsistent with it.
So a particular intent will control a general one that is inconsistent with it.
If the terms of the contract are clear and leave no doubt upon the intention of the contracting parties, the
literal meaning of its stipulations shall control. When the words appear contrary to the evident intention of
the parties, the latter shall prevail over the former. In order to judge the intention of the parties, their
contemporaneous and subsequent acts shall be principally considered.
To determine the nature of a contract, courts are not bound to rely upon the name or title given to it by the
contracting parties. Should the performance conflict with the name or title given the contract by the
parties, the former must prevail over the latter.
Section 13. Interpretation according to circumstances.- For the proper construction of an instrument, the
circumstances under which it was made, including the situation of the subject thereof and of the parties
to it, may be shown, so that the judge may be placed in the position of those whose language he is to
interpret.
Section 14. Peculiar signification of terms. - the terms of a writing are presumed to have been issued in
their primary and general acceptation, but evidence is admissible to show that they have a local,
technical, or otherwise peculiar signification, and were so used and understood in the particular instance,
in which case, the agreement must be construed accordingly.
Section 15. Written words control printed. - W hen an instrument consists partly of written words and
partly of a printed form, and the two are inconsistent, the former controls the latter.
Section 16. Experts and interpreters to be used in explaining certain writings. - When the characters in
which an instrument is written are difficult to be deciphered, or the language is not understood by the
court, the evidence of persons skilled in deciphering the characters, or whom understand the language, is
admissible to declare the characters or the meaning of the language.
Section 17. Of two constructions, which preferred.- When the terms of an agreement have been intended
in a different sense by the different parties to it, that sense is to prevail against either party in which he
supposed the other understood it, and when different constructions of a provision are otherwise equally
proper, that is to be taken which is the most favorable to the party in whose favor the provision was
made.
Contracts of Adhesion
One in which one of the parties imposes a ready-made form of contract which the other party may accept
or reject, but which the latter cannot modify.
When one of the parties merely takes it or leaves it, it is difficult to say that there is a common intention.
Section 18. Construction in favor of natural right. - W hen an instrument is equally susceptible of two
interpretations, one in favor of natural right and the other against it, the former is to be adopted.
The right to redeem is a natural right.
If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests. If the
contract is gratuitous, the least transmission of rights and interests shall prevail.
Section 19. Interpretation according to usage. - An instrument may be construed according to usage, in
order to determine its true character.
The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a
contract, and shall fill the omission of stipulations which are ordinarily established.
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TESTIMONIAL EVIDENCE
QUALIFICATION OF WITNESSES
Section 20. Witnessestheirqualifications Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make known their perception to others, may be
witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless
otherwise provided by law, shall not be a ground for disqualification
Witnessisonewho,beingpresent,personallyseesorperceivesathing,abeholder,spectatororeyewitness.
One who testifies to what he has seen or heard, or otherwise observed.
Duty of Witness to Testify
The Public has a right to every man`s evidence. It is a general rule that, aside from certain well-defined
exceptions and qualifications, every competent person may be compelled to bear testimony in the administration
of the laws by the duly constituted courts of the country. It is an inherent power of a court of justice, within the
sphere of its jurisdiction, to compel witnesses to appear before it and testify concerning any relevant facts within
their knowledge in a case then pending in that court.
The performance of the citizen`s testimonial duty can only be invoked by the State after adequate notice
is given. The process used for this purpose is known as subpoena. It is issued only in connection with a
pending action or proceedings.
General Rule: Witnesses subpoenaed by the court are duty bound to appear and testify:
Exceptions:
1. Chief executive
2. Judges of superior courts
3. Members of Congress during sessions
4. Ambassadors
5. Consuls and other diplomatic officials when there is a treaty holding them exempt.
Two kinds of incompetency to testify:
1. AbsoluteforbiddentotestifyontheANYmatter
2. PartialforbiddentotestifyonlyoncertainmattersspecifiedunderSection22and23ofRule130dueto
interest or relationship, or to privileges of other parties.
Qualifications of Witnesses
A prospective witness must show that he has the abilities
1. To observe, the testimonial quality of perception;
2. To remember, the testimonial quality of memory;
3. To relate, the testimonial quality of narration; and
4. To recognize a duty to tell the truth, the testimonial quality of sincerity
In the administration of justice, testimony should be given only after the witness has taken an oath or
made an affirmation that he will tell the truth. A party cannot be affected either in his person or his
property by the declaration of a witness made WITHOUT oath. If a party FAILS to objectto the taking
of the testimony of a witness without the administration of an oath, he is deemed to have waived if the
party fails to inquire whether the witness has been sworn.
Test of Competency: Whether the individual has sufficient understanding to appreciate the nature and obligation
of an oath and sufficient capacity to observe and describe correctly the facts in regard to which he is called to
testify.
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General rule: A person who takes the witness stand is presumed to posses the qualifications of a witness.
This presumption may be questioned by an objection raised any time during the examination or cross-
examination but it should be made as soon as the facts tending to show incompetency are discovered.
Voir Dire Examinationexaminationoftheproposedwitnessconductedwhenquestionastocompetencywas
raised and it becomes necessary to ascertain, before the examination of the witness in chief, whether he was
competent or incompetent.
Incompetency disqualifies a witness while a privilege excuses him from testifying.
A person is competent to be a witness if: (a) he is capable of perceiving at the time of the occurrence of the fact
and (b) he can make his perception known.
Section 21. Disqualification by reason of mental incapacity or maturity. Thefollowingpersonscannotbe
witnesses:
(a) 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;
(b) Children whose mental maturity is such as to render them incapable of perceiving facts
respecting which they are examined and of relating them truthfully.
General Rule: Persons who are tendered as witnesses are presumed to be sane and competent to testify until
the contrary is shown; and the burden rests on the person asserting the contrary to shown that the mental
weakness of the witness is of such a nature and extent as to render him incompetent to relate the facts of the
case or to comprehend the nature and obligations of an oath.
Exceptions: A person if prima facie of unsound mind if :
(a) He has been recently found to be of unsound mind by a court of competent jurisdiction; and
(b) He is an inmate of an asylum for the insane.
N.B:
Mental defectives may be witnesses if they appear to the court to have sufficient understanding or
comprehend the nature and obligation of an oath and to observe and to remember correctly, and
to be capable of giving a correct account of the matter what they have seen or heard.
An insane may also testify if his testimony is offered during a lucid interval.
Admissibility of the Testimony of a Deaf-Mute: A deaf-mute if of sufficient mental capacity and able to
communicate his ideas by signs or writing, is a competent witness.
Such witness must have a system of communication.
MakingKnownDeafMutesPerceptiontoOthersmaybemadethroughtheinterpreter(Peoplev.Hayag)
The method to be employed in eliciting the testimony of a deaf-mute should be that which is best suited to
attain the desired end, the particular method of examination resting largely in the discretion of the court.
Intheabsenceofshowingastowhatconstitutedthebestmethodoftakingadeafmutestestimony,itwill
be presumed to appeal that the trial court adopted the best method.
In the conducting of the examination of a deaf-mute, it has been held that leading questions are allowed
in the discretion of the court.
Sign Language Must be Capable of Verification
Please see the case of People v. Hayag.
People v. De Leon: The accused was convicted of rape on the basis of the testimony of the deaf-mute
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victim interpreted by a teacher in the school for deaf-mutes.
People v. Sasota: The accused was convicted of rape on the basis of the testimony of the deaf-mute
victim with the assistance of an instructor in the school for deaf-mutes, corroborated by her 7-year old
sister who was present when the crime was committed.
People v. Bustos: The testimony of a deaf-mute, an alleged eyewitness, as interpreted by a teacher from
the school for deaf-mute , who did not teach the witness was not given credence.
Testimony of a Child of Tender Years : The testimony of a minor or minors of tender age will suffice to convict a
person accused of a crime so long as it is otherwise credible.
RequirementsofaChildsCompetency:DeterminationLefttoCourtsDiscretion:
(a) Capacity of observation;
(b) Capacity of recollection; and
(c) Capacity of communication.
Itisnottheagebutthedegreeofintelligenceofachildwhichdeterminesthequestionofachilds
competency as a witness. If the witness is sufficiently mature to receive correct impressions by
his senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth,
he is competent.
Other elements:
(a) A sense of obligation to speak the truth (understanding of the nature and value of an oath);
(b) Memory sufficient to retain an independent recollection of the observation made.
People v. Sabater: The fact that the child was only 7 years old when he witnessed the killing of
his father is no ground for not giving credence to his testimony made years later.
Unlessachildstestimonyispuncturedwithseriousinconsistenciesastoleadonetobelievethat
he was coerced, if he can perceive and make known his perception, he is considered as a
competent witness
Tests for Ascertaining Competency of Child : age, intelligence or lack of intelligence and sense of moral and legal
responsibility, the capacity to observe events, to recollect and communicate them, has the ability to understand
questions and to make intelligent answers with an understanding of the duty to speak the truth.
Two Schools of Thought on the Probative Value of Testimony of a Child
1. Approachachildstestimonywithcaution.
Jones: The natural language of a child is that of innocence and truth, and its testimony is apt to be free
fromtheprejudiceorsinistermotiveswhichtoooftenaffectthetestimonyofadults,yetthechilds
testimony has been said to be open to serious objections
Stephen: A child will have been taught to say that, if it tell s lie, it will go to the bad place when it dies,
long before it has any real notion of the practical importance of its evidence in a temporal point of view;
and also long before it has learned to distinguish between its memory and its imagination, or to
understand, in the least degree, what is meant by accuracy of expression.
Salonga: The ordinary child is a great weaver of romances. His imagination may induce him to relate
something he has heard or read in a story as a personal experience. His story should be searched for its
truth before he is called to the stand.
2. The testimony of a boy as the best in the world
Our courts have invariably given full faith and credit to the testimony of a child. Lying is distasteful to a
child, because he thinks it mean; he is no stranger to the sentiment of self-respect, and he never loses an
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opportunity of being right in what he affirms.
Section. 22. Disqualification by reason of marriage. Duringtheirmarriage,neitherthehusbandnorthe
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
lattersdirectdescendantsorascendants.
Reasons for the Marital disqualification Rule:
1. The incapacity of one spouse to testify for the other, a disqualification designed to
obviate perjury; and
2. The privilege of one spouse not to testify against the other, a right designed to prevent
domestic disunion and unhappiness.
Other Reason:
1. Identity of interests. The spouses are two souls in one flesh;
2. The consequent danger of perjury;
3. The policy of the law deems it necessary to guard the security and confidence of private life even at the
risk of occasional failure of justice, and which rejects such evidence because its admission would lead to
domestic disunion and unhappiness;
4. There is danger of punishing one spouse through the hostile testimony of the other;
5. Preservation of marriage relation to domestic peace.
Exception: The disqualification does not apply in a civil case by one against the other, or in a criminal case for a
crimecommittedbyoneagainsttheotherorthelattersdirectdescendantsorascendants
Reasons for the Exception:The identity of interests disappears and the consequent danger of perjury based on
that identity is non-existent. In such a situation the security and confidence of private life which the law aims at
protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. (
People v. Francisco)
Requisites for marital disqualification:
(a) That the spouse for or against whom the testimony of the other is offered is a party to the case;
(b) That the spouse are legally married; (valid until annulled)
(c) That the testimony is offered during the existence of the marriage; and
(d) That the case is not one against the other.
First Requisite: That the spouse for or against whom the testimony is offered is a party to the case
i. No one is said to be examined for or against one not a party to the action or proceeding in which such
witness is called to testify. And the testimony of a witness is not evidence for or against any one not a
party to the action or proceedings in which such testimony is tgiven.
ii. The testimony of a defendant charged with illegal possession of opium that the opium belonged to her
husband should not be excluded.
iii. Where the grounds of defense are several and distinct, and in no manner dependent on each other,
the wife of one defendant may be admitted as witness for another.
iv. Where there is a charge of fraudulent conspiracy- the co-defendant wife cannot be called as adverse
party witness, except their interests are separate or separable.
Second Requisite: The spouses are legally married
This provision applies only to a lawful wife- not a bigamous one, nor to a paramour, nor an
affiance.
The general Rule which renders a husband or wife incompetent to be a witness either for or
against the other has no application unless they are legally married.
One who invokes the rule which disqualifies husband or wife to testify in favor of or against the
other spouse must assume the burden of establishing the marital relation.
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Third Requisite: The marriage must exist at the time of giving testimony
After the death or divorce of the spouses, the privilege ceases, for the reason ceases.
Fourth Requisite: That the case is not of one against the other.
The disqualification does not apply in a civil case by one against the other, or in a criminal case
foracrimecommittedbyoneagainsttheotherorthelattersdirectdescendantsorascendants.
Ordona v. Daguigan: In a case of rape by the father against his daughter, the wife (also the
mother) may testify.
Where marital and domestic relations are so strained that there is no more harmony to be preserved nor
peace and tranquility which may be disturbed, by reason based upon such harmony and tranquility fails. In
such a case, identity of interests disappear and the consequent danger of perjury based on their identity is
non-existent.
People v. Castaneda: The wife was permitted to testify in a falsification case against her husband
who made it appear in a deed of sale of conjugal property that his wife had given her consent
thereto.
People v. Francisco: where the husband accused of killing his son imputed the crime to his wife,
the latter may testify against the husband in rebuttal.
Form of Testimony Excluded by Privilege
The rule is not limited to protecting from disclosure matters which have been communicated in
nuptial confidence, or facts the knowledge of which has been acquired in consequence of the
relationofhusbandandwife,itisanabsoluteprohibitionagainstthespousestestifyingtoany
facts affecting husband or wife however the knowledge of these facts may have been acquired.
The rule of exclusion applies irrespective of the kind of testimony given by a witness. Even the
declarationoftheaccusedsspousetoathirdpersonwithreferencetotheaccusedsguiltshould
not be received against the accused where it was not made in his or her presence or by his or her
authority, although the rule is different if the declaration was made in his or her presence.
Res gestae declarations of husband and wife are admissible for or against each other, even
though each is incompetent to testify.
An accused can effectively seal the lips of a witness by marrying the witness.
Who may Object?: The privilege to object may be claimed only by the spouse-party and not the other spouse
who is offered as a witness.
Duration of Privilege:The privilege lasts only during the marriage. It terminates upon divorce or annulment or
death, in which event, the surviving spouse may testify on any matter not learned in confidence.
Section 23. Disqualification by reason of death or insanity of adverse party. Partiesorassignorsof
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 state 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.
Thisisotherwiseknownasthedeadmansstatute
Nature of the Rule
The incompetency to testify, under the disqualification rule applies:
(a) to parties-plaintiffs or their assignors or persons in whose behalf a case is prosecuted;
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(b) where such case or proceeding is against a defendant executor or administrator or other representative of
a deceased person or against a person of unsound mind;
(c) involving a claim or demand against the estate of such deceased person or person of unsound mind;
(d) but the incompetency is confined to the giving of objected testimony on any matter of fact occurring
before the death of the deceased person or before the insane person became of unsound mind.
The incomptency to testify applies whether the deceased died before or after the commencement
of the action against him, if at the time the testimony was given he was already dead and cannot
disprove it, since the reason for the prohibition, which is to discourage perjury exists in both
instances.
Purpose of Rule: To guard against the temptation to give false testimony on the part of the surviving party, and
to put the parties to the suit upon the terms of equality in regard to opportunity to produce evidence.
Requisites:
(a) The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted;
(b) That the action is against an executor or administrator or other representative of a deceased person or a
person of unsound mind;
(c) That the subject-matter of the action is a claim or demand against the estate of such deceased person or
against person of unsound mind;
(d) That his testimony refers to any matter of fact which occurred before the death of such deceased person
or before such person became unsound mind.
A party plaintiff may testify on the fraudulent transaction of deceased if the fraud has been clearly
established by other evidence. In other words, there must however be evidence aliunde of fraud.
An assignor means an assignor of a cause of action which has arisen and not the assignor of a
right assigned before any of the cause of action has arisen.
In a complaint filed against the administrator or executor in behalf of the estate of a deceased
person, defendant files a counterclaim against them. In such case the counterclaim is a claim
against the executor or administrator.
If however, it is the estate which sets up the counterclaim, the plaintiff may testify to occurrences
before the death of the deceased to defeat the counterclaim. As defendant in the counterclaim,
he is not disqualified from testifying as to matters of fact occurring before the death of the
deceased, said action not having been brought against but by the estate or representative of the
deceased.
A representative means that if a party is so placed in a litigation that he is called upon to defend
that which he was obtained from a deceased person, and make the defense which the deceased
might have had, if living, or to establish a claim which the deceased might have been interested
to establish, if living, then he may be said in that litigation to represent the deceased person.
**** please read the case of Goni v. CA
It should be noted that in order that the rule may apply, the action must be one which is a claim or
demand against the estate of a deceased person and that the action is against the executor or
administrator or representative of such deceased person.
Matters prohibited: The testimony should refer to those matters occurring in the presence and within the hearing
of the decedent to which he might testify of his personal knowledge if he were alive.
Inasmuch as the statutes are designed to protect the interests of a deceased or incompetent
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person, they do not operate to exclude testimony which is favorable to the representative of such
person.
Objection to the competency of the adverse party may be waived by the introduction of the
testimony of the deceased or incompetent person which has been preserved in a bill of
exceptions, or by the presentation of such testimony or testimony of the adverse party which has
been taken at a former trial or hearing.
Section24.Disqualificationbyreasonofprivilegedcommunication.Thefollowingpersonscannot
testify as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or 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 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;
(b) An attorney cannot, without the consent of his client, be examined as to any communication 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;
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information which
he may have acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the person making the confession, be examined as
to any confession made to or any advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;
(e) 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. (21a)
1. PRIVILEGE is a rule of law that, to protect a particular relationship or interest, either permits a witness to
refrain from giving testimony he otherwise would be compelled to give, or permits someone, usually one
of the parties from revealing certain information. It enforces the broad legal guarantee of confidentiality or
privacy that encourages certain relationships by keeping confidential material out of evidence.
2. Sinceprivilegesoperatetoshutoffthelightontheotherwisecompetenttestimony,manycourts
construe them narrowly and give them limited application.
3. WHO MAY ASSERT PRIVILEGE- IN GENERAL
a. Holder of privilege-the person whose interest or relationship is sought to be protected
A privilege is personal in nature.
If the privilege is held jointly by 2 or more persons, each of them can claim the
privilege,
b. Authorized persons
Examples: guardian, executor or administrator (since privileges generally survive the
deathoftheholderexceptthewindingupoftheholdersestate)
Court or other party may assert, although a privilege is personal, if neither the holder of
the privilege nor anyone entitled to assert it for him is present when the testimony is
sought to be introduced.
c. Persons to whom privileged statements were mademay assert the privilege for the absent holder
as long as the holder is alive and has not waived the privilege.
Example: an attorney on behalf of an absent, living client
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SPECIFIC PRIVILEGES
PRIVILEGED COMMUNICATION BETWEEN HUSBAND AND WIFE
1. Reason: Society has a deeply rooted interest in the preservation of peace of families and in the
maintenance of the sacred institution of marriage, and its strongest safeguard is to preserve with zealous
care any violation of those hallowed confidences inherent in, and inseparable from, the marital status.
2. COMMUNICATE means to make known; inform a person of; convey the knowledge or information of. The
privilege should be limited to expressions intended by one spouse to convey a meaning or message to
theother.Hence,noprivilegeappliesastoeitherspousesobservationastothephysicalormental
conditions, actions, or conduct of the other spouse, because no communication is involved.
3. Requisites:
a. That the spouses must have been legally/ validly
b. That the privilege claimed, with regards to communication, oral or written, made during the
marriage;
Communications between the couple before they were married or after their divorce are
not privileged.
The privilege does not apply when the parties are living in separation and especially
where there is an active hostility between them, without hope for reconciliation.
c. That said communication was made confidentially;
Anyfactwhichcametothewifesknowledgebyreasonoftheconfidentialrelationshipisincluded
in the privilege.
Communications are confidential when made during and by reason of the marital relation. Acts
done by one spouse while acting, not in confidence of the other spouse, but surreptitiously and in
circumstances indicating an attempt to withhold knowledge thereof from the latter, are not
confidential communications, and the other may testify as to such acts although they are adverse
to the actor spouse.
The privilege does not apply to facts which came to the knowledge of the witness during the
marriage by means equally accessible to other person, and not disclosed in conversation with
other person.
d. That the action or proceeding where the privilege is claimed is not by one spouse against the
other.
4. Other Items of communications overheard or in presence of third parties
There is a presumption of confidentiality on all communications between husband and wife. The
communication must be made out of the presence of third parties, and it must concern a matter that
the communicating spouse would probably desire to keep secret.
Communications overheard by a third person without knowledge of spouses are still confidential but
the third party is not disqualified.
5. Duration of privilege. The privilege continues even after death, unless it is a dying declaration. The
dissolution of marriage by death or divorce does not, in the absence of a statute setting up a different rule,
terminate the privilege with respect to communications which have passed between the spouses in the
confidence of the marriage relation.
6. By whom exercised. The confidential communication privilege belongs to both spouses who either may
assert it to avoid giving testimony by the other
7. Waiver
a. Failure to object
b. Calling spouse as witness on cross-examination
c. Any conduct constructed as implied consent
d. Acts inconsistent with any claim of privilege
e. Voluntary giving of testimony
8. Distinctions between Privilege (P) and Marital Disqualification (MD)
a. P: Applicable regardless of whether the spouses are parties or not; MD: Applicable only when one or
both spouses are parties
b. P: Applies to testimonies on confidential communication only; MD: Applies to testimony on any fact;
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may still be invoked even if the communication is not confidential
c. P: lasts even after the death of either spouse; MD: ceases after dissolution of marriage
d. As to purpose
P: protects the hallowed confidences inherent in marriage between husband and wife and therefore
guarantees the preservation of the marriage and further the relationship between the spouses as it
encourages the disclosure of confidential matters without fear of revelation; MD: more concerned with
the consequences such as perjury and domestic disunity which may result if the rule is not there
PRIVILEGED COMMUNICATION BETWEEN ATTORNEY AND CLIENT
1. General consideration: Of common law origin and founded in the interest of the
administration of justice
2. Purpose: To enable the client to place unrestricted and unbounded confidence in his
attorney in matters affecting his rights and obligations without danger of having
disclosures forced from the attorney on the witness stand
3. Who may claim the privilege: client, attorney and trial judge
4. Requisites:
a. Relationship of lawyer and client.
Includes persons appointed as counsel de oficio
Actual employment is not necessary. Payment or agreement to pay fee is not essential.
The test is whether the communications are made to an attorney with a view of obtaining
from him professional assistance or advice regardless of whether there is a pending or
merely impending litigation or any litigation.
Communication before relationship is actually established is privileged if they were made with
a view to creation of relations, even though the employment is refused by attorney or the
negotiations for employment fail of consummation.
The privilege does not extend to information which appears to have been received by the
witness in the character of a friend and not as counsel.
b. There must be communication by the client to the attorney or advice given thereon by the latter to the
former.
c. The communication or advice must have been made confidentially.
A mere showing that the communication was from client to attorney does not suffice, but the
circumstances indicating the intention of secrecy must appear.
The element of confidentiality is wanting wherever the matters communicated to the attorney are
intended by the client to be made public or revealed to third persons, or if the same statements
have been made by the client to third persons on other occasions.
5. Subject matter of the Privilege:
a. All relevant communications - regardless of the medium of transmission- words or actions- are
covered by the privilege.
Relevant Communication- The communication must relate to some matter about which the client is
seeking advice or be made in order to put the attorney in possession of information. Lawyer or client
must reasonably believe it to be relevant and may properly and intelligently serve the client who
delivered to the attorney for that purpose. Belief on relevancy is sufficient. Extraneous matters are
however, excluded.
b. Observations by the lawyer which might be made by anyone, and which involve no communicative
intent by the client, are not protected.
c. Tangible evidence delivered by the client to the lawyer. The privilege should not operate to bar the
attorneysdisclosureofthecircumstancesofacquisition,sincetoprecludetheattorneystestimony
would offer the client a uniquely safe opportunity to divest himself of incriminating evidence without
leaving an evidentiary trial.
d. A professional communication in writing, as a letter from client to lawyer for example, will be
privileged.
e. Preexisting documents or writings , such as deeds, wills and warehouse receipts, cannot be made
privileged by placing them in possession of the counsel if such documents are not privileged while in
the hands of the client.
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f. In controversies between attorney and client, the privilege is relaxed. This doctrine is based on the
ground of practical necessity that if effective legal service is to be encouraged, the privilege must not
standinthewayofthelawyersjustenforcementofhisrightstobepaidafeeandtoprotecthis
reputation.
g. The privilege does not extend to communications which have passed in furtherance of prospective
criminal acts. However, while communications made after the wrongful act are privileged, those made
beforehand is contemplation of the fraud or crime are not.
6. Presence of third persons and agents
Onewhooverhearsthecommunicationwhetherwithorwithouttheclients
knowledge is not within the privilege. The same rule ought to apply to one who
surreptitiously reads or obtains possession of a document in original copy.
Questions as to the effect of the presence of persons other than the client and
the lawyer depend upon whether the presence of the agent, clerk or secretary
was in the particular instance reasonably necessary to the matter in hand.
7. Waiver
a. Must be voluntary
b. By whom made:
i. Bytheclient:theattorneyisboundbytheclientswaiver;theattorneyhasnoright
to waive the privilege except to the extent that he is authorized to do so on behalf
of the client. The client waives the benefit of the rule:
If he himself calls the attorney as witness in respect of the privileged
communications;
-But merely to call the lawyer to testify to facts known by him apart from his employment
should not be deemed a waiver of the privilege.
If he testifies to conversations with his attorney in respect of the matters
claimed to be privileged; or
If the privileged communication is received in evidence without objection
ii. By representatives: Executor, administrator, and heirs
8. Duration. In the absence of statute, the privilege is permanent. It may be claimed by the
clientsexecutororadministratorasagainstastrangeraftertheclientsdeath.However,
statements which have been made by a client to his attorneys by way of instructions to
becarriedoutbythemaftertheclientsdeath,andwhichmustthennecessarilybe
disclosed,areprivilegedonlyduringtheclientslife.
Exception: Whentheclientswillisattacked.Thelawyermaydiscloseconfidential
communications to uphold the will of the testator.
PRIVILEGED COMMUNICATION BETWEEN DOCTOR AND PATIENT
1. Reason: to facilitate and make safe full and confidential disclosure by the patient to the physician of all
facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct opinion,
and be enabled safely and efficaciously to treat his patient
2. Requisites: (must be proven by the person who claims this privilege)
a. The privilege is claimed in a civil case.
b. The person against whom the privilege is claimed is one duly authorized to practice medicine,
surgery or obstetrics.
Test to determine whether an information given in the presence of third parties is privileged:
whether a third person was an agent of the doctor in a professional capacity
Hence,theprivilegeextendstocommunicationswhichhavebeenaddressedtothephysicians
assistants,includingaprofessionalnursewhoappearstohaveactedasthephysiciansassistant
or agent.
c. Such person acquired the information while he was attending to the patient in his professional
capacity.
Personal capacity means when the doctor attends to a patient for curative treatment, or
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for palliative or preventive treatment.
The physician may testify as to information or knowledge which has been acquired by
him while acting otherwise than in a professional capacity even though he has
previously been called to treat the patient.
d. The information was necessary to enable him to act in that capacity
e. The information was confidential, and if disclosed would blacken the reputation of the patient.
3. Scope: Only disclosure which would have been made to the physician to enable him safely and
efficaciously to treat his patient
It is the tenor only of the communication that is privileged. The mere fact of making a
communication, as well as the date of a consultation and the number of consultations, are therefore not
privileged from disclosure, so long as the subject communicated is not stated.
The privilege includes testimony, affidavit, certificate, and medical records of hospitals containing
privileged matters are prohibited. X-ray plates, radiographs are included.
4. Waiver. It is not a matter within the control of the physician or the parties but a right of the patient as such.
a. Express
Example: Contractual stipulation waiving the privilege
b. Implied
Waiver by failing to object
Waiver by testimony of the patient as to the confidential matter in the course of his examination in
chief. However, waiver is not implied from the patient having testified if he did not act voluntarily
or with knowledge of the privilege.
Where the patient examines a physician as to matters disclosed in consultation
5. Duration. The privilege continues after death of the patient. Hence, it may be waived by the personal
representative of the decedent.
6. Relevancy of Communication to Professional Employment
The privilege does not preclude the introduction of statements which appear to have had no reference
to the condition of the patient.
The physician may testify to facts which he has obtained knowledge from personal acquaintance with
the deceased, either before or after the relationship of physician and patient began.
7. Privilege not violated where doctor testified as expert. The predominating view, with scant authority
otherwise, is that the statutory physician-patient privilege, though duly claimed, is not violated by
permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a
lawsuit involving physical mental condition of a patient whom he has attended professionally, where his
opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal
professional knowledge he may have concerning such patient. But in order to avoid the bar of physician-
patient privilege where it is asserted in such a case, the physician must base his opinion solely upon the
facts hypothesized in the question, excluding from consideration his personal knowledge of the patient
acquired through the physician and patient relationship. If he cannot or does not exclude from such
considerationhispersonalprofessionalknowledgeofthepatientscondition,heshouldnotbepermitted
to testify as to his expert opinion.
8. Information acquired by a physician from an examination, inspection or observation of the patient, after he
has submitted himself to such examination may appropriately be said to be acquired from the patient as if
the same information had been orally communicated with the patient.
Iftheinformationwasobtainedfromobservationandinspectionofthepatientsbody,theprivilege
appliesregardlessofwhetherornotsuchinformationwasnecessaryforthepatientstreatment.
9. Post-Mortem or Autopsical Information.
Information which has been gained by physicians by observations while attempting
unsuccessfully to resuscitate a patient is privileged.
Some authorities take the position that a corpse cannot be a patient, and that facts which have
been disclosed by an autopsy or post-mortem examination cannot be held to have been acquired
by the examining physician in confidence, and hence that the physician may testify thereto.
If the physician who performed the autopsy was also the attending physician during the life of the
decedent, he cannot be permitted either directly or indirectly to disclose facts which came to his
knowledge while he was treating the living person.
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10. The rule cannot be invoked as a shield for the commission of a crime, and communications, however
confidential they may be, are not within the privilege if made in the furtherance of an unlawful or criminal
purpose. But the fact that a person is on trial on a criminal charge will not permit the disclosure of the
communication, where it was made in good faith to secure medical aid.
Mental or Physical Examination under Rule 28 of the 1997 Rules on Civil Procedure (See Sections 1 to 4 of Rule
28)
Duration of Privilege
Though the privilege continues after death of the patient, it may then be waived by the personal
representative of the decedent.
5.4 PRIEST AND PENITENT
(d) A minister or priest cannot, without the consent of the person making the confession, be examined as
to any confession made to or help advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs.
NOTES AND CASES:
1. The Policy Behind the Privilege
If the secrecy of confession is not maintained it would be an annulment of the Confessional
Institution.
2. Requisites
1. There must be a priest and penitent
2. There must be a confessional character in the course of discipline enjoined by the church
to which he belongs.
The confession must be Penitential in Character- A confession of sins with a view to obtaining pardon and
spiritual advice or assistance. It includes any disclosure made in the course of religious practice or consultation
which the member of the clergy would be expected to keep secret.
Notes:
1. Penitent cannot be compelled to disclose his confession.
2. A third person who overheard the confession is not disqualified.
3. Accused went to priest admitted bigamy. The purpose was to his wife to abandon the case. This is not
privileged.
The court may not require the disclosure of a confession to a clergyman to determine whether it is privileged, but
must determine the question from circumstances and facts leading up to the making of the confession.
5.5 STATE SECRETS
(e) 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.
NOTES AND CASES:
1. State Secrets
Reason: General grounds of public policy.
The right of the people to information on matter of public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts and transaction , or decisions as well as to government
research data used as a basis for policy development, shall be afforded the citizen subject to such limitations as
maybe provided by law. (Sec.7, Art. III, 1987 Consti)
2. Matter Within Privilege
1. Confidential official communication.
2. Communication to the government and its officials regarding violation of law.
3. Communication to a prosecuting attorney regarding the commission of a crime.
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The SC of the US has recognized the existence of an executive privilege protecting confidential presidential
communications. This privilege is absolute where the communications relate to military, diplomatic, or national
security secrets. Other communications however, are only presumptively privileged and must yield to a
demonstrated specific needed for essential evidence in a criminal trial. (US v. Nixon)
3. Requisites
Before the privilege can be invoked, the ff. requisites must concur:
1. The holder of the privilege is the government, acting through a public officer;
2. The communication was given to the public officer in confidence;
3. The communication was given during the term of office of the public officer or afterwards;
4. The public interest would suffer by the disclosure of the communication.
Privileged Official Communication- the communication must be given to a public officer. A communication
given to an ordinary employee is not privileged.
The communication must be given to a public officer during his term of office or afterwards. Hence,
communication given to him before he became a public officer is not covered by the privilege.
The communication must be given in confidence.
If a communication is made to a public officer in official confidence but later is made public by him, its
confidential character is lost; hence, no privilege exists not to reveal it.
Publicinterestmeansmorethanacuriosity.Itsmeanssomethinginwhichthepublic,notonlya
particular locality, has some interest by which the legal right or liabilities of the community at large are
affected.
The privilege of a public officer not to reveal information is strictly construed. The burden is upon the party
seeking to suppress the evidence to show that it is within the terms of the rule or statute.
5.6 PRIVILEGED INFORMATION ON BANK DEPOSITS
1.Rule.Alldepositsofwhatevernaturewithbanksorbankinginvestmentsinbondsissuedbythegovernmentof
the Phils., its political subdivisions and its instrumentalities, are hereby considered as an absolute confidential
natureandmaynotbeexamined,inquiredorlookedintobyanyperson,govtofficial,bureauoroffice,except
upon written permission of the depositor, or in cases of impeachment, or upon order of competent courts in cases
of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject
matterofthelitigation.(RA1405,Sec.2)
2. Reason of the Rule: The mantle of confidentiality is thrown around bank deposit in order to encourage people
to deposit their funds in banks.
3. When Disclosure Allowed
Under the law, a disclosure of the bank deposit is allowed:
1. When so authorized in writing by the depositor himself;
2. In case of impeachment proceedings under the Constitution;
3. Upon order of a competent court in cases of bribery or dereliction of duty of a
public official.
4. Where the money deposited or invested is the subject matter of the litigation.
5. In anti-graft cases.
5.7 PRIVILEGED INFORMATION TO NEWSPAPERMAN
RA 1477 Security of State
1. Rule:Section1.Withoutprejudicetohisliabilityunderthecivilandcriminallaws,thepublisher,editor,
columnist or duly accredited reporter of any newspaper, magazine, or periodical of general circulation
cannot be compelled to reveal the source of any news report or information appearing in said publication
which was related in confidence to such publisher, editor or reporter unless the court or a House or
CommitteeofCongressfindsthatsuchrevelationisdemandedbythesecurityoftheState.(Sec.1,RA
53, as amended by RA 1477).
2. Reason for Rule: The privilege is intended to facilitate the flow of information to the print media, which in
turn will publicize it in the exercise of freedom of the press.
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5.8THEINFORMERSPRIVILEGE
The prosecutor may not be compelled to present an informer to protect his identity and when his
testimony would be merely corroborative and cumulative.
Exceptions:
1. When the identity of informer is well known to the accused.
2. Wherethedisclosureofaninformersidentityisrelevantandhelpfultothedefenseoftheaccused,oris
essential to a proper disposition of the case.
3. The identity of the poseur-buyer is vital when the accused denied having sold marijuana to anyone.
4. Where the testimony was absolutely necessary because it could have helped the trial court in determining
whether or not the accused had knowledge that the bag contains marijuana as an essential ingredient of
the offense.
TESTIMONIAL EVIDENCE
Section 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other
direct ascendants, children, or other direct descendants.
NOTES:
Art. 315 of the Civil Code of the Phils., grants a privilege to a descendant the option to testify or not to
testify against an ascendant. Rule 130, Sec. 25 (c) of the Revised Rules of Court disqualified the
descendant from testifying in a criminal case against an ascensdant. As the Rules of Court cannot amend
a substantive law and change the privilege to a disqualification, the 1989 Rules on Evidence reverted to
theCCprovisionbutrelocateditisaseparatesection(TestimonialPrivilege)apartfromtheclusterof
provisionsondisqualificationQualificationofWitnesses.
A child cannot be compelled to testify if he does not want to but if he wants to testify he cannot be
prevented from doing so.
The Rule also expanded the privilege and granted ascendants the option to testify or not to testify against
descendants. The theory of extending the privilege to the ascendants with respect to their descendants is
that the parents have their children more than their children have their parents.
Sec. 25 of Rule 130 applies to both civil and criminal cases. The privilege applied only to a legitimate
family. Hence an illegitimate child may not invoke this privilege in a litigation involving his illegitimate
ascendants.
ADMISSIONS AND CONFESSIONS
Section 26. Admissions of a party.-The act, declaration, or omission of a party as to a relevant fact may be
given in evidence against him.
NOTES AND CASES:
1. Admission defined
Admission- any extra-judicial statement or conduct by a party to the present litigation (not a non-party witness),
thatisinconsistentwithapositionthepartypresentlytakes.Itdoesnothavetobeanadmissionagainstinterest;
itmayevenbepartiallyselfserving.Theonlyrequirementisthatitturnsouttobecontrarytothepartyspresent
position.
A statement, oral or written, made by a party, or by someone for whom he is responsible as to the
existence of a relevant fact, constitutes an admission receivable in evidence against him.
Admissions are the words or acts of a party-opponent or a representative that are offered as evidence
against the party. They may be express admissions, which are statements of the opposing party or an
agent whose words may fairly be used against the party, or admissions by conduct.
Amansact,conduct,anddeclaration,wherevermade,ifvoluntary,areadmissibleagainsthim,forthe
reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.
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2. No Requirement of Personal Knowledge
Apartysadmissionwillbecompetentevidenceagainstthatpartyeventhoughshedidnot
actually have personal knowledge of the facts admitted; hence, an admission (hearsay) may be
predicatedsolelyonanotherhearsay.Thisisonesituationwhereahearsayonhearsay
objection is ineffectual.
The admissibility of this class of evidence does not depend on the personal knowledge of the
admitter but rather is predicated upon the assumption that parties will not make significant
statements of fact unless they are satisfied that such statements are true.
3. Form of Admission
The admission may be judicial in which case it is conclusive (Sec.2, Rule 129); extrajudicial, in
which case it is rebuttable. It may be written or oral, it may be express or implied.
The admissions may, be in the form of an act, such as an offer of compromise in criminal cases
or by conduct (Sec. 27), a declaration, such as a confession (Sec.33) or omission, such as an
admission by silence.
4. Evidentiary Admissions Distinguished from Judicial Admissions
Judicial admissions are not evidence at all. Rather, they are formal concessions in the pleadings
in the case, or stipulations by a party or its counsel that have the effect of withdrawing a fact from
issue and dispensing wholly with the need for proof of the fact. Thus, the judicial admission,
unless allowed by the court to be withdrawn, is conclusive in the case, whereas the evidentiary
admission is not conclusive but is always subject to contradiction or explanation.
5. Admissions Distinguished from Confession
Confession: declaration of an accused expressly acknowledging his guilt of the offense charged or of any
offense necessarily included therein.
Admission: statement by the accused, direct or implied, of facts pertinent to other facts, to prove his guilt.
Confession: there is acknowledgment of guilt
Admission: usually applied in criminal cases to statements of fat by the accused which do not directly involve an
acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged
6. Mere Admission held Insufficient to Prove Guilt Beyond Reasonable Doubt
The court held that an admission by the accused cannot take the place of any evidentiary means
establishing beyond reasonable doubt the fact averred in the negative in the pleading and which
forms an essential ingredient of the crime charged.
Byitsverynature,anadmissionisthemereacknowledgmentofafactorofcircumstancesfrom
which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to
establish his guilt.
7. Admission Distinguished from Declaration Against Interest
Summary of distinctions:
1. In declarations against interest, the declarant must first be accounted for
as dead, absent from the jurisdiction or otherwise unavailable as a
witness, whereas as admission is made by the party himself, primary
evidence and competent though he be presented in court and read to
testify.
2. Admissions may be made at any time, before or during the trial;
declarations against interest must have been made ante litem motam ,
that is, before the controversy.
3. The fact asserted in the declaration must have been at the time it was
madesofarcontrarytodeclarantsowninterest,pecuniaryormoral,that
a reasonable man in his position would not have made the declaration
unlesshebelievedittobetrue,whereasapartysadmissionneednot
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have been against his interest at the time (though often assumed in
judicial opinions); it is enough if it is present claim or defense.
4. Admissions are used only against the party admitting, whereas
declarations against interest may be admitted against third persons.
8. Requisites for Admissibility
The act, declaration or omission must have been made by a party or by one by whom he is
legally bound
The admission must be as to a relevant fact
The admission may only be given in evidence against him
9. Testimonial Qualification
Theadmissionmusthavebeenmadebyaparty(orbyonebywhomheislegallybound).Bya
partyismeantpartytotheactionwhohasbeenservedwithprocess.
The party making the admission need not meet the standards of competency established for ordinary
witnesses. The single exception calling for consideration is lack of mental capacity. It is not also
required that the party speak from firsthand knowledge.
10. Adoptive Admissions
Onemayexpresslyadoptanothersstatement.
Apartymaybywordsorconduct,voluntarilyadoptorratifyanothersstatement.Ifthisstatement
isinconsistentwiththepartyspositionattrial,itmaybereceivedintoevidenceagainstthatparty.
11. Admissions Adopted or Ratified
Where it appears that a party clearly and unambiguously assented to or adopted the statements
of another, evidence of those statements is admissible against him.
12. The Admission Must be Relevant
In order that a statement offered as an admission may be received it must, at the time it is offered
be relevant to, and have a material bearing on the issue in the case.
13. It must refer to an Admission of Fact and Not of Law
Conclusions of law, unless inseparately blended with and necessary to the understanding of a
statementoffactorstatementsastothedeclarantsconclusionfromcertainfacts,arenotproper
subjects for an admission.
An admission of declaration to be competent must have been express, definite, certain and
unequivocal language.
14. The Declarations Need not be Against Interest by May not be Used Against not for Party making the
Admissions
In contrast to declarations against interest under the exception to the hearsay rule, statements or
declarations previously made by a person now a party to the action are admissible against him at
thetrialfreeofthelimitationspeculiartothedeclarationsagainstinterestexception.Similarly
statements and declarations by persons authorized or standing in a vicarious relationship to the
party are admissible against the party.
15. Self-serving Evidence
Self-serving evidence is the statement of a party intended to serve his own interest. It is well-
established rule of evidence that declarations of a party favourable to himself are not admissible.
Thus, admissions are receivable against the party who made them, but not in his favour, because
they would then be self-serving evidence.
Self-serving evidence is evidence made by a party out of the court at one time; it does not include
apartystestimonyasawitnessincourt.Itisexcludedonthesamegroundasanyhearsay
evidence, that is lack of opportunity for cross-examination by the adverse party, and on the
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consideration that its admission would open the door for fraud and to fabrication of testimony. On
theotherhand,apartystestimonyincourtisswornandaffordstheotherpartytheopportunityfor
cross-examination.
But some self-serving statements by a party, such as the entries in his books of account,
spontaneous or res gestae statements, statements of case history to a physician, statements in
writing which record memory, prior consistent statement to rehabilitate after impeachment, etc.
are admissible on his behalf under the various hearsay exceptions.
16. When Self-Serving Statements Admissible
Self-serving declarations made by a party are admissible in his own behalf in the ff. cases:
1. When they form part of the res gestae, including
spontaneous statements, and verbal acts;
2. When they are in the form of complaint and
exclamations of pain and suffering;
3. When they are part of a confession offered by
the prosecution;
4. Where the credibility of a party has been
assailed on the ground that his testimony is a
recent fabrication, in which case his prior
declaration, even of a self-serving character,
may be admitted, provided they were made at a
time when a motive to misrepresent did not
exist;
5. Where they are offered by the opponent;
6. When they are offered without objection, the
evidence cannot afterwards be objected to as
incompetent.
17. Disserving Character of Admissions
An admission by a defendant of liability for personal injuries by negligence has been held to be
admissible, even though it was coupled with a disclosure that the defendant carried insurance
against liability.
Letters as Admissions. So far as admissibility is concerned, it makes no difference whether the
admission is oral or written. Bu the written admission may be entitled to greater weight because
of the elimination of uncertainty as to the nature of the statement and because the fact that it was
made may be more convincingly proved.
18. Admissions Implied From Conduct
Admissions are not limited to any particular form. They may be not only in the form of
declarations, oral or written, but they may be implied from the conduct or acts of parties.
19. Admissions by Conduct other than Silence
Various kinds of conduct other than silence may be held to manifest an awareness of liability or
guilt. Attempts to conceal or destroy damaging evidence; attempts to bribe the arresting officer or
witnesses; flight from the scene of the crime; assumption of a false name; attempts to resist
arrest; escape from custody; and perhaps even attempts to commit suicide. All may be held to
reflecttheactorsawarenessofguiltorliability.
20. Implied Admission by Declaration
Implied admission by declaration is that which may be inferred from the statements made by a
party.
21. Remedial Measures
Repairs or Alterations Subsequent to Occurrence of Calamity. In actions based on negligence, an
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inference of negligence is often sought to be drawn from the fact that subsequent to the
happening of the injurious occurrence, the defendant has repaired the alleged defect or adopted
some new precaution.
22. Principle of Multiple Admissibility
Thus evidence of subsequent repairs or changes has been admitted for the ff. purposes:
i. Asevidenceofthedefendantsownershiporcontrolofthepremisesordutyisrepair
where these are disputed;
ii. As evidence of the possibility of feasibility of preventive measures;
iii. When properly in issue; as evidence to explain that the situation at the time of
accident was different where the jury has taken a view or where the opposing party has
introduced a photograph of the scene;
iv. As evidence of what was done later to show that the earlier condition as of the
time of the accident was a plaintiff claims, if the defendant disputes this;
v. As evidence that the faulty condition later remedied was the cause of the injury by
showing that after the change the injurious effect disappeared; and
vi. Asevidencecontradictingfactstestifiedtobytheadversaryswitness.
23. Flight; Escape
Flight of the accused after the commission of the offense is evidence of guilt. There is flight when
anaccusedevadesthecourseofjusticebyvoluntarilywithdrawingonesselfinordertoavoid
arrest or detention of the institution or continuance of criminal proceedings.
Flightmustnot,howeveralwaysbeattributedtoonesconsciousnessofguilt,wherethereare
good reasons for doing so.
24. Non-flight
Generally, the decision of an accused not to flee despite an opportunity to do so is hardly
characteristic of a guilty person seeking to escape retribution for his crime but this is not without
exceptions.
InPeoplev.Gardon,thecourtheldthatappellantdidnotfleefromthesceneofthecrimeisnot
necessarily indicative of a clear conscience. He may have smugly thought that the 2 men fishing
onthepierwouldnotbeabletoidentifyhim,orthattheywouldkeepquietaboutitathisbehest.
Thus, while flight from the scene of the felony is one of the indicia of a guilty conscience;
however, it is equally true that in exceptional cases culprit have become bolder by returning to
their prey under the pretext of feigning innocence to ensure that their victim has been
successfully eliminated (People v. Ocampo)
Demeanor During Trial and Other Conduct. The conduct and demeanor of a party at the trial
tending to show consciousness of liability or wrongdoing, such as false or deceptive explanation,
and suborning, fabricating, or suppressing testimony, may be shown.
25. Proof of Admission
The manner of proving an admission differs with the purpose for which the admission is being
offered. If the purpose is to impeach a witness by evidence that he has made at other rimes
statements inconsistent with his present testimony, the statements must first 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 the witness before any question is put to him concerning them.
Thisisknownaslayingapredicate.
If the purpose therefore is to establish an admission, the statement must be presented during the
partyspresentationofhisevidenceinchief.Ifthepurposeisforimpeachment,thestatement
may be presented during rebuttal, but the party must first lay the predicate.
26. Proof of Written Admissions
The introduction of part of a writing as an admission renders admissible so much of the reminder
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as tends to explain or qualify what has been received. Thus, if part of a letter is offered as
evidence, other explanatory parts may be offered; if a party is sought to be charged or affected by
a letter received in evidence, his reply thereto is admissible, and, where one party uses as
evidence a number of a series of letters written by the other party, the latter may introduce the
entire series.
27. Entire Statement
It is the settled rule that the whole of a declaration or statement containing an admission should
be received. Every admission is to be taken as an entirety of the fact which makes for the one
side with the qualifications which limit, modify or destroy its effect on the other side.
The reason for this practice is that, where part of a statement of a party is used against him as an
admission or declaration, the jury should consider and weigh any other portions of the statement
which tend to neutralize or explain the portion which is against interest.
In other words, the probative value of the evidence is to be determined from the statement as an
integrated unit and not from a part which is disassociated from the other parts.
28. Weight of Admissions
Considerations of weight or witness credibility generally have little bearing on admissibility.
Section 27. Offer of compromise not admissible. Incivilcases,anofferofcompromiseisnotan
admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by
law to be compromised, an offer of compromise by the accused may be received in evidence as an
implied admission of guilt.
A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is
not admissible in evidence as proof of civil or criminal liability for the injury.
Purpose of last par is to encourage the giving of charitable and meritorious aid to victims of accidental harm.
Compromise Offersevidenceofanoffertosettleorcompromiseaclaimisnotadmissibleasanadmissionof
guilt. Even if the offer tends to prove liability, it is rejected.
Reasons:1)relevancyoftheofferwillvaryaccordingtocircumstancesrelevancyincreasesastheamountof
offer approaches the amount claimed.
2) policy consideration is to promote the settling of disputes, which is discouraged if compromises are
admitted.
In Katarungang Pambarangay Law, no case involving any matter w/n the authority of the lupon shall be filed
directly in court unless there has been a confrontation btwn the parties b4 the lupon chairman or pangkat and the
there is a certification that no conciliation has been reached.
Under NCC, no suit btwn family members unless earnest efforts toward a compromise has been made, but failed.
Art 2030, NCC: No compromise in the ff cases:
1. civil status of persons
2. validity of a marriage or a legal separation
3. any ground for legal separation
4. future support
5. jurisdiction of courts
6. future legitime
7. habeas corpus and election cases
Rule in civil cases
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To invoke exclusionary rule, there must be an actual dispute and an apparent difference of view btwn the
parties as to the validity of amount of the claim.
Claims should be paid in full. If the validity and amount of claim are undisputed, an offer to pay a lesser
sum or installments is admissible.
What is excluded? The offer itself only when it is tendered as an admission of the weakness of the
offeringpartysclaimordefense;suggestionsoroverturesofsettlement.
It does not exclude admission of distinct or independent facts although such admissions are made during
the compromise or connected with the subject-matter of the controversy.
Ex. If a party admits a fact to be true bec it is a fact, it is admissible
The circumstances of the case and the intent of the party making the offer should be considered in
determining the admissibility of an offer of compromise
Ex. If party denies existence of debt and offers to pay for purposes of peace and avoiding litigation, offer
of settlement is inadmissible. If the party admits the debt and proposes to settle the claim amicably, the
admission is admissible to prove such debt.
Compromise evidence in criminal cases
Except in 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 guilt.
The legitimacy of settling criminal cases by negotiations btwn prosecuting atty and accused whereby the
latter pleads guilty in return for some leniency has been generally recognized.
1985 Rules on Crim Pro allows plea bargaining.
Good Samaritan Rule
Humanitarian motives; an offer to pay medical or hospital expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal liability for the injury.
Section 28. Admissibility by third party. Therightsofapartycannotbeprejudicedbyanact,
declaration, or omission of another, except as hereinafter provided.
Section 29. Admission by co-partner or agent.Theactordeclarationofapartneroragentoftheparty
within the scope of his authority and during the existence of the partnership or agency, may be given in
evidence against such party after the partnership or agency is shown by evidence other than such act or
declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person
jointly interested with the party.
Section 30. Admission by conspirator.Theactordeclarationofaconspiratorrelatingtotheconspiracy
and during its existence, may be given in evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act or declaration.
Section 31. Admission by privies.- Where one derives title to property from another, the act, declaration,
or omission of the latter, while holding the title, in relation to the property is evidence against the former.
Res inter alios acta alteri nocere non debet Rule
Things done btwn strangers ought not to injure those who are not parties to it.
Means that a transaction btwn 2 persons ought not to operate to the prejudice of a third person.
Onaprincipleofgoodfaithandmutualconvenience,amansownacts,declarationsandconductare
binding upon himself and are evidence against him.
Exceptions: vicarious admissions (secs 29, 30, 31)
Exc 1: Admission by co-partner or agent
Requisites:
1. act or declaration of a partner or agent of the party
2. w/n the scope of his authority and
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3. during the existence of the partnership or agency
4. after the partnership or agency is shown by evidence other than such act or declaration
5. may be given in evidence against such party
Same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested
with the party.
A declaration by one partner, even if dormant or deceased, relating to the partnership business and
during its existence is admissible against the co-partners.
Proof of partnership must first be shown before one partner can be charged with the admission of
another.
Principleofconditionaladmissibilitydiscretionaryuponthejudge;admissionofonlyonepartnercanbe
proved at a time, declarations may be received where the existence of a partnership is alleged w/o proof
of the partnership at that time.
Admissions of a persons jointly obligated may be received in evidence against the others. To be binding,
essential that 1) joint interest be made to appear by evidence other than the admission itself, 2)
admission relates to the subject-matter of the joint interest, 3) at the time the admission was made, the
person admitting must still be jointly interested with the party against whom the admission is offered.
In a common obligation (joint debtors), admission of one debtor is not binding upon the other.
If one of the defendants sued as joint tortfeasors offers evidence of an admission of negligence by a co-
defendant to throw the blame onto the other defendant, such admission is inadmissible, unless qualifying
as res gestae statements, declarations against interest, or the like.
Persons w/ joint or several interest in property
1. admissionsbyadministratornotadmissibleagainsttheheirs,devisees,coexecutor/administratoror
subsequent administrator; same is true although the administrator is also an heir; reason is cannot
prejudice interest of the estate.
2. admissionbyheirsnotadmissibleagainstacoheir/devisee/legatee,astheirinterestsareseveral,not
joint
3. admissionbytenantsadmissionsofajointtenantorownerareadmissibleagainsttheothersonthe
theory of privity of estate; but, admission of tenant in common are not admissible against co-tenant, as
the undivided interest of each is separate and distinct
Agents: 5 standards for admissibility of evidence of stmts when offered against his principal
1. stmt is an operative fact of a transaction and hearsay rule is not involved
2. principal has authorized agent to speak on his behalf w/ reference to specific matters
3. principal has ratified or adopted the instrument
4. stmt of agent is of res gestae quality or an act in the scope of the agency
5. when stmt is made by the agent w/n scope of agency
agency should be previously proved by evidence other than the admission itself
admissionofguardianingivingawaywardspropertyisneverbinding;dutytoconserveandprotect
wardsinterests
parentscannotwaiverightsoftheirminorchildren;expressprohibitiontoalienateminorspropertiesw/o
judicial authorization
if party refers another to a third person for stmt, he is bound by stmts given by such accredited agent
Attorneys and clients
a generally retained atty or w/o reference to a pending litigation is an agent; authority to bind client by
similar as that of any other agent
attys are agents of client in all matters relating to the trial of an action: 1) authority be proved by evidence
other than his own admission, 2) admission has been made w/n scope of authority, 3) made during
existence of authority
attys binds client in all matters of judicial procedure and management of litigation, but cannot, without
SPA,compromiseclientslitigationorreceiveanythingindischargeofclientsclaim
ifproperlybound,conclusiveuponclientandcannotbewithdrawn,unlesstheresfraudorcollusion;
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immaterial whether stmts are oral or written, express or inferable
no admission during trial shall be used in evidence against accused unless reduced in writing and signed
by him and accused; rule not apply to admissions of lawyer in the course of trial
out-of-court settlements (oral or written) by counsel and not within authority are not binding on client
unless made as a procedural act or pursuant to an express or implied authority
admissions by counsel in the course of casual conversation relating to the controversy are not binding
upon client, unless made in the presence of clients who do not object
Exc 2: Admission by conspirator
the act or declaration of a conspirator relating to the conspiracy and during its existence may be given in
evidence against conspirator after conspiracy is shown by evidence other than such act or declaration
there is need of independent proof of conspiracy
on of the exceptions to the res inter alios rule
stmts should be made during the pendency of the unlawful enterprise and in furtherance of its object, not
to a confession after the conspiracy ended
testimonies of conspirators in court are not declarations but direct testimony to the facts to which they
testify
a co-accused in a criminal case is a competent witness for or against any of his co-accused
Requisites:
1. That the conspiracy be first proved by evidence other than the admission itself
2. That the admission relates to the conspiracy itself
3. That it has been made while the declarant was engaged in carrying out the conspiracy
4. That the object of the conspiracy has not yet been consummated
Proof of conspiracy: agreement may be inferred from the conduct of the parties or from the mode or
manner in which the offense is was carried out or from circumstances surrounding the commission of the
offense
PrincipleofImpliedConspiracy:apersonsvoluntaryandindispensablecooperationwasaconcurrence
of the criminal act to be executed. Consequently, he is a co-conspirator by indispensable cooperation,
although common purpose was never bottled up by previous undertaking.
Duration of conspiracy: exists at the time of the commission of the offense until it ends or when a party
leaves w/c terminates as to him; declarations of a co-conspirator before a conspiracy or after it ends is
admissible against him and not against the others
Principle of adoption: when one joins a conspiracy after its formation and actively participates in it, he
adopts the previous acts and declarations of the others; declarations are admissible against him; time of
entry and prominence of part are immaterial
Independent proof of conspiracy: generally proved by a number of indefinite acts, conditions, and
circumstances w/c vary accdng to the purposes to be accomplished; essential that a conscious design to
commit an offense must be established
Quantum of evidence: must be real, not presumptive; proved by direct and circumstantial evidence as
convincing as the crime itself, independent from the confession; show that accused took part in the
planning, preparation, participation of the conspiracy
Need for performance of overt act: intentional participation in the transaction in furtherance of the
common design; except the mastermind, the conspirator should have done some overt act as a
contribution in the execution of the crime w/c consists of active participation, moral assistance and
exerting moral ascendancy; mere presence is not enough; need not establish that all parties agree in all
details
Conditional and multiple admissibility: discretion of court on the order of presentation of evidence
Admissibility of confession must relate to stmts made during the existence of the conspiracy, and in
furtherance of its object; immaterial that plan carried out differs from the original plan; act of one is the act
of all
Declarations of conspirators after the conspiracy does not bind the others unless made in their presence
so as to invoke admission by estoppel or silence; if testifies as a witness, admissible against the others
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Exc 3: Admission by privies
Priviesdenotestheideaofsuccessionheirship,testamentarylegacy,successionbysingulartitle,acts
inter vivos, assignment, subrogation, purchase, substitution
Successor acquired interest burdened with same liability of having declarations w/c could have been used
against the predecessor; admissible in evidence if there is privity of interest (privity in law, obligation,
blood or estate); applies to both real and personal properties
Necessary that admission of former owner has been made while he is still the owner of the property in
order to bind the successor, unless there is collusion or fraudulent scheme btwn the grantor and grantee
Landlord and tenants: all who succeed the tenant is affected by the acts and acknowledgment of his
predecessor; but, declarations of a tenant are not admissible against his landlord, unless exception to the
hearsay rule or are relevant to the question of tenancy as evidence of reputation w/c landlord has
knowledge
When admissions not admissible: if made after the sale or other conveyance, unless conveyor remains in
possession or declaration is made in the presence of the transferee and acquiescence can be inferred or
unless there is collusion or fraud; admissions can not be received to contradict the terms of the written
instrument
Section 32: Admission by silence.Anactordeclarationmadeinthepresenceandwithinthehearingor
observation of a party who does or says nothing when the act or declaration is such as naturally to call
for action or comment is not true, and when proper and possible for him to do so , may be given in
evidence against him.
Qui tacet consentire videtur (He who is silent appears to consent)
Declarations relating to the subject matter in controversy not denied may be admissible against the silent
party if circumstances were such that a reply is expected.
Self-preservation and self-defense
Requisites
1. he must heard and understood the stmt
2. he must have opportunity to deny it
3. stmt relates to some matter affecting his rights or interests, calling for an answer
4. facts were w/n his knowledge
5. fact admitted or inference drawn from his silence would be material to the issue
party must have actually heard the stmt; fact that w/n hearing distance of the speaker is not sufficient
unless actually heard
understood it in the language known to him
Right to remain silent under custodial investigation for the commission of an offense: silence is not
admissible; prohibits inference of guilt from silence of accused who has been arrested, detained and
investigated
Reenactment: not part of formal investigation, but a police continuance; if accused consented and
willingly took part in it although silent, his acts are admissible against him; he should have protested
JudicialHearing:silenceasadmissionnotapplyinajudicialproceeding;but,evidenceofpartysfailure
while on the stand at a subsequent trial to deny or explain accusatory stmts by the court at a former trial
of the cause is admissible
P v Paragsa: admission by silence applied in failure of rape victim to rebut the claim of voluntary carnal
knowledge
Neglect or refusal of accused to be a witness shall not in any manner prejudice or be used against him
In civil cases, unreasonable delay in the enforcement of claims is an implied admission of lack of merit;
unless delay is satisfactorily explained
P v. Artieda: delay due to fear of reprisal is justified
Failure to report immediately casts serious doubt on the accuracy/veracity of the identification of the
accused; natural tendency is to report crime immediately and describe malefactors at the earliest
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opportunity
Initial reluctance to get involved in a criminal case is a judicial notice; the same should not detract from
witnesscredibilitybecauseoffearoftheirlives
Weight of admission: testimony should be received and applied with caution
Failure to reply to a letter or other written communication is not deemed an admission of the truth of the
matters therein stated; But, business letters that normally calls for a reply of denial if the stmts are untrue
may impose admission on the addressee if he fails to reply in the normal course; Reason: men use
tongue much more readily than the pen and more accustomed to reply and deny or correct a false stmt
verbally
Ifwrittenstmtisreadinthepresenceofothers,thepartysfailuretodenyitsassertionsmaybereceived
as an admission
If letter contains several stmts, states position on some but fails on some, such failure is admissible as an
admission with respect to those omitted stmts
If negotiations have been broken off by one party indicating that further communication would be fruitless
or that the letter was written after litigation was instituted, failure to answer is not deemed an admission
Account Stated Rule: failure to answer a letter containing a statement of account is an implied admission;
objection should be made w/n a reasonable time
DoctrineofAdoptiveAdmission:Anadoptiveadmissionisapartysreactiontoastatementoractionby
anotherpersonwhenitisreasonabletotreatthepartysreactionasanadmissionofsomethingstatedor
implied by the other person (Estrada vs. Desierto 356 SCRA 108).
Sec. 33. Confession.Thedeclarationofanaccusedacknowledginghisguiltoftheoffensecharged,or
of any offense necessarily included therein, may be given in evidence against him.
2 Amendments on the Rule on Confession
(a) Added acknowledgment of guilt of any offense necessarily included in the offense charged; and
(b) The declaration could be given in evi only vs. him.
HoweveramajorityoftheSCdisapprovedthesecondone.
[People v. Molleda]Thus,it is now settled that extrajudicial confessions independently made without
collusion which are identical with each other in their essential details and are corroborated by other evi on
record are admissible, as circumstantial evi, vs. the person implicated to show the probability of the
lattersactualparticipationinthecommissionofthecrime.
Key Principle
Sec.12,Art.IIIofthe1987Consti(1)Anypersonunderinvestigationforthecommissionofanoffenseshall
have the right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, violence, threat, intimidation or any other means which vitiate the free will shall be used vs.
him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Sec. 17 hereof shall be inadmissible in evi vs.
him.
(4) The law shall provide for penal and civil sanxns for violations of this section as well as compensation to
and rehabilitation of victims of torture or similar practices, and their families.
Purpose:tocounteracttheintimidatingatmosphereofacustodialinvestigation<footnote11>
Custodial Investigation (CI) thequestioninginitiatedbylawenforcementofficersafterapersonhasbeen
taken custody or otherwise deprived of his freedomof axn in any significant way
History of Law on CI
(a) Miranda v. Arizona (1966)
(b) [Peoplev.Caguioa(1980)]OnthespecificquestionofWONtherighttocounselduringCImaybe
waived, the Court rules that there is NO bar to such a waiver if made intelligently and voluntarily, with full
understanding of its consequences.
(c) [MoralesJr.v.Enrile]Thepersonarrestedshallhavetherighttocommunicatewithhislawyer,a
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relative, or anyone he chooses by the most expedient means; by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No
CI shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any
person on his behalf, or apptd by the court upon petition either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any stmt obtained in violation of the procedure herein laid down, whether
exculpatory or inculpatory, in whole or in part, shall be inadmissible in evi.
(d) The rule was reiterated in People v. Galit and eventually found its way into the 1987 Consti.
[People v. Wong Chuen Ming (1996)]Theserightsareapplicable to ALL persons. Thus, the fact that
allaccusedareforeignnationalsdoesnotprecludeapplicationoftheexclusionaryrulebecausethe
constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens
and citizens.
Confession v. Admission
Anadmissionissomethinglessthanaconfession,andisbutanacknowledgmentofsomefactor
circumstances which in itself is insufficient to authorize conviction, and which tends only to establish the
ultimate fact of guilt.
UnderSec.3ofRule133, an extrajudicial confession made by the accused is NOT sufficient for conviction
unless corroborated by evi of corpus delicti.
Theexclusionaryruleencompassesbothadmissionandconfession.
Requisites
Underexistinglaws,foraconfessiontobeadmissible, it must be:
(a) Express (Sec. 33)
(b) Voluntary (Sec. 12(1), Consti)
(c) With assistance of competent and independent counsel (Sec. 12(1), Consti)
(d) In writing (R.A. 7438)
TheCIreportshallbereducedtowritingbytheinvestigatingofficer,providedthat 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 report shall be
null and void and of no effect whatsoever. (R.A. 7438)
Anyextrajudicialconfessionmadebyapersonarrested,detainedorunderCI,shallbeinwritingand
signedbysuchpersoninthepresenceofhiscounsel,or,inthelattersabsence,uponavalidwaiver,andin
the presence of any of the parents, elderbrothers and sisters, his spouse, the municipal mayor, the municipal
judge, district school supervisor, priest or minister of the gospel, as chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as evi in any proceeding. (R.A. 7438)
Inaddn,theaccusedmustbeaskedwhetherhewantedtoexerciseoravailhimselfofsuchright.
Problem Areas
(1) When does the right of a person under investigation for an offense to be informed of his constitutional
right begin?
thresholdquestion:Wh en is a person (constitutionally) under investigation for the commission of an
offense?
TwoTheories
(a) RestrictiveViewltdtoincustodyorCI
(b) ExpandedViewthenoncustodialinterrogationincludesanyinvestigationofapersonforanoffense
even if not under custody
PreliminaryStmt
TherearegenerallytwokindsofinvestigationswhereaninterrogationmaytakeplacenonCIandCI.
ThenonCIcontemplatestwosituations(a)thegeneralinquiryintoanunsolvedcrimewheninvestigatorsi
nterview witnesses at random; and (b) when suspicion is focused on a particular person and questions are
asked from him to elicit admissions or info.
<CIasdiscussedinMirandav.Arizona>Withoutpropersafeguardstheprocessofincustodyinterrogat
ion of persons suspected or accused of crimes contains inherently compelling pressures which work to
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underminetheindividualswilltoresistandtocompelhimtospeakwherehewouldnototherwisedoso
freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege vs. self-
incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those
rights must be fully honored.
The Non-custodial Theory (expanded view)
[Galmanv.Pamaran(1985)]JusticeCuevasstatedthefactthatthe(1973)Constididnotusetheterm
custodialbyhavingitinsertedbetweenthewordsunderandinvestigation,asinfactthesentenceopens
withthephraseanypersongoestopr ove that they did not adopt in toto the entire fabric of the Miranda
doctrine.HereasonedoutthatItistrueapersonincustodyundergoinginvestigationlaborsunderamore
formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the
common denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the
person undergoing interrogation for the commission of an offense, the very evi with which to prosecute and
thereafter convicted him.
Wrttothe1987Constionthesamesubj,Fr.Bernaswritesthatthediscussionsonthefloormanifestan
intent to expand the coverage in the light of the experiences during martial law. xxx As Commissioner Aquino
summed it up, the rig htshouldextendtotheperiodofcustodialinterrogation,temporarydetentionand
preliminarytechnicalcustody.Fr.Bernasconcludes:ifoneputstheGalmancasetogetherwiththe1986
deliberations, the conclusion that comes out is that the rights are available if a person is in custody, even if he
isnotyetthesuspect,orifthepersonisthesuspect,evenifnotyetincustody.
[Peoplev.Maqueda(1995)](C.J.DavideJr.)Theexerciseoftherightstoremainsilentandtocounseland
to be informed thereof under Sec. 12(1), Art. III of the Consti, are not confined to that period prior to the filing
of a criminal complaint or infobutareavailableatthatstagewhenapersonisunderinvestigationforthe
commissionofanoffense.
Restrictive In Custody Interrogation Theory
[Gamboa v. Cruz](J.Padilla)Thepolicelineupwasnotpartofthecustodialinquest,hence,pe titioner
was not yet entitled, at such stage, to counsel. The right to counsel attaches upon investigation, that is, when
the investigation officer starts to ask question to elicit info or confession or admission.
[Peoplev.Timple(1994)]Thereisnorealneedtoaffordapotentialsuspectoftheservicesofcounselat
the police line-up, for the customary practice is that it is the witness who is investigated or interrogated in the
course of the line-up. It is the witness who gives a stmt to the pol ice, rather than the accused who is not
questioned at all at that stage.
[Peoplev.Macam(1994)]Ithas,however,beenheldthatafterthestartoftheCI,anidentificationofan
uncounselled accused made in a police line-up is inadmissible. This is particularly true in the case at bench
where the police officers first talked to the victims before the confrontation was held. The circumstances were
such as to impart improper suggestions on the minds of the victims that may lead to a mistaken identification.
Appellants were handcuffed and had contusions on their faces.
[Peoplev.Bolanos(1992)]BeingalreadyunderCIwhileonboardthepolicepatroljeeponthewaytothe
police station where formal investigation may have been conducted entitles accused of right to be informed of
right to counsel. Thus where the ac cused were already arrested and turned over for investigation, the
interviewconductedbytheinvestigatorcannotbeconsideredmerelyasageneralinquirybutratheraCI.
Cases when right to be informed of right to counsel is not necessary
(a) [People v. Taylaran]Apersonwenttoapoliceprecinctandbeforeanysortofinvestigationcouldbe
initiated, declared that he was giving himself up for the killing of an old woman because she was
threatening to kill him by barang or witchcraft. The Court ruled that such a stmt was admissible,
compliance with the constitutional procedure on custodial interrogation not being exigible under the
circumstances.
(b) [Peoplev.Logronio(1992)]Thepolicemenwereabletolocatetheaccusedandacompanioninthe
mountain of Manito. When they asked the companion who was responsible, he pointed to the accused.
Accused at first denied, but later admitted that he was the one who robbed and killed the victim. He
further pointed to the place where he hid the loot, which were found at the place where indicated.
Accused was then brought to police station where he signed his confession in presence of his lawyers.
The SC ruled that the accused was NOT a person under CI within the meaning of Sec. 12(1), Art. III,
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whereCIwasxxxoronlywheretheinvestigationceasestobeageneralinquiryintoanunsolvedcrime
and begins to focus on a particular suspect who is taken into custody and asked questions that leads
itself to eliciting incriminating stmts.
(c) [Peoplev.Marra(1994)]Thepolicereceivedinfothatamaninasecurityguardsuniformwasinvolved
in the incident. They were informed by the accused that his gun was at his residence where they all
proceeded and got the same. After receiving the gun, he was asked by the police why he killed the
victim. He initially denied any participation in the killing, but when confronted with the fact that somebody
saw him do it, he admitted the act although he alleged that he did it in self-defense. The court held that
the accused was not yet under CI when he made such admission. There was no coercion whatsoever to
compel him to make such stmt. Indeed, he could have refused to answer questions from the very start
when the policemen requested that they all go to his residence. The police inquiry had not yet reached a
level wherein they considered him as a particular suspect. They were just probing into a number of
possibilities,havingbeenmerelyinformedthatthesuspectwaswearingwhatcouldbeasecurityguards
uniform.
(d) [Aballev.People(1990)]<volunteeredstmts>Theaccused,uponbeingpickedashewascomingoutof
the communal bathroom and wearing a bathrobe covered with blood which he tried to cover with his
hands, suddenly broke down and knelt before the police officer and confessed that he killed the victim,
thetestimonyofthepoliceofficerontheaccusedsoralconfessioniscompetentevitopositivelylinkthe
accused to the killing. Compliance with the constitutional procedures on CI is NOT applicable to a
spontaneous stmt, not elicited through questioning, but given in an ordinary manner, whereby the
accused orally admitted having slain the victim.
(e) [Peoplev.Maqueda]Extrajudicialadmissionstotheprosecutorandaprivatepersonfreelyand
voluntarily made to the prosecutor, not in the course of an investigation, but in connection with the plea of
the accused to be utilized as a state witness is NOT covered by the exclusionary rule.
(f) Admissions in the course of an investigation by a citizen or private security officer and admissions made
to a private person <a farmer in People v. Tawat; radio reporter> are admissible. However, under R.A.
7438, an extrajudicial confession made by a person arrested, detained or under CI must be in writing,
otherwise it shall be inadmissible as evi in any proceeding.
(g) [Peoplev.Tampus]<spontaneousorspurofthemomentstmts>EvenbeforeOfficerLahoz
investigated the killing, Tampus and Avila had already admitted it when, after coming our of the toilet, the
scene of the crime, they surrendered to the first guard whom they encountered, and they revealed to him
that they had committed an act of revenge. The spontaneous stmt elicited without any interrogation, was
part of the res gestae and, at the same time, was a voluntary confession of guilt. Not only that, the two
accused, by means of that stmt given freely on the spur of the moment without any urging or suggestion,
waived their right to remain silent and to have the right to counsel. That admission was confirmed by th eir
extrajudicial confession, plea of guilty, and testimony in court.
Rights of Defendant in Criminal Case
Before the case is filed in court (or with the public prosecutor, for preliminary investigation) but after having
been taken into custodyor otherwise deprived of his liberty in some significant way, and on being interrogated
by the police the continuing right to remain silent and to counsel, and to be informed thereof, not to be
subjected to force, violence, threat, intimidation, or any other means which vitiate the free will, and to have evi
obtained in violation of these rights rejected; and
After the case is filed in court UndertheRules,inallcriminalprosecutionsthedefendantisentitled,
amongothers(1)tobeexemptfrombeingawitnessvs.himself;and(2)totestifyasawitnessinhisown
behalf; but if he offers himself as w itness he may by cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner prejudiced or be used vs. him.
unlikeanordinarywitnessorapartyinacivilaxnwhomaybecompelledtotestifybysubpoena,having
only the right to refuse to answer a particular incriminatory question at the time it is put to him
Ifthedefendantbeaskedaquestionwhichmightincriminatehim,notforthecrimewithwhichheis
charged, but for some other crime, distinct f rom that of which he is accused, he may decline to answer
that specific question, on the strength of the right vs. self-incrimination.
Right Vs. Self-incrimination vs. Rights in CI
(a) EmbodiedindifferentsectionsintheBillofRightsSec.17andSec.12,respectively;
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(b) The right vs. self-incrimination is accorded every person who gives evi, whether voluntarily or under
compulsion of subpoena, in any civil, criminal, or administrative proceeding;
(c) The judge, other officer presiding over a trial, hearing, or investigation, has no obligation to advise a
witness of his right vs. self-incrimination; while any person under investigation for the commission of an
offense must be informed of his rights;
Therightvs.selfincriminationisarightthatawitnessknowsorshouldknow,inaccordancewiththe
well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one.
Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in
advance the character or effect of a question to be put to the latter.
(d) Therightvs.selfincriminationisnotselfexecutingorautomaticallyoperational.Itmustbeclaimed.
Itmaybewaived,expressly,orimpliedly,asbyafailuretoclaimitattheapp ropriate time.
The rights under CI do NOT terminate with the filing of the info
[Peoplev.Maqueda]AnAmendedInfoforRobberywithHomicidewasfiledvs.theaccusedwhowas
arrested by virtue of a warrant of arrest issued by the court. Accused wasbrought out from detention and his
stmt was taken by the police wherein he narrated his participation in the crime. The trial court admitted the
stmt of the accused although it was taken without the assistance of counsel because it was of the opinion that
since an info had already been filed in court vs. him and he was arrested pursuant to a warrant of arrest
issued by the court, the stmt was not therefore taken during CI. The First Division, speaking through Justice
Davide rejected the confession and held that the exercise of the rights to remain silent and to counsel and to
be informed thereof are not confined to that period prior to the filing of a criminal complaint or info but are
availableatthatstagewhenapersonisunderinvestigationforthecommissionofanoffense.
TheinterrogationinMaquedawasessentiallycustodialunderapolicedominatedatmospherewithin
the contemplation of Miranda and, consequently he is entitled to the rights of a person under investigation
for the commission of an offense.
The Theory of Critical Stages in Pre-trial Proceedings
[Peoplev.Espanola(1997)](J.Puno)TheclaimofappellantPaquinganthathewasnotassistedbya
counselofhisownchoicewhenhisaffidavitofconfessionwastakenisworthnoting.Paquingansswornst mt
wastakenon25November1991at3oclockintheafternoon.Atthattime,aninfoforrapewithhomicide
had already been filed vs. him and his co-appellants. Hence, when he gave his confession, he was no longer
under CI since he was already charged in court. Nonetheless, the right to counsel applies in certain pre-trial
proceedingsthatcanbeconsideredcriticalstagesinthecriminalprocess.CIbeforeorafterchargeshave
been filed and non-CI after the accused had been formally charged are considered to be critical pre-trial
stages. The investigation by Fiscal Lagcao of Paquingan after the latter has been formally charged with the
said crime is a critical pre-trial stage during which the right to counsel applies.
(2) How shall the person under investigation for an offense be informed of his constitutional rights?
Therightofthepersonunderinterrogationtobeinformedimpliesacorrelativeobligonthepartofthe
police investigator to explain and contemplates an effective communication that results in understanding what
is conveyed.
Sinceitiscomprehensionthatissoughttobeattained,thedegreeofexplanationreqdwillnecessarilyvary
and depend on the education, intelligence, and other relevant personal circumstances of the person
undergoing investigation.
[Peoplev.Velasco(1981)]Whereappellant was informed of his constitutional rights, but was not asked
whether he wanted to exercise or avail himself of such rights, there is a manifest failure to comply with the
constitutionalreqtfortheadmissibilityofextrajudicialconfession.
(3) What is meant by the right to the assistance of a competent and independent counsel?
CounselMustbeofSuspectsOwnChoice
[Peoplev.Deniega(1995)]<competentandindependent>Theiraddninthefundamentallawof1987was
meant to stress the primacy accorded to the voluntariness of the choice, under the uniquely stressful condit
ions of a CI, by according the accused, deprived of normal conditions guaranteeing individual autonomy, an
informed judgment based on the choices given him by a competent and independent lawyer.
[Peoplev.Bandula(1994)]Hecannotbeaspecialcounsel , public or private prosecutor, counsel of the
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police, or a municipal atty whose interest is admittedly adverse to the accused. As a legal officer of the
municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the
delivery of basic services to the people, including the maintenance of peace and order. It is thus seriously
doubted whether he can effectively undertake the defense of the accused without running into conflict of
interest. He is no better than afiscal or prosecutor who cannot represent the accused during CI.
[Peoplev.Januario(1997)]AnapplicantforapositionintheNBIwhowasaskedtoassisttheaccused
under investigation by the NBI is NOT an independent counsel.
[Peoplev.Hernandez(1997)]Thefact,however,thatthelawyerwhoassistedtheaccusedwhilebeing
investigated for kidnapping by the CIS is a retired member of the Judge Advocates office should not cast
doubt on his impartiality in assisting appellants during the invest igation.
Role of Assisting Lawyer Itistopreventtheaccusedfromincriminatinghimself.Therightto
counsel is designed to preclude the slightest coercion as would lead the accused to admit something
which is false.
Alawyercannotbefaultedwhenhedidnotpreventtheaccusedfromtruthfullyansweringthequestions
propounded by the investigators. For allowing the free flow of truth, counsel cannot be deemed as an
incompetent counsel.
Competent and Independent Counsel Means Effective and Vi gilant Counsel
[Peoplev.Bacamante]Thetermeffectiveandvigilantcounselnecessarilyandlogicallyrequiresthatthe
lawyer be present and able to advise and assist his client from the time the confessant answers the first
question asked by the inv estigator until the signing of the extrajudicial confession. Moreover, the lawyer
should ascertain that the confession is made voluntarily and that the person under investigation fully
understands the nature and consequence of his confession in relation to his constitutional rights.
[Peoplev.Paule(1996)]Theprosecutionmustprovebyclearandconvincingevithattheaccusedenjoyed
effective and vigilant counsel before he extrajudicially admitted his guilt to the police authorities, and the best
witness to establish this fact is the lawyer himself, otherwise the confession cannot be given any probative
value.
View That the Choice by Accused is NOT Exclusive
[Peoplev.Barasina(1994)]TheThirdDivisionexpressedtheviewthatthewordpreferablyunderSec.
12(1) does not convey the message that the choice of a lawyer by a person under investigation is exclusive
as to preclude other equally competent and independent attys from handling his defense. If the rule were
otherwise, then, the tempo of CI will be solely in the hands of the accused who can impede, nay, obstruct the
progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to
protect his interest.
doesnotseemtoaccordwiththespiritoftheConsti
The Middle View
[Peoplev.Deniega](J.Kapunan)Thelawyercalledtobepresentduringsuchinvestigationsshouldbeas
far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one
furnishedintheaccusedsbehalf,itisimportantthatheshouldbecompetentandindependent, i.e., that he is
willing to fully safeguard the constitutional rights of the accused as distinguished from one who would merely
begivingaroutine,peremptory,andmeaninglessrecitaloftheindividualsconstitutionalrights.
Ideallytherefore,alawyerengagedforanindividualfacingCI(ifthelattercouldnotaffordone)should
beengagedbytheaccusedhimself,orbythelattersrelativeorpersonauthorizedbyhimtoengagean
atty or by the court upon proper petition of the accused to file such petition. Lawyers engaged by the
police, whatever testimonials are given as proof of their probity and supposed independence ar e
generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities
can be symbiotic.
NeedforthepresenceofcounselatALLstagesoftheprocessofCIThereexistevidenceindicating
that the actual CI was conducted at the police headquarters in the absence of counsels who thereafter
brought to the QC IBP office only for the purpose of signing the confessions, and that while the lawyers
were present during the signing, they were not present at all during the actual C I of the accused in the
police headquarters.
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Doctrine of Ratification
[Estaciov.Sandiganbayan]Itwasearlierheldwhileitistruethatpetitionerswaiverofhisrighttoremain
silent and to assistance by counsel was not made in the presence of c ounsel, the defect was cured and the
reqtinGalitcasewassubstantiallycompliedwithwhenEstacioslawyerarrivedattheclosingstageofthe
interrogation, read the stmt and talked to accused before he signed it.
DoctrineofRatificationNOTApplied:ReturntoBurgos
[Peoplev.Compil(1995)]ThebelatedarrivaloftheCitizensLegalAssistanceOfficelawyerthedayafter
the interrogation even prior to the actual signing of the uncounselled confession does not cure the defect for
the investigators were already able to extract incriminatory stmts from the accused.
(4) Who has the burden of proving the voluntariness of the confession?
Prosecutionmustprovevoluntarinessandmaynolongerrelyonpresumptionofregularity.
[Peoplev.Ramos]TheCourtruledthattheverbaladmissionbytheaccusedduringCIwasinadmissible,
although he had been apprised of his constitutional rights, for the reason that the prosecution failed to show
that those rights were explained to him, such that it could n otbesaidthattheappraisalwassufficiently
manifestedandintelligentlyunderstoodbytheaccused.
[Peoplev.Trinidad]Prosecutionmustpresentevitorebutclaimofmaltreatment;otherwise,theconfession
will be considered illegally procured.
ReturntoPresumptionofVoluntariness
Aconfessionisadmissibleuntiltheaccusedsuccessfullyprovesthatitwasgivenasaresultofviolence,
intimidation, threat, promise of reward, or leniency.
Theburdenisontheaccusedtoprovethevoluntariness of the confession.
Herrera:TheforegoingpronouncementsonthepresumptionofvoluntarinessiscontrarytoMirandav.
Arizona which has been constitutionally adopted in this jurisdxn.
Fr.Bernas:Iftheforegoingprotectionsandwarningsarenot demonstrated during the trial to have been
observed by the prosecution, no evi obtained as a result of the interrogation can be used vs. him.
[Peoplev.Santos(1997)]Thus,nopresumptionofconstitutionalitymaybeaccordedanyextrajudicial
confession until the prosecution convincingly establishes the regularity of its taking and its compliance
with the Consti. This is the price the prosecution has to pay before it can be allowed to use such
formidable evi vs. the accused.
What Constitutes an Intelligent Waiver
WhereinCIisinvolved,thereisnoroomforthecontentionthattheprivilegeiswaivediftheindividual
answers some questions or give some info of his own prior to invoking his right to remain silent when
interrogated.
Thewaivermustbecategorical and definitive and must rest on clear evi.
UndertheConsti,theserightscannotbewaivedexceptinwritinginthepresenceandassistanceofcounsel.
True Test of Admissibility
thattheconfessionismadefreelyandvoluntarily
Tobeconsidered voluntary, the confession must have been made without hope of benefit, without fear
or duress, and without the use of threat, torture, violence, artifice, or deception. It must be the deliberate
act of the accused with a full comprehension of its significance.
Aconfessionisvoluntaryinlawifinfactitwasvoluntarilymade.Confessionsmadebycompulsionof
whatever nature are involuntary.
Tricks,ThreatsandPromises
(a) Confession by Trickery
Confessionobtainedthrutrickeryorfraudareadmissible,f or the use of such means, accdg to Justice
Moran does not tend to induce the making of a false confession. Thus, confession obtained by a
detective posing as prisoner (State v. Brooks) or under promise of secrecy and help to escape were held
as admissible. (Rutherford v. Commonwealth)
Herrera:Confessionsobtainedbyfraud,artifice,trickery,ordeceptionshouldbeinadmissibleforitis
in violation of the right of the accused not to be compelled to be a witness vs. himself regardless of
whether what he confessed is true or not. The issue should not be whether he was tricked into telling
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the truth or not, but whether he was compelled to be a witness vs. himself. The rationale behind
Miranda is not to merely avoid the use of force or intimidation in obtaining a confession but to prevent
the suspect from testifying vs. himself unless there is an intelligent waiver, as this would violate his
right vs. compulsory self-incrimination. This prohibition includes various techniques of interrogation
consistingmostlyofartificewithoutthe assistance of counsel.
(b) Confessions procured by threats or promise of reward or leniency
Thepromisemustbemadebypersonsinauthoritylikeaprosecutingofficer.Apromiseofimmunityby
a rankles officer does not render confession involuntary.
personinauthoritypersonwhoisengagedorconcernedintheapprehension,prosecution,or
examination of the accused
Exception: Where the accused discharged as a state witness confessed because of promise of
immunityandonretractsconfessionisadmi ssible
(c) Threats or promises by private person without sufficient authority does not render confession
involuntary
(d) Confession induced by spiritual exhortation
Thetermbenefitwhenusedinconnectionwiththeprocurementofaconfessionmeansatemporalor
worldly benefit. It is the enticement of a temporal benefit only that will affect the voluntary character of a
confession made in hope of it. Thus, exhortation of a moral, religious, or spiritual nature which results in
the making of a confession does not render it involuntary.
(e) Offer of reward or pardon renders confession voluntary and inadmissible
Theoffermusthaveinfluencedtheconfessionandnotbymerefactthatthepromisewasmade.
(f) Confession made under the influence of parental sentiment
Moran:admissibleBUTnotcredible
Martin:NOTadmissible
(g) BettertellthetruthconfessandForthegoodoftheservice.NOTthreatsandareadmissible
(h) A confession offered in evi and not objected to by the defendant is regarded as prima facie
voluntary.
OtherIndiciaofVoluntariness
(a) The untruthful stmt of facts in the confession
(b) Confession ofanunschooledfarmernotabasisforconvictionofacapitaloffenseunlesssufficiently
corroborated
(c) Hospitalization of the accused and his having a swollen elbow indicate quite strongly that he was coerced
into making the extrajudicial confession
(d) Confession in flawless Tagalog while accused is a Bicolano
IndiciaofVoluntariness
(a) Abundance of details
Exception:whenthefactsshowthatthejailguardsandinvestigatorhadpreviouslyacqdadetailedinfo
abt the killing; confession which was not completed until after several days and which was not signe d
cannot be given credence
(b) Failure to complain to swearing officer
(c) Failure to file criminal or administrative axn vs. the alleged torturers
(d) Absence of mark of violence in his body
(e) Responsetoeveryinterrogatoryissofullyinformativeevenbeyondthereqtsofthequestionsasto
indicate the mind to be free from extraneous retraints
(f) Contradictions between confessions and prosecution witnesses, and the fact that the same are mitigating
and evasive
(g) Confession followed by re-enactment in accordance with conf ession
(h) Presence of a press rep during the taking of an extrajudicial stmt and absence of press report of
manhandlingevioflackofcoercion
DutyofSwearingOfficers
Judgesandfiscals,towhompersonsaccusedarebroughtforswearing,tothetruthoftheirstmts,woulddo
well to adopt the practice of having the confessants physically and thoroughly examined by independent and
qualified doctors before administering the oath, even if it is not requested by the accused. Or, if no doctor is
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immediately available, they should themselves examine the body of the accused for marks of violence.
Thiswouldnotonlydeterattemptstosecureconfessionsthroughviolencebutultimatelyshortenand
speed up criminal trials by precluding future controversies on whether the stmts were obtained through
torture or not.
WaiverofRighttoCounsel
[Filoteov.Sandiganbayan(1996)]Thespecificproviofthe1987Constirequiringthatawaiverbyan
accused of his right to counsel during CI must be made with the assistance of counsel may not be applied
retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Consti.
Althoughanumberofcasesheldthatextrajudicialconfessionsmadewhilethe1973Constiwasinforce
and effect, should have been made with the assistance of counsel, the definitive ruling was enunciated
only on 26 April 1983 when the Court, through Morales Jr. v. Enrile issued the guidelines to be observed
by law enforcers during CI. <reiterated in People v. Galit (1985)>
PetitionermaynotclaimthebenefitsoftheMoralesandGalitrulingsbecauseheexecutedhis
extrajudicial confession and his waiver to the right to counsel on 30 May 1982, or before 26 April 1983.
RulesonAdmissibilityofReceiptsforMarijuanaorMoneySignedbyAccused
(a) Cases where receipts were held admissible
receiptandbookingsheetreportTheydonotformpartoftheCIwherethepresenceofcounselis
reqd.
Theaccusedsignedmoneybills.Thesignatureisnotaconfessionorextrajudicialstmt.
(b) Cases where receipts held inadmissible
signatureonsack
[People v. Wong Chuen Ming]Thesignaturesoftheaccusedontheboxesandontheplasticbagsare
tantamt to an uncounselled extrajudicial confession which is NOT sanctioned by the Bill of Rights and are,
therefore, inadmissible as evi.
bookingsheetreportsNOTconfessionsandareinadmissibletoproveguilt
ConfessionorAdmissionRejectedEvenifConfirmedbySubsequentFacts
[Peoplev.Jimenez]TheinterrogationofMarcosJimenezhavingbeenconductedwithouttheassistanceof
counsel, and no valid waiver of said right to counsel having been made, not only the confession but also any
admission obtained in the course thereof are inadmissible vs. him. xxx This is so even if it be shown that the
stmts attributed to the accused were voluntarily made, or are afterwards confirmed to be true by external
circumstances.
(5) Vs. whom is a confession admissible?
Gen. Rule: An extrajudicial confession when not presented in evi cannot be considered in evi.
TheCourtexcludedconfessionwhereaccusedwasnotinformedofrighttocounselandacquittedthe
accused.
Theadmissibilitymustbeobjectedto.
ConfessionorAdmissionInadmissibleVs.Coaccusedbecauseoftheprincipleof res inter alios acta
Therightsofapartycannotbeprejudicedbyanact,declaration,oromissionofanother.
Aconfessionisadmissiblevs.theconfessoronly.Itisincompetentevivs.hiscoaccusedforbeing
hearsay.
WhenAdmissiblevs.Codefendant
(a) When several a ccused are tried together, the confession made in the course of his testimony is
admissible vs. his co-defendant, if corroborated by indisputable proof.
(b) If a defendant, after having been appraised of the confession of his co-defendant, ratifies or confirms
said confession, the same is admissible vs. him.
(c) [Peoplev.TySuiWong(1978)]Anaccusedmadeanextrajudicialconfessionimplicatinghisco
defendant,whowaspresentwhenthesaidconfessionwasbeingtakenandwhodidnotprotest.
This is no longer true under the 1987 Consti; the accused has the right to remain silent.
QualifiedAdmissibility:IdenticalorInterlockingConfessions
Whileanextrajudicialdeclarationofacoconspiratormaynotbedirectlyintroducedinevivs.anotherco
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conspirator as proof of specific facts, it may nevertheless under certain conditions be taken into consideration
as a circumstance in gauging the credibility of the testimony of an accomplice.
Extrajudicialconfessionsthatareidenticalintheirmaterialre spects are admissible, vs. all declarants as
confirmatory of the other. They are, therefore, alone admissible as circumstantial evi vs. the others, to show
theprobabilityofthelattersactualparticipationinthecrime.Theyarealsoadmissibleascorroborativeevi
vs. the other, it being clear from other facts and circumstances presented that persons other than the
declarants themselves participated in the commission of the crime proved and charged.
Onceconspiracyisestablished,theconfessionoftheaccusedisadmissiblevs.theotherascorroborative
evi of other facts that tend to establish the guilt of the co-conspirator.
TesttoDetermineWhetherAdmissionisCorroborative
Examinetheother evi with a view to ascertain if these tend to connect the accused with the offense.
Beforeextrajudicialconfessionsmaybeadmissibleascircumstantialevivs.apersonimplicatedtoshowthe
probabilityofthelattersparticipationinthecommissi on of the crime, the ff. must be present: (a) several
confessions implicating another person; (b) the confessions are made independently without collusion; (c)
they are identical with each other in their essential details; (d) they are corroborated by other evi on record;
and (e) they were made soon after the commission of a crime.
TrendofRulingsonVs.WhomConfessionisAdmissibleLtd.OnlyVs.Confessant
Illegallyseizedarticlesinadmissibleonlyvs.personwhoserightwasviolated
illegallyobtainedconfessionsareinadmissibleevenvs.thirdpersons.
[Peoplev.Raquel(1996)](J.Regalado)Theextrajudicialstmtsofanaccusedimplicatingacoaccused
may not be utilized vs. the latter, unless these are repeated in open court. If the accused never had the
opportunitytocrossexaminehiscoaccusedonthelattersextrajudicial stmts, it is elementary that the same
are hearsay as vs. said accused.
Form of Confessions
[Aballev.People(1990)]Ithasbeenheldthatanypersonotherwisecompetentaswitnesswhoheard
the confession is competent to testify as to the substance of what he heard if he heard and understood all of
it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance.
However,underR.A.7438,anyextrajudicialconfessionshallbeinwriting.
Weight of Confession
(a) Duty of Judges in Weighing Confessions
Themostpainstakingscrutinymustberesortedtobythetrialcourtsinweighingevirelatingtoan
alleged voluntary confession of the accused and the courts should be slow to accept such confession
unless corroborated by other testimony.
Inpassingupontheweightandadmissibilityofaconfession,thecourtmaytakeintoconsiderationthe
circumstances and conditions under which it was obtained, and may consider claims that a stmt was
taken in circumstanceswhichviolatethestandardofvoluntarinessastandardgroundedinthepolicies
of privileged self-incrimination.
ItisnotasoundpracticefortheCourttodisregardaconfessionjustbecausetheaccusedrepudiatesit
at the trial. Before setting aside a confession, the reasons and motives for its repudiation should be
carefully scrutinized.
(b) TheLanguageUsed;NOOathReqd
Aconfessionwritteninalanguagewhichtheaccuseddoesnotspeakorunderstandisadmissible,
provided it was translated to him.
Ifwitnesstestifiedthatheheardtheconfessionthrutheinterpreter,itishearsay.
Itisafactthattheconfessionismadebytheaccusedandvs.hisowninterestwhichgivesconfession
evidentiary value, and provided the fact is established, it does not matter whether it is under oath or not.
(c) Confession Must be Considered in its Entirety
Aconfessionmustbeconsideredinitsentiretyincludinginculpatoryorexculpatorystmts.
confessionofkillingbecauseaccusedcaughthiswifecommittingadulterymustbepresentedinits
entirety
Portionsmay,however,berejectedifimprobable,falseorunworthyofcredit.
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(d) Testimony of Eyewitness is NOT Necessary
Wellestablishedistherulethatitisnotnecessarythataneyewitnessshouldtestifyonhavingseen
the accused committing the crime or had seen him under circumstances indicating his having committed
the crime, before the accused may be held liable under his confession.
(e) Must be Corroborated by Evi of Corpus Delicti (Sec. 3, Rule 133)
Itdoesnotmeanthatalltheelementsofthecrimemustbeclearlyestablishedbyeviindependentof
that confession. It only means that there should be some evi tending to show the commission of the
crime apart from the confession.
Weight of Judicial Confession
EvimustbepresentedincapitaloffensesandtheCourtmustbesatisfiedthatthepleaofguiltywas
entered with full knowledge of meaning and consequences of his act.
Meaning of Corpus Delicti
Defn:theactualcommissionofthecrimecharged;mayrefertoeitherthebodyofthecrimeorthefactof
specific loss or injury
TwoElements:(a)thatacertainresulthasbeenproved,forexample,amanhasdiedorabldghas
been burned; and (b) that some person is criminally resp onsible for the act
Theotherevineednot,independentlyoftheconfession,establishthe corpus delicti beyond a
reasonable doubt.
InHomicideThecorpus delicti is the fact of death, WON feloniously caused.
[People v. Comendador]Thedeathcertificate and necropsy report need not be submitted to prove the
fact of death which can be established by testimonial evi.
InArsonThefactofdestrxnbyfireissufficientinestablishingWONtheburningiswilful.
InRobberywithHomicideTheextrajudicialconfessionwascorroboratedbythe corpus delicti of
homicide even if there is no independent evi of robbery.
[Peoplev.Abrera]Thefactthattherewasfoundaskull,whichwasidentifiedbyCopinosmotherasthe
very skull of her son, a nd a decomposed body of a human being in the grave pointed to by Ubana as the
place where he and Abrera buried the body of Copino, is sufficient proof of the corpus delicti. There was no
eyewitness but the extrajudicial confessions which were repudiated were confirmed by physical facts as taken
from the confession itself.
[Peoplev.Reyes]Thefactthattheemptyshellsrecoveredfromthesceneofthecrimetalliedunder
ballisticexam,withtestshellsfromthegunfoundinappellantspossession;andthefactthatsomeofthe
articles taken in the robbery were mention edintheconfession,providedthereqdcorroborationofthe
confession by the proof of corpus delicti.
[Peoplev.Sasota(1952)]Itisnotnecessarytorecoverthebodyortoshowwhereitcanbefound.Itis
enough that the death and the criminal agency causing it is proven even by circumstantial evi.
WhereThereisNOEviof Corpus Delicti
[Alladov.Diokno(1994),citingU.S.v.Samarin(1902)]Wherethesupposedvictimiswhollyunkown,his
body not found, and there is but one witness who testified to the killing, the corpus delicti is not sufficiently
proved. The SC refused to believe the testimony of the confessed killer that the body of the supposed victim
was completely burned to ashes with the use of gasoline and rubber tires from 10 p.m. to 6 a.m. leaving no
traces of his remains is highly improbable if not ridiculous. Even crematories use entirely closed incinerators
where the corpus is subjected to intense heat. Thereafter, the remains undergo a process where the bones
are completely ground to dust. Hence, the SC held that there is serious doubt on proof of corpus delicti.
The Exclusionary Rule
[Peoplev.Burgos]Sincetheaccusedwasneverinformedofhisconstitutionalrightsatthetimeofhis
arrest, his alleged admissions of ownership of the gun and pointing at the location of the subversive docus
after questioning were obtained in violation of his constitutional right vs. self-incrimination.
Anyactwhethertestimonialorpassive,thatwouldamttodisclosureofincriminatingfactsiscoveredbythe
inhibition of the Consti. In re-enactment, any stmt whether exculpatory or inculpatory is inadmissible.
AdmissiblePlainView
[Aballev.People]AbloodstainedTshirt,beinginthenatureofaneviinplainviewwhichanarresting
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officer may take and introduce in evi. An officer making an arrest may take from the person arrested any
money or prop found upon his person which was used in the commission of the crime or was the fruit of the
crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be
used in evi in the trial.
Thefruitsofconfessionwithoutassistanceofcounselwasconsideredinadmissible.Equally
inadmissible is the kitchen knife recovered from Aballe after his capture and after the police had started to
question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a
constitutionally infirmed interrogation and must consequently be disallowed.
PrincipleThatExclusionLtdtoStmtsandDoesNOTIncludeObjects
[Peoplev.Paynor(1996)]TheconstitutionalrightsunderCIappliesonlyvs.testimonialcompulsionand
not when the body is proposed to be examined. In fact, an accused may validly be compelled to be photog
raphed or measured, or his garments or shoes removed or replaced, or to move his body to enable the
foregoing things to be done without running afoul of the proscription vs. testimonial compulsion.
<footnote20>Theforegoingpronouncementsdonotappeartohaveconsideredthedoctrineofthefruit
ofthepoisonoustreewhichappliestoobjectsasfruitsofanunsounseledconfession.
RuleLtdtoStmtsofAccusedNOTThoseofWitnesses
[Peoplev.Bombesa(1988)]Theaccusedassailedthetrialcourtforadmittinginevitheaffidavitof
prosecution witness Justo which was allegedly obtained from him by means of force or intimidation and
withouttheassistanceofcounsel.ThecourtagreedwiththeSolGensargumentthatJustoisnotan
accused, but merely a witness for the prosecution and held that the 1987 Consti appears to limit inadmissible
confessions to those executed by the accused himself, and does not include those stmts made by the
witnesses.
Witness Protection Rule
(a) If the application to be admitted in the program is denied, the sworn stmt and any other testimony given in
supportofsaidappnshallnotbeadmissibleinevi,exceptforimpeachmentpurposes.(Sec.11,R.A.
6891)
(b) In all crim cases, the fact of the entitlement of the witness to the protection and benefits provided for in
this Act shall not be admissible in evi to diminish or affect his credibility. (Sec. 16)
Section 34. Similar acts as evidence.Evidencethatonedidordidnotdoacertainthingatonetimeis
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 uasage
and the like.
Second part of res inter alios acta rule; first part in sec 28
Conduct as evidence
General Rule: 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
It is not proper to show proof of previous bad conduct that he has a propensity for committing a crime and
bec he committed other crimes on previous occasions he probably committed the crime in question
Reason: reason, justice and judicial convenience; commission of a past crime is not a guaranty of
commission of a present crime; mind, modes of life and conditions may change
EXCEPTION: Malig v. Sandiganbayan: it may be received to prove a specific intent or knowledge, identity,
scheme, plan, system, habit, custom or usage, and the like
In criminal cases, evidence of other crimes/wrongful acts of accused is not admissible to prove character,
butmaybeofferedtoproveintent,;tobeadmissible,evidencemustshowthattheotheroffenses
are so related in time, place and circumstance to the offense charged as to have substantial probative
value
TC given discretion to determine whether similar acts are too remote or sufficiently near in point of time to
the specific act in issue; there must be logical connection that the accused is the one who committed it
Illustrative cases:
60 | Page
1. forgeryevidencesofotherforgeriesmaybeadmittedtoshowintent,system,plan,
2. actsoflasciviousnessevidenceofothersexactsnottooremoteintimeisadmissible
3. homicidebypoisonothermysteriousorunexplaineddeathsintheHHisadmissible
4. arsonproofthataccusedhadsetfiretobldgprevioustotheburningisadmissibletoproveintent
Previous negligent act
Itisirrelevant;negligencemustbeprovedatthetimeoftheplaintiffsinjury,notatsomepriortime
GR: evidence of other offenses committed by a defendant is inadmissible
EXC: if defendant has on more occasion performed similar acts, accident in good faith is possibly
excluded, negligence is intensified, and fraudulent intent may even be established; e.g. potassium
chlorate and barium chlorate)
Evidence of prior accidents or injuries is relevant only if there is a) substantial identity of conditions, b)
substantial identity of human behavior, c) no serious danger of confusion of issues
Specific Intent
Whenever mental state, guilty knowledge, or intent is an essential element of the act charged, evidence is
admissible acts committed by one party and his conduct at or about the time of the commission of the act
charged w/c tends to establish his knowledge, intent, motive for the commission of the crime
Malig v. Sandiganbayan: testimony of witness that COA auditors has received from previous construction
projectssufficientlyestablishesaccusedintentandhabitofdemandingandreceivingmoney
Identity
Not admissible when not in issue; evidence of another crime is not admissible in another crime, unless it
is relevant as when it tends to identify the defendants as the perpetrators of the crime
Similar acts to prove plan, system or design
Evidence that a plan, design or scheme has been put into execution is relevant if it tends by reasonable
inference to establish the commission of the crime charged; there must be a causal relation or logical and
natural connection btwn the two acts or they must form part of only one transaction.
Similar acts to prove habit, custom or usage
Habit means a disposition or condition of the body or mind, an acquired custom or a usual repetition of
the same act or function
Custom means a course of behavior of a group of persons regularly repeated in like circumstances
Custom and usage w/c by common adoption and acquiescence has become compulsory and has
acquired the force of law with respect to the place or subject-matter to w/c it relates. It results from a long
series of actions, constantly repeated and uninterrupted acquiescence, acquired the force of a tacit and
common consent
Parol evidence rule does not bar evidence of custom or usage to explain or supplement a contract
Classifications of custom
1. generalprevailingthroughoutacountryandbecomingalawofthatcountry,andtheirexistenceisto
determined by the court
2. localprevailingonlyinsomeparticulardistrictorlocality,cityortown
3. particularaffectsonlytheinhabitantsofsomeparticulardistrict
Usage vs. customs: usage is a repetition of acts; customs is the general rule w/h arises from such
repetition
Habitvs.character:characterevidencereferstothequalityofapersonsconduct;habitevidencerefers
tothepersonsroutinereactionsinparticularsituations
Requirement for admissibility of habit evidence: must be specific, routine (performed w/o deliberation),
and continuous, and routine acts must be invariable
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Habit or custom may be proved by particular acts
Evidenceofcarefulhabitorrecklessconductofinjuredpersonbyanothersnegligenceisnotadmissible
to show care on his part at the time of injury
Customs or practices of prudent man
Conformity with custom is some proof of due care; non-conformity is some proof of negligence
Purposes for which admissible
1. to prove the doing of an act
2. customs will increase probability or improbability of an act having been done or not done
degree of proof required is high
to be relevant, there must be a showing that the custom was prevalent in the same general locality where
the accident occurred, and at the time it occurred
custom, although admissible, is not conclusive
Exceptions to the rule on admissibility:
1. where the act in question is clearly or inherently negligent or negligent per se
2. where the manner of performing the act is a matter of common knowledge and of w/c judicial notice is
taken
3. where the circumstances are dissimilar
4. if it would result in confusion of issues or inject new controversial points collateral to the issue
5. if it tends to generate surprise or undue prejudice disproportionate to the usefulness of the evidence
to prove the whole case, other crimes may be disclosed in introduction of evidence; there must be causal
relation or connection btwn the two acts that they may logically be said to form part of one transaction
Section 35. Unaccepted offer.Anofferinwritingtopayaparticularsumofmoneyortodeliverawritten
instrument or specific personal property is, if rejected without valid cause, equivalent to the actual
production and tender of the money, instrument, or property.
TESTIMONIAL KNOWLEDGE
Section 36. Testimony generally confined to personal knowledge; hearsay excluded .Awitnesscan
testify only to those facts which he knows of his personal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these rules.
GENERAL RULE: A witness can testify only to those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as otherwise provided in these rules.
REASON FOR EXCLUDING HEARSAY:
It is not subject to the test of truth because there is no opportunity for cross-examination. Also, this will be a
violation of the constitutional right to confrontation.

HEARSAY RULE
A witness testimony may be based on:
(i) the witness personal knowledge of the facts involved; (admissible)
(ii) her or his opinions, conclusions, or estimates about those facts; (often not)
(iii) reports of the facts obtained by the witness from other persons or sources. (depends)
CLASSIFICATION OF OUT-OF-COURT STATEMENTS
1. HEARSAY - Those which are considered as hearsay and therefore inadmissible, this occurs when the
purpose for introducing the out-of-court statement is to prove the truth of the facts asserted therein;
2. NON-HEARSAY- Admissible. This occurs when the purpose for introducing the statement is not to prove the
62 | Page
truth of the facts asserted therein but only the making of the statement and are admissible in evidence
when the making of the statement is relevant . These are so-called INDEPENDENTLY RELEVANT
STATEMENTS.
o purpose is not to prove the truth of facts asserted in statement
o to be admissible, the making or utterance of statement must be independently relevant regardless
of its truth or falsity
o statements to impeach credibility of witness ( e.g. prior inconsistent statements offered to impeach
credibility)
o classifications:
o statements which are the very facts in issue ( e.g. utterances in libel and slander, utterances in
offer and acceptance of contracts)
o promises of marriage(e.g.won a promise was made)
o as circumstantial evidence of the fact in issue(e.g. a statement of a person to show his physical
condition in an assault case)
o statement introduced to establish the fact that a party relied thereon( e.g. in an adultery case, son
told his father that he prefers the restaurant, in a motel, where his mother and doctor used to eat )
o statement of a person showing his physical condition, illness, etc.
o statement of a person from which an inference may be drawn as to the state of mind of another
person(to show defendant acted in the heat of passion w/no intent to kill- X testified that his
fiance told him that she was pregnant by another man)
o statement identifying date, place, person, etc.
3. EXCEPTIONS TO THE HEARSAY RULE- Those which are hearsay but are considered as exceptions to the
hearsay rule and are therefore admissible. These are from Sections 37 to 47 of Rule 130, namely:
o Dying Declaration;
o Declaration Against Interest;
o Act or declaration about pedigree;
o Family reputation or tradition regarding pedigree;
o Common reputation;
o Res Gestae;
o Entries in the ordinary course of business;
o Entries in official records;
o Commercial lists;
o Learned treatises;
o Testimony or deposition at a former proceeding.
DEFINITION
- oraltestimonyordocumentaryevidenceastosomebodyswordsoractionsoutsideofcourt,wherethey
are offered to prove the truth of the matters they assert (Wigmore)
- kind of evidence which does not derive its value solely from the credit to be attached to the witness himself
but on some other person from whom the witness has received his information (Jones)
- includes all assertions which have not been subject to opportunity for cross-examination by the adversary
at the trial in which they are being offered against him
- signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is
elicited and which consequently is not subject to cross-examination
- matters not derived from his own perception and is not competent to prove the truth of the matters
asserted in the perception
REASON FOR THE RULE:
Serious concerns about worth (trustworthiness and reliability) of hearsay evidence since the same is not given
under oath and not subjected to cross-examination hence tests of perception, memory, veracity and articulateness
not applied.
CHARACTERISTICS
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- original source is not a party to the action nor an agent of a party
- statements wee made out of the hearing of the party to be charged
- such other person who made the statements and who should be the one to testify cannot be cross-
examined
- the witness cannot swear to its truth beyond what he has heard or been told
- objectionable because it is not the proof o the fact in question but merely a proof as to what a person has
said as to such fact
ELEMENTS
(i) an assertion or conductamounting to an assertion;
(ii) made by an out-of-court declarant or actor;
(iii) offered to prove the truth of the matter asserted at the trial in which it is offered.
ADMISSIBILITY OF NONASSERTIVE CONDUCT (acts not intended by the actor to be assertive but by inference
or translation is assertive) e.g. flight from arrest not intended to reflect guilt by the actor but such conduct is
considered an awareness of guilt
1
st
view:[underWigmore]nottreatedashearsayandisadmissiblenotonlytoshowthedeclarantsstateofmind
but to prove the truth of the matter asserted (reason is the notion that action speaks louder than words )
2
nd
view:[underMorgan]hearsay,whereitisofferedasproofofsomefact,itisanimpliedassertionoftheactors
beliefs regarding such fact and hence objectionable as an express assertion
Hearsay Cases:
- a certificate stating the result of an autopsy without the person issuing the certificate being called to the
stand
- affidavits of witnesses presented against accused (right of confrontation precluded)
- a baptismal certificate presented as proof of filiation
- a police blotter to prove a crime
- a diary kept by the accused if used in his favor
- a newspaper clipping presented by accused to show that as reported therein, it was another person who
drove the get away car
- statements during preliminary investigations by other accused
- testimony of a witness for the defendant that a third party confessed to the killing
Hearsay within hearsay is admissible to prove the included statement, if both meet the tests of exception
to hearsay rule. e.g.reports of investigations by law enforcement agency admissible as an official report but not
its contents unless proved a hearsay exception
Testimony of a witness as to statements made by nonhuman declarants not hearsay. e .g. a witness on
stand states that radar equipment said that X was driving 90miles an hour.
Hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative
value and as opposed to direct and primary evidence, the latter always prevails. However, relaxation of the
rule applied in some cases when it appears reliable in certain cases (see Tison v CA).
Nonprobative Value Principle should not be confused with the effects of a valid waiver of x-examination where
utterances may be given weight that it deserves in the discretion of the court.
Section 37. Dying declaration.Thedeclarationofadyingperson,madeundertheconsciousnessofan
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.
- ante mortem statements made by a person after the mortal wound has been inflicted, under a belief that
death is certain, stating the facts concerning the cause of, and the circumstances surrounding the attack
64 | Page
- applies to any case where the death of the declarant is the subject of the inquiry
REQUISITES:
(i) That declaration must concern the cause and surrounding circumstancesofdeclarantsdeath;
(ii) That death is imminentand the declarant is conscious of such fact;
(iii) That declarant is competent to testify;
(iv) That the declaration is offered in a case wherein the declarantsdeathissubjectoftheinquiry;
(v) That the statement is completein itself (People vs. De Joya, 203 SCRA 343).
REASON FOR THE RULE:
They are admissible by reason of NECESSITY, TRUSTWORTHINESS, and to PREVENT FAILURE OF
JUSTICE.
Cause and circumstancesinclude, among others, the means used and by whom the declarant was injured.
There must be an inevitable, imminent or actual danger of death and hopelessness as manifested by his
utterances, the actual character and seriousness of his wounds and the circumstances.
HERNANDEZ DOCTRINE: When death supervenes speedily after the declaration is made, the
inference that the deceased realized his condition may be obvious. In a case in which thedeclarant died
immediately after stating who had attacked him, his declaration was admitted. In another case, where the
declarant was seriously wounded and died a few minutes after stating the name of his assailant, the
statement was held admissible.
HERNANDEZ DOCTRINE NOT FOLLOWED:
The important thing is thattherebesomepersuasiveevidenceofthedecedentsconsciousnessthat
death impended from his wounds, regardless of whether he actually dies very quickly after being
wounded, or there is an appreciable lapse of time between his wounding and his dying. Stated otherwise,it
is THE BELIEF IN IMPENDING DEATH and not the rapid succession of death in point of fact that renders
the dying declaration admissible(People v. Bautista).
Declarant must not be insane or incapacitated and dying declaration of wife or husband is admissible against the
other.
A dying declaration may be oral, written or made by signs which could be interpreted and testified to by a
witness therein.
Dying Declarations favorable to the accused are admissible.
Dying declaration may also be regarded as part of the res gestae as they were made soon after the startling
occurrence without the opportunity for fabrication or concoction.
To be complete in itself, does not mean that the declaration must recite everything that constituted the res
gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all
that he intended to say as conveying his meaning in respect of such fact.
A dying declaration may be attacked on the ground that any of the requisites for its admissibility are not present
and the same may be impeached in the same manner as the testimony of any other witness on the stand.
Section 38. Declarations against interest. TheDeclarationmadebyapersondeceased,orunableto
testify, against the interest of the declarant, if the fact 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.
65 | Page
REQUISITES:
(i) That declarant must be unavailable as a witness(dead or unable to testify);
(ii) That declaration must relate against the interests of the declarant ;
(iii) That declaration must concern a fact cognizable by the declarant (had the opportunity to observe the
facts at the time he made the declaration);
(iv) That circumstances must render it improbable that a motive to falsify existed and believed such
declarations to be true.
REASON FOR THE RULE:
They are admissible by reason of NECESSITY and TRUSTWORTHINESS. Men will not falsify to their
pecuniary prejudice as self-interest induces men to be cautious in saying anything against themselves.
Rule covers pecuniary, moral, proprietary and penal interests
Declarant was aware that the statement was contrary to his actual, real or apparent interest at the time he made
the declaration.
May be admissible against third persons (e.g. state, sureties, or even accused {victim admitted, in a kidnapping
case,thathewashavinganaffairwiththewifeoftheaccusedshowingmotiveofaccused}).
DECLARATIONS
AGAINST
INTEREST
ADMISSIONS
Made by a person
who is unavailable
or unable to testify
May be used
even if the
declarant is alive
and available as
a witness
Need not be
against the
interest of the
declarant
May be admissible
against 3
rd
persons
Admissible only
as to him but not
against 3
rd
persons
Must be made ante
litem motam
May be made
any time.
Declarant must
have competent or
actual knowledge
of the matter stated
Declarant need
not have
personal
knowledge of the
fact admitted
Unavailability includes: Exercise of a privilege, Refusal to testify,Claimed lack of memory (if false-contempt),
Death, physical or mental illness, absence(depositions if outside the country), incompetence(child)
Declarations against interest cases:
- a declaration of marriage in a parricide case
- affidavit of the heir that he knows that his father sold the land in question to the defendant
- a written statement by the husband a month before his death that a certain property was paraphernal
property of his wife
Section 39. Act or declaration about pedigree.Theactordeclarationofapersondeceased,orunableto
testify, in respect to the pedigree of another person related to him by birth or marriage, may be received
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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 facts occurred, and the
names of the relatives. It embraces also facts of family history intimately connected with pedigree.
Definition: includes relationship, family genealogy, birth, marriage, death, dates and places where these facts
occurred and names of the relatives
Reason: natural expressions of persons who must know the truth. Although hearsay, it is the best that the nature
of the case admits and because greater evil might arise from the rejection of such proof than from its admission.
Requisites:
1. declarant must be dead or unable to testify
2. pedigree is in issue or is relevant thereto
3. person whose pedigree is in question must be related to the declarant by birth or marriage
4. declaration must be made before the controversy (ante litem motam)
5. relationship btwn declarant and person whose pedigree is in question must be shown by
evidence other than such declaration
pedigree must be directly in issue, not merely incidental
NOTE: (Salonga) pedigree admissible even if not directly in issue.
Nature of relation
Declarant must be related to person whose pedigree is in issue; need not be related to the other person
said to be related to the subject person.
Closely related relatives given more weight than distantly related
Blood or marriage
Must be legitimate unless legitimacy itself is in issue. EXC: 1) when the subject of the stmt is the
declarantaownrelationshiptoanotherperson,2)whenthesubjectofthedeclarationistheillegitimate
relationship btwn 2 persons, and declarant is legitimately related to one of them.
Declarationofhusbandsrelativesregardingpedigreeofwifesrelativesorvvisinadmissible.
Time of declaration
Ante litem motem; b4 commencement of the suit and b4 any controversy arises; not necessary that there
is litigation.
Independent evidence of relationship (Evidence aliunde)
EXC:whentheissueisdeclarantsownrelationshiptoanotherperson(Lazatinv.Campos).
Reason: seems absurd to require
GR; where party claiming seeks recovery against relative common to both claimant and declarant, but not
from declarant or his estate, the relationship of declarant to the common relative must be proved by
evidence aliunde.
EXC: if it is sought to reach the estate of the declarant himself and not merely to establish a right through his
declarations to the property of some other member of the family.
It is sufficient if declarant is related to either family
Relationship must be legitimate
GR: declaration of illegitimacy is inadmissible
EXC:1.whenthesubjectofthestmtisthedeclarantsownrelationshiptoanotherperson
2. when the subject of the declaration is the illegitimate relationship btwn 2 persons and one of them
is related to the declarant
3. if legitimately related, but evidence aliunde needed
4. stmts regarding relationship of declarant with 1 of 2 persons whose relationship of absence is in issue
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5. relationship may be by blood or marriage
relationship of declarant to family proved by direct or circumstantial evidence such as bearing of family
name, identical name, recognition or declaration by the family, mention in family conveyances and other
disposition of property.
Rule not applicable to Adoption
absence of proof of an order of adoption by the court cannot be substituted by parol evidence; judicial
decree of adoption is mandatory, EXC when records of adoption proceedings were lost or destroyed, in
w/c case, secondary evi may be used.
Form of declaration
When expressed in words, may be oral or written.
If written, foundation proof must be offered authenticating the writing as that of relatives.
Formal solemn manner or informal character
It is proper to admit stmts and recitals appearing in books, papers, wills, deeds of conveyances, public or
quasi-public records, and registers where genealogical facts are recorded
Essential that its identity and authenticity be first established
If it appears in a family bible, it is not essential to prove that the written declaration was made by any
particular person.
Pedigree declaration by conduct
Pedigree evidence may consists of proof of facts or conduct of relatives and the mode of treatment in the
family of one whose parentage is in question.
Pv.Rittertestimoniesofwitnessesontheageofvictimdoesnotsatisfytherequirementbecthe
witnesses are alive and their declarations were made during trial, not b4 controversy arose.
USv.Bergantinotestimonyofmotheronageofdaughterisnothearsaybecitcamefromonewhohad
directknowledgeofthechildsbirth,andthatdaywasextraordinarybecitwasthetimeofthe1989
cholera epidemic.
Human memory on dates is frail and unless the date is an extraordinary or unusual one for the witness,
there is no reasonable assurance of correctness.
Probative value of baptismal certificate
Cannot be a voluntary recognition of parentage if the decedent had no participation in the preparation of
the document.
Reason: canonical records do not constitute the authentic document to prove legitimate filiation bec it is
simply proof of the act to w/c the priest may certify by reason of his personal knowledge, an act done by
himself or in his presence.
Macadangdangv.CAwhilebaptismalandmarriagecertsmaybeconsideredpublicdocs,theyare
conclusive evidence only to prove the administration of the sacraments on the specified dates, but not on
the veracity of the status or declarations therein with respect to kinsfolk and citizenship.
Entries made in the Registry books may be considered as entries made in the course of business under
sec 43 rule 130, w/c is an exception to the hearsay rule.
Ifnobirthcertwaspresentedbecthebirthwasnotregistered,thebaptismalcertcoupledwithmothers
testimony is sufficient to establish age of child. But, documentary corroborative evi on the date of birth
should be presented.
Admissible evidence on pedigree
1. declarationofhusbandonpedigreeofwifeandwifesrelatives
2. declarationofsonthatanotherpersonisanillegitimatesonofdeclarantsmother
3. treatment of child as a legitimate brother
4. testimony of a witness that his brother informed him of his marriage in a letter
5. birth certificates
if alleged father has no participation in the birth cert, the putting of his name by the mother, doctor or
68 | Page
registrar is null and void; mere cert by the registrar w/o the signature of the father is not proof of voluntary
acknowledgment; birth cert must bear the signature under oath of the acknowledging parent/s.
Proof of filiation of legitimate children under NCC (sec 172)
1. record of birth in the civil register or a final judgment
2. admission of legitimate filiation in a public document or private handwritten instrument signed by parent
concerned
In the absence of the foregoing:
1. open and continuous possession of status of legitimate child
2. any other means allowed by the rules of court and special law
No priority in the above evidence; any would do.
Typewritten doc not allowed bec the signature may just be superimposed on it or not the true signature.
Inart265,NCC,onlyanauthenticdocisacceptableasproofofchildsfiliationw/cmeanspublic
document.
Open and continuous possession means enjoyment by the child of the position and privileges attached to
the status of a legitimate child such as paternal surname, treatment by parents or family as legitimate,
constantattendancetothechildssupportandeducation,givingthechildreputationaslegitimate
Continuous means uninterrupted and consistent but no requirement of length of time.
Legitimacy status enjoyed by child conceived but not yet born.
Proof of other means allowed by Rules and special laws
1. baptismal certificate
2. a judicial admission
3. family bible where the name is entered
4. common reputation respecting pedigree
5. admission by silence
6. testimonies of witnesses
7. other proofs admissible under rule 130
Policy of NCC is to liberalize the rule of the investigation of the paternity of illegitimate children w/o
prejudice to right of parent to resist the claimed status.
Insufficient proof of filiation
1. photograph showing presence of alleged father in baptism of child
2. picture showing alleged father showering affection to child; unusual closeness or physical likeness not
conclusive to prove paternity.
3. baptismal cert
4. cert of live birth if alleged father had no hand in its preparation or has not signed.
Section 40. Family reputation or tradition regarding pedigree.Thereputationortraditionexistingina
family previous to the controversy, in respect to the pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and
the like, may be received as evidence of pedigree.
Matters of pedigree may be proved by reputation in the family, by the testimony of witnesses who have
knowledge of that repute and of the conduct of the members of the family; it is required that witness must
be a member of the family by affinity or consanguinity.
Person may testify as to his age as he had learned it from his parents and relatives and his testimony in
such cases is an assertion of family tradition.
Reason: necessity since tradition is often the sole method by which proof of matters of pedigree can be
obtained; family members likely the best acquainted with the nature of the ties of relationship.
Requisites:
1. there is controversy w/ respect to the pedigree of any member of a family
69 | Page
2. reputation or tradition of the pedigree of the person existed previous to the controversy
3. witness testifying to the reputation or tradition is a member of the family of said person by affinity or
consanguinity.
Act or Declaration about
Pedigree
Reputation/Tradition
There must be a declarant
and a witness
Deceased is related to the
person by birth or marriage
Occurred b4 the controversy
Relationship btwn declarant
and person is shown by
other evidence
Author of reputation
need not be established
by ind evi
Witness need not be a
relative of the person whose
pedigree is in question
Witness must be a
member of the family of
person whose pedigree
is in question
Declarant must be a relative
Declarant must know the
relationship in question and
his stmt about the pedigree
is the one presented as evi
Witness to a family
relation may testify on
such relation himself
Testimoniesofwitnesses,offendedpartyandgrandfatherastooffendedpartysageisnothearsayevi
bec exception.
Declarations of husband of a person connected w/ the family by birth or his wife is admissible; but,
declarationsoffatherorsisterofwifew/respecttopedigreeofhusbandsfamilyisincompetent.
Form: Verbal stmts, written or oral
Declarations of facts established through:
1. testimony in open court of witness who must be a member of family
2. entries in family bibles, family books or charts, engraving on rings, family portrait, inscription in a
tombstone and the like.
Entries in bible of birth in language not known by witness is admissible. Admissibility does not depend
upon proof of handwriting but upon proof of the fact that it was the family bible.
Section 41. Common reputation.Commonreputationexistingprevioustothecontroversy,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 palces may be received as evidence of
common reputation.
Reputation is the common report w/c others make about him; prevailing belief in the community as to the
existence of a certain fact.
Reputation on the moral character of a person must be among people who have had an adequate
opportunityofobservingthepersonsconduct.
Reputation Rumor
Involves a general
estimate by the community
Loose talk w/c the
community has not had an
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Reputation cannot be disproved by rumor.
General or undivided reputation not intermediate; not based on what a few people believe but the general
belief of what the person is; equivalent to universal reputation
Cannot be partly one and party the other.
When admissible
1. matters of public interest more than 30 yrs old
2. matters of general interest more than 30 yrs old
3. respecting marriage or moral character
Reason: because of the public interest in such stmts of reputation there is good reason to believe that
falsity can be exposed or corrected by testimony.
Reputation admissible in defamation action damages and intemperance of employee bec reputation is an
ultimate fact in the case.
Requisites of common reputation respecting facts of public or general interest
1. common reputation involves facts of public or general interest more than 30 yrs old
2. reputation is ancient
3. reputation must come from persons in a position to know such matters
4. common reputation existed ante litem motem or previous to the controversy
Common requisite: general reputation
Matters of public interest Matters of general interest
Affects all the people of a
state or country
Common to the inhabitants
of a subdivision of the
state/country
Declarations may be made
by an inhabitant
Declarations may be made
by only those who possess
adequate knowledge
e.g. public boundaries, inc
of mun, location of
highways, streets or large
navigable water course,
public ownership of land
Weight of general reputation: depends on the circumstances
Well-known historical facts taken judicial notice; may be established by historical works of known authors
deceased or living who are not within reach by the court.
Generally accepted historical writings where the author is dead or unavailable are considered to
represent the reputation of historical facts recorded in such works and are admissible in evi.
as a whole opportunity to evaluate
and accept or reject
Implies definite and final
formation of opinion by the
community
Implies merely a report
that is not yet fully credited
Predicated upon a general
trait of character
Thought of as signifying a
particular act or
occurrence
Cannot be shown on an
inquiry as to character or
reputation unless so
common and prevalent
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Ancient means old enough to exclude in theory declarants of the present generation.
Until maps are shown to be ancient w/n the meaning of the rule, not admissible unless proved to be
correct.
Proof of common reputation:
1. monuments and inscriptions in public places may be received as evi of common reputation
2. maps and surveys as evi of reputation of boundaries w/c have received general acceptance in the past.
Ancient surveys made by competent authorities recorded or accepted as a public doc and produced from
proper custody is admissible; those not officially authorized or made for a public purpose is inadmissible.
Ancient maps kept in public offices and are public records are admissible although not conclusive.
Maps made by early explorers admissible but may be shown to be incorrect.
Private boundary proved by common reputation only:
1. when it affects a public or general interest
2. more than 30 yrs old
3. ancient
4. formed in the community concerned
5. ante litem motam
Form of reputation: oral or written
Character Reputation
Refers to the inherent
qualities of the person
rather than to any opinion
that may be formed or
expressed of him by
others what he really is
Applies to the opinion w/c
others ay have formed and
expressed of his character
What the man is What he is supposed to be
in what people say
Depends on attributes
possessed
Depends on attributes w/c
others believe one to
possess
Signifies reality Merely what is accepted to
be reality at present.
Requisites for admissibility
1. that it is the reputation in the place where the person in question is best known
2. that it was formed ante litem motam
Modes of proving moral character: by evidence of reputation, opinion testimony, specific conduct
Reputation as proof of character in defamation cases where plaintiff alleges injuries to reputation.
Place of reputation
Place where such person lives; not susceptible of exact geographical definition and simply describes the
area where the person is well-known and not necessarily synonymous to domicile or residence.
Qualifications of witness
Must show that he is familiar w/ the esteem, or lack of it, in w/c the person is held in the community or the
social or business grp in w/c he moves.
Expected that character witnesses would come from the same community, but residence in the same
place is not always essential.
A person employed to investigate the character of a person cannot qualify to testify as to his reputation.
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Time to w/c reputation relates
Sufficiently close to the time of the occurrence in question as to have probative value; no precise rule on
proximity of time; each case calls for considerable judicial discretion.
Common reputation existing previous to the controversy respecting marriage may be given in evidence.
A formal marriage proven to be repute is not admissible to establish that there was no marriage.
Reputation concerning cohabitants
May be hearsay but in many cases it is the highest and best evidence that can be obtained or only proof
available.
Section 42. Part of the res gestae. - Statements made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given
in evidence as part of the 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 res gestae.
Res Gestae
transaxnsorthingsdone
incommonlaw,thecircumstanceswhichareautomaticandundersignedincidentsoftheparticularactin
issue, and which are admissible in evi when illustrative and explanatory of the act
[People v. Sanchez]thoseexclamations and stmts made by either the participants, victims, or spectators to
a crime immediately before, during, or after its commission, when the circumstances are such that the stmts
were made as a spontaneous rxn or utterance inspired by the excitement of the occasion and there was no
opportunity for the declarant to deliberate and to fabricate a false stmt
TestofAdmissibility:whethertheact,declarationorexclamationissointimatelyinterwovenorconnected
with the principal fact or event which it characterizes as to be regarded as part of the transaxn itself, and also
whether it clearly negatives any premeditation or purpose to manufacture testimony
Classification of Res Gestae
(1) Spntaneous Exclamations
unreflectedandinstinctive
[People v. Jose (1971)]wereinfluencedofastartlingevent
Ex:
(a) Outcries of deceased naming his assailant
(b) The stm t of the companion of a person who immediately and excitedly told a third person that his
companion killed himself was received as evi of suicide.
(c) In an abdxn case, the accused contended that the offended party was his mistress, but the girl while
being abducted called out loudly to her aunt for help. Her cries were received as evi that she could not
be an old mistress of the accused.
(2) Contemporaneous Stmts or Verbal Acts
explainorcharacterizeanotheractwhichisambiguous
Grounds of Admissibility
(1) Trustworthiness
Thestmtismadeinstinctively,whilethedeclarantsmentalpowerfordeliberationinconcoctingmatters
are controlled and stilled by the shocking influence of startling occurrence, so that all his utterances at the
time are the reflex product of immediate sensual impression unaided by retrospective mental axn and,
therefore, they are but pure emanations of the occurrence, the facts speaking thru the party not the party
talking abt the facts.
(2) Necessity
Naturalandspontaneousutterancesaremoreconvincingthanthetestimonyofthesamepersononthe
stand.
Reason for the Rule
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admissibilityofthosestmtsarepredicateduponthecommonexperiencethatutterancesmadeundersuch
circumstances are devoid of self-interest, and the probability of falsehood is too remote as to be negligible
Requisites
(1) That the principal act be a startling occurrence;
(2) That the stmts were spontaneously made before the declarant had time to contrive or devise; and
(3) That the stmts made must concern the occurrence in question and its immediately attending circumstances
Factors to Determine Spontaneity
(1) The lapse of time bet. the act (occurrence) and the declaration
dependsonthecircumstancesofeachcase
affidavitregardingtheincidentmadeonedayaftersaidincidentwasNOTadmittedas res gestae
InterveningCircumstances
EvenifthestmtswereutteredseveraldaysthereafterifNOinterveningcircumstan cessuchas
losing consciousness and after regaining consciousness the declarant immediately made stmt, the
utterances may be considered as part of the res gestae.
(2) The attendant excitement
Thecircumstancesprecludedtheideathattheutterancesarethe result of reflxn to make self-serving
declarations.
Whatthelawdistrustsisnotafterspeechbutafterthought.
(3) The mental and physical condition of the declarant and other circumstances
(4) Whether there was opportunity for fabrication or a likelihood of it
(5) The nature or form of the declaration
declarationsofopinionsorconclusions,eventhoughtheymayhavebeenutteredunderconditionswhich
would authorize their introdxn if they were stmts of facts, are NOT admissible as part of res gestae
Admission of the Accused as Part of Res Gestae
(a) The conversation among the accused overheard in a rice field by the prosecuting witness immediately after
the commission of the crime
(b) The stmt of one accused owning responsibility for the crime made to the Chief of Police who approached
the complainant during the fight
(c) Admissionmadebytheauthoroftheaggressionthathehasappliedafirebrandonthevictimsneckand
wounded him
(d) Stmts of witnesses, which consist of a narration of what the offended party told her shortly after the
occurrence of the rape
Ante Mortem Stmts as Res Gestae
[People v. Lariosa] Ifthedeclarant,althoughwoundeddidnotmakethestmtincontemplationofan
impending death, the stmts cannot be admitted as dying declarations but they may be admitted as part of the
res gestae.
Ifnotpartofres gestae, stmt may be dying declaration.
[Peoplev.Avila(1953)]Outcriesofthevictimwhileunderattackarepartofthe res gestae while those
made after he was mortally wounded are dying declarations.
Itissufficientthatthecircumstancesaresuchastoleadinevitablytotheconclusionthatatthetimeofsuch
stmt the declarant did not expect to survive the injury. Its admissibility is not affected by death occurring hours
or days afterwards or the fact that the declarant did not die.
Admissibility vs. Credibility
Themerefactthattheeviisadmissibledoesnotnecessarilymeanthatitisalsocredible.Thetestimonyofa
competent witness may be admissible if relevant but itis not for this reason alone believable.
Admissibility(Sec.3,Rule128);Credibility(Rule133)
Form and Manner of Spontaneous Stmt
neednotbeinanyparticularform,justsoitsmeetsthetestofspontaneity
maybebywayofatelephoneconversation
74 | Page
Competency of Res Gestae Declarant
Thereasonfortheadmissionof res gestae stmts is that they derive their credibility from the stress of the
circumstances under which they were made and not from the credibility of the person making them.
For this reason the pertinent inquiry is as to the capacity of the declarant to react normally to the
stimulus of excitement rather than the capacity to testify intelligently.
Contemporaneous Stmts as Verbal Acts
Inspontaneousstmts,the res gestae is the startling occurrence. In verbal acts, the res gestae is the
equivocal act.
Thesecondclassofres gestae refers to stmts accompanying an equivocal act mtl to the issue and giving it a
legal significance. Such declarations are called verbal acts because they are considered as verbal parts of the
equivocal or ambiguous acts which they explain.
Requisites for Admissibility of Verbal Acts
(1) There must be an equivocal act
Thedeliveryofmoneybyonetoanotherisanequivocalact.Stmtsmadeatthetime of delivery is
admissible not as proof of the facts stated but merely to complete the conduct of delivering the money and
thus giving the total conduct the legal effect of loan, payment, deposit or bribe.
StmtsofoccupantofalandOnanissueofown ership of a parcel of land, mere possession does not
show whether the occupant is tenant or owner. The stmt of the person in possession whether he is merely
a tenant or worker is admissible to show the char of possession.
(2) The equivocal act must be independently mtl to the issue
Theequivocalactofreceivingmoneyisrelevanttotheissueofbribery.Soisthepossessionby
defendant relevant to the issue of ownership, hence any stmt accompanying said acts giving it legal
significance is admissible in evi.
(3) The stmt must accompany the equivocal act
Ifitwasmadeaftertheacthadalreadybeenexecuted,itcannotbeadmittedasaverbalact,however
near in pt of time it might have been.
(4) The stmt in question must be necessary to understand the equivocal act (must aid in giving legal
significance to the act)
StmtsaccompanyingpossessionltdtoexplanationofpossessionThedoctrinecannotbeextendedto
include declarations as to the history and source of such title. When declarations are merely narrative of
past occurrence, they may not be received as proof of the occurrence.
Equivocal Act Extending Over a Long Pd of Time
Duringthatpd,thosestmtsthatarenecessaryforanunderstandingofthemeaningofsaidequivocalact,are
admissible as verbal acts.
manandwoman cohabiting for a certain pd of time; equivocal conduct which may be interpreted either
aslicitorillicitstmtsmadebythepartiesduringsuchequivocalconductshowingittobematrimonial,
meretricious or otherwise are admissible as verbal acts
Stmts of One in Possession of Prop
PersonalProp
Thedeclarationsareoftenreceivedascharacterizingandexplainingthenatureofsuchpossession.
Possession unexplained is prima facie evi of ownership in the possessor. But possession on the part of
one person is entirely consistent with ownership in another; and, therefore, the conduct and declarations
of the possessor may be mtl to show the nature of his possession, whether as owner, part owner or
agent.
RealProp
Thestmtsareadmissibleonlytoshowthecharofthepossession of the person making them, and by
what title he holds. They are not admissible to sustain or destroy the record title; and declarations
contrary to the tenor of deeds or similar docus which a party has executed are not admissible.
Declarationsofowner ship regarding a parcel of land for taxation purposes and the payment of the
75 | Page
corresponding taxes made by a person while occupying said land, are admissible as evi to show GF and
adverse possession on which the title of prescription may be founded.
DeclarantneednotbephysicallyonthelandPossession,intheeyesofthelaw,doesnotmeanthata
man has to have his feet on every square meter of ground before it can be said that he is in possession of
it.
Section 43. Entries in the course of bus.Entriesmadeat,ornearthetimeoftransactionstowhichthey
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 performance of duty and in ordinary or regular course of business or duty.
Reason for the Rule
Unusualreliabilityisfurnishedbythefactthatregularlykeptrecordstypicallyhaveahighdegreeof
accuracy.
Necessityhasalsobeen suggested as a ground for admitting entries, in that they are the best available evi.
Requisites
(1) That the entrant made the entry in his professional capacity or in the performance of a duty
Bookkeepingentriesmadebythetreasofaschoolonmatter s not coming within his authority, are
inadmissible.
Itisnotessentialthattheentrantshallhavebeenunderanabsolutedutytomakeentry.Ithasbeenheld
tobesufficientiftheentrywasthenaturalconcomitantofthetransaxntowhichitrelat es and usually
accompaniesit.
Adutyselfimposedbytheentranthasbeenheldtosatisfytherule.
(2) That the entry was made in the ordinary course of bus or duty
Busmeansanyoccupation.
Dutymeanseitherlegaldutyoranyotherkindofduty,asr eligious or contractual duties.
Legaldutyisonespeciallyenjoinedbylaw.
religiousduty:dutyofaparishpriesttoenterinabookrecordsofmarriagesandbaptisms
contractualduty:dutyofpersonsemployedunderacontracttomaketheentrie s
[Consolidated Mines, Inc. v. CTA] Booksofacctsareadmissibleasentriesinthecourseofbus.The
phraseentriesintheordinarycourseofbusordutymeansthattheentrieshavebeenmaderegularly,as
is usual, in the mgt of trade or bus. Th ere must be regularity in the entries. The regularity of the entries
may be proved by the form in which they appear in the corresponding book.
[Aboitizv.DeSilva]Par.1ofthisarticle<Art.48oftheCodeofCommerce..seep.730ofHerrera>
makes the entries in the books of merchants conclusive evi vs. themselves. But our SC had already ruled
that entries in books of acct of a merchant can only be regarded an admission vs. interest which may be
overcome by other competent evi, unless the adverse party has been misled to his prejudice.
(3) The entries must have been made at or near the time of the transaxn to which they relate
Theymustnotbearecitalofpasttransaxns,butarecordofcontemporaneousoneotherwisetheyare
merely self-serving declarations concerning past events.
Whetheranentrymadesubsequenttothetransaxnhasbeenmadewithinasufficienttimetoren der it
within the exception depends upon whether the time span bet the transaxn and the entry was so great as to
suggest a danger of inaccuracy by lapse of memory. The failure to make a timely record may suggest non-
regularity in the making of the stmt.
(4) The entrant must have been in a position to know the facts stated in the entries
EntryofBaptism
Whilebaptismalandmarriagecertificatesmaybeconsideredpublicdocus,theyareevionlytoprove
theadminofthesacramentsonthedatesthereinspecifiedbutnottheveracityofthestatusor
declarations made therein wrt to hi s kinsfolk and/or citizenship. Such stmts, in order that their truth may
be admitted, must indispensably be shown by proof recognized by law.
Salonga<citingChisoluv.BeamanCo.,160NE796>:Thecourtsnowgenerallyrecognize,eveninthe
absence of statute, entries made thru info from several persons are admitted on the sole testimony of one
who knows them to be the books of regular entries kept in that establishment provided the report from
which the entry is made should have been communicated under the sanction of a duty or oblig, and not
76 | Page
casually or voluntarily.
(5) The entrant must be deceased or unable to testify
Proofs of Entries
Jones:Whileitisstillthegenrulethattheentriesmust,wherepossible,beauthenticatedbytheentrant,
current decisions disclose a tendency to relax the rule because entries are frequently the composite act of
several persons, some or all of whom may not be available. In such cases, the courts of many jurisdxns have
permitted proof of the authenticity of the entries by a person under whose supervision or at whose direction they
were made, the regularity of the entries having been established.
Special Situations
(a) Hospital Records
Cleary:Whilehospitalsarenotcommercialestablishments,mostcourtsnowallowhospitalrecordstobe
admitted in evi on the same basis as other regularly kept commercial records. If the subj matter is relevant
to the diagnosis of a treatment, it is within the regular course of bus.
Theadmissionoftheentry,however,isjustforthepurposeofprovingtheassertionofthefacts
contained in the entries. The entry is not admissible to prove the truth of assertions made in it because
thedeclarants axn in relating the history was not a part of a bus routine of which he was a regular
participant. The declaration may be admissible under one of the exceptions to the hearsay rule.
(b) Computer Printouts
Cleary:Theadmissibilityineviofcomputerprintouts is governed by the hearsay exception for regularly
kept records.
Unliketypewrittenorhandwrittenrecords,electronicallyprocesseddataisnotavisualcounterpartof
the machine record and for the most part is not subj to visual inspxn until it ta kes the final form of a
printout. There must therefore be a trustworthy process of collecting and recording data. Mistakes may
result from mechanical defects or human element. The stages at which human error may enter in may
be at the programming and the data entry process.
(c) Bus. Records
Records,suchasdiaries,ifofapurelypersonalnaturenotinvolvedindeclarantsbusactivities,donot
fall within the rule, but if kept for bus purposes are within the rule.
(d) Accident reports
[Palmerv.Hoffman(1943)]Anaccidentreportmayaff ect that bus in the sense that it affords info on
which the mgt may act. Unlike payrolls, accts receivable, accts payable, BOL and the like, theses reports
are calculated for use essentially in court, NOT in bus. Their primary use is in litigating, not in railroading.
Memorandum - <see Sec. 16 Rule 132 on ltd use of memorandum>
Section 44. Entries in official records. Entriesinofficialrecordsmadeintheperformanceofhisdutyby
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.
Reason: necessity and trustworthiness; necessity consists in the convenience and difficulty of requiring
theofficialsattendanceasawitness;sothatpublicbusinessbenotderanged;trustworthinessconsistsin
the presumption of regularity of performance of official duty.
Requisites:
1. entries were made by a public officer or private person in the performance of his duty
2. performance of duty is especially enjoined by law
3. public officer or private person had sufficient knowledge of the facts stated by him, w/c he acquired
personally of through official information
Proof of marriage
Church registers no longer public docs but they are admissible as evidence of the facts stated therein
without the necessity of calling the priest who prepared it; priests may keep registers and issue
77 | Page
certificates therefrom.
In the absence of marriage cert, oral evidence may be considered if not objected to.
Illustration of requisites
Courts cannot take judicial notice of priests bec they are not public officers, thus, certs issued by them
must be authenticated as private writing. But, once cert is transmitted to the proper public officer, cert and
the certified copy becomes a public doc and may be admitted in evi w/o previous authentication.
Person making the stmt need not be a public officer devoted in general to official business.
officialinformationmeansacquiredbyofficerswhopreparedthereports,thepersonswhomadethe
stmts must have personal knowledge of the fact stated and the duty to give such stmts for the records.
Not essential for the officer making the official stmt to have personal knowledge of the facts stated by him;
It is enough that he acquired such knowledge from persons whose duty it was to make a report provided
such persons have personal knowledge of the facts reported by them.
Proof of entries
Records of public docs may be evidenced by a copy attested by the officer having legal custody of the
record or by his deputy; if record not kept in phil, there must be a cert from officer having custody such as
embassy official and authenticated by the record of his office.
A certificate is a stmt in writing by an official that certain matters of fact are so or have happened; it is not
part of the public records of the issuing office.
In the absence of statute to the contrary, the cert cannot just summarize or prephrase the entries; the
attestation must state in substance that it is a correct copy of the original or part thereof; attestation must
be under the official seal of the officer.
Admissible w/o showing the unavailability of the person who made the entry.
Admissible evidence (prima facie evi of the facts stated therein)
1. tax records by a tax officer
2. official cash book kept by disbursing officer
3. records of possessory information
4. records of the registrar of deeds
5. records of a bureau
6. return of sheriff on service of summons
7. certificate issued by Director of DA
8. Death cert as to cause of death
9. shipslogbook
10. transcript of stenographic notes
11. pasture land agreement
12. police and investigative reports; booking sheet and arrest report positively identifying accused
a police blotter is not a confession by a suspect; incomplete and refutable; summary report of the
occurrence of a matter.
Probative value
Entries in public records made by a public officer in the performance of duty are prima facie evidence of
the facts stated therein.
Entries must refer to facts, not opinions or conclusions.
Admissible stmts are concerns matters required by the official to be stated; stmt on other matters not
admissible
A death cert issued by the priest is only proof of death but not the cause of death; death cert admissible
to prove residence at time of death.
Probative value of police blotters
Police blotter is a book w/c records criminal incidents reported to the police; only prima facie evi of facts
78 | Page
stated therein, not the truth of such facts.
Entries not necessarily entitled to full credit for it could be incomplete and inaccurate.
Inaccuracies and omissions may be explained in trial.
Proof of certified true copies
Where the law permits use of a certified copy, it is incumbent upon the proponent to establish by
competent proof that the paper offered by him is indeed the certified copy allowed by law.
Govtdoctors,medicalreportsthoughnottestifiedtoincourtbydoctorsareadmissibleandmaybetaken
judicial notice of as part of the records w/o objection.
Record in criminal action
Rule is general tendency to admit a judgment of conviction in a criminal prosecution in evidence in a
subsequent civil suit w/c is based upon the act for w/c the judgment of conviction has been rendered.
If judgment of acquittal, not admissible in a later civil action; Extinction of the penal does not carry with it
extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact
from w/c the civil might arise did not exist.
Section 45. Commercial lists and the like. Evidenceofstatementsofmattersofinteresttopersons
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.
Grounds for admissibility
necessity and trustworthiness; necessity because of the usual inaccessibility of the persons responsible
for the compilation of matters contained in it; trustworthiness because the authors thereof have no motive
to deceive and they know that unless they prepared it with care and accuracy, their work will have no
commercial or professional value.
Requisites:
1. stmts of matters of interest to persons engaged in an occupation
2. stmts must be contained in a list, register, periodical or other published compilation
3. compilation is published for use by persons engaged in that occupation
4. generally relied upon by them
Probative value
Admissible as tending to prove the truth of any relevant matter so stated therein.
Law reports
Rule applicable to official and unofficially published law reports, foreign and domestic.
Admissible as official stmts bec these reports are prepared and published by official reporters appointed
for the purpose.
Market reports; Census reports; Public Gazettes
Standard price list, market quotations and reports published in newspapers and trade journals, in general
circulation and relied upon by the commercial world or those engaged in trade and constantly accepted
and acted upon by dealers are admissible
Witnesses may also be allowed to testify to market value at a particular date notwithstanding the fact that
their knowledge is shown to have been derived from daily price current lists.
Need for authentication
Not admissible unless properly verified by authenticating evidence; must be obtained from authoritative or
reliable sources in the usual course of business; sources must be known and disclosed; not admissible
unless published substantially and contemporaneously w/ the transactions of the market; must state
79 | Page
market selling prices
Need for preliminary proof of trustworthiness b4 rendered admissible
Commercial and professional registers
Admissible if made by persons w/ considerable acquaintance w/ the subject matter, undertaken for public
circulation, for the benefit of persons interested and informed, and reliable as a basis for transactions in
the trade.
E.g.Lloydslist,citydirectory,herdbook,Americanstudybooks,registerofdogs,shippingregisters,
manuals
Public of official records or reports
Census reports, being official registers, are received to prove the population of political divisions or other
facts w/c is properly reported.
Gazettesprintedunderauthorityofthegovtareadmissibleasevidenceofpublicproclamations,
addresses and acts of state
Newspapers
Admissible to prove the fact of publication of an article.
News stories seldom based on first hand knowledge of reporter, thus inaccurate.
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.

Books or treatises pertaining to medicine, surgery, mechanics are barred by hearsay rule since facts or
opinions only.
Alabama Rule: standard medical treatises and works are admissible in so far as they are relevant to the
issues in the particular case.
Grounds for admissibility
Necessity and trustworthiness; trust bec the ordinary expert witness has not a knowledge derived from
personal observation, he just reproduces conclusions of others w/c he accepts; trustworthiness bec the
learned writers have no motive to misrepresent.
Requisites for admissibility
1. that the court can take judicial notice of it
2. an expert witness testifies that the writer of the stmt in the treatise, periodical or pamphlet is recognized in
his profession or calling as expert in the subject.
Judicial notice
But if the matter is not a proper subject of JN, it becomes necessary that the facts be established by
presenting in evidence, learned treatises on the subject matter.
E.gBallantyneScaleofValuesjudicialnoticebecwidelyknown,apublicationofgeneralinterest,played
and impt part in the contemporary political history of the country
Tables of logarithms, tables of weights, measures and interest, tables and charts of braking distance and
reaction time of cars , standard mortality tables, almanacs, market reports and similar data are admissible
bec of their acceptance as scientific, standards by men in the particular business to w/c the information
relates.
Stms in the tables are not necessarily binding upon the court esp if its adoption would mean manifest
injustice.
Almanacs are admissible to prove the hour at w/c the sun or moon rises at a given time.
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Section 47. Testimony or deposition at a former proceeding.Thetestimonyordepositionofawitness
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.
Requisites:
1. The testimony or the depositors of a witness deceased or unable to testify;
2. The testimony was given in a former case or proceeding, judicial or administrative;
3. Involving the same parties;
4. Relating to the same matter;
5. The adverse party having had the opportunity to cross-examine him.
Upon compliance with the requirements designed to guarantee an adequate opportunity for x-
examination and after showing that the witness is unavailable, testimony previously given may be
received in the pending case in the form of a written transcript or an oral report of the testimony.
The testimony may have been given during a deposition or at a trial either in a separate proceeding or in
an earlier hearing of the present case.
Foundation for Former Testimony
Proponent must first lay a predicate by showing the unavailability of a witness whose testimony is sought to be
presented.
unabletotestify - refers to physical not legal inability like death, sickness more or less permanently disabling
incharacter,witnesswasofadvancedageorabsentfromthecourtsjurisdiction,whenwitnesscannotbefound
after a diligent search or a public officer absent from jurisdiction on an official business but not if defendant has
procured the absence of the witness or to tampering with witnesses.
Present Rule Embraces Proceedings Judicial or Administrative
If the accepted requirements of the administration of the oath, adequate opportunity for x-examination on
substantially the same issues, and present unavailability of the witnesses are satisfied, then the character of
the tribunal (judicial or quasi-judicial) and the form of the proceedings (judicial or administrative) are immaterial
and the former testimony should be received.
While some courts held lack of jurisdiction of the subject matter makes the former testimony inadmissible,
others maintain that this does not deprive the of the power to compel attendance and administer oaths hence
should be admissible. The question should not be of regularity but of reliability.
So long as the guaranties of reliability are present, it should be viewed whether the sworn statement of the
presently unavailable witness was made under such circumstances of opportunity and motive for x-
examination as to make it sufficiently trustworthy to be received in evidence, and not to the limits of
jurisdiction.
Identity of Parties and Issues; Relaxation of the Requirement
The Narrow Rule. Parties to both proceedings must be identical or in the subsequent proceeding is between
persons who represent the parties in the prior proceeding by privity in law, in blood or in estate. (e.g. testimony
of the plaintiff in an axn for personal injury, against a railroad company, may be used by her child in a
subsequentaxnaftertheinjuryhasresultedtotheformersdeath)
Since the rt of x-examination on the issues involved is the crux of admissibility of former testimony, substantial
identity of the issues is important. The fact that there are some issues that are not the same in both axns does
not affect the admissibility of former testimony on an issue which is the same in both axns.
Presence of Additional Parties Immaterial.Someviewolderdecisionsinsistedonreciprocityormutualityof
the parties in both axns are without any supporting basis and are now historical relics. Instead it is only the
party against whom the former testimony is now offered whose presence as a party in the previous suit is
significant.
Thus, the testimony will not be rejected because there were other parties to the record in the former
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proceeding, if the issues involved by the two proceedings are substantially the same and the parties affected
by the second suit had the opportunity to x-examine the witness.
Identity of Issues Not Identity of Cases
The two suits need not be the same.At most, the issue on which the testimony was offered in the 1
st
suit must
be the same as the issue upon which it is offered in the 2
nd
. It follows that neither the form of the proceeding,
the theory of the case, nor the nature of the relief sought needs to be the same between the proceedings.
(E.g. in criminal cases where the 1
st
indictment charges one offense {robbery} and the 2
nd
another distinct
offense {murder of the person robbed} is usually considered sufficient that the 2 indictments arise from the
same transaction.
Adequate Motive to x-examine sufficiently.Not mechanical identity of the issues is required but rather that the
issues in the 1
st
proceeding, and the purpose for which the testimony was offered, must have been such that
the present opponent had a adequate motive for testing on x-examination the credibility of the testimony.
Relaxation of the Same-Party Doctrine. Testimony given against the accused in an earlier criminal trial is
offered the same accused in a civil case to which the criminal defendant is a party. Another pattern involves
introducing at the trial of a criminal case testimony given at the preliminary hearing, or analogously, in a civil
case introducing testimony given at a discovery deposition. Prior testimony is generally ruled admissible in
these situations.
Actual x-examination not required.Actual x-examination of the witness in the 1
st
trial is not required, it is
sufficient that the opportunity to x-examine was available. The opportunity to x-examine must have been such
as to render the x-examination actually conducted (failure to appear and x-examine) or the decision not to x-
examine (waiver) meaningful in the light of the circumstances prevailing when the 1
st
testimony was given.
However, at the extreme, differences in the nature of the proceeding, the stakes involved, and even factual
details with regard to the same core issue will result in the xclusion of the prior testimony.
The Requirement of Oath and Right to Counsel Confrontation and Unavailability. 1
st
testimony must have been
given under the sanction of an oath or affirmation and the party against whom the 1
st
testimony is now offered,
or a party in like interest, must have had a reasonable opportunity to x-examine.
If the right to counsel exists when the former testimony is offered, a denial of counsel when the testimony was
taken renders it inadmissible.
A general finding of ineffective representation at the prior hearing does not automatically requires rejection of
the testimony unless restrictions upon x-examination are very substantial rendering the testimony inherently
unreliable.
Opportunity for direct and redirect x-examination sufficient.
Tests of opportunity to x-examine:Was the testimony given before a court which allows x-examination by the
adverse party and have the power to compel answer? In a testimony given as a deposition, was opponent
given reasonable notice and opportunity to attend and x-examine? Was the opportunity to x-examine on the
present issues adequate? Was x-examination prevented by the death, illness or refusal of the witness, after
giving direct testimony? ---If answer is NO in any of the 4 questions the testimony cannot be used. In the last
question, if it was direct examination, it cannot be used.
Rules in Criminal Cases. Testimony given in the preliminary investigation of the witness who dies if taken by
Q&A and accused had opportunity to x-examine witness is NOT ADMISSIBLE under existing rules because
there is no right of x-examination during preliminary investigation.
Witness whose deposition is taken by the defendant in a crim axn, invoked the privilege against self-
incrimination and refused to testify at the trial, renders himself unavailable as though dead and so the
defendant is entitled to use the deposition.
The present rule does not make a distinction on the nature of the proceeding in which the 1
st
testimony was
given but must be strictly construed in crim cases. Mere sending of subpoena and failure to appear is not
sufficient to prove inability to testify, coercive power to arrest must be exercised.
It is only in case of actual impossibility of producing the witness at the trial that in order to defeat the ends of
justice, the law permits admission of testimony in another proceeding. Indeed, liberality in such respect is
pregnant with undesirable possibilities affecting the veracity of the evidence involved and more importantly, an
implementing translation of the constitutional right of an accused person to meet the witnesses face to face.
Where constitutional right of confrontation is raised, consideration should be given to the heavy burden resting
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on the prosecution to show that every effort has been made to produce the witness at the trial.
Media of Proof. The prevailing practice and most convenient mode of proving former testimony is to read court
stenographic notes with proper authentication, which statutes allow the same, otherwise it may be used to
refresh his memory or as past recollection recorded. In any event, it must be shown to be complete and
accurate.
Oral testimony of any person who was present at the trial and heard the witness testify may be used.
Opinion Rule
Section 48. General Rule: Opinion of a witness is not admissible. Exceptions:
(a) Opinion of expert witness [Sec. 49];
(b) Opinion regarding identity of a person about whom he has adequate knowledge (Sec. 50[a]);
(c) Opinion regarding a handwriting with which he has sufficient familiarity(Sec. 50 [b]);
(d) Opinion regarding the mental sanity of a person with whom he is sufficiently acquainted (Sec. 50 [c]);
(e) Thewitnessimpressionsoftheemotion,behavior,conditionorappearanceofaperson (Sec. 50 [d]).
Opinionan inference or conclusion drawn from the facts observed
The Opinion Rule
Witnesses must give the facts and not their inferences, conclusions or opinions.
Where the data observed can be exactly and fully reproduced by the witness so that the court can equally well
drawanyinferencefromthem,thewitnessopinionisnotwanted,andwillbeexcluded.(Wigmore)
A non-expert witness is called to the stand to give direct evidence and is restricted to describing relevant
facts about which the witness has knowledge.
As the difference between facts and opinion is clumsy if not illusory, the prevailing practice in respect to the
admission to the admission of a non-expert witness may well be described not as a rule excluding opinions but
a rule of preference. The more concrete description is preferred to the more abstract, the direct form of
statement to the inferential.
Where the court can make their own deductions, they shall not be made by those testifying.
Witnessesarenotallowedtoexpresstheiropinionconcerning:negligenceorfault,wonacollisionwas
causedbydefendantsnegligence,anapparatusisdefective,apersonistreatedasason,thecauseofdeath
of is blood poisoning or heart failure, what a person meant by the statements in a pamphlet, or what he would
have done in a particular emergency, etc.
Section 49. Opinion of expert witnesses Theopinionofawitnessonamatterrequiringspecial
knowledge, skill, experience or training which he is shown to posses, may be received in evidence.
Expert Evidencetestimonyofonepossessinginregardtoaparticularsubjectordepartmentofhumanactivity
knowledge not usually acquired by other persons.
Expert testimony is allowed when the subject of the inquiry is sufficiently beyond common experience that the
opinion of an expert would assist the trier of facts.
The opinion of a witness on a matter requiring special knowledge, skill, experience or training may be received
in evidence only when he is shown to possess such competence. This includes oral testimony of witness
skilled in unwritten law.
When characters are difficult to decipher or the language is not understood by the court, evidence of the
person skilled to interpret and experts thereon may be used in explaining certain writings.
Requisites for admissibility
1. Fact to be proved is one requiring expert knowledge; and
2. The witness is really an expert.
To warrant the use of expert testimony the subject of the inference must be so distinctly related to
some science, profession, business, or occupation as to be beyond the ken of laymen and that the
83 | Page
witness must have sufficient knowledge, skill, experience or training to the particular field or calling
as to make it appear that his opinion or inference will probably aid the trier in the search for truth.
Some cases say the judge has discretion in administering this rule while they may have general
knowledge, expert opinion may be utilized to aid the understanding of the fact in issue.
Qualifications of Experts
It must be shown that the witness is really an expert; determination of his competency is a preliminary
question.
An expert is a man of science; a person conversant with the subject-matter; a person of skill having particular
and special knowledge on the subject; a person possessed of science or skill respecting the subject matter;
one who has made the subject which he gives his opinion a matter of particular study, practice or observation.
One may be an expert although his knowledge has been derived from the study of a subject and not from
actual experience or practice of the business or profession. However, to qualify an expert witness to express
an opinion as to specific phase of the general subject should extend to and comprehend that specific phase
and not limited to experience and understanding of the general subject of which the other is a specific part;
otherwise the opinion is of little weight.
Courts take notice that certain pursuits are so intimately connected with others as to give those ff one unusual
opportunities and facilities for becoming acquainted with the other, hence a person may be an expert although
engaged in some other occupation or has abandoned the business to which the inquiry relates.
Where the subject of the opinion requires professional skill, the mere fact that the person holds a public office
which deals with such matters does not of itself qualify him to give an expert opinion.
Questionastocompetencyorqualificationsofanexpertwitnessaretobedeterminedpreliminarilybythe
court and will not be reversed on appeal unless shown to be based on error of law or abuse of judicial
discretion.
The witness himself may be examined as to opportunities and means of knowledge of the subject, other
witnesses may testify regarding the preliminary question but not the opinion of the person himself regarding
his qualifications.
Mode of Examining an Expert Witness
An expert witness may base his opinion either on a firsthand knowledge of the facts or on the basis of
hypothetical questions where the facts are presented to him hypothetically, and on the assumption that they
are true, formulates his opinion on this hypothesis.
Where the Expert Has Personal Knowledge of the Facts. He may base his opinion on facts: (1) where he has
personal or firsthand knowledge of; (2) appearing on report or testified by other experts, provided that the latter
has personal or firsthand knowledge of what they state in their reports; (3) established by evidence on record.
Whenthematerialfactsarewithinanexpertwitnessspersonalknowledgeandarerelatedtohiminhis
testimony, a hypothetical question need not be resorted to in eliciting his opinion.
Ifthefactsarebasedontheexpertspersonalknowledgeoftheaccidentheshallstatehisfacts.E.g.an
expert metallurgist may testify as to the nature of the failure of an automobile he examined; a physician may
base an expert opinion on his own treatment and observation of the patient.
Hypothetical Question. As another method recognized of eliciting expert opinion testimony, is a device
whereby an expert who has no firsthand knowledge of the material facts surrounding a particular occurrence
can offer an opinion relative therein based upon evidentiary data assumed to be true. The examiner
substitutes assumed data for evidence and invites the inference of the witness from the data.
The admissibility of a hypothetical question primarily depends on whether it furnishes the court with
the means of knowing upon what set of facts the conclusion is based.
A hypothetical question should be so framed as to state the facts which the interrogating party claims have
been proved and for which there is support in the evidence, otherwise the question is improper.
In other words, hypothetical question must be based upon the evidence before the court at the time they are
asked. However, conditional admissibility may be allowed in some instances.
How to Present Expert Witness
1) Introduce and qualify the witness;
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2) Let him give his factual testimony, if he has knowledge of the facts;
3) Begin the hypothetical question by asking him to assume certain facts are true; (Premise of question)
4) Conclude the question by, 1
st
, asking the expert if he has opinion on a certain point assuming that these facts
are true, and 2
ndly
, asking him, after he has answered affirmatively, to give his opinion on the point;
5) After he has stated his opinion, ask him to give his reasons.
A hypothetical question may be objected to on any grounds that demonstrate that it is improper under some
evidentiary principle, incomplete, vague, misleading and so on.
The competence of a hypothetical question is whether it is a full and fair recital of all the essential evidence
disclosed by the record on the particular issue which is involved.
The better practice is to keep the hypothetical question as brief as possible so as not to confuse the witness
and the court..
It is the duty of the court to see that the hypothetical questions are properly framed, that they are responsive to
the issues in question, and that they assume only facts as one supported by some evidence in the record.
Fairness is the ultimate test of a hypothetical question. The court shall reject a question which unfairly selects
parts of the facts proved and omits material facts. E.g. expert testimony was properly rejected when he was
made to answer a hypothetical question in relation to allegations of facts which have not been proven but are
disputed by the prosecution.
Whatever liberality may be allowed in calling for the opinions of experts or other witnesses, they must not
usurp the province of the court and jury by drawing conclusions of law or determining the true facts upon which
the decision of the case depends.
Direct testimony supporting the fact assumed is not required. It is sufficient if the fact is fairly inferable from the
circumstances proved.
A hypothetical question should be so framed as to make a fair summary of the evidence on the subject most
favorabletothecounselscase.Itisnotrequiredthatthequestionshallincludetheproofsorthetheoryofthe
adversary, since this would require the party to assume the truth of that which he generally denies.
Cross-examination of Expert
The rules governing the x-examination of witnesses generally are applicable to the x-examination of expert
witnesses with respect to the form and framing of the questions and the answers which are called for, and as
to the definiteness, certainty, requiring bare conclusions and the like.
Great latitude is ordinarily allowed in the x-examination of such witnesses. Although on the direct examination,
the hypothetical questions must be based upon the facts which the evidence tends to prove, no such limit is
imposed upon x-examination; for the purpose of testing the accuracy and credibility of the expert, of the value
of his opinions, he may be interrogated as to pertinent hypothetical cases concerning which no evidence has
been given.
The inquiry on x-examination should be allowed as wide a range may be reasonably necessary to test the skill
and reliability of the witness. The x-examiner is not confined to the scope of the evidence already given in the
case but is allowed to ask questions which would be wholly irrelevant except for the purpose of ascertaining
the value and credibility to be attached to his testimony.
X-examination of an expert directed at establishing bias through financial interest is proper. X-examiner may
seek to establish financial interest in the case at hand by reason of remuneration for services, including
services performed which enable him to testify, continued employment by a party, or the fact of prior testimony
for the same party or the same attorney.
Factual Basis for Expert Opinion
An expert should include as a basis for his opinion established facts as to which he has acquired knowledge in
some other legitimate way, as well as those that have been stated hypothetically or as established facts in the
question, but in answering the question he must accept as true every fact hypothetically asserted.
Expert Opinion on the Ultimate Issues:
As a general rule, where the court can judge for itself the causation of a certain physical condition, the opinion
of the expert is unnecessary but expert opinion is allowed where the facts are involved and complicated. In
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such a case, expert assistance would be useful to the court in establishing causation.
E.g.thetestimonyofanexperiencedexpertburglarofferedtoshowthattheexperiencedcriminalwouldnot
go about a robbery as evidence showed, was not allowed.
The Common Sense View. To receive the opinion testimony where it appears that the trier of the fact would be
assisted rather than impended in the solution of the problem.
Whatever liberality may be allowed in calling for the opinions of experts or other witnesses, they must not
usurp the province of the court and jury by drawing conclusions of law or determining the true facts upon which
the decision of the case depends.
CertaintyofExpertsOpinion
The opinion should at least be stated in terms of probability if not absolute certainty.
Opinion testimony in terms of possibility, while admissible, is insufficient in itself to establish the point, and that
there must be corroborating evidence. The fact that the witness is asked to give his opinion regarding
possibility rather than probability or certainty, goes to the weight of his testimony, not its competency.
An expert witness, in answering a hypothetical question, must accept as true every asserted fact stated
therein, but the judge cannot consider the answer of the expert unless they find that the evidence establishes
thetruthofallsuchassertedfacts.Thewitnessanswermustbesodrawnasnottoinvolvehisownconclusion
from the whole evidence or a part thereof, or his opinion as to the weight of the evidence or the credibility of
the witnesses.
Use of Learned Treaties
The weight of authority is against allowing an expert to read from books.
Where an expert has given an opinion and cited treaties as his authority, the book cited may be offered in
evidence by the adverse party as impeaching testimony.
In x-examining an expert medical witness, standard medical works may be used to impeach his testimony,
although it has been held that unless the books has been referred to on direct examination (others say in x-
examination), it may not be used for this purpose.
The better rule is to test the testimony with reference to statements in a recognized textbook even if the
testimony was not based thereon.
WeightofExpertsTestimony
Theprobativevalueofexperttestimonydependsontheffconsiderationsthecomprehensivenessofthefactual
information utilized by the expert, the extent to which the facts upon which he relies are believed by the trier of the
facts to be true, and the reasonableness of the conclusions drawn as they appear to the fact finder.
Inherent infirmities in expert testimony appear when experts of equal credibility and skill draw directly opposite
conclusions from the same facts. In such a case, either the testimony can have little or no weight.
Thus, WON the courts are bound by the testimony of the expert witness depends on the nature of the subject
of inquiry. Whether it comes within the general knowledge of judges or where the virtues of scientific inquiry
are acknowledged and common knowledge inadequate, expert opinion has high evidentiary value in
proportion to the need for it, and the party depending on the scientific proposition cannot succeed without
expert evidence.
Although courts are not bound by the testimony of the expert, they may place whatever weight they chose in
accordance with the facts of the case. The relative weight and sufficiency of expert testimony may be
determined considering the ability and character of the witness, his actions upon the witness stand, the weight
and process or reasoning by which he has supported his opinion, his possible bias, the fact that he is a paid
witness, etc.
The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion
of the trial court whose ruling is not reviewable in the absence of abuse of that discretion.
The more learned the witness is, the more weight his opinion will deserve.
The value of an opinion of a handwriting expert depends upon the assistance he may afford in pointing
distinguishing marks, characteristics and discrepancies in and between the specimens of writings which would
ordinarily escape detection by an untrained observer and not his mere statement WON the handwriting is
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genuine.
The courts make a distinction between matters which are still at the stage of unproven dubious theories and
those generally accepted and recognized.
It is improper to ask how the wounds are actually inflicted as this would be trespassing upon the province of
the judge. Instead, what kind of weapon must have been used or caused the same or whether it could have
been self-inflicted.
Criminalisticsthescienceofcrimedetectionbasedupontheapplicationofchemistry,physics,physiology,
psychology, and other sciences (broader in scope than forensic science)
Some Subjects of Expert Testimony
Mental Soundnesscommonpracticetoreceiveinevidencetheopinionofexpertmedicalwitnesses(no
personal contact)
Hallucination WONcertainsymptomsofdiseasewhicharemanifestedbythepartyarereal,imaginaryor
feigned but cannot directly testify as to the veracity of the party as witness
Body Fluids - reliability of the analysis of blood, urine, saliva, breath, etc are universally recognized and are
admissible, so long as proper foundation to establish relevance in point in time, qualifications of technicians
and others to show reliability of the test and to read its result
Mental Condition and Capacity manifestationsofmentalderangementandthesignificantsymptomsareof
such importance as to call for expert appraisal in most cases, and it is well settled that physicians who are
qualified in such matters may give opinion based on personal examination or upon facts presented or both
Machines; structures; materials; labor opinionsofexpertsthereonwhobypracticeandexperience
acquired special knowledge may be received in evidence as to such matters
Identification of Persons by Fingerprints, footprints, blood tests,etc equallywellrecognizedandisa
highly specialized art, hence, expert testimony is not only proper but necessary to make this means of
identification available in court
Blood Analysisbloodgroupingtestsareconclusiveastononpaternitynottopaternity
Signature tobequalifiedasanexpert,itissufficientthathehavetheknowledgeandskillacquiredby
special study or practical experience, to judge the same in reasonable skill and intelligence
Ballistics orthescienceoffirearmsorprojectedmissileshasadegreeofexactitudeasameansof
identification to show identity of the weapon used; compare markings of the bullets; comparison of shots; or
comparison of wading or shells
Blood and Blood Stains wheretheidentificationdependsonperceptionsbeyondthekenofordinary
persons , pathological or chemical analysis and the services of experts are required to translate and interpret
the results
Lie Detector Tests continuestobeacontroversialsubjectincludingtruthserums,hypnosisandthelike
hence are generally rejected by the courts, there being no general scientific recognition of their efficacy
Section 50. Opinion of Ordinary Witnesses. Theopinionofawitnessforwhichproperbasisisgiven,
maybereceivedinevidenceregarding
(a) The identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or appearance of
a person.
When Ordinary Opinion Evidence Allowed
Courts commonly receive in evidence the opinion of ordinary witnesses on a variety of subjects due to necessity
and expediency. Frequently, it is impossible for the witness to detail all the pertinent facts in such a matter as to
enablethejurytoformaconclusionwithoutastatementofthewitnesssopinion.Indeedthewitnessmaynotbe
able to separate the facts which form the basis of his conclusion from the conclusion itself.
Identity of Persons or Things; Resemblance
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The identity of a person about whom he has adequate knowledge; witnesses who are shown to be
qualified by their opportunities for observation are permitted to testify as to the identity of persons,
handwritings or things. This may be based on voice identification provided it is made under conditions
insuring an impartial and objective opinion.
E.g. the witness was able to identify the accused by the sound of his voice, despite the darkness, as it was
shown that she and the accused had known each other intimately since their youth and having live in the same
barrio for many years (US v. Manabat).
A handwriting with which he has sufficient familiarity; - lay witnesses who are acquainted with the
characteristicsofthehandwritingofapersonarepermittedtodescribeadocumentasbeingthatpersons
handwriting but only an expert may give conclusions from the comparison of samples of handwriting.
The liberality which the courts have shown toward non-expert opinion on handwriting arises from the fact that
such testimony is for authentication purposes. When the writing is in dispute, the non-expert opinion, while
admissible, does not carry the weight of the expert opinion.
The mental sanity of a person with whom he is sufficiently acquainted.thegroundforadmissionbeing
that it is often impossible for witnesses to adequately describe the axns, looks, or symptoms which properly
constitute the basis for forming a conclusion or opinion
The general rule, requiring a witness to relate facts upon which his conclusion is based, held not applicable to
witnesses who have attested the execution of a will may be called to testify as to the competency or capacity
of the testator.
Impressions of the Emotion, Behavior, Condition or Appearance of a Person.
Opinions of witnesses derived from observation are admissible in evidence when, from the nature of the
subject under investigation, no better evidence can be obtained.
Appearances which are plainly enough recognized by a person of good judgment but which he cannot
otherwisecommunicatethanbyanexpressionofresultsisintheshapeofanopinion(e.g.hewasangry,
confuse, surprised, etc. these expressions are expressed to the countenance, the eye, and the general
bearing of the individual).
While in questions of science and skill, opinions may be received from experts. Without reference to any
recognized rule or principle, all concede the admissibility of non-expert opinion upon a great variety of
unscientific questions arising every day and in every judicial inquiry.
InstantaneousConclusionsoftheMind;ShorthandRenderingofFacts
The impression or conclusion is the sum of what he saw, and in its final analysis, the offer is to prove a fact not
an opinion.
When a subject is relevant to the matter in suit and the lay witness has had the means and opportunity of
acquiring knowledge of the subject through the use of his senses, and the opinion or impression is formed
from constituent facts and conditions wc are numerous or so complicated to be incapable of separation, he
may be permitted to testify to the impression or conclusion obtained by him from them, leaving it to x-
examination to develop the foundation for the impression or conclusion.
There must have existed between the witness and the other an intimacy of such character and duration as to
clearlyindicatethatthewitnessstestimonyisoneofsomeprobativevalue.
Other opinions
A person who has habitually observed the passage of railroad trains, automobiles or vehicles may give an
estimate of their rate of speed but not as to the distances within wc they can be stopped.
A witness may give his opinion as to the comparative speeds of colliding vehicles although he is not able to
estimate the speed of either vehicle in kilometers per hour.
The witness, before he is qualified to express an opinion as to value, must have some means of knowledge
as to the nature and the quality of the article in question. They must have the means of knowledge as to the
subject matter of their testimony than the jury might possess in common with all other persons.
Character Evidence
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Section 51. Character Evidence not generally admissible; Exceptions:
(a) In Criminal Cases:
(1) Accused may prove his good moral character which is pertinent to the moral trait involved in the offense
charge.
(2) The prosecution may not prove bad moral character of the accused unless in rebuttal when the latter
opens the issue by introducing evidence of his good moral character.
(3) As to the offended party, his good or bad moral character may be proved as long as it tends to establish
the probability or improbability of the offense charged.
Exceptions:
(i) Proof of the bad character of the victim in a murder case is not admissible if the crime was committed
through treachery and premeditation; and
(ii) Inprosecutionforrape,evidenceofcomplainantspastsexualconduct,opinionthereoforofhis/her
reputation shall not be admitted unless, and only to the extent that the court finds that such evidence
is material and relevant to the case. ( Rape Shield, RA 8505 Sec. 6)
(b) In Civil Cases: The moral character of either party thereto CANNOT be proved UNLESS it is pertinent to the
issue of character involved in the case.
(c) As to witnesses, both criminal and civil: Evidence of his good moral character is not admissible until such
character has been impeached. (Sec. 14, Rule 132)
Character Evidence
Evidence of the general character of the party or witnesses almost always has some probative value wc may
be slight and the potential for prejudice large.
The instances where legal relevancy and admissibility are recognized are limited in scope. Otherwise, the trial
would be a popularity contest rather than a factual inquiry into the merits. After all, thebusinessofthecourt
istotrythecase,andnotthemanandaverybadmanmayhaveaveryrighteouscause.
Characterthe moral predisposition or habit or aggregate of ethical qualities, wc is believed to be attached to a
person,onthestrengthofthecommonopinionandreportconcerninghim.Apersonsfixeddispositionor
tendency, as evidenced to others by his habits of life, through the manifestation of wc his general reputation for
the possession of a character, good or otherwise, is obtained. The opinion generally entertained of a person
derived from the common report of the people acquainted with him. The estimate attached to the individual or
thing in the community.
Character Reputation
What a man is What he is supposed to be in
what people say he is
Depends on
attributes
possessed
Depends on attributes w/c
others believe one to
possess
Signifies reality Signifies merely what is
accepted to be reality at
present
One of the means in proving
character
Rules on Character Evidence
A. Moral Character of Parties in Criminal Cases:
1) The moral character of an accused having reference to the moral trait involved in the offense may be
proved by him.
2) Unless in rebuttal, the prosecution cannot prove the bad moral character of the accused.
3) The good or bad moral character of the offended person may be proved if it may establish I any reasonable
degree the probability or improbability of the offense charged.
To prove improbability of his doing the act charged the gmc must have reference, relevant and is pertinent to
themoraltraitinvolvedintheoffenseandnottoallaspectsoftheaccusedscharacter.
Unless and until the accused gives evidence of his good character, the prosecution may not introduce his bad
character. The prohibition includes introduction of other criminal acts of the accused unless the same made for
89 | Page
some other purposes.
The prosecution is generally forbidden to initiate evidence of bad character of the defendant but when the
table is turned and the latter offer evidence of his good character to imply that he is unlikely to commit the
crime, the general rue against propensity evidence is not applied.
Rape Cases
While the character of the woman is not ordinarily in issue, evidence of previous unchastity may be
circumstantially relevant and admissible on the question of her consent, where absence of consent is an
essential element of the crime or when a certain type of feminine character predisposes the imaginary or false
charges of this sort and is psychologically inseparable from the tendency to make advances in similar
offenses against chastity. However, the same cannot be used as a defense to the charge of rape where it is
proved that the illicit relation complained of was committed with force and violence.
Inthe1970s,however,rapeshieldlawswereenacted,whichbarredthereputationandopinionevidenceof
thevictimspastsexualconductbutpermitsevidenceofspecificincidentsifcertainsubstantiveand
procedural requirements are met.
If the evidence pertains to past sexual behavior of the victim with the accused who claims consent, it may be
admitted to prove or disprove consent. If the evidence involves acts of victim with other individuals, the same
maybeusedtoprovethatsomeoneelsewasthesourceofthesemenorinjury.Finally,inexceptional
cases, the defendant may have a right under the due process or confrontation clauses, to introduce certain
evidenceofthevictimspastsexualconduct.
Homicide and Assault Cases
An exception to the general rule, the accused in such cases is permitted to introduce appropriate evidence of
thevictimscharacterforturbulenceandviolence.Inresponse,theprosecutionmayadduceevidencethatthe
victim was a characteristically peaceful person. This is to throw light in the probability or improbability of his
having been the aggressor. Of course this is subject to the caveat that there must be more other appreciable
evidencetosupportthesame.Thischaracterisadmissibleasevidenceofthedeceasedsaggression.
It may also be admissible as evidence of the state of mind of the accused relevant to the issue of
reasonableness of his conduct. The known violent character of the deceased is admissible to show that it has
produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a
prompt defensive action was necessary. While the peaceful character and harmless deportment might pass by
without exciting a reasonable apprehension of impending peril.
The prosecution can offer the peaceful character of the victim when the issue of self-defense has been raised.
But the principle does not apply to murder with treachery or premeditation.
B. Moral Character of Parties in Civil Cases:
Evidence of the moral character of a party in a civil case is not admissible UNLESS the issue involved is
character.
The general rule is applied because the law presumes the reputation and character of a party to be good
unless the contrary is shown.
Character and reputation may be a fact in issue or an operative fact in the case and more than circumstantially
significant. In such case actual character is a proper subject of proof, a material fact that under the law
determines the rights and liabilities of the parties such as in axns for defamation, negligence, custody of
children, among others.
Libel and Slander - reputation and character is necessarily involved and admissible, particularly on the issue of
damages
Breach of Promise And AlienationIftheplaintiffpriortothepromisewasapersonofpoorcharacter,thisfact
is relevant to the mitigation of damages. But if she had been seduce 1
st
by the defendant under the promise of
marriage, he cannot be heard to prove her bad character.
Seduction Incaseofordinaryseduction,itisthegoodreputetochastityofthecomplaininggirlthatisin
issue, not her actual chaste character. In an action for seduction or criminal conversation, the character of the
female is necessarily in issue. Hence, the damage is manifestly less if the daughter or wife was a person of
disparaged fame prior to the commission of the wrong.
Moral Character of a 3
rd
Person in Issue whenprobabilityofwhichamoraltraitofa3
rd
person can throw
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light, the same may be allowed. E.g. Action for legal separation based on adultery with third person
(circumstantial evidence thereon), claim in an insurance policy where claimant connived with a crook
employee.
C. Character in Civil Cases Where Crime is in Issue
It is not unusual in civil litigation for one party to cause another of conduct that amounts to a criminal offense.
Character of WitnessesItisalwaysinissuebuthemaynotinitiallyprovegmcbecausethisispresumed.
Evidence of his good moral character is not admissible until such character has been impeached.
The familiar practice of impeaching witnesses by producing evidence of her bad character for veracity
amounts to using a character trait to prove that a witness is testifying falsely. As such, it constitutes a true
exception to the policy against using evidence of character solely to show conduct.
Loose Morals loosemoralsperseisnotagroundtodiscreditawitnessandsotheremustbeotherevidence
militating her credibility.
While it is true that the prosecution cannot initially prove the bad character of the defendant, where the
accused takes the stand as a witness he waives his right in this respect, and his character may be impeached
as that of any other witnesses. The distinction is that when the defendant takes the stand on his own behalf,
he occupies a double position: as a defendant and as a witness, hence, his character can be attacked.
Evidence of CharacterWhilethecasesinwcevidenceofmoralcharacterareadmissibleisdefinedbythe
Rules, the nature of admissible evidence is far from settled
As a general rule, reputation is the basis of an inference as the real character of a person and is allowed in
evidencerespectingmarriage,moralcharacter,impeachmentofadversepartyswitnessbyevidencethathis
general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts,
except by the examination of the witness or the record of judgment that he has been convicted f an offense.
The reason why particular acts are not admissible as evidence of character is to avoid confusion of issues,
unfair surprise and undue prejudice against the accused.
The best rule founded on logic and experience is that character of a person may be proved by (a) evidence of
reputation; (b) by witnesses who know him personally; and (c) in some instances, by the particular acts or
testimony of said persons from wc his character may be inferred.
Opening the Door to Particular Acts. Once the defendant gives evidence of pertinent character traits to show
thatheisnotguilty,hisclaimofpossessionofthesetraitsbutonlyofthesetraitsisopentorebuttalbyx
examination or direct testimony of prosecution witnesses.
Nature of Reputation Testimony. Theproperformofinquiryofcharacterwitnessis:Haveyouheard?andnot
Doyouknow?Reputationtestimonyshouldbereceivedontheabsenceofreportofbadreputation,whereit
is shown that misconduct would probably have been generally known in the community and that the witness
would have heard of bad character had they been circulating.
The Next question is Reputation Where?Inthecommunityinwhichthedefendanthaslived,thecirclesin
which he has moved, as to speak with authority of the terms in wc generally he is regarded, to reputation
within other substantial groups of wc the accused is a constantly interacting member, such as the locale where
defendants works.
Specific Acts as Evidence of Character in Issue. Wheretheissueinvolvedischaracter,particularacts
evidencing it are admissible. There is no confusion of issues or unfair surprise as both parties are sufficiently
warned of the evidence that may be offered in trial. E.g. repeated arrest of gamblers at a house may be proved
to show that it has the character of a gambling house, or specific arrests of prostitutes in a building to prove
that it is of ill-fame, to prove incompetence of an employee, as a fact known to his employer, specific acts
showing such incompetency may be proved.
Particular Acts of Misconduct to Disprove Good Character of a Witness is inadmissible; they may be allowed
to prove conduct under Rule 34.
RULE 131
BURDEN OF PROOF and PRESUMPTIONS
Sec. 1. Burden of proof. Burdenofproof 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.
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Defns
Prooftheestablishmentofarequisitedegreeofbeliefinthemindofthetrieroffactastothefactsinissue
BurdenofProofatermusedlooselytorefertotwoseparateconcepts:
(a) Apartysobligtoproducethedegreeofevireqdtoprovethefactswhichhereliestheburdenof
persuading the trier of fact that the burdened party i s entitled to prevail;
(b) Apartysobligofintroducingorgoingforwardwiththeevisometimescalledtheburdenofeviorof
goingforward
Basis
[Martin v. CA]ItisbasedonthemaximElincumbitprobatioquidicit,noquinegatwhichmeansHewho
asserts,nothewhodenies,mustprove.
Burden of Proof vs. Burden of Evi
BURDEN OF PROOF BURDEN OF EVIDENCE
Never shifts and
remains throughout the
entire case exactly
where the pleadings
originally placed it
Shifts from party to party
depending upon the
exigencies of the case in
the course of the trial
Generally determined
by the pleadings filed
by the party
Generally determined by
the developments of the
trial, or by the provisions
of substantive law or
procedural rules which
may relieve the party from
presenting evidence on
the facts alleged
Diff. Degrees of Proof
variesfromonecasetotheother
civilcase:preponderanceofevi
admincase:substantialevi
crimcase:proofbeyondreasonabledoubt
Degree of Proof That Satisfies the Burden of Proof
(a) Civil Cases
[P.T. Cerna Corp. v. CA]Incivilcases,theburdenofproofrestsuponthepartywho,asdeterminedby
the pleadings or the nature of the case, asserts the affirmative of an issue.
[Martin v. CA]Ifplaintifffailsto show by preponderance of evi the facts upon which he bases his claim,
hecannotexpectthedefendanttoprovehisdefensethereto.AsrepeatedlyheldbytheSC,ifplaintiff
upon whom rests the burden of proving his cause of axn, fails to show in a satisfactory manner the facts
uponwhichhebaseshisclaim,thedefendantisundernoobligtoprovehisexceptionordefense.
(b) Clear and Convincing Evi
Insomecases,likefraud,forreasonsofpublicpolicy,ahigherburdenofpersuasionisreqd.
(c) In Cases of Negative Allegation
Theburdenofproofrestsuponhimwhosubmitsthenegativeallegationwhenitisanessentialpartof
the stmt of the right or title upon which the cause of axn or defense is founded.
plaintiffsallegationthatadebthasnotbeenpaidmustbeprovedbyhim
92 | Page
Burden of Producing the Evi
Theallocationoftheburdenofproof,notonlyfromthestandptofprodxnofevibutalsoofbearingthe
continuing burden of persuasion, must depend on the issues framed by the pleadings, or, in jurisdxns where the
determination of the issues depends on the result of pre-trial procedures, by the pre-trial order.
Specific Applications
(a) In an axn for tort ,theburdenisontheplaintiff,inthefirstinstancetoprovethedefendantswrongful
conduct, as alleged by him, his own injury proximately caused thereby, and the damages suffered by him
therefrom; and this burden rests on him throughout the trial subj to the shifting of the burden under
applicable rules or statutes relating to presumptions.
(b) Causation is rarely established as a matter of law but is an issue of fact; and the burden is on the party
asserting the causal connectiontoestablishareasonablebasisfortheconclusionthatitwasmorelikely
thannotthattheconductofthedefendantwasasubstantialfactorintheresult.
(c) Wrt to conditional contracts, the plaintiff must assume the burden of proof as to the happening of the
condition upon which liab of the other party to the contract eventuates.
(d) Where title to real prop is claimed by reason of adverse possession, the claimant has the burden of proving
theessentialfactsofcontinuousadversepossessionforthereqdpd.Theburdenrestsonthestatewhere
is has no legal title but relies on a claim of adverse possession.
(e) Ordinarily, the gen. rule applies in the case of motion during the progress of an axn. Upon the moving party
rests the burden of sustaining the grounds of his motion; and the other party is put to the necessity of
prodxn evi to meet and overweigh or counterbalance that of the moving party.
Inapetitionforbailbyanaccusedchargedwithacapitaloffense,theburdenofprovingthattheeviof
guilt is strong to warrant a denial of the motion rests on the prosecution.
(f) In labor cases, the burden of proving that the Ees have been dismissed for cause is on the Ers.
(g) Affirmative defensesWherethedefendantadmitsthemakingofthecontractinsuitbutsetsupthe
defense that it is w/in the Statute of Frauds, the plaintiff is relieved of the burden of proving the contract.
(h) Insurance Cases
Inanaxntorecoveronapolicy,theplaintiffhasthetrueburdenofprovingeveryfactthatmaybe
essentialtoenforcementoftheinsurersliabw/inthetermsofthepolicy.
Aninsurer,whosetsupanaffirmativedefensetoanaxnonapolicy,there by expressly or impliedly
admittingtheallegationsoftheplaintiffspleading,hastheburdenofprooftoestablishthedefenseas
alleged.
(i) The gen. rule that a plaintiff who alleges negligence as the essence of his cause of axn vs. a defendant has
the burden of proving negligence is applicable to all axns that are based on negligence, regardless of the
relationship bet the parties or the instrumentality involved.
appliesinsuitsvs.physiciansandotherprofessionalmenformalpractice
(j) GF is always presumed, and upon him who alleges BF on the part of the possessor rests the burden of
proof.
Rule of Res Ipsa Loquitor
thetransaxnspeaksforitself
[Africav.Caltex]Whileitistherule,ascontendedbyappellantthatincaseofnoncontractualnegligence,
or culpa aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was
the negligence of defendant, it is also a recognized principle that where the thing which caused injury, without
fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the
ordinary course of things does not occur if he having such control use proper care, it affords reasonable evi, in
theabsenceofexplanation,thattheinjuryarosefromdefendantswantofcare.
Ifthereareanyfactsinconsistentwithnegligence,itisforthedefendanttoprove.
[Batiquinv.CA(1996)]unexplainedpresenceofapcofrubberintotheprivatepartofapatientafter
undergoing caesarean operation which does not occur unless thru the intervention of negligence
operatingdocwhohadexclusivecontroloftheentirecaesareansectionwasheldpresumptivelynegligent
under the doctrine of res ipsa loquitor
93 | Page
Matters Which Need NOT be Proved
(a) Immaterial allegations
(b) Facts admitted or not denied provided they have been sufficiently alleged
(c) Agreed and admitted facts
(d) Facts subj to judicial notice
(e) Facts legally presumed
Burden of Proof in Crim Cases
Theburdenofproofastotheoffensechargedliesontheprosecution.Anegativefac t alleged by the
prosecutionneednotbeprovedunlessitisanessentialingredientoftheoffensecharged.<Sec.3,Rule119
order of trial>
PresumptionofInnocence
Theguiltoftheaccusedmustbeestablishedindependentlyofhisdefense.
ReqtsinCrimAxn:TheRuleofReasonableDoubt
[People v. Nicolas]Incasesofprosecutionforviolationofactsdeclaredbylawasacrime,theburdenof
proof rests upon the prosecution and unless the State succeeds in proving his guilt beyond reasonabl e
doubt, the accused is entitled to the presumption of innocence in his favor, because the conscience of the
court must be satisfied that on the accused could be laid the responsibility of the offense charged.
BurdenofProofinSelfdefense
Theburdenofproofrestsupontheaccused.Itishornbookdoctrinethatwheretheaccusedadmitsfull
responsibility for the killing of the victim but invokes self-defense, his duty is to establish self-defense by
clear and convincing evi, otherwise conviction would follow from his admission.
PRESUMPTIONS
Defn:
aninterferenceastotheexistenceofafactnotactuallyknown,arisingfromitsusualconnectionwithanother
which is known
[Martin v. CA]aconjecturebasedonpastexperienceastowhatcours e human affairs ordinarily take
Nature of Presumption
Ordinarily,whenafactispresumed,itimpliesthatthepartyinwhosefavorthepresumptionexistsdoesnot
have to introduce evi to establish that fact, and in any litigation where that fact is in issue, the party denying it
must bear the burden of proof to overthrow the presumption.
Classes of Presumption
(a) PresumptionJurisadedxnwhichthelawexpresslydirectstobemadefromparticularfacts
Whenthebasicfactisestablishedinanaxn,the existence of the presumed fact must be assumed.
Classes:
(1) Rebuttableordisputablemaybeacceptedandactedonwhenthereisnootherevitoupholdthe
contention for which it stands, or one which may be overcome by other evi
(2) Conlusive or absolute (Sec. 2, Rule 131)
(b) PresumptionHominis(inference)adedxnwhichreasondrawsfromthefactsprovedwithoutanexpress
direction to that effect
Inferencevs.Presumption
Whilepresumptionisbasedupontheprobativestrengthofthebasicevidentiaryfact, the presumption is
not the fact itself but the legal consequence attached to it. Where the legal consequence is removed, there
is no more presumption but a mere inference, a matter of reasoning which is usually called a presumption
of fact.
Martin v. CA
AstheemploymentrelationshipbettheowneroftheautomobileandMartin(thedriver)couldnotbe
presumed, it was necessary for the plaintiff to establish it by evi. Plaintiff had the burden of proof. Failure to do
this was fatal to his axn. It was enough for defendant to deny the alleged employment relationship, without
more, for he was not obligated to prove this averment.
94 | Page
ContraPresumptionofAgency<TheSCmayhaveoverlookedthewellfoundedprinciplethatwhenthe
plaintiff has been injured by the negligent operation of a vehicle, then upon proof of further facts (such as
ownership of the vehicle) he may have the benefit of presumptions in moving vs. the driving defendant. The
plaintiff seeking to prove agency may secure the advantage of the presumption that the person driving the
vehicle was doing so in the scope of his employment and in the course of bus of the defendant, merely by
provingthatthedefendantwastheowner.Reasons:probability,fairnessinthelightofthedefendantss
uperior access to the evi, and the social policy of promoting safety by widening the responsibility in
borderline cases of owners for injuries caused by their vehicles.>
Legislative Power to Create Presumptions
prima facieevi(presumptiveevi)evisu fficient to invoke the judgment of the trier of fact and to support a
judgment if one be found
tocastuponthepartyvs.whomthepresumptionisappliedtheburdenofgoingforwardwiththeevi
Presumptions as Evi
PresumptionslikeJNandadmissionsrelieve the proponent from presenting evi on the facts that he alleged
and such facts are thereby considered as duly proved.
Bursting Bubble Theory or the Thayerian Rule whentheopposingevicomesintothecase,the
presumption, having served its purpose, is NO longer operative and the issue is determined on the evi just as
though no presumption had ever existed
DeviationsFromtheTheorywherethepresumptionsarebaseduponparticularlystrongandvisible
policies, such as the presumption of legi timacy arising from proof that a child was born during the course of
the marriage, the presumption of agency or consent arising from ownership of a vehicle
Conflicting Presumptions
PresumptionofInnocencePrevails
Generallyspeaking,nolegalpresumption is so highly favored as that of innocence; ordinarily most other
presumptions yield to it in case of conflict.
PresumptionofContinuanceofLife
Inorderthatthepresumptionofthecontinuanceoflifemaybeovercomewhenthevalidityofasec ond
marriage is involved, reliance upon a presumption of death of the former spouse of seven yrs. absence is
unnecessary. But it does not follow that the presumption of innocence will prevail in all cases where the
presumption of the continuance of life would impute crime.
PresumptionofDissolutionofFormerMarriage
Whenapersonmarriestwice,thesecondmarriageispresumedvalidandtheformeroneispresumedto
have been dissolved by death or <divorce>. However, the presumption must yield to circumstances.
From Where May Presumption Arise
(a) Judicial knowledge
(b) Establishment of basic facts
basicfactthatapersonhasbeenmissingforatleastsevenyrs.presumedfactofdeatharises
(c) By the pleadings, by stipulation or by evi which compels a finding of the basic fa ct
Pyramiding Presumption or Inference
Aninferencecannotbedrawnfromanotherinferencethatistooremoteorconjectural,butaninferencemay
be based on a fact which itself is based on an inference justifiably drawn from circumstantial evi.
Thus generally, a presumption cannot arise on the strength of another presumption. It must be based on
facts and not upon inferences. <see Art. 1249, CC>
Sec. 2. Conclusive presumptions.The following are instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or omission,, intentionally or
deliberately led another to believe a particular ting is 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.
95 | Page
(b) 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.
Conclusive Presumption (jure et de jure)
cannotbeovercomebyevitothecontrary
notreallypresumptionsbutratherarerulesofsubstantivelaw
Classes of Conclusive Presumptions (CP)
(a) Estoppel in pais
(b) Estoppel vs. tenant
Kinds of Estoppel
Throughestoppel,anadmissionorrepresentationisrenderedconclusiveuponthepersonmakingit,and
cannot be denied or disproved as vs. the person relying thereon. (Art. 1431, CC)
(1) By record
(2) By deed
(3) By matter in pais (equitable estoppel)
[Kalalo v. Luz]ElementsofEstoppelinPais
(a) In relation to the party to be stopped
(a.1) Conduct amting to fals e representation or concealment of mtl facts, or at least calculated to
convey the impression that the facts are otherwise than, and inconsistent with those which the party
subsequently attempted to assert;
(a.2) Intent or at least expectation that the conduct shall be acted upon by, or at least influence the
other party;
(a.3) Knowledge, actual or constructive, of the real facts
(b) In relation to the party claiming the estoppel
(b.1) Lack of knowledge or the means of knowledge of the truth as to the facts in question;
(b.2) Reliance in GF, upon the conduct or stmts of the party to be stopped;
(b.3) The axn or inaxn based thereon of such char as to change the position or status of the party
claiming the estoppel, to his injury, detriment or prejudice
[Kalalo v. Luz]Anessentialelementofestoppelisthatthepersoninvokingithasbeeninfluencedand
has relied on the representations or conduct of the person sought to be estopped. There is NO estoppel
where the stmt or axn invoked as its basis did not mislead the adverse party.
[PNB v. CA] ...orwherethereisnorelianceuponrepresentationsandwherethereisnodeliberate
misleading of another. Intention to mislead is an important element of estoppel, as well as the misled
partysrelianceuponthedeclaration,actoromi ssion of the party sought to be estopped.
Instrumental Witness vs. One Who Gives Conformity Thereto
[PNB v. CA] Theformersimplyatteststhatthepartyorpartiestotheinstrumentsignedthesameinhis
presence and he is not bound to know or be awa re of the contents of the docu; while the latter is not only
presumed to know the subj matter of the deed, but more importantly, binds himself thereto as effectively as the
party himself would be bound thereby.
Laches vs. Estoppel
[Tijamv.Sibonghanoy]Laches,inagensense,isfailureorneglectforanunreasonableandunexplained
length of time, to that which, by exercising due diligence, could or should have been done earlier; it is
negligence or omission to assert a right w/in a reasonable time warranting a presumption that the party entitled
to assert it either has abandoned or declined to assert it.
Estoppelmaybebyaxnoromissionorbylaches.
Elements of Laches
(1) Conduct on the part of defendant, or of one whom he claims, giving rise to the situation of which complaint
is made and complainant seeks a remedy;
(2) Delayinassertingcomplainantsrights,havingknowledgeofdefendantsconductandopportunityto
institute a suit;
(3) Lack of knowledge on part of defendant that complainant would assert his rights; and
(4) Injury or prejudice to defendant in the event relief is granted to complaint or suit is not barred.
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Lachesisapplicableifknowledgemaybeimputedtoplaintiffbyreasonoftheexistenceofopportunityto
acquire such knowledge. Since, however, estoppel is founded on ignorance, and everyone is conclusively
presumed to know the law, want of knowledgeof the law cannot be the basis of estoppel.
Estoppel by Deed
abarwhichprecludesapartytoadeedandhispriviesfromassertingasvs.theotherandhisprivies,any
right or title in derogation of the deed, or from denying the truth of any mtl fac t asserted in it
Estoppel by Record or Judgement
thepreclusiontodenythetruthofmatterssetforthinsrecord,whetherjudicialorlegislative,andalsodeny
the facts adjudicated by a court of competent jurisdxn
Thelatterbarmayeitherbebar by former judgment (claims preclusion) or conclusiveness of judgment (issue
preclusion).
Estoppel Vs. Tenant
Thetenantisnotpermittedtodenythetitleofhislandlordatthetimeofthecommencementoftherelationof
landlord and tenant bet them.
Ifthetitleassertedisonethatisallegedtohavebeenacqdsubsequenttothecommencementofthat
relation, the presumption will NOT apply.
Sec. 3. Disputable presumptions. Thefollowingpresumptionsaresatisfactoryifuncontradicted,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 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
97 | Page
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 ordinary nature
habits of life;
(z) That persons acting as copartners have entered into a contract of copartneship;
(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 acquire properly 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 such marriage, even though 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 the 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
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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.
Presumption of Innocence
appliesinbothcivilandcrimcases
In Crim Cases
Basis
foundedontheprincipleofjusticeandisintendednottoprotecttheguiltybuttoprevent,asfarashuman
agencies can, the conviction of an innocent person
baseduponthewellrecognizedfact which the courts judicially notice that men generally obey the rules of
the crim law, and upon the impossibility of obtaining, and the consequent injustice of requiring, affirmative
proof from the accused that he has done so in this particular case
Injuria non praesumitur(awrongisnotpresumed).
Ipsa non praesumitur(odiousthingsarenotpresumed).
Purpose:anabsoluteprotectionvs.convictionandpunishment, except either, first, on confession in open
court; or second, on proof which places the guilt beyond any reasonable doubt
Ithasbeenheldthatthepresumptionofinnocencedisappearsafterconvictionandtheappellatecourt
then will presume the accused guilty.
DistinguishedFromReasonableDoubtandBurdenofProof
Thepresumption established the necessity for the prosecution to take the laboring of and produce affirmative
eviofguilt.Thereasonabledoubtruledefinesthequalityofproofreqd.
Theformerreferstoasubstantiverightinthenatureofeviandisaleg al inference growing out of the fact
that persons generally are not criminals. The latter is that engendered by an investigation of the whole proof
and inability, after such investigation, to let the mind rest easy upon the certainty of guilt.
Thepresu mption is a rule of substantive law existing before any evi is offered and accompanying the
accused throughout the trial down to the moment of his conviction. But the burden of proof, designed merely as
a rule of procedure, confers only a temporary benefit upon him. Under the latter, the prosecution is compelled
in the first instance to make out a prima facie case proving the essential facts embraced in the crim transaxn
alleged.
Every Circumstance Favoring the Innocence of the Accused Should Be Taken Int o Acct
[People v. Dramayo]Inacrimproceeding,itisreqdthateverycircumstancefavoringinnocencebeduly
taken into acct. The proof vs. him must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment. The co nscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged; that not only did he perpetrate the act but that it amted to a crime.
Probability of Innocence Prevails Over That of Guilt
The prosecution must rely on the strength of its own evi, not on the weakness of the defense.
In Civil Cases
Jones:Whileitistheuniversalrulethat,inprosecutionforcrime,thecommissionofthecrimemustbe
proved beyond reasonable doubt, the authorities are in conflict on the question as whether the same rule
obtains in civil axns.
Englandsustained by the weight of authority
U.S.preponderanceofeviissufficienttoestablishthecommissionofacrimeinacivilaxn;but
authoritiesmaybefoundinwhichhigherdegreeofproofofguilthasbeenreqd
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Presumptions Conflicting With Presumptionof Innocence
Inthisjurisdxn,apresumptionde jureofawomansvirginityinaseductioncaseariseswheneveritisshown
that she is over 12 but under 18 years old, single and of good reputation an continuous until overthrown by
proof to the contrary.
Thesanityofapersonispresumedunlesshisstateofinsanityisprovedinwhichcase,theburdenofproofis
then shifted to one who asserts that the act was done while the person was insane.
Incivilcases,thepresumptionofvalidityofmarriage has been held to be superior to the presumption of
continuance of an invalidating state of insanity.
PresumptionofInnocenceIncludes
(a) Presumption of morality and decency; marriage; legitimacy and chastity
(b) Presumption of dissolution of former marriage
(c) Legitimacy
(d) Chastity
(e) Presumption of good reputation
(f) Presumption of GF, fair dealing, and honesty
Unlawful Intent: An Unlawful Act Was Done With Unlawful Intent
Thecrimactisitselftheeviofthatintent.Butitmustbeborneinmindthattheactfromwhichthe
presumption springs must be a crim act; otherwise, the presumption does not arise.
Presumption That a Person Intends the Ordinary Consequences of Hi s Voluntary Act
Apersonisequallyliableforalltheconsequencesarisingfromhiscrimact,andwhichareinherenttherein
such complications as may arise and which are not due to circumstances completely foreign to the act
committed, or from the fault or carelessness of the injured party.
Care: The Law Presumes That a Person Takes Ordinary Care of His Concerns
Itispresumedthatamanwouldnotsellhislandforlessthan1/7partofitsvalueandlessthanofitsrent
for he is presumed to take ordinary care of his concerns.
Menmaydofoolishthings,makeridiculouscontracts,usemiserablejudgment,andlosemoneybythem
indeed, all they have in the world; but NOT for that alone can the law intervene and restore. There must be, in
addn,a violation of law, the commission of what the law knows as an axnable wrong, before the courts are
authorized to lay hold of the situation and remedy it.
Art.1332,CC:Whenoneofthepartiesisunabletoread,orifthecontractisinalangnotu nderstood by him,
and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been
fully explained to the former.
Wheretheinsurersoughttoavoidpaymentofalifeinsurancepolicyonthegroundthattheins ured
concealed her state of health, said insurer is not obliged to show that the English terms of the contract were
read and explained to the insured, a Chinese, since that duty devolves on the beneficiaries, who would like
to enforce the agreement.
Presumption From Suppression of Evi
Eviwilfullysuppressedwouldbeadverseifproduced.
Theillegalsaleofmarijuanawhichmerelyrequiresproofofconsummationofthesellingtransaxnwouldbe
impossible to establish when, among others, the poseur buyer who is the best witness for th e prosecution is not
presented at the trial.
The non-presentation of the alleged mission order to conduct buy-bust operation raises the presumption of
its non-existence much less the org of a buy-bust team.
Whenawitnesshastestifiedthathehasseen the books of the defendant, and if produced would prove the
liab of the latter, the failure of the defendant to present his books in evi strongly corroborates the testimony of
the witness.
Forfailuretointroduceevibywayofexhibitsafterpromising to produce them, there is a presumption that
they would be unfavorable to the contention of the party who made the promise.
Theforceofpresumptionarisingfromsuppressionofevidoesnotapplywhenthesameisequallyaccessible
to the defense. The p resumptionisNOTapplicablewhen(a)thesuppressionofeviisnotwilful;(b)theevi
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suppressed or w/held is merely corroborative or cumulative; (c) the evi is at the disposal of both parties; and (d)
the suppression is an exercise of a privilege.
Anaccusedhastherighttoremainsilentandnoadverseinferenceshouldbedrawnfromthatsilence.
Fabricated Evi evimanufacturedorarrangedafterthefact,andeitherwhollyfalseorelsewarpedand
discoloured by artifice and contrivance with a deceitful intent
raisesthepresumptionoraninferencethatthetruth,ifdisclosed,wouldbedetrimentaltotheinterestof
the party who has been guilty of such an improper act
Ifitisshownthatapersonhasattemptedtofalsify,fabricate,suppress or destroy evi, such conflict may be
justly construed as an indication of his consciousness that his case or defense is lacking merit.
Obligation delivered to creditor has been paid
Art 1271, 1272, 1176 (NCC)
Creditor in possession of doc of credit presumes that debt has not yet been paid, unless debtor shows
otherwise.
GR: payment of debt is not presumed.
EXC: lapse of long period of time, customarily, 20 yrs from accrual of debt. REASON: public policy
Presumption from possession of stolen goods
Possessor of stolen goods presumed guilty of illegally taking the same, unless can explain possession.
Possessor is presumed principal, unless can prove only being an accomplice or accessory and that
another person stole it.
Presumption applies to all of the properties stolen at the same time and place when a part thereof is found
in his possession.
No presumption with respect to loss of other articles not found in his possession where the alleged taking
of these articles was not conclusively proven.
Elements of the presumption:
1. a crime has been committed
2. crime was committed recently
3. accused was found in possession of stolen goods
4. failure of accused to explain his possession satisfactorily
User of forged instrument is the forger
No presumption if possessor has the official duty to keep records w/c were forged.
Not apply to one who has not profited from the forged doc.
Applicable to persons in possession of counterfeit notes, presumed to be the author of the falsification.
Under Tariff and Customs Code, possessor of smuggled articles presumed to have engaged in smuggling,
unless explains possession; Not enough to claim good faith and lack of knowledge to rebut presumption.
Drawee of bouncing check presumed (prima facie) to know that funds are insufficient.
Ownership from possession or exercise of ownership
Rightful possession carries presumption of ownership.
No application in favor of the beneficiary against the insured.
No presumption if shown that taking was unlawful, or when possession is of a subordinate character such
as an agent or employee.
Possession of real property presumes ownership; payment of lease raises presumption of lease.
Presumption of regularity
Person in public office regularly appointed or elected. REASON: cause great inconvenience to public if
strict proof is required of election and appointment.
Omnia praesumuntur rite esse acta donec probetur in contrarium (all things are presumed to have been
done regularly and with due formality until the contrary is proved)
Official duty regularly performed, w/n the scope of authority, in compliance w/ law, in good faith, and in the
exercise of sound judgment, in the absence of evidence to the contrary; presumption applies in criminal
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and civil cases. REASON: innocence is to be presumed; official oath will not be violated.
Presumption rebuttable; not supply proof of a substantive fact; no probative force and not evidence to be
weighed in the scale against evidence rebutting it.
Presumption applies to every class of officers, sheriffs and similar officers, acts of attys, notaries, and
quasi-public officers.
Regularity and validity of legislative and other non-judicial acts
Presumption extends to municipal ordinances, rules and regulations adopted by city or municipal councils,
and disciplinary rules and regulations promulgated by the board of school trustees; presumption of
regularity of proceedings and reasonable and constitutionality of the enactment.
Presumed that undesirable consequences were never intended by a legislative measure.
Scope of presumption: not confined to official acts; every man in his private and official character does his
duty until the contrary is proved, it is presumed that all things are rightly done.
Presumption applies to official appointees, appointed thru a local or special law to act in quasi-official
capacities, and to professional men, e.g. surgeons and attys.
Presumption extends to corporate acts and acts of stockholders where a majority of the stocks was
represented, but not to unusual and extraordinary acts, and if there is an explicit recital to the contrary in
the unimpeached corporate records.
Presumption not applicable:
1. affirmative evidence of irregularity or failure to perform a duty (clear and convincing proof);
conclusive until rebutted.
2. official act appears to be irregular on its face
Beliefs, suspicion, and conjectures cannot overcome presumption of regularity and legality in official
actions
Police officers are presumed to act regularly, and are to be given weight. But not prevail over presumption
of innocence.
Not apply when claim of accused was substantiated, or when the facts are clear.
Regularity of judicial proceedings; Acting in lawful exercise of jurisdiction whether in Philippines or
elsewhere
Omnia praesumuntur rite et solemniter esse acta
Not apply when records show lack of jurisdiction.
GR: if court renders judgment, presumed that there was sufficient evidence, and correct standard of proof
used.
GR that where a court of general jurisdiction has exercised its powers, every step necessary to confer
jurisdiction will be presumed to have been taken in the absence of proof to the contrary.
Presumption of jurisdiction over the person and subject-matter, if parts of the record are lost or silent,
incomplete, or obscure, unless want of jurisdiction is shown.
However, jurisdiction is determined by the allegations in the complaint.
No presumption of jurisdiction of administrative body on direct attack.
No presumption if there is a recital of record of the facts.
Conclusive on grounds of public policy; no introduction of extraneous evidence to rebut them in any
collateral proceeding.
Regularity of proceedings subsequent to gaining jurisdiction.
Judgment of court presumed valid and enforceable where record discloses that all the steps to confer
jurisdiction have been taken, and court has jurisdiction over the subject matter.
Presumption can only be overcome by strong and convincing proof to the contrary.
Presumption of regularity cannot contradict what appears in the record.
Parties presumed to know the records in their own legal proceedings.
Presumption of regularity in judicial proceedings cannot be invoked where there is positive proof that there
was no trial.
Presumption extends to arbitrators, referees in bankruptcy, rulings and orders of administrative officers,
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tribunals performing quasi-judicial functions, artificial persons, business enterprises, and private
transactions.
Non-compliance or non-performance of law or duty will not be presumed; presumption is that law has been
obeyed, similar to presumption of innocence.
Ordinary course of business has been followed
Those engaged in a trade/business are presumed to know the general customs and usages of the
occupation and such facts as are necessarily incident to the proper conduct of business.
Customs and usages must be of common and general acceptance to impute knowledge and intent in
order for presumption to arise as to persons not engaged in the trade.
Sufficient consideration for a written contract
Consideration presumed even if not in writing.
If consideration is a dent incurred in a prohibited game or game of chance, and no proof of nature of
game, not presumed that game is prohibited, it being presumed that consideration is licit.
If cause part legal part illegal, and no proof as what part is supported by the unlawful cause, there can be
no recovery on the contract.
Negotiable instruments
Every NI is deemed prima facie to have been issued for a valuable consideration and every person whose
signature appears thereon is a party for value.
In NI, no recital of consideration in the instrument is needed to raise presumption.
Presumption that an indorsement made w/o date was made b4 maturity; in absence of contrary,
indorsement presumed to have been made at the time of execution and at the place where the instrument
is dated; rule not apply to non-negotiable papers.
If time is material, maker should show that it was made after maturity, and thereby destroy the legal
presumption.
Written instruments
If regular on its face, presumed to have been properly executed and have all essential formalities to their
validity.
Presumption does not apply where a deed is offered to support an action one not privy to it; delivery on the
dateofthewriting;theresamotiveforcollusionorfraud.
Letters and mail
A letter properly stamped, correctly addressed, and deposited in mail, is presumed to have been received
by the addressee; BASIS: post office is a public office w/ duty of transmitting mails.
No presumption when there is no actual proof that the letter was placed in the mail or that the customary
practice was followed.
A letter written, signed and placed in correspondence basket, is not sufficient proof that addressee has
received the letter esp when there is a denial.
Presumption not overcome by mere denial of receipt by addressee.
For completeness and proof of service by registered mail, there is no presumption that official duty has
been performed.
Clearproofofcompliancew/postalregulations:firstnotice,postmasterscertification,registrynotice;
actual receipt of the notice by addressee.
Registry receipts not sufficient proof of service; mere evidence of mail matter.
Presumption of Death
Ordinary: after 7 yrs of unknown absence, presumed dead for all purposes, except for those of
succession; 10 yrs b4 open succession; 5 yrs if age 75.
Extraordinary: presumed dead for all purposes
1. person on board a vessel lost during a sea voyage, or an airplane w/c is missing, who has not been
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heard of for 4 yrs;
2. person in the armed forces who has taken part in war and has been missing for 4 yrs;
3. person in danger of death under other circumstances and his existence has not been known for 4
yrs.
In sea voyage, it should be lost, unaccounted, fate unknown, cannot be located.
If conditions not present, rule on preponderance of evidence applies to establish the fact of death.
Sec4Rule73:applicabilityofruleinspecproforpurposesofsettlementproceedings,personpresumed
dead if absent and unheard from for the pds in the NCC. If such person proves to be alive, he is entitled to
the balance of the estate after debt payments recoverable by motion in the same proceeding.
Can be invoked in an action or spec pro, but no independent action or spec pro for presumption of death.
Presumption of death must yield to preponderance of evidence of death, w/o waiting anymore for the
period to expire.
Acquiescence from a belief
Failure to speak to an accusation of complicity raises presumption of acquiescence in the accusation;
subject to principle of admission by silence.
Ordinary course of nature and ordinary habits of life
E.g. city treasurer deposited a check issued by another, the bank credited the check and the treasurer
w/drew the same; in an ordinary fire, 50 boxes of cloth totally destroyed and traces or evidence will be left
remaining of their lost or destruction.
Acting as co-partner presumed partnership
Sufficient that they acted as partners, and by their very habit and course of dealings, conduct and
declarations, they have induced those w/ whom they have dealt to consider them as partners.
Deporting as husband and wife presumed married
Law intends legalizing matrimony; if not, they would be living in a constant violation of decency and law.
Presumption extends to prerequisites of a valid ceremonial marriage, even against the continued
existence of a prior marriage by either party.
If shown to have a previous marriage, there is a strong presumption that it was dissolved and the
subsequent is valid; such presumption prevails over the presumption that a first marriage is valid in the
absence of proof of its dissolution.
Presumption of dissolution of a former marriage must yield to circumstances.
Rebuttable by competent proof.
If cohabits, presumed married.
Cohabitation and reputation must concur for the presumption.
Mere absence of record of marriage in the church does not destroy the presumption.
No presumption if illicit cohabitation; parties not prevented from marrying if the impediment no longer exist,
to be proved by an agreement to marry, not necessarily a formal ceremony.
If illicit relations continued after the death of the spouse of the married party, there is no presumption but
that a lawful marriage may be inferred from the circumstances.
If marriage has been consummated, presumed that there are no legal impediments.
Acquired property by a man and woman
If capacitated to marry and live exclusively w/o benefit of marriage or under a void marriage, presumed to
be obtained by their joint efforts, work or industry; Art 147 and 148, FC.
If not capacitated to marry but acquired property by actual joint contribution of money, property or industry,
such contributions and corresponding shares including joint deposits are equal.
Property acquired by both spouses through their work or industry shall be governed by rules on equal co-
ownership; a party who did not participate in the acquisition of the property shall be considered as having
contributedtheretojointlyifsaidpartyseffortsconsistedinthecare&maintenanceofthefamily.
Fruitsofthecouplesseparatepropertyarenotincludedinthecoownership.
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Marriage terminated and mother remarried w/n 300 days
Presumption applies only if the dissolution of the first marriage was due to the death of the husband and
mother remarried w/n 300 days ff the death.
Art 164, 168, FC.
Rule does not presume legitimacy, only as to what marriage the child has been conceived; criteria is the
birth of the child 180 days b4 or after the solemnization of the 2
nd
marriage.
Child to be child of the 1
st
marriage: 1) mother remarried w/n 300 days from termination of 1
st
marriage; 2)
child born w/n the same 300 days; 3) child born b4 180 days after solemnization of 1
st
marriage.
Child to be child of the 2
nd
marriage: 1) mother remarried w/n 300 days; 2) child born w/n the same 300
days; 3) child born after 180 days after solemnization of 2
nd
marriage.
Legitimate children: 1) if conceived and born during marriage; 2) if conceived b4 marriage but born during
marriage; 3) if conceived during marriage but born after.
Children by artificial insemination: legitimate, ff conditions:
1. AI is made on the wife, not on another woman;
2. AI of the wife is done w/ sperm of husband (homologous) or of a donor
(heterologous) or both (confused or combined) of them;
3. AI has been authorized or ratified by the spouses in a written instrument
executed and signed by them b4 the birth of the child;
4. written instrument is recorded in the civil registry together w/ the birth certificate
of the child.
Artificial insemination is the impregnation of a female w/ semen from a male w/o sexual intercourse.
Presumption of sexual intercourse; unless, shown beyond reasonable doubt that there is physically
impossibility of access by the husband to the wife during conception.
Grounds to impugn legitimacy: Art 166, FC
1. physical impossibility to have sexual intercourse w/n first 120 days of the 300 days immediately preceding
the birth of the child bec of physical incapacity of husband, living separately and serious illness preventing
intercourse;
physical impotence; sterility not enough
separately means diff countries or one is in NBP
illness such as comatose, syphilis
2. child could not have been that of the husband if proved by biological or scientific reasons;
HLA test, blood test, double vasectomy,
3. in AI, written authorization was procured through mistake, fraud, violence, intimidation or undue influence.
Scientific test like human leucocyte antigen (HLA) can prove non-paternity or legitimacy, but rules do not
yet take them into account.
Issue of legitimacy cannot be attacked collaterally. This action can only be brought by the husband and in
exceptional circumstances, his heirs and w/n the pd fixed by the FC.
Child legitimate although the mother may have declared against its legitimacy or sentenced as an
adulteress.
Thing proved to exist continues as long as is usual w/ nature
Inference that it exist at a subsequent time, unless contrary is shown; burden on party who seeks to prove
termination.
Presumption of continuity of mental capacity or capacity to act if not preciously declared incapable;
continuous until the contrary is proven that he is incapacitated, insane.
Presumption of continuity of possession during the intervening pd.
Presumption of continuity of facts.
Presumption cannot prevail over positive testimony of witnesses
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Law was obeyed
Men acted in good faith and intended the consequences of their acts.
Illegality must be duly and adequately proved.
Presumed on appeal that TC complied w/ its duty to inform appellant of his right to counsel and to have an
atty.
Presumption of knowledge of law: ignorance of the law excuses no one from compliance therewith;
conclusive.
Legislative bodies presumed to know the status of the law w/ respect to legislative subject matter,
including previous legislation on the subject, common law of the jurisdiction
But, mistake upon a doubtful or difficult question of law may be the basis of good faith.
Foreign law must be pleaded and proved; no presumption.
Conveyance of property by a trustee or other similar person
Circumstances to concur to raise presumption:
1. it is the duty of trustee to convey;
2. there is sufficient reason to justify the presumption;
3. object of presumption is to support title;
4. case must be clearly such that a court, if called upon, would decree a reconveyance.
Rules on survivorship
If 2 persons perish in the same calamity such as wreck, battle, conflagration, and not shown who died first
and no circumstances to infer, survivorship presumed from the probabilities resulting from strength and
age of the sexes, accdng to the ff rules:
1. if both under 15 age, the older is presumed the survivor;
2. if both above 60 age, younger is presumed the survivor;
3. if one under 15 and other above 60, former is the survivor;
4. if both over 15 and under 60, and sexes diff, male is the survivor; if sexes the same, then the older is the
survivor;
5. if one under 15 or over 60, and other btwn those ages, latter is the survivor.
To invoke this presumption, there should be no other facts w/c might prove survivorship, either direct or
indirect, substantial or inferential bec if there are such facts, rule on preponderance of evidence governs.
Section 4. No presumption of legitimacy or illegitimacy. Thereisnopresumptionoflegitimacyor
illegitimacy of a child born after three hundred days following dissolution of the marriage or the
separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his
allegation.
Illegitimate children:
1. children born of couples not legally married or common law marriages
2. children born of incestuous marriage
3. children born of bigamous marriages
4. children born of adulterous relations btwn the parents
5. children born of marriages void for reasons of public policy
6. children born of couples below 18 whether they are married (w/c marriage is void) or not
7. children of other void marriages under art 35
Legitimate if parties believed in good faith that solemnizing officer had authority, children of marriages void
under art 36 and 53.
RULE 132
PRESENTATION of EVIDENCE
A. Examination of witness
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Section 1. Exam to be done in open court . The examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak,
or the questions calls for a different mode of answer, the answers of the witness shall be given orally.
Presentation of Evi
AnypartywishingtointroduceanyevishouldfirsthavethethingmarkedbytheclerkforIDasanexhibitfor
theparty.Havingdoneso,theproponentshouldlaythefoundationforitsintrodxnasanexhibitbyhavingit
appropriately identified or authenticated by the testimony of a witness who is qualified to do so.
Next,theproposedexhibitshouldbesubmittedtotheopposingattyforhisinspxn,atleastuponhisrequest,
andthentheproponentshouldpresentittothejudgePlaintiffoffer sthisdocumarkedPlaintiffsExhibitNo.2
forID,asPlaintiffsExhibitNo.2.Atthispt,theopponentmaymakehisobjxntoitsreceiptinevi,andthe
judge will make his ruling upon the objxn.
Interrogation of Witnesses: Gen Consideration
tocallsaidwitnesstothestandandaskhimquestions
nofixedpatternormethodforaskingquestions
[Belk v. Meagher]questionaskedbedirectandfreefromvaguenessorambiguity
subjtothepowerofthejudgetokeepthetrialorderlyandfair
Testimony To Be Given in Open Court
Reason:toenablethecourttogaugethecredibilityofthewitness
Twofoldobjinrequiringwitnesstobesworn:
(a) By affecting the conscience of the witness to compel him to speak the truth;
(b) That if he wilfully falsifies that truth, that he may be punished for his perjury
affirmationsolemnandformaldeclarationorassertionthatthewitnesswilltellthetruth;solemn
declaration w/o oath
Oath or Affirmation
Itisgenerallyheldthatwhereawitnesstestifies w/o having been sworn, the judgment will be set aside if the
error is not discovered until after judgment.
Ifapartyfailstoobjtothetakingofthetestimonyofawitnessw/otheadminofanoath,hewillbedeemed
to have waived his objxn.
UnderSec.1ofRule71, refusal to be swornor to ans as a witness constitutes direct contempt.
Section 2. Proceedings to be recorded . - The entire proceedings of a trial or hearing, including the
questions propounded to a witness and his answers thereto, the statements made by the judge or any of
the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or
stenotype or by other means of recording found suitable by the court.
A transcript of the record of the proceedings made by the official stenographer, stenotypist or
recorder and certified as correct by him shall be deemed prima facie a correct statement of such
proceedings.
Sec. 3. Rights and obligs 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
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the fact of his previous final conviction for an offense.
Right of Witness To Be Free From Personal Violence
[InRe:Aguas]Theaxnofthejudgeinseizingthewitnessbytheshoulderandturninghimabt(tolookat
the judge) was unwarranted and an interference with that freedom from unlawful personal violence to which
every witness is entitled while giving testimony in court, which his atty had the right to protest and to demand
that the incident be made of record.
Prohibition Vs. Unltd Cross-exam
Thediscretionofthecourtpreventsunltdexam,especiallysinceitisthecourtsdutytoprotectthewitne ss
from questions which go beyond the bounds of proper cross-exam merely to harass, annoy or humiliate him.
But the court is not bound to protect him vs. disclosures which fall short of invasion of his constitutional
safeguard from self-incrimination.
Scope of Right Vs. Self-incrimination
(1) NO person shall be compelled to be a witness vs. himself.
(2) May be invoked in anycourtproceedingsjudicial,administrative,legislativeormilitary,civilorcrimcase
(3) The rule only covers testimonial self-incrimination and the prodxn by him of incriminating docus and articles
(or even by his counsel).
Scope of Privilege
(a) Only prohibits incriminatory stsmts NOT obj evi
simplyaprohibitionvs.legalprocesstoextractfromtheaccusedsownlips,vs.hiswill,admiss ion of his
guilt
admissionofthewalletoftheaccusedtogetherwiththecontentsdoesNOTviolatesuchright
(b) Only prohibits testimonial compulsion
testimonial compulsioniftheaxnissoughtasanindicationofthesubjsintentionalexpressionof his
knowledge or belief concerning factual matters
compulsionwitnessisreqdtoansoverhisvalidclaimoftheprivilege
doesNOTincludetheexamofhisbodyaseviwhenitmaybemtl
(c) Observingphysicalcharpermissible
fingerprinting;photographing; measurements; to assume a stance; to make a particular gesture; to write
or speak for ID
(d) Compulsorybloodanalysisnotviolativeoftheprivilege
(e) Flight is not testimonial
notanintentionalcommunicationbytheaccusedofthecontentsofhis thoughts
(f) Breath test for blood alcohol
[South Dakota v. Neville] Asuspectsrefusaltoparticipateinsuchtestwaslikeflightandthus
noncommunicative conduct rather than testimonial communication.
Suchrefusalisnotanactcoercedbytheofficer and trial use of evi of that refusal is not barred by the
privilege.
(g) Instanceswhenexpresslyarticulatingadesirenottoincriminateonesselfisdeemedinappropriate
personsabilitytomakeafreechoiceisimpaired
(1) During custodial law enforcement interrogation
(2) Where a person is confronted with such significant penalties for invoking the privilege that his failure to
so cannot be reasonably regarded as a free choice
(3) <Casesinwhichfederaltaxreqtsimposedongamblersrequirepotentiallyincriminatingfilingswiththe
govt>
(h) Privilege extends to prodxn of inculpatory docus
McCormick:Byproducinganiteminresponsetoasubpoena,apersonmaymakeoneormoreof
several explicit or implicit representations: (1) they believe that items described by the subpoena exist; (2)
that such items are w/in their possession or control; (3) that the items produced are w/in the description of
the subpoena.
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testimonialcommunications,althoughmadebyconduct
(i) Extendstoanyevicommunicativeinnatureacqdundercircumstancesofduress
forcedreenactment
Compellingtheaccusedto write and give specimens of his handwriting, in order to determine whether it
was he who wrote alleged falsified docus, is equiv to compelling him to perform testimonial act.
(j) Includes not only the right to remain silent in the face of incriminatory questions but also a right to suffer no
penalty for such silence
Acts NOT Covered by the Privilege
(a) [Villaflorv.Summers]womanaccusedofadulterywasorderedtosubmitherbodyforexamofcompetent
docs to determine whether she is pregnant or not w/o the use of torture or force
(b) [U.S.v.TanTeng]Whereaperson,accusedofactsoflasciviousnessvs.a7y.o.girlwhowas
consequently infected with gonorrhoea, was stripped of his clothing when arrested, and from his body was
taken a portion of an emitting substance which upon analysis revealed that the accused was suffering from
gonorrhoea and the same was used vs. him.
(c) Accused was forced to discharge morphine from his mouth and used as evi vs. him
(d) Accusedwasreqdtoputonapairofpantstodetermine whether they fitted him
(e) Admission as to marks and scars found upon the person of the defendant during the investigation in order
to identify him
(f) Forcing an accused to remove his shoes for the purpose of comparing them with the tracks
test:whethertheproposedeviwasthatoftheaccusedorwhetheritwaseviinitselfunaidedbyanystmt
of the latter
(g) Coercing the accused to place his foot over a footprint for purpose of comparison
(h) Taking blood sample from the accused charged of homicide thru reckless imprudence while unconscious for
purposes of blood test
Right Protected by Exclusionary Rule
Sec.12(2),Art.III,ConstianyconfessionoradmissionobtainedinviolationofSec.17shallbe
inadmissible in evi vs. him
Accused vs. Witness
Unlikeanordinarywitness(orapartyinacivilaxn)whomaybecompelledtotestifybysubpoena,having
only the right to refuse to ans a particular incriminatory question at the time it is put to him, [Cabal v. Kapunan
(1962)]anaccusedmayaltogetherrefuse to take the witness stand and refuse to ans any and all questions.
Ifaccusedtestifiesonhisownbehalf,thenhemaybecrossexaminedastoanymatterstatedinhisdirect
exam, or connected therewith.
Penalty Includes Forfeiture of Prop
Theruleprotectingapersonfrombeingcompelledtofurnisheviwhichwouldincriminatehimexistsnotonly
when he is liable criminally to prosecution and punishment, but also when his ans would tend to expose him to
forfeiture.
[Cabal v. Kapunan]Hence,theL awyers Reports Annotated, after an extensive exam of pertinent cases,
concludesthatsaidconstitutionalprovisionapplieswhenevertheproceedingisnotpurelyremedialor
intendedasaredressforaprivategrievance,butprimarilytopunishaviolationofdutyorapublicwrongand
todeterothersfromoffendinginalikemanner...
However,whenthelossofprivilegeisnotimposedasapenaltythewitnesscannotinvokehisconstitutional
right.
Alawyermaynotrefusetogiveananswhichmaysubjhimtodisbarmentproceedings,becalawyers
disbarment is not a penalty but a di sciplinary measure.
Privilege May Be Invoked in Any Civil, Crim or Administrative Proceeding and in Congressional
Investigations
accordedtoeverypersonwhogivesevi,whethervoluntarilyorundercompulsionofsubpoena
Anaccusedmayremainsilenteven on arraignment but in a civil (or administrative) case the adverse party
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may be called as a hostile witness. <See, however, Sec. 6, Rule 25 on effect of failure to remove written
interrogatories>
Privilege May Be Invoked Only by Natural Persons
personalprivilegeOnlythepersonwhoisatriskofincriminationcaninvokeit.
corporationcreatureoftheState
Legislaturesreservearighttoinvestigatesuchorgstoassurethattheyhavenotexceededtheirpowers
and to conduct such investigations by demanding even self-incriminating info from orgs.
collectiveentityruleneithermayacorporateagentinvoketheprivilegeonthebasisofhispersonal
privilege
Time to Invoke Privilege
Therightvs.selfincriminationisNOTselfexec uting.
Apersonwhohasbeensummonedtotestifycannotdeclinetoappear,norcanhedeclinetobeswornasa
witness and no claim or privilege can be made until a question calling for a criminating ans is asked; at that
time, and generally speaking, atthat time only, the claim of privilege may be interposed.
Theobjxnmustbeinterposedwhenitappearsthatthewordshavea tendency to subj him to a penalty for an
offense.
thataresponsiveanstothequestionoranexplanationofwhyitcannotbe answered might be dangerous
because injurious disclosure could result
ansmaydiscloseanylinkinachainofevifromwhichhisguiltmaybeinferred
Extent of Waiver
Theaccused,byofferinghimselfasawitnesstodisprovethechargewaiveshispri vilege as to all relevant
facts connected with the offense, except those facts that merely affect his credibility.
Hemaydeclinetoansanyquestionwhichmightimplicatehimforadiff.offense.
Ifthewitnessdisclosespartofatransaxninwhichhe was criminally concerned, he cannot hold back the
rest. His waiver is not partial.
Immunity Statutes (Sec. 3(4), Rule 132)
2Kinds
(1) USEimmunityprohibitsuseofwitnesscompelledtestimonyanditsfruitsinanymannerinconnection
with the crim prosecution of the witness
(2) TRANSAXNALimmunitygrantsimmunitytothewitnessfromprosecutionforanoffensetowhichthe
compelled testimony relates
[Cabal v. Kapunan]Sec.8ofR.A.No.1379
ProceedingsunderR.A1379arecrimorpenalinnature; hence, the exemption of defendants in crim cases
from being witnesses vs. themselves are applicable thereto
<for the statutes, see pp. 167-169>
Summary of Scope Vs. Self-incrimination
(a) A clause exempting a person from being a witness vs. himself prohibits as well a witness as a party
accused in the cause; that is, it is immaterial whether the prosecution is then and there vs. himself or not; so
also a clause exempting the accused protects equally a mere witness.
(b) A clause exempting from self-incriminating testimony in crim cases protects equally in civil cases when the
fact asked for is a crim one.
(c) The protection, under all clause, extends to all manner of proceedings in which testimony is to be taken,
whether litigious or not, and whether ex parte or otherwise.
Right Vs. Self-degradation; Discretionary Control of Degrading Cross-exam
Awitnessmaybecrossexaminedastospecificfactswhich,althoughcollateraltotheissue,tendtodiscredit
the witness by impeaching his moral char if the court concludes that there is reason to believe that such exam
will further the ends of justice; but such exam will not be allowed where it is unjust to the witness or uncalled for
by the circumstances of the case.
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Sec. 4. Order in the exam 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;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.
Sec. 5. Direct exam. - Direct examination is the examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue.
Form of Questioning
InGeneralltdtoquestions calling for specific responsesby witnesses
Testimonyinnarrative form
notpermittedbymanycourtsbecitistoodifficulttodeterminewhetherspecificportionsofthetestimony
mightbeobjxnablebeforeuttered remedy of adverse party is a motion to strike
Ifawitnessistobeexaminedbythenarrativemethod,counselmustplantobereadytointerruptwith
specific questions, if necessary, or to supplement the narrative by specific questions which bring out omitted
facts.
WhenAllowed(a)witnessisherowncounsel;(b)whenallowedbythetrialcourt
Limitations
(a) Questions calling for conclusions or opinions
[Michelsonv.U.S]Unlesstheyarew/inthelegitimaterealmofopiniontestimony,whetheroflayor
expert witnesses, the questions should not call for the conclusions of the witness or embody propositions of
law.
Whydidthedefendantstriketheplaintiff?NOTallowedbecitcallsforaconclusionastodefendants
state of mind
(b) Repetitive questions
objxnquestionhasbeenaskedandanswered
Repetitivequestionsmaybemorereadilypermittedincrossexam.
Thereis,however,noprohibitoryrulewhichpreventsaskingaquestionalreadyansweredinanother
form in order to make certain that the question and the ans are understood.
(c) Compound questions
Acompoundquestionwhichembracesmorethanoneinquirytobeansweredisnotonlyawkwardand
ambiguous but improper, and a question should be rejected which, along with proper elements, embraces
one which is improper.
(d) Erroneous Assumption
ItisNOTpermissibleondirectexamtoputtoawitnessaquestionwhichassumeserroneouslythatamtl
fact in issue has been proved or that the witness has given certain testimony.
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 many matters stated in the direct
examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing
upon the issue.
Importance
Inviolable in civil cases and right of the accused in crim case.
It is the most reliable and effective way known of testing the credibility and accuracy of testimony.
Essential element of due process; a matter of absolute right of the highest value.
Effect of denial of right
If witness died w/o being x-examined, his testimony in direct examination is stricken provided, the
unavailability of witness is through no fault of party seeking to x-examine.
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X-examination must be complete
Oral testimony is taken into account only when witness was wholly x-examined by adverse party or the
right was lost thru the fault of adverse party.
If x-examination cannot be done or completed due to causes attributed to offeror of the witness, the
uncompleted testimony is incompetent.
If no responsibility ascribed to offeror of witness, then direct testimony can be admitted.
Extent of right
The right is superior to technical rules of evidence.
Purpose of confrontation
Right of confrontation is a personal privilege w/c can be waived by accused expressly or impliedly by
conduct amtng to renunciation of the right.
Chief purpose is to secure the opportunity for x-examination.
Minor purpose is that the tribunal may observe the deportment and appearance of the witness; this can be
dispensed with.
Savory Luncheonette case: if party had the opportunity to x-examine but failed to avail of it, he forfeits
such right and testimony in direct examination will be received.
Partial x-examination sufficient.
Scope
Liberality of the courts; allows any matter related to the subject testified to on direct.
X-examine proper to rebut matters actually testified to on direct and any inference or deductions w/c may
be drawn therefrom.
Englishrulecoversallmattersmaterialtotheissue,examinationnotonlyconfinedtomattersinquired
about in the direct examination; to be conducive, systematic and orderly trial of causes.
Americanrulerestrictedtofactsandcircumstancesconnectedw/themattersstateinthedirect
examination of the witness.
No x-examination if testimony is given in direct evi but subsequently stricken out; testimony not testified to
by the witness unless he himself testified as to it; as to evi not offered in evi;
E.g. if direct examination of payee of note confined to question of genuineness of signature, adverse party
cannot x-examine as to consideration.
In consolidated axns, all parties to the several axns are entitled to x-examine any witness called upon by
any other party.
Rule in this jurisdiction
Follow English rule; party may x-examine witness on any matters not embraced in his direct testimony.
However, in criminal cases, accused may only be x-examined on matters covered by his direct
examination.
X-examination as to collateral and immaterial matters
Witness may not be interrogated as to matters wholly irrelevant and immaterial; judicial discretion to refuse
x-examination on the ground of obvious irrelevancy.
Limitation of right on collateral matters
If questions of this character were answered by witness, it may not be contradicted by the x-examiner. If
inquires as to immaterial matters, he must abide by the answer.
Reason: lead to innumerable side issues, distract attention of court, unjust necessity of producing evi to
corroborate stmts on collateral matters.
TEST: would the cross-examining party be entitled to prove it as a part of his case in chief.
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Method, form and length
Permitted to employ any type of questioning
Leading questions are permitted.
Improper questioning:
1. Misleading - ? that cannot be answered w/o making an unintended admission. E.g. Do u still beat your
wife?
2. Compound - ? that requires a single answer to more than 1 ?; E.g. Did u see and hear him?
3. Argumentativealeading?thatalsoreflectsexaminersinterpretationofthefacts;E.g.whywereu
driving so recklessly?
4. Assuming facts not in evi - ? that assumes that a disputed fact is true although it has not yet been
establishedinthecase;E.g.Afterheranthestopsignhehonkedhishorn,didnthe?
5. Conclusionary - ? that calls for an opinion or conclusion that the witness is not qualified or permitted to
make; E.g. Did your wife understand this also?
6. Cumulative - ? that has already been asked and answered; more repetition allowed on cross than on
direct, but if cross is not getting anywhere, judge may disallow the ?
7. Harrassing/Embarrassingjudgehasdiscretiontodisallowcrossthatisundulyembarrassing;E.g.Rua
homosexual?
Method and extent
Trial court has discretion to determine method and extent.
Liberal X-examination
On the part of an accomplice to show hopes of leniency.
Limitation on right
Courtsdiscretiontodeterminemethodandextentofxexamination;mayinterfereifinconsistentw/
decorum or conducted in an unfair manner, needlessly protracted.
May not be x-examined as to matters w/c by law are not admissible in evidence.
Cannot introduce hearsay in cross, unless volunteers to and does not ask the same to be stricken out.
Limits inquiries to questions of fact.
Cannot inject unfair insinuations upon the conduct of the witness or comments upon his testimony.
Questions tending to insult, abuse, or intimidate witness not permitted.
May not exceed bounds of propriety.
Judge discretion to allow or deny privilege of repeating ?s w/c have already been fully answered.
Refrain from making frivolous objections.
X-examination as to bias, prejudice, etc.
?s impeaching the impartiality of witnesses, while not directly relevant to the issue on trial, are relevant in
the sense that the persuasive quality of the proof is affected by the discrediting testimony.
Competent to show that witness is hostile, that he threatened revenge, quarrel exists, relations existing
btwn witness and party against.
Can be questioned as to motives, bias, interest, conduct, state of feelings, relations to the parties, family
relationships, business connections w/ the parties, employment by them, litigation w/ them and the like,
expressions to others showing hostility or prejudice to adverse party, amt of fees or compensation,
hostility, corruption, misconduct w/ respect to the case, or other facts tending to prove that testimony is
unworthy of credit.
Procedural limitations
Such evidence should be direct and positive, not remote or uncertain.
If judge excludes testimony w/c would clearly show bias of witness, it is error and may be a ground for new
trial.
If x-examination reveals that witness is prejudiced or hostile feelings, the inquiry may not be pressed
further to show grounds of such hostility or prove details of the facts showing bias.
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Rights of witnesses under x-examination
Witness must answer questions.
1. to be protected from irrelevant, improper or insulting ?s, and from harsh and insulting demeanor
2. not to be detained longer than the interest of justice require
3. not to be examined except only as to matters pertinent to the issue
4. not to give answer w/c will tend to subject him to a penalty for an offense unless otherwise provided by
law
5. not to give an answer w/c will tend to degrade his reputation, unless it be the very fact in issue
Examination of witness by the judge
By own motion or by any party; w/n reasonable bounds, fair, not intimidating
Either party may x-examine any witness called by the judge or object to it at the time of interrogation or nxt
available opportunity.
Refrain from showing partiality and hostility to the parties.
Take leading part by directing counsels to submit evi on the facts in dispute by asking clarifying ?s and by
showing an interest in a fast and fair trial.
May call attention of counsel to pts at issues that overlooked, directing them to ask ?s to elicit facts , clarify
ambiguous remarks.
Section 7. Re-direct examination, its purpose and extent.Afterthecrossexaminationofthewitnesshas
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.
Scope
Matter of right, but time at w/c it may be had is discretionary on the court.
REASON: prevent injustice to witness by affording opportunity to explain or amplify testimony given on
cross, and explain contradictions or insistencies in stmts.
Purpose: to explain or rebut adverse testimony or inferences developed on cross, and to rehabilitate a
witness whose credibility has been impeached on cross.
Question on matters not dealt w/ during the cross may be allowed by the court in its discretion; but no right
to go further and introduce matter w/c is new and not explains the expressions and motive of the witness.
Limitation of Redirect examination
In crim cases, if new matters are introduced w/c are prejudicial, NT may be granted.
Curative admissibility under sec3 rule 128.
Party seeking to rebut is limited to the introduction of testimony w/c has a direct tendency to contradict that
w/c has been received.
If court admits new matters in re-examination, or if explanation of the answers given is necessary, court
may permit recross.
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
matters as may be allowed by the court in its discretion.
Purpose: toovercomeotherpartysattemptstorehabilitateawitnessortorebutdamagingevibroughtoutonx
examination.
Not a matter of right to touch on matters not brought out on the redirect examination of the witness; limited
on new matters brought out on the redirect examination.
Section 9. Recalling witness. - After the examination of a witness by both sides has been concluded, the
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witness cannot be recalled without leave of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require.
Not a matter of right; cannot be detained longer than the interest of justice requires; w/n the sound
discretion of the court.
If other evi is produced, the witness may be recalled for direct of cross.
Function of rebuttal evidence
To explain, repel, counteract or disprove the evi of the advesary.
Discretionary w/ the prosecution in a crim action.
Power of court to receive further evi
Discretion of judge; will not be reviewed except in clear case of abuse.
Additional evi is allowed when it is newly discovered, or omitted through inadvertence or mistake, or
purpose is to correct evidence previously offered.
Examination of additional witnesses
Judge may call additional witnesses for questioning himself for the purpose of satisfying his mind w/
reference to particular facts involved in the case if he is not satisfied w/ the evi adduced by the counsels.
Section 10. Leading and misleading questions. - A question which suggests to the witness the answer
which the examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an adverse party.
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.
Leading questions
Leading if it suggests to the witness the answer desired by the examiner; not leading if it merely suggests
a subject w/o suggesting an answer or a specific thing.
Types of leading questions
1. thosemerelyleadingthewitnesstoadesiredanswer;E.g.didustopatthesign?allowed
2. ?s that strongly suggest a large volume of facts permitting witness to affirm them w/ a simple yes or no
answer - disallowed
But there may be yes or no answers to w/c there is no real objection.
Test of leading questions
1. by putting the words in the witness mind to be echoed back, examiner is in effect the one testifying;
probative value is lessened if obtained by leading ?s
2. permitswitnesstoadoptexaminerswordsandversionofamaterialissue;Inreality,examinerisgiving
instead of receiving information.
3. court hardly impress w/ witness if merely concurs in a series of leading ?s by the lawyer.
Improper leading questions
E.g. was the dog white? (proper ?s is what was the color of the dog?);
Exceptions; when leading questions allowed
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on cross examination; but not allowed if witness is biased in favor of the x-examiner.
In cross, any type of ?s w/c would be proper in direct is allowed
Leading ?s may be utilized w/c are suggestive of the answer.
Improperquestioning,typesrefertosection6
Summation:examinermaynotaskaquestionthatmerelyinvokesthewitnessesassenttothequestioners
inferences from or interpretations of the facts proved or assumed.
When leading questions allowed
Judicial discretion
If merely introductory
Whennecessarytodevelopthewitnesstestimonyandwherethereisnorealdangerofimpropersuggestion.
Refreshingmemoryifwitnessspowerofrecollectionappearstobefeebleoruncertain;Ifitisdesiredto
show that a witness has at another time made a stmt w/c is contradictory of his present stmt.
When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, child of tender
yrs, feeble minded, deaf mute, immature, uneducated, in bad physical condition, of sluggish mental
equipment, confused, terrified, not familiar w/ language used, timid or handicapped bec of extreme age or
illness.
If witness is hostile or unwilling; if promotes interest of adverse party
If witness is an adverse party or an officer, director, or managing agent of a public or private corp or
partnership or assoc w/c is an adverse party.
Misleading questions
?scontainingfactsnotinevisincetheymakewitnessanswerimplicitw/admissionoftheunestablishedfact.
Error of judge in allowing a witness to answer a leading ? may be cured by subsequent proceedings as where
the same ? is asked and answered on cross.
Section 11. Impeachmentofadversepartyswitness.- A witness may be impeached by the party against
whom he was called, by contradictory evidence, by evidence that his general reputation for truth,
honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with
his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by
the examination of the witness, or the record of the judgment, that he has been convicted of an offense.
Impeachtodiscreditawitnessstestimony
Right to Impeachafundamentalrightonxexamination,sincewitnessscredibilityisalwaysinissue
MethodsofImpeachmentofAdversePartysWitness
By contradictory evidence
By general reputation for truth, honesty or integrity is bad
By previous inconsistent statements
Other modes aside from sxn11
By involving him during x-examination in contradiction
By showing impossibility or improbability of his testimony
By proving action or conduct of the witness inconsistent with the testimony
By showing bias, interest or hostile feeling against the adverse party
Contradictory Evidence
Party producing him may contradict him by other evidence
When a witness denies contradictory statement, another witness may be asked whether particular words
denied were in fact used by the witness
Thecontentofawitnessstestimonymayberebuttedbyproofoffactscontrarythereto
Relevancy is required, otherwise such testimony may run afoul the rule against impeachment on a
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collateralmatterandoftheruleagainstimpeachingonesownwitness
Witness cannot be impeached by contradictory evidence on collateral matters
Awitnessmaynotbeimpeachedbyproducingextrinsicevidenceofcollateralfactstocontradictthe
same unless relevant to the issue or may tend to prove any issue of fact under inquiry
Suchinterrogationmayberefusedatthecourtsdiscretiononthegroundsofirrelevancyorimmateriality
Answer from inquiry/questions as to immaterial matters may not be contradicted or be made an issue
Test of relevancy: Would the x-examining party be entitled to prove it as a part of his case in chief?
Collateral mattermatteronwhichevidencecouldnothavebeenintroducedforanyrelevantpurpose(because
proof of this contradiction would be a new matter) which would waste time and confuse the issues; matter itself is
not relevant in the litigation to establish a fact of consequence
Ifacollateralfacthappenstohavebeendrawnoutondirect,ruleagainstcontradictionshouldstillbe
applied. The danger of surprise is lessened, but waste of time and confusion of issues stand as
objections.
Methods of Attacking Credibility
1. Demonstrating poor character for truthfulness
2. Establishing bias or interest
3. Establishing prior inconsistent statements
General Reputation Impeachment by evidence that his general reputation for truth, honesty or integrity is bad
Proofofawitnessscharacterorreputationisarecognizedmeansofimpeachinghimordiscreditinghis
testimony,subjecttotherestrictionagainstimpeachingonesownwitness
General reputation is presumed to be indicative of actual character, and hence it is regarded as of
importance when the credibility of the witness is in question
Where a witness is called to give impeaching testimony as to character, he may speak only of the general
reputation for the truth and veracity not immorality
Only General Reputation Admitted Not Particular Wrongful Acts
Inquiry refers to the his knowledge as to the general speech of people concerning the other witness and
the common repute which the latter enjoys among those who know him and not to particular facts to
discredit him
Must be shown that witness knows of the reputation for truth and veracity of the person in question in his
community and may be interrogated thereon
Time and Place of Reputation; Qualifications of Impeaching Witness
Time of Reputation. If an accused-witness, reputation at the time of the commission of the offense. If
credibility of a witness, reputation refers to the time of the trial that is proved. But the same is not
necessarilyconfinedtherein,dependingonthejudgesdiscretion.
Place of Reputation. In a general way, in any substantial community of people where the person is well-
known and has established a reputation..
Whereapersonscharacterhasnotbeencalledinquestionjustifiesinferencethathischaracterisgood.Butan
impeaching witness must be able to show that he has actual knowledge of the reputation of the impeached
witness.
Evidenceofparticularwrongfulactsorspecifictypesofbadtraitsisnotadmissibleunlessthereisashowingof
previous conviction by final judgment.
Impeachment by Proof of Prior Convictions
Evidence of verdict of guilt, although there has been no sentence or judgment, may be shown to impeach
a witness
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Conviction is a verity until it has been set aside, and a pendency of a motion affecting, or an appeal from,
ajudgmentofconvictiondoesnotprecludeproofoftheconvictionasaffectingwitnessscredibility
Conviction may be shown by: (1) admission of the witness on x-examination; (2) record of the judgment of
conviction; (3) both the admission on x-examination and the record
A pardon does not prevent the use of conviction to impeach
Defect on observation, memory and narration may be used such as showing that he had no opportunity to
observe the facts testified to.
Inconsistent Conduct and Bias may be shown to impeach the witness by testing his freedom from interest and
bias, ascertaining his disposition or wishes.
Bias of impeaching witness toward the party to be impeached is always pertinent on the question of his
credibility such as emotional influence such as kinship or hostility or motives of pecuniary interest
Partiality or any acts, relationships or motive reasonably likely to produce it, may be used to impeach
credibility
Rehabilitation of Witnesses:
Opponent must be given an opportunity to meet impeachment or attack against his credibility by evidence
sustainingorrehabilitating(torestorethewitnessscredibility)thewitness.
Itmustappearthatthewitnessscredibilityhasbeenattackedandnotmerecontradictionorrebuttalof
thewitnessstestimonybyotherwitnesss.
Depending on the nature of the impeachment evidence, (1) introduction of supportive evidence of good
character; or (2) introduction of inconsistent statements of the witness who has been attacked may be
shown.
Where witness is impeached on bias, it is proper to introduce contradictory evidence to disprove the
existence of such bias, though such bias may not be proved justifiable.
Where witness is impeached on poor reputation for truthfulness, testimony by other witnesses to prove
good reputation for truthfulness may be shown.
Wherewitnessisimpeachedoncriminalconviction,evidenceofthewitnessstruthfulnessmaybe
admitted to rehabilitate or a brief explanation of the felony of conviction.
The effect of Impeachment is not to strike out or disregard the testimony but to consider the same with caution or
atthejudgesdiscretionmaybelievethewitnessdespiteimpeachmentevidence.
Section 12. Party may not impeach his own witness . Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party
into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse party, may be
impeached by the party presenting him in all respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also be impeached and cross-examined by the adverse
party, but such cross-examination must only be on the subject matter of his examination-in-chief.
Ruleagainstimpeachmentofpartysownwitness
Traditional view:A party is not allowed to impeach his or her own witness or belonging to the party first calling
them because they vouched for the credibility of those witnesses and is barred from impeaching them.
WON a party may prove inconsistent stmt of his witness?
YES, provided in the opinion of a judge, such witness proved to be adverse and only after laying the foundation
for impeachment as in other cases.
Exceptions to the GR: (CHAR)
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1. Witness Required by law: to call in order to prove his case (i.e. attesting witness to a will), but not if the
witness is merely required to prove the facts of the case (i.e. eyewitness).
2. Witness is Adverse party:theexaminationofthewitnessisinthenatureofxexamination(i.e.partner,
employee)
3. Civil cases only: not applicable in criminal cases because of the privilege against self-incrimination
4. Witness Hostile on stand surprise testimony: when a witness testify showing hostility to the calling party
How to Show Witness is Hostile: Under Sec. 12 a witness is unwilling/hostile if declared by the court upon
showing of: (UMA)
a) Adverse interest
b) Unjustified reluctance to testify
c) Misleading party to call him as witness
The unwilling or hostile witness so declared or an adverse party witness may be impeached in all
respects except by evidence of his bad character or upon x-examination on the subject matter of his
examination-in-chief.
If a party has been misled and surprised by the testimony of his witness, it is unnecessary for him to show
surprise or hostility to justify the Impeachment.
Grounds and procedure for impeachment the same as on x-examination Due to Constitutional limitations
not applicable to criminal cases
Lack of certainty goes to the weight of the testimony but does not affect admissibility
How to Impeach Other Witness:
Contradict him by other evidence, and in the discretion of the court, show that the witness has misled him
into calling him to the stand, show that he has made at other times stmts inconsistent w/ his present
testimony otherwise party may be at the mercy of a treacherous witness.
Mere silence or ignorance is not a ground for impeachment, witness must testify expressly and in terms of
facts wc are in direct contradiction to his prior extra-judicial stmts
Section 13. How witness impeached by evidence of inconsistent statements. Before a witness can be
impeached by evidence that he has made at other times statements inconsistent with his present
testimony, the 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 the witness before any question is put to him
concerning them.
Inconsistent Statements as a mode of impeachment
Rqmts:
1. Prior stmt of the witness must be materially inconsistent w/ his testimony;
2. Inconsistent stmt must have a reasonable tendency to discredit the testimony on a mtl;
3. To impeach by extrinsic proof of prior inconsistent stmts must have as their subject: (1) facts relevant to
the issues in the cause or (2) facts wc are themselves provable by extrinsic evidence to discredit the
witness
Stmts to be contradicted must be related to mtl facts and tend to disprove the case of the party by whom
the witness is called
2 Stages of the Process of Impeachment:
1
st
: Facts discrediting the witness may be elicited from the witness himself upon x-examination
2
nd
: Facts discrediting the witness are proved by extrinsic evidence

Laying Foundation for introduction of Inconsistent Statement
Before impeachment, it is necessary that a foundation should have been laid by calling the attention of
the Ws to the former stmts to give them opportunity to explain before the stmts were offered in evidence
or if the stmts be in writing they must be shown to the W before any question is put to him concerning
them
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Laying a Predicate
Unless a ground is thus laid upon x-examination, evidence of contradictory stmts are not admissible to
impeach a witness; though undoubtedly the matter is to the large extent in the discretion of the court
1
st
: If the atty has info of inconsistent stmts, he should direct his attention to the discrepancy and ask him if he did
not make such stmts
2
nd A
: If the W admits the making of such contradictory stmt, the accused has the benefit of the admission, while
the witness has the opportunity to explain the discrepancy, if he can.
2
nd B:
If the W denies, the accused has the right to prove that the W did not make such stmt; and if the fiscal should
refuse upon due notice to produce the document, 2
ndary
evidence of the contents thereof would be admissible.
Rule Applies to Out-of-Court Statements but if made in court, the same can be used against him w/o the need of
laying the predicate.
Written Distinguished From Oral Statement
The rule that the attention of the W be called to the time, place and circumstances, does not apply where
the impeaching evidence is in writing. Instead, the writing must be shown to the W so that he may read it
or it may be read to him. He must be asked if he wrote it or signed it, and if he admits this his attention
must then be called to the inconsistencies.
If the inconsistent stmts are found in the stenographic notes made in another case, the x examiner should
refer to the particular portions of the transcript and ask the W if he did not make the stmts therein
attributed to him.

Reason for Laying Predicate
Aims to: (1) avoid unfair surprise to the adversary; (2) save time, as an admission by the W may take the
extrinsic proof unnecessary; and (3) give the W, in fairness to him, a chance to explain the discrepancy
Every W is presumed to be truthful and perjury is not to be readily inferred. Every effort to reconcile the
conflicting pts should 1
st
be exerted before any adverse conclusion can be made therefrom.
A witness cannot be impeached upon failure to lay predicate.
Effectofwitnesssdenialofmakingstatement,theadversepartyshouldcallinrebuttalawitnesstoprovethatthe
statement was in fact made.
There is no need of laying predicate when:
testimony contained admissions against interest;
admissions are presented as original or independent evidence offered in evidence in chief and not on
rebuttal;
a denial in x-examination relating to a collateral matter as it cannot be disputed by extrinsic evidence;
if partially contradictory stmts is explained, it may be presented on evidence but the same should be
limited to the same subject matter and those properly sustained.
Effect of failure to object to the presentation of evidence for impeachment purposes is admissible.
Rebuttal by explanation of inconsistency:
Where W is impeached in x-examination of prior inconsistent stmts, W is allowed on redirect to explain in
the inconsistency.
If a foundation is laid o x-examination and was admitted anyway, W may later be called to deny or explain
the stmt
Improper Impeachment exists when the record is silent as to the substance of the stmt in question or to introduce
more of the previously contradictory stmt than is reasonably necessary.
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Prior Inconsistent Statements for Rehabilitation
W impeached by contradictory evidence, may not redeem his credibility by evidence of consistency of his
testimony nor a W be corroborated by proof of his former consistent stmts merely because other Ws have
testified to a different state of facts
Exceptions: Where prior consistent statements admissible .
ArecentfabricationonthepartoftheWassuggestedbyhistestimonyalsocalledtheRecent
ContrivanceDoctrine
Improper motive or proof of consistent stmts made by the W before the allege motive to fabricate arose is
admissible to disprove that the direct testimony was contrived or motivated
Where W denies inconsistent stmts, evidence of such stmts may be admissible to bolster the denial or it
may be shown that in the past that the W made stmts in accord w/ his testimony
Where a W memory has been challenged on x-examination
Where false motive or a design to misrepresent from some interest or relationship, it may be shown, in
order to repel the imputation
Evidentiary Effect of Prior Consistent Statements
Tradional View: Prior consistent stmts are hearsay, not substantive evidence, and even if considered, the
same is solely used for rehabilitating an impeached W.
According to Jones, may be admissible where the time and circumstances of making prior consistent
stmts really seem to take the sting out of the impeaching evidence and not merely to bolster up the
testimony by an apparent self-serving
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.
General Considerations
Where the reputation of a W has been attacked by the adverse party, such reputation may be sustained
by testimony of other Ws that it is good and that they would believe the W under oath.
Scope of Rehabilitating Reputation Testimony
For practical reasons, when surprise attack is made on a W as unworthy of belief, considerable latitude is
allowedinpresentingrebuttingeviinsupportoftheWscredibility.
The means and extent of his info and knowledge, not his place of residence, is determinative of the
qualifications of the W.
Any inquiries of the W by one party as to the reputation for truth and veracity of a W introduced by the
other party are considered as an impeachment of the general character of the W.
A supporting W may rebut testi of bad repute by testifying that he has never heard any bad report of the
W in a community where it would be subject of comment.
Where impeachment is by means other than reputation testimony
Regardless of the mode of attack, testi is admissible to sustain the W whose credibility has been
challengedincludingeviofWsgoodcharacter
It is, however, essential that the W whose testi is to be sustained shall have been impeached directly or
collaterally.
Where it has been shown that the W has been convicted of a commission of a crime, proof of reformation
or good reputation since then may be received but not if W is acquitted or when the crime is shown not to
be committed.
Rehabilitation Where Impeachment is by Contradictory Statements;
Generally, the W may not be fortified by evi of good character when impeached by contradictory evi.
Introduction as to character of a W does not exist in the fact that other Ws have contradicted him by
testifying to a different state of facts, or if the inconsistency may be the result of mistake or forgetfulness.
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An exception is when the testi imputes gross fraud to a deceased subscribing W to will, evi has been
received to sustain the W character.
Section 15. Exclusion and separation of witnesses. On any trial or hearing, the judge may exclude from
the court any witness not at the time under examination, so that he may not hear the testimony of other
witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing
with one another until all shall have been examined.
PlacingWitnessesunderRule:
The court may direct the exclusion of witnesses from courtroom while the testi of other Ws is being given,
the purpose is to prevent the testi of one W from being influenced by that of another.
Persons Not Subject to Rule
Parties to the litigation will not generally be excluded from the courtroom, their presence usually being
necessary to a proper management of the case, even though they expect to testify.
Party in interest though not a party to the record and an agent of party, if the presence of such agent is
necessary are not subject to the rule.
Officers and complaining W are customarily excepted from the rule unless circumstances warrant
otherwise.
Expert Ws are not excluded until production of evi bearing upon the question or subject as to wc they
have been called or unless liable to be influenced by the testi of the other Ws
An accused in a criminal case since it is constitutional right to be present at all stages of the proceedings.
Effect of Violating Order Excluding Ws
The courts are generally agreed that where the party has been without fault and the W has disobeyed the
order for exclusion, the party ought not to be deprived of the W testi
The court may properly refuse to allow him to testify as when the rule is wilfully violated by the W or upon
refusal to follow an express order not to converse with another W. The misconduct is a proper subject of
comment as bearing on his credibility.
In criminal cases, there are constitutional considerations that have compelled the courts to disapprove the
exclusion of the testi of the disobedient W, unless there has been connivance or other conduct on the part
of the defendant that has amted to a forfeiture of his right to the benefit of the testi or when the testi would
have been detrimental to defendant.
Section 16. When witness may refer to memorandum. A witness may be allowed to refresh 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 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.
Refreshment by memoranda or writings
This rule permits a W to refresh his memory respecting a fact by anything written or recorded by himself
or under his discretion
Applies only when it is shown beforehand that there is need to refresh the memory of the W
Scope of use of memory refreshment data
The scope is numerous and diverse.
They may be classified as follows:
Writing is used only for the purpose of assisting the memory of the W;
W recollects having seen the writing before and remembers that, at the time he saw it, he knew the
122 | Page
contents to be correct;
Writing in question is not recognized by the W as one wc he remembers to have seen before, and does
not awaken his memory to the recollection of anything that is contained in it, but knowing that the writing
is genuine and is so convinced that he is able to swear positively to the fact.
Effect of lack of memory:
WhenWsmemoryisincomplete,theexaminermayaidhimonxexaminationandsuchmayinvolve
either present memory revived or past memory recorded.
Present Memory Revived(refreshing the recollection). A W may not be allowed to refresh 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.
A testifying W may be permitted to refresh his memory by referring to a writing or anything else if the W
will thereafter be able to testify from present recollection ( without depending on the terms of the writing).
Past Recollection Recorded(Insufficient memory)A W may testi from such writing or record, though he
retain no recollection of the particular facts, if he is able to swearthat the writing or record correctly stated
the transaction when made, but such evidence must be received with caution.
W who has the means of aiding his memory by a recourse to memoranda may look at such papers to
enable him to ascertain the fact w/ precision, to verify a date, times, numbers, etc.
Refreshment by Media Other Than Writings
Memory of the W may be refreshed by anything written, recorded by himself or under his direction,
pictorial preservation of facts, audio graph record, etc wc legitimately jogs his memory.
Time of Making Writing with Relation to Facts Recorded
The recording/writing must have been made:
1. At the time when the fact occurred; or
2. Immediately right after; or
3. At any other time when the fact was fresh in his memory and he knew that the same was correctly written
or recorded.
The longer the time lapse btwn the event and testi, the greater the need for the memorandum for memory
refreshment unless circumstances exist casting suspicion upon the memorandum
Mode of Using Refreshment Writings
Where the stenographic transcript is used to refresh the memory of a W, he is entitled to examine the
writing, as otherwise his memory is not refreshed by the writing but by oral suggestions of the examining
attorney.
Writings may be used also where the W has no independent recollection of the recorded facts or even the
memorandum itself provided he can testify that the same was made when the events were fresh in his
mind , examined by him and found to be correct. This is allowed bcoz he could not have made the entry
unless it was true but it cannot qualify as a recorded memory.
It is enough that he can testify that his signature would not have been made unless its making was
contemporaneous w/ the act and for the purpose of attestation.
AdmissibilityofRecordedMemoryWritingsinEvidence
Depends whether the writing is used to refresh the present or the past recollection of the W
Present Recollection Revised.Where the W has testified independently of or after his testi has been
refreshed by the memorandum of the events in dispute, such memorandum is not admissible as
corroborative evi.
The express injunction of the rule itself is that such evidence must be received w/ caution, if only bcoz it is
not very difficult to conceive and fabricate evidence of this nature.
The party who uses the memorandum to refresh the memory of the W has no right to introduce it in evi
and should not as a rule, be read to the jury.
Writing as Evidence of Past Recollection Recorded. Rule developed to meet the need arising from
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memory wc has failed, or from human incapacity to remember a multitude of figures or details, and the
like.
Unless they may be introduced under the hearsay rule or one of its exceptions, the memoranda are not
evi. Consequently, a copy may be used w/o accntg for the original.
However, where the W upon seeing the writing states that her memory is not revived by it as the facts
were fresh in her mind, the writing itself becomes the evi. The difference rests on the reliability of a writing
wc the W swears is a record of her past recollxn providing the safeguards required are observed.
Record of Past Recollection as Auxiliary Evidence
Upon verification becomes the W present evidentiary stmt, hence, may be admitted as part of his direct
examination.
The memorandum is admitted in connection with and as auxiliary to the oral evi of the W.
Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder
admissible. When part of an act, declaration, conversation, writing or record is given in evidence by
one party, the whole of the same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation,
writing or record necessary to its understanding may also be given in evidence.
Rule of Completeness
Where the W, on direct, has testified to part of an event or conversation or writing, it is proper on x-
examination to inquire into any other part thereof necessary to make understandable the part already
introduced.
Extends to any other related act or event necessary to make the transaction understandable.
When only part of an ordinary act or occurrence is testified to -
The W may relate whatever is deemed useful by the party offering him, and then rests.
The whole of the same subject may be inquired into by the other, and when a detached act, declaration,
conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or
record necessary to its understanding may also be given in evidence.
The Rule Applies to Confessions
Confession must be considered in its entirety including inculpatory or exculpatory stmts, however,
portions may be rejected if improbable, false or unworthy of credit.
Where plaintiff has introduced a part of the record in evi it is not error to admit the whole record on the
motion of the defendant.
Limitations on the Rule
The other parts that may be used by the adverse party are those that may tend to qualify or explain the
parts first given.
Unconnected self-serving stmts are not admissible.
The rule is limited to such stmts as were made at the same time.
A party cannot be permitted to give evidence of his subsequent and disconnected declarations for the
purpose of contradicting or explaining his former admissions.
Section 18. Right to respect writing shown to witness. Whenever a writing is shown to a witness, it may
be inspected by the adverse party.
When part of a writing is introduced in evi by one litigant, his adversary is entitled to use other parts relevant to
the issues in the case and has the right to inspect the writing and to require its production in court.
B. AUTHENTICATION AND PROOF OF DOCUMENTS
I. CLASSIFICATION OF DOCUMENTS
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Section 19. Classes of Documents. For the purpose of their presentation evidence, documents are
either public or private.
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;
(b) Documents acknowledge before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to the entered
therein.
All other writings are private.
Documentadeed,instrumentorotherdulyauthorizedpaperbywcsomethingisproved,evidencedorset
forth; as evi, consists of writings or any mtls containing letters, words, numbers, figures, symbols or other modes
of written expressions offered as proof of their contents.
Public Document adocintheexecutionofwcapersoninauthorityoranotarypublictakespart
Admissible Public Documents include:
A return to a search warrant
Transcript of stenographic notes taken during a hearing by an official court stenographer and certified by
him.
Sheriffsreturnofthewritofexecutiontoshowsolvencyofjudgmentdebtor.
Pleadings filed in court
Burial permits issued by the Board of Public Health
OR issued by the department of assessments of the City of Mla
Civil Service examination papers
A certification issued by the Election Registrar of the results of the voting from uncontested voting center
Ashipslogbookasofficialrecordandentriesmadebyapersonintheperformanceofhisdutyas
required by law
An official report
A certificate of the Director of Agriculture showing the area planted by palay
The following shall be entered in the civil register:
Births, Marriages, Deaths, Legal separations, Annulments of marriage, Judgments declaring marriages
void from the beginning, legitimations, adoptions, acknowledgment of natural children, naturalization, loss
or recovery of citizenship, Civil interdiction, Judicial determination of filiations, voluntary emancipation of a
minor and change of name
II. PRESENTATION OF DOCUMENTARY EVIDENCE
Procedure on how to present doc evidence, the doc should be
1
st
: authenticated and proved in the manner provided in the Rules of Court;
2
nd
: identified and marked for identification
3
rd
: formally offered in evi to the court and shown to the opposing party so that the latter may have the opportunity
to object thereon
Only private docs requires proof of their due execution and authenticity before they can be received as
evi
Failure to deny due execution and authenticity of the pleadings or actionable docs are deemed as
admission of the same
Offer of Evidence
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The court shall consider no evi wc has not been formally offered and purpose of the offer must be
specified.
Must identify and describe the doc
Offer the same as an exhibit
Necessary because it is the duty of the judge to rest his findings of facts and his judgment only and
strictly upon the evi offered by the parties at the trial
May be made orally or in writing sufficient to show that the party is ready and willing to submit the evi to
the court
A. PROOF OF PRIVATE DOCUMENT
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.
Authentication:
The act or mode of giving authenticity to a statute, record or other written instrument, or a certified copy
thereof, so as to render it legally admissible in evi; verifications of judgment;
Attestation made by a proper officer by wc he certifies that the record is in due form of law, and that the
person who certifies it is the officer appointed to do so.
Acts done in view of causing an instrument to be known and identified
Introduction of evi sufficient to sustain a finding that it is the writing that the proponent of the evi claims it
is;
Establishment of such facts by any other means provided by law
A condition precedent to the admissibility of evi satisfied upon a showing that the matter in question is
what its proponent claims
Private writing is not self-authenticating and would require proof of their due execution and authentication
before they can be received in evi, otherwise it will be excluded. It is set up by the rules to prevent
spurious docs.
PROOF OR AUTHENTICITY
Proof of execution generally direct, indirect or circumstantial Evi
A proper admission must be laid for the admission of the doc evi and a party who does not deny the
genuineness of the proffered doc may not object that it was not properly identified before it was admitted.
Proof of authenticity required in the preliminary to the introduction of the unattested doc may be direct,
indirect or circumstantial.
Evi of the execution of the doc is necessarily collateral or primary consisting of parol testi or extrinsic
papers.
The execution of the doc may be established by the person or persons who executed it, by the
acknowledging officer, by any person present and saw it executed or who after the execution saw it and
recognized the signatures, or by the person to whom the parties to the instrument had previously
confessed the execution thereof.
Opinion testimony
Opinion testimony as to the handwriting identification is admissible or may be authenticated by evi of the
handwriting of the maker of by a person familiar thereto.
A letter should be authenticated before it can be offered as evi by establishing its identity as the letter of
the person by whom it purports to be written thru a showing that the same is signed or handwritten by
said person, or by indirect or circumstantial evi.
The partial destruction or obliteration of the copies of the letter will not render them inadmissible if
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identified by competent evi.
Circumstantial evidence of authenticity
Must be of such force and character that the authorship of the writing can be legitimately deducted
therefrom; w/ reasonable and natural certainty and precision to compel the conclusion that the purported
author wrote the doc to the exclusion of others.
The court exhibit great reluctance to infer authorship merely from the name used or the contents thereof.
It may be shown that in the past its authenticity is admitted or acted upon or a showing that the info is
unlikely to be known by anyone but the purported author or that it is written in a manner unique to that
person.
The rule is relaxed in case of reply letters, a prima facie case of authenticity is made upon showing that
the addressee of a prior letter and to be in reply thereto or when it is enclosed w/ a paper wc has been
sent in the orig letter, with matching postmarks and the letter itself is referred to the contents of the orig
letter.
Where a series of correspondence btwn 2 persons are established and the letter is shown to fit in the
connecting link btwn other letters in the series.
It may be authenticated in the style and manner of expression used by the writer
Authentication by proving document produced by reliable process such as x-rays and computer rintouts provided
that testi describing the process and reliability thereof is shown.
Telegrams
Similar to the rules of admissibility of private docs, the difference resulting to the fact that such msgs are 1
st
written by the sender and are again written by the operator at the end of the line. The best evi is still the
orig msg.
Authenticity requires proof that it is genuine and was written and actually sent by the sender; it may be
shown by indirect and circumstantial evi.
Computer Records
Elements of identification and authentication of a readout are:
The proponent uses a computer;
The reliability of a computer;
The proponent has developed a procedure for inserting data into the computer;
The procedure has built in safeguards to insure accuracy and identify errors;
The proponent keeps the computer in a good state of repair;
The W had the computer readoutcertain data;
The W used the proper procedure to obtain the readout;
The computer was in working order at the time the proponent obtained the readout
Self-Authenticating Documents
Docs by their nature are prima facie of its own authentication:
Official records under seal
Notarized docs
Certified copies of public records
Section 21. When evidence of authenticity of private document not necessary . Where a private
document is more than thirty years old, is produced from the 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.
Ancient Documents
An exception to the GR and the subscribing Ws are presumed to be dead. The ancient rule is strong that
the instruments are said to prove themselves even when the W is in court.
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Rebuttable presumption that applies also to maps or plats
Requirements of Rule:
1) The private doc is more than 30 y.o.;
2) It is produced from a custody in wc it would naturally be found if genuine; and
3) It is unblemished by any alterations or circumstances of suspicion, no other evi of its authenticity need be
given.
Preliminary proof.
The doc offered in evi must on its face be free from suspicion, come from proper custody, and
accompanied by some corroborating evi. If no.2 rqmt is absent, proof of execution and genuineness is
required.
Propercustodytheyareintheplaceinwc,andunderthecareofthepersonw/whom,theywould
naturally be unless it is proved to have had a legitimate origin or circumstances to render the origin
probable. It is when doc is in the proper custody wc credit of genuineness is given, removing
presumptions of frau and strengthen the genuineness of the belief.
In some cases, proper custody may be dispensed w/ upon showing of the internal bearing of the doc evi
that manifests its age and authenticity.
Conditions of Custody
Determined by the circumstances of the case. While there may be one place absolutely and strictly
proper, there are various places wc are reasonable and natural. And the former is not required.
Docs wc affect real property must be recorded w/ the appropriate RD to bind 3
rd
parties.
Section 22. How genuineness of handwriting proved.Thehandwritingofapersonmaybeprovedby
any witness who believes it to be the handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be
given 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.
Methods of authentication
1. testimony of purported writer
except to the extent that certain formalities of proof are required by the rules relating to attesting
witnesses, or rules requiring formal certification.
No preferential rule in favor of the same as best evi.
2. testimony of a witness who had seen writer sign name or actually make the writing.
Any witness who believes it to be the handwriting of such person bec he has seen him write or has
seen writing purporting to be his upon w/c the witness has acted or been charged, or by a
comparison made by witness or court w/ admitted or genuine writings
3. non-expert opinion
proved by direct evi by any1 who saw the doc executed or signed, or opinion evi where genuineness
of handwriting is in issue.
Opinion evi received in evi if witness has sufficient familiarity w/ the handwriting.
Admissible even if witness has not seen the person write for many yrs b4 the trial or seen him write
on only one occasion.
Qualified even if not expert and saw him write his name or surname only or never.
Knows writing if had frequently come into his possession or scrutiny or submitted to him docs.
Non-expert opinion weight of testimony
Testimony is prima facie competent.
Value or weight to be determined by the circumstances in w/c he has acquired his knowledge.
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Knowshandwritingthroughexampapers,letters,beingacustodianofdocs,docsprescriptions,daily
reports, pleading
Handwriting experts not mandatory.
Expert opinion
In comparison, only expert opinion testimony admissible.
Qualifications: knowledge and skill acquired by special study or practical experience.
Weight: depends on the assistance he may afford in pointing out the distinguishing marks, characteristics
and discrepancies btwn the genuine and false specimens.
Determining forgery / Standards of comparison
Accurate exam on differences and similarities of the specimens.
Passage of time and increase in age may have decisive influences in writing characteristics; standards of
comparison must be as close as possible in point of time to the suspected signature.
Specimens should be made at the same time.
If possible, not less than 5 or 6 specimens examined
Specimens made post litem motam ought not to be taken as standards.
Mechanical and photographic specimens
Generally recognized when authenticated by foundation proof.
Carbon copies are original, thus admissible.
Procedure in proof by comparison
Court may make a comparison w/ writings admitted as genuine by the party against whom evi is offered or
proved to be genuine to the satisfaction of the judge.
Judge should exercise independent judgment on the issue of authenticity of such signatures.
Expert witness or one who has familiar w/ the handwriting.
C. Probative value and presentation of public documents
Section 23. Public documents as evidence. Documents consisting of entries in public records made in
the performance of a duty by a public officer areprima facie evidence of the facts therein stated. All other
public documents are evidence, even against a third person, of the fact which gave rise to their execution
and of the date of the latter.
Rule on authentication not apply; admissible w/o further proof of due execution and genuineness.
REASON:necessitypracticalimpossibilityofrequiringtheofficialsattendanceasawitness;
trustworthinessitistheofficialduty,routine,disinterested;madebyapublicofficerw/nscopeofhisduty
ad attached w/ presumption of regularity, legality and accuracy.
Probative value
Prima facie evi of the facts therein stated.
Public docs are evi even against a third person.
High degree of proof needed to overcome presumption.
A notarized public doc is evi that the facts are clear, unequivocal manner; presumption of regularity; evi
must be clear, convincing and more than merely preponderant to overcome presumption.
Section 24. Proof of official record . The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy
or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service
129 | Page
of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the
seal of his office.
Reqs of admissibility of public docs (must be evidenced by)
A. If domestic record:
1. An official publication
2. A copy thereof attested by officer having custody of the record or his deputy, and cert that such officer
has custody.
B. If foreign record:
1. An official publication
2. A copy thereof attested by officer having custody of the record or his deputy, and cert by sec of
embassy or legtion, consul gen, consul, vice consular agent or foreign service officer and w/ seal of
his office
E.g. Pamphlets in China excluded bec not attested; leg journals admissible if clear and unambiguous; duly
authenticated bill or resolution binding on courts; mun ordinance allowed to be proved by certified copy by
the keeper
Section 25. What attestation of copy must state. Whenever a copy of a document or record is attested
for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be. The attestation must be under the official seal
of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such
court.
Attesting cert
Signatory states that the attached doc is a copy of an official record on a specific part thereof, in his
custody; must be under official seal of court or attesting officer.
Recital in the cert of acknowledgment is prima facie evi of the fact that he was such an officer.
Copy shld be properly identified and connected w/ the original; accuracy and veracity established
Exam may be made either by one person reading both orig and copy, or by 2 persons one reading orig
and the other the copy; not necessary that each alternate read both; witness must have knowledge that
copy is correct, or if gives parol evi of a lost doc, show competent knowledge.
Officerscertisconclusiveonlytotheextentthatitismadesobythestatute.
If a law provides for its authentication, it must be followed.
Persons authorized to authenticate copies; cert.
Copy of official record to be certified by officer in charge of the record and having power to authenticate.
A duly appointed deputy has implied power to authenticate copies.
If cert of authentication purports to be signed by one having authority to make it, it will be presumed to be
true and authorized, in the absence of contrary evi; handwriting of attesting officer is prima facie evi of
genuineness of orig.
Certifying officer has no authority to state facts w/c are explanatory of or collateral to the record, or to set
forth mere conclusions, or to narrate facts w/c are hearsay.
Foreign docs
Competent evi if duly authenticated by an official of the govt of the country in w/c the docs are located.
Foreign judgments
It is written act or record of an official body or tribunal of a foreign country, thus a public writing, follow secs
24 and 25, Rule 132.
Authentication of foreign judicial records
1. By an exemplification under great seal
2. By a copy proved to be a true copy
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3. Be the cert of an officer authorized by law
4. If they are all beyond reach, other testimony inferior in nature may be received.
Authenticatin sufficient if application has been made to the clerk of court for a copy, and if witness assisted
in comparing copy w/ record and in affixing the seal.
Sufficient to show by an expert that record is authenticated and authorized in the right manner.
There must be some extrinsic proof of the genuineness of the signatures and seals if foreign judgment.
Great seal of the govt or state proves itself; no need for cert of officer of court.
Section 26. Irremovability of public record. Any public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it is kept, except upon order of a court where the
inspection of the record is essential to the just determination of a pending case.
REASON: wud make it impossible for the time being for others to use the record; serious risk of loss and constant
addtl wear and tear; delays and hinders the official use of the files
GR: irremovable
EXC: inspection of the record is essential to the just determination of a pending case.
Section 27. Public record of a private document . 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.
Proved by
1. Orig record
2. Copy thereof attested by legal custodian w/ cert that such officer has custody
If priv doc inserted in pub doc, its incorporation becomes a public doc but does not make the priv doc itself
a public doc.
E.g. entries in a public registry of a priv doc presented for reg; possessory info duly recorded in the registry
of property.
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.
E.g. cert by Board of Medical Examiners that no records of accused as a registered doctor is admissible in
evi of such fact.
Section 29. How judicial record impeached. Any judicial record may be impeached by evidence of: (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.
What constitutes judicial record
GR: jud rec admissible in evi in a subsequent action if it is relevant to an issue involved therein; embraces
all parts of th record.
Exc: codal
E.g. inquisitions, examinations, affidavits, condemnations, deeds, exhibits, bill of particular, transcript.
Section 30. Proof of notarial documents. Every instrument duly acknowledged or proved and certified
as provided by law, may be presented in evidence without further proof, the certificate of
acknowledgment beingprima facie evidence of the execution of the instrument or document involved.
Notarial doc is one duly authorized b4 a notary public; it is public doc; recital in acknowledgment is prima
facie evi of fact that he was such an officer.
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Execution and authenticity need not be proved; not pub need not testify; presumed that NP has performed
his duties.
If discrepancy btwn date of deed and date of acknowledgment, latter prevails; copy of record of such deed
cannot be objected to on account of such discrepancy.
If words omitted in acknowledgment by mistake but supplied by reference to the body of the deed, the
acknowledgment is good.
Acknowledgment is an ex parte act, and only prima facie proof of execution and rebuttable by showing that
NP is incompetent or out of his jurisdiction.
Probative value of not doc
Prima facie proof of the facts stated therein.
Clear, convincing and beyond mere preponderance needed to overcome it.
Section 31. Alteration in document, how to explain. The party producing a document as genuine which
has been altered and appears to have been altered after its execution, in a part material to the question in
dispute, must account for the alteration. He may show that the alteration was made by another, without
his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or
innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails
to do that, the document shall not be admissible in evidence.
1. Show that alteration was made by another w/o his concurrence;
2. Show that alteration was made w/ consent of parties affected by it;
3. Show that alteration was properly or innocently made;
4. Show that alteration did not change the meaning or lang of instrument.
Parties presenting doc must explain alteration during presentation, not afterwards.
Alteration is a change in the instr by a party thereto or one entitled thereunder or one in privity w/ such
person after the instr has been signed or fully executed w/o the consent of the other party by an erasure,
interlineations, addition or substitution of material matter affecting the identity of the instr or rights or
obligations of the parties.
Must change meaning of doc but identity not destroyed.
Imports some fraud to change effect of instr.
Spoliation or mutilation if done by a third person w/o consent of the parties, or by an agent w/o authority or
outside scope of employment.
Presumption as to author of alteration
Presumption that party producing it or w/ his privity caused the alteration if change made after execution of the
doc; burden on him to show that the same was not made by him or privies.
Presumption as to date of alteration
GR: if instr presents the appearance of having been suspicious circumstances, change was made b4 or
contemporaneously w/ execution and delivery of instr; it is for the party attacking the instr to show otherwise.
EXC: is alteration suspicious in itself, burden rests upon party offering the instr to explain it.
Presumption as to alteration of instrument
Presumed to have been made b4 the deed was completed if alterations appear on the face of the deed.
Test of materiality
Material if it alters the terms, language of the instr or changes the rights, obligations or interests of the
parties.
Material alterations in nego instr governed by sec 125, NIL.
Immaterial
Alteration Spoliation
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Effect of material alteration
Contract is vitiated even though the change purports to operate to the disadvantage of the wrongdoer or to
the benefit of the other party.
Identity of contract is destroyed; mutilated paper affords no evi of the contract.
Change in date of payment of a note vitiates the instr.
Immaterial alterations
Not necessarily follows that contract is vitiated by every sort of alteration that may have been made by a
party or privy after delivery of the instr.
Alterations of little importance, made to correct obvious clerical errors, to make it conform to actual
agreement , does not change liability of parties
Consent to alteration; filling blanks
If instr is signed and delivered, and blank spaces are left unfilled, holder has implied authority to fill in the
blanks
Section 32. Seal. There shall be no difference between sealed and unsealed private documents insofar
as their admissibility as evidence is concerned.
If doc required by law to be stamped, cannot be recorded or admitted in evi if not stamped
Doc not admissible if doc stamp not paid when it is subject to be paid; court gives chance to comply w/ doc
stamp
No doc stamp in a will is not fatal since probate court can require proponent to affix the same in notarial
acknowledgment.
Non-admissibility for absence of doc stamp subsists only until the required doc stamps have been affixed.
Doc stamp must be affixed in the orig; a copy of the doc need not bear the stamp if stamp is affixed on the
orig; presumed that orig is stamped.
Section 33. Documentary evidence in an unofficial language . Documents written in an unofficial
language shall not be admitted as evidence, unless accompanied with a translation into English or
Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such
translation prepared before trial.
[Sec.7,Art.XIV,Consti]Forpurposesofcommunicationandinstrxn,theofficiallangofthePhils.areFiland,
until otherwise provided by law, Eng.
affidavitexecutedinIlonggoThetrialcourthaddiscretiontodenythepartyanopportunitytosecurea
translation of the affidavit
Thetranslationmustshowntobeaccurate.
Procedure on How to Present Docu Evi
(1) The docu should be authenticated and proved in the manner provided in the Rules.
Only private docus require proof of their due execution and authenticity before they can be received in
evi. This may require the presentation of witnesses to testify on this fact.
Publicornotarialdocusorthoseinstrumentsdulyacknowledgedorprovedandcertifiedmaybe
presented in evi w/o further proof, the cert of acknowledgment being prima facie
NOTreqdwrtdocusthegenuinenessanddueexecutionofwhichareadmittedbytheadverseparty
asfoundinthepleadingsorwrtaxnabledocus,failuretospecificallydenyunderoaththegenuineness
and due execution of the docu
Made by a party or agent Made by a stranger
Parol evi admissible to
impeach instr by proof of
material alterxn.
133 | Page
(2) It should be identified and marked for ID.
(3) It should be formally offered in evi to the court and shown to the opposing party so that the latter may have
an opportunity to obj thereon.
Sec.34,Rule132
Itisthedutyofthejudgetoresthisfindingsoffactsandhisjudgmentonlyandstrictlyupontheevi
offered by the parties at the trial.
offermaybemadeorallyorinwriting
Waiver
[People v. Salison Jr. (1996)] WheretherewasnoobjxntotheadmissibilityofawrittenstmtinCebuano
dialect which was not accompanied with a translation in Eng or Fil, the court in the interest of justice may
consider the docu and order an official translation to be made.
Section 34. Offer of evidence . The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.
Stages in Presentation of Docu Evi
(1) ID
proofthatthedocubeingpresentedisthesameonereferredtobythewitnessinhistestimony
(2) Marking
tofacilitatetheirID
maybemadeatthepretrialorduringthetrial
Theplaintiffandtheprosecutionusecapitalletters,whilethedefenda nt and the accused use Arabic
numbers.
Iftheexhibitispresentedinconnectionwithanaffidavit,likeinsupportorinoppositiontoaMTD,the
wordsMotiontoDismissshouldbeaddedaftertheletterornumber.
(3) Authentication
proofofitsdueexecution and genuineness if the purpose is to show that it is genuine, or the proof of its
forgery, if the purpose is to show that the docu is a forgery
(4) Inspection
Sec.18,Rule132
(5) Formal Offer
aftertheterminationofthetestimonialevi
(6) Objxns
shall be made when it is formally offered in evi
ID vs. Formal Offer of Docu
docuwouldhaveNOevidentiaryvalueifitisnotformallyoffered
Thefirstisdoneinthecourseofthetrialandisaccompaniedbythemarkingoftheeviasanexhibit.The
second is done only when the party rests its case and not before.
[People v. De La Cruz]UnderSec.8ofRule112,therecordofthePIwhetherconductedbyajudgeora
fiscal, shall not form part of the record of the case in the RTC unless ordered produced by the trial court motu
proprio or on motion of a party whenever the same shall be necessary in the reso of the case or any incident
therein, or shall be introduced as evi by the party requesting for its prodxn.
Exceptions
[Mata vda. de Onate v. CA (1995)]TheCourtallowedevinotformallyofferedtobeadmittedprovidedthe
ff.reqtsarepresent:(a)thesamemusthavebeendulyidentifiedbytestimonydulyrecorded;and(b)thesame
must have been incorporated to the records of the case.
The testimony of a witness, although not formally offered in evi, may still be admitted by the courts, if its
presentation was not objected to by the opponent.
formalofferoftestimoniesnotobjectedtoopponentisestoppedfromquestioningtheinclusion of said
testimonies by the trial court in deciding the case
The Purpose for Which the Evi is Offered Must Be Specified
topreventevi,whichisadmissibleonlyforonepurpose,frombeinginserted,intotherecordfor
consideration by the court, surrepti tiously for another purpose
134 | Page
Whentheeviisinadmissibleforthepurposestatedintheoffer,itmustberejected,thoughthesamemaybe
admissible for another purpose.
ThereisNOneedtospecifythespecificpurposeifsuchhasbeenspecifiedduringthe ID of the docu by the
witnesses of the proponent.
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.
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 objectionsmust be specified.
Necessity of Objxn
Therighttoraiseanobjxnbelongstotehopposingpartyandthelattercanwaivesuchright.IfNOobjxnis
interposed, the court has NO power on its own to disregard the evi.
Requisites
(1) One has to obj to the evi;
(2) The objxn must be timely made; and
(3) The grounds for the objxn must be specified
Jones:Incrimcaseswhereerrorintheadmissionofhighlyprejudicialeviissoseriousastoamttoadenial
of due process of law, failure of the defendant to make timely objxn does NOT preclude him from rai sing the
objxn on appeal.
When to Make Objxns
(a) Testimonial Evi
beforetheimproperquestionisanswered
However,ifthedefectisnotapparentinthequestionbutisrevealedintheans,theobjxnmustbe
interposed as soon as the ans is made. In such a case, the objxn is manifested through a motion to strike
out the ans.
(b) Docu Evi
[InterpacificTransit,Inc.v.Aviles]TheIDofthedocubeforeitismarkedasanexhibitdoesnot
constitute the formal offer of the docu as evi for the party presenting it. Objxn to the ID and marking of the
docu is NOT equiv to objxn to the docu when it is formally offered in evi. What really matters is the objxn to
the docu at the time it is formally offered as an exhibit.
Effect of Failure to Obj
Ademurrerto evi is not an objxn to the admissibility of evi. Consequently, the evi not objected to becomes
part of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects
resulting from the evi.
Anobjxntotheadmission cannot be made for the first time on appeal.
Effect of Cross-exam
Apartywhoobjstotheintrooftestimonyondirectdoesnotwaivetheobjxnbyhiscrossexamofthewitness
wrt this testimony. Neither does the objector waive his objxn by his intr o of testimony defensive to the testimony
objected to, and weakening it or impeaching the witness.
[Limketkai Sons Milling, Inc. v. CA]thelawyersprefacedthecrossexamwithanobjxntotheadmissionof
evi in affidavit form. The court held that wh ile said counsels cross-examined the witnesses, this did not
constitute a waiver of the parol evi rule.
135 | Page
testimoniesinaffidavitformpromptobjxntoinadmissibilityishardlypossible
Grounds for Objxn
Allrulesofexclusionaswellthemannerof presentation of evi docu or oral are potential grounds for objxn.
failureofofferortostatethepurposeforwhichtheexhibitispresentedandincaseswherethepurposeis
stated, the non-admissibility of the exhibit for specific purpose intended
objxnastoformofthequestionaskedleading,argumentative,etc.
objxnastothesubstanceoftheevisoughttobeelicitedhearsay,privilegedmatter
otherrulesofexclusionundertheCCoralevitoprovecontractscoveredbytheStatuteofFr auds and
express trusts is NOT allowed
Admissibility vs. Weight
EviisadmissiblewhenitisrelevanttotheissueanditisnotexcludedbythelawortheRules.Admissibility
simply means that an evi may be received by the court for purposes of consi deration as to its weight in relation
to the fact sought to be proved.
Hearsayeviisadmissibleifthereisnoobjxnthereto,butisgenerallyheldtobew/oprobativevalue.
[People v. Cadocio (1993)]AstheSCobservedinonecasewheretheeviwas considered by the trial court
despitetheabsenceofaformaloffer:Toappellantsfavor,however,theadmissibilityofeviisquitedifffrom
weight and sufficiency that may be accorded to it by the courts. The questioned testimony will still be subj to
the rule on weight and sufficiency of evi.
Grounds for Objxn Must Be Specified
ReqtofSpecificObjxn
Purpose:(a)thatthejudgemayunderstandthequestionraisedandthattheadversarymayhavean
opportunity to remedy the defect, if possible; (b) to make a proper record for the appellate court in the event
of an appeal
Gen.objxnsobjxnswhichstateNOgrounds;Iobject.
Asarule,thefailuretospecifythegroundsfortheobjxnisineffectawaiveroftheobjxn.Everyotherobjxn
which is not particularly stated is to be considered abandoned, except where the evi could not have been legally
admitted for any purpose whatever.
Theobjxnsthattheeviisirrelevant,incompetent,andimmaterialisinsufficientiftheprofferedtestimonyis
admissible for any purpose. Being in this form, the objxn may be disregarde d as too gen unless a sufficient
reason for its exclusion appears from the evi itself.
Ameregenobjxntotestimonyasawholedoesnotavailifpartofthetestimonyisadmissible.
Section 37. When repetition of objection unnecessary. When it becomes reasonably apparent in the
course of the examination of a witness that the question being propounded are of the same class as
those to which objection has been made, whether such objection was sustained or overruled, it shall not
be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing
objection to such class of questions.
Inmakingacontinuingobjxn,counselmayreservehisrighttomakespecificobjxnswheneverhewishesto
illustrate specific weakness in the evi.
Section 38. Ruling. The ruling of the court must be given immediately after the objection is made, unles
s 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.
Doubts To Be Resolved in Favor of Admission
TheSCcautionedtrialcourtstobeslowinrejectingeviandnottoexcludeeviondoubtfulandtrivial
grounds.
136 | Page
Thispracticehasaddedimportanceasregardstheevifortheprosecutionincrimcases,for,once the
accused has been acquitted, there is no means to secure a review on appeal, no matter how erroneous the axn
of the lower court may have been.
PorLoQuePuedoValerPrinciple
TheSCencouragestheadmissionofborderlineeviforwhateveritiswo rth.
expressrulingNOTreqdiftheresnoobjxninterposed
Suchrulingsareinterlocutoryinnatureandmaynotbethesubjofseparateappealorreviewoncertioraribut
are assigned as errors and reviewed on appeal properly taken from the decisionrendered by the trial court.
Anexceptioniswherethetrialcourtinoverrulingtheobjxntotheevi,commitsapatentmistakeamtingtoa
grave abuse of discretion, or a violation of a constitutional right of the accused, or the admission of unauthori
zed tapes contrary to law.
Section 39. Striking out answer. Should a witness answer the question before the adverse party had
the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the
court shall sustain the objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which are incompetent,
irrelevant, or otherwise improper.
Time of Making: Motions to Strike
Acounselisnotallowedtogambleuponthepossibilityofafavorableans,butmustobjtotheadmissionof
evi as soon as the ground for objxn becomes apparent.
afterobjxmaybestatedassoonasthegroundappears
McCormick:MotioninLimine A motion for an advance ruling on the admissibility of evi is a relatively
modern device for obtaining rulings on evi before the evi is sought to be introduced. The purpose of such
motions may be to insulate the <jury> from exposure to harmful inadmissible evi or to afford a basis for strategic
decisions.
Specify the Objxn
Amotiontostrikeouttestimonyshouldspecifytheobjxnaswellastheportionoftheeviwhichisobjectedto.
A motion to strike out all of certain evi should not be sustained if a part of the evi is relevant and competent.
Themotiontostrikeout goes to admissibility and not to weight; evi should not be stricken out bec it may be
of little probative value.
Amotiontoexcludeorstrikeoutisanappropriateremedyiftheansofawitnessisnotresponsivetothe
question which has been propoun ded, if it embraces a volunteered stmt of incompetent matter, or if the ans
constitutes an expression of opinion, unless the question calls for an opinion, as in the case of expert
witnesses.
Failure to Cross-examine
Amotiontostrikeisalsotheremedyincaseawitnessdiesorbecomeincapacitatedtotestifywhentheother
party has not been given the opportunity to cross-examine the witness.
Ifthewitnesswasnotcrossexaminedbecofthepostponementaskedbythepartywhoclaimstherightof
cross-exam, the direct exam may be used. The reason is that the party who had a right to cross-examine took
a chance in losing it.
Section 40. Tender of excluded evidence. If documents or things offered in evidence are excluded by
the court, the offeror may have the same attached to or made part of the record. If the evidence excluded
is oral, the offeror may state for the record the name and other personal circumstances of the witness
and the substance of the proposed testimony.
Offer of Proof
Itshouldbemadeinsuchaformastobeunderstandableandstatethemannerandevibywhichtheproofis
to be made. The offer must fully and clearly state the facts which counsel desires to prove and must indicate
137 | Page
the purpose for which the evi is of fered.
Attaching Rejected Documentary Evi
toenabletheappellatecourttoexaminethesameanddeterminewhethertheexclusionofthesamewas
proper or not
Harmless Error or English Exchequer Rule
[People v. Teehankee Jr.]Thecourtrejectedapp ellantscontentionthatheshouldbeacquittedbecthe
judge violated the rule on res inter alios acta when he considered his involvement in previous shooting
incidents.Thisstanceisaspecieofamid1800rule(EER)pursuanttowhichatrialcourtserrorastothe
admission of evi was presumed to have caused prejudice and therefore, almost automatically require new trial.
Said rule has long been laid to rest. We have likewise followed the harmless error rule in our jurisdxn.
harmlesserrorifimpacttosubstantiverightsofthelitigantsisslightandinsignificant,courtsdisregard
the error (evi improperly admitted) as it will not overcome the weight of the properly admitted evi vs. the
prejudiced party
When Offer of Proof May Be Made
(a) Before the court has ruled on the objxn, in which case its fxn is to persuade the court to overrule the objxn
or deny the privilege invoked;
(b) After the court has sustained the objxn, in which case its fxn is to preserve for the appeal the evi excluded
by the privilege invoked
Whenitincludestheintroofdocusanyphysicalevi,thesameshouldbemarkedforIDsothattheymay
become a part of the record.
WhenOfferNOTReqd
(a) When the question to which an objxn has been sustained clearly reveals on its face the substance, p urpose
and relevancy of the excluded evi.
(b) When the substance, purpose and relevancy of the excluded evi was made known to the court earlier in the
courts of the proceedings and such fact appears on record.
(c) Where evi is inadmissible when offered and excluded, but thereafter becomes admissible, it must be re-
offered, unless the court indicates that a second offer would be useless. The same procedure should be
followedwherethecourthasreserveditsrulingastoitsadmissibility.Itistheproponentsdutytorenew
the offer and insist on a ruling thereon.