EVIDENCE Circumstantial one is

Introduction Evidence required

Evidence - the means, sanctioned by these rules, of Priviliged Not Applicable
ascertaining in a judicial proceeding, the truth Communication- applicable
respecting a matter of fact. (Rule 128, Sec. 1.) Dr.-Patient
Scope of applicability rules of evidence shall be Compulsion as a Cannot No prohibition,
the same in all courts and in all trials and hearings, witness compel rules provides
except as otherwise provided by law or these rules. accused to only limitations
(Rule 128, Sec 2.) be a witness
Notes: The Rules on Evidence apply only when there Evidentiary Privilege- entitles the privilege holder to
is going to be a trial. Note that there can be a withhold competent evidence and, in some
judgment on pleadings, by confession, consent and circumstances, to prevent others from revealing
compromise etc. such evidence. The privilege is granted when the
IN CIVIL CASES. Mere denial in the answer protected interest is considered important enough
in a CIVIL CASE will not present a probandum hence to outweigh the concern with determining the
no need for the court to try the case. Such general truth. The privilege holder need not be a party to
denial will be considered as an admission. the proceeding in question. Unlike a disqualification,
IN CRIMINAL CASES, We have to wait until a privilege can be waived. Privileges are often
the accused enters a plea. This time a general denial intended to preserve confidential relationships.
is allowed. If the accused enters a plea of guilty Executive Privilege- members of the executive
there is no probandum. However in CRIMINAL branch of government cannot legally be forced to
CASES, the court could still try the case if the case disclose their confidential communications when
involves a heinous crime. such disclosure would adversely affect the
The Rules on evidence are not self- operations or procedures of the executive branch.
executing. So the rule is any evidence submitted will FACTUM PROBANDUM vs. FACTUM PROBANS
be admitted so long as there is no objection. This Factum Probandum- proposition to be established.
principle is only for the purpose of admissibility. It The fact/s in issue.
does not mean that the court will take these Factum Probans- materials evidencing the
irrelevant evidence in evaluating on the merits of proposition
the case. Notes: 1. In both CIVIL and CRIMINAL cases, the
DIFFERENCE IN RULES ON EVIDENCE IN CRIMINAL probandum contained in the pleadings could be
CASES AND CIVIL CASES changed in the pre-trial order. However, with
BASIS Criminal Civil Case respect to CRIMINAL CASES, the pre-trial order
Case SHOULD NOT substantially change the
Quantum of Proof Beyond Preponderance accusation/indictment contained in the information,
Proof Reasonable of evidence otherwise the case will be dismissed.
Doubt 2. A court can validly try a fact in issue not
Denial General Must be Specific raised in the pleadings or pre-trial order. Rule 10
Denial Denial provides that a fact in issue may be raised with the
Allowed express or implied consent of the parties during the
Withdrawal of Withdrawn Judicial trial (Amendment to conform to evidence)
Plea/Admission plea is Admission 3. Ascertainment of probandum does not
inadmissible withdrawn apply in special proceedings. (i.e. If there is a
becomes an petition for probate of a will, even if there is no
extrajudicial opposition the petitioner is still required by law to
admission prove that the will has been duly executed in
Cross Applicable Not applicable accordance with the Civil Code)
Examination in EVIDENCE vs. PROOF
Summary Proof- is the effect of evidence. It is the probative
Procedure effect of evidence and is the conviction or
Equiponderance Accused is Party who loses persuasion of the mind resulting from a
Rule acquitted is the one who consideration of the latter.
has burden of Evidence- is the cause necessary to establish proof.
proof
Presence of More than One suffices I. Admissibility
A. Relevance
The evidence has such a relation to the fact in issue
as to 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. (Rule 128, Secs. 3 and 4.)
- In conclusion, relevancy is not determined by law
nor the rules of court. It is determined purely by
LOGIC.
B. Competence
The evidence is not excluded by the law or the rules
(Rule 128, Sec. 3.)
Do not confuse COMPETENT WITNESS from
COMPETENT EVIDENCE. The COMPETENCY
TEST of evidence applies to the TESTIMONY
of the qualified witness.
Since admissibility of evidence is
determined by its relevance and competence,
admissibility is therefore an affair of logic and law.
On the other hand, the weight to be given to such
evidence depends on judicial evaluation within the
guidelines provided in Rule 133 and the
jurisprudence laid down by the court. (People vs.
Turco, 2000)
Relevant evidence is one that has any value
in reason as tending to prove any matter probable
in an action. Evidence is said to be material when it
is directed to prove a fact in issue as determined by
the rules of substantive law and pleadings, while
competent evidence is one that is not excluded by
law in a particular case. (Bautista vs. Aparece, 1995)
Exclusionary Rules under the 1987 Constitution
1. Secs. 2 & 3, Art. III The right of the people to be
secure in their persons, houses, papers, and
effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except
upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety
or order requires otherwise as prescribed by
law.
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
2. Sec. 12, Art III Any person under investigation
for the commission of an offense shall 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. No torture, force,
violence, threat, intimidation, or any other
means, which vitiate the free will, shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of
detention are prohibited.
Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
3. Sec. 17, Art III No person shall be compelled to
be a witness against himself.
This right is recognized under the Rules on
Evidence, which provides that, it is the right of a
witness not to give an answer which will tend to
subject him to a penalty for an offense unless
otherwise provided by law. [Sec. 3 (4), Rule 132,
ROC)
NOTES AND COMMENTS: The human body
could be used as evidence without violating the
right. Mechanical acts without the use of
intelligence do not fall within the scope of the
protection. Some of the acts which are not covered
by the right of self-incrimination are the following:
a. Fingerprinting, photographing and
paraffin testing, physical examination. (U.S. v. Tang,
23 Phil. 145_)
b. Physical examination of a woman
accused of adultery to determine if she is pregnant.
(U.S. v. On Suy Hon, 36 Phil. 735; Villaflor v.
Summers, 41 Phil. 62)
c. Undergoing ultra-violet rays examination
to determine presence of flourescent powder on
the hands. (People v. Tranca, 35 SCRA 455)
d. Subpoena directing government officials
to produce official documents or public records in
their custody.
e. Fitting the accused foot over a foot print,
putting on a pair of trousers, etc.
Statutory Rules of Exclusion
1. Sec. 201, NIRC An instrument, document or
paper which is required by law to be stamped
and which has been signed, issued, accepted or
transferred without being duly stamped, shall
not be recorded, nor shall it or any copy thereof
or any record of transfer of the same be
admitted or used in evidence in any court until
the requisite stamp or stamps shall have been
affixed thereto and cancelled.
2. R.A. 4200 (Wire-tapping Act)
Sec. 1. It shall be unlawful for any person, not
being authorized by all the parties to any
private communication or spoken word, to tap
 any wire or cable, or by using any other device
or arrangement, to secretly overhear, intercept,
or record such communication or spoken work
by using a device commonly known as a
Dictaphone or dictograph or detectaphone or
walkie-talkie or tape recorder, or however
otherwise described. x x
Sec. 4. Any communication or spoken word, or
the existence, contents, substance, purport,
effect, or meaning of the same or any part
thereof, or any information therein contained,
obtained or secured by any person in violation
of the preceding sections of this Act shall not be
admissible in evidence in any judicial, quasi-
judicial, legislative or administrative hearing or
investigation.
An extension telephone cannot be placed in
the same category as a Dictaphone, dictograph or
the other devices enumerated in Sec. 1 of RA 4200
as the use thereof cannot be considered as
tapping the wire or cable of a telephone line.
(Gaanan vs. IAC, 1986)
RA 4200 expressly makes tape recordings of
tapped conversations inadmissible in evidence
absent a clear showing that both parties to the
phone conversations allowed the recording.
(Salcedo-Ortaez vs. CA, 1994)
EXCLUSIONARY RULES under the RULES OF COURT
1. Best Evidence Rule
2. Parole Evidence
3. Hearsay Rule
Wigmores Axiom of Admissibility
None but facts having rational probative value are
admissible- ILLUSTRATION: In a trial for homicide,
the fact is offered that the accused was requested,
with others, to touch the corpse of the murdered
man to see if blood flowed, but that he refused to
do so; this is admissible, not because the flowing or
retention of the blood at the guilty mans touch
would be rationally evidential of his guilt, but
because his refusal to do could constitute a link to
the chain of evidence necessary to produce a moral
conviction of guilt.
Any fact having rational probative value is
admissible, unless some specific rule forbids its
admission- ILLUSTRATION: In an issue involving
forgery, the disposition of the persons character as
to acts of honesty or dishonesty is of some rational
probative value towards showing that he did or did
not do the act; it is therefore admissible, but this
can only be done if the accused steps forward first
and adduces evidence of his good moral character.
Irrelevant vs. Incompetent vs. Inadmissible vs.
Immaterial Evidence
Irrelevant- no probative value; No tendency in
reason to establish the probability or improbability
of a fact in issue. It does not directly relate to a fact
in issue.
N.B. All facts and circumstances which
afford reasonable inferences or throw light upon the
probability of matter or matters contested are
admissible in evidence, UNLESS excluded by some
established principle of evidence, such as HEARSAY
EVIDENCE RULE, RULE ON PAROLE EVIDENCE and
BEST EVIDENCE RULE.
Collateral Matters- matters other than the
facts in issue and which are offered as a basis
merely for inference as to the existence or non-
existence of the facts in issue. These are not allowed
unless satisfy ALL the requirements of relevancy.
ILLUSTRATIONS:
a. finger marks, foot prints and a bat left by
the accused in the place of the crime
b. The resemblance of a child to his alleged
father to prove paternity of the latter
c. Bloodstains on the clothing of the person
charged with a crime
d. The destruction or fabrication of
evidence
e. Flight of the accused. (N.B. Non-flight is
not conclusive proof of innocence)
f. Delay in the identification of victims
assailant
Incompetent- excluded by the rules or any law
Inadmissible- not competent and irrelevant
Immaterial- the offered evidential fact is directed to
prove some probandum which is not
properly in issue. (N.B.- The rules on
substantive law and of pleading determine
immateriality)
Material evidence- proves a main fact
which is the subject of the inquiry or any
circumstance which tends to prove that fact or any
fact or circumstance which tends to corroborate or
strengthen the testimony relative to the subject of
inquiry or which legitimately affects the credibility
of any witness who testifies.
Direct vs. Circumstantial Evidence
Direct- Evidence that directly proves a fact without
need to make inference from another fact
Example: The testimony of the prosecution
witness claiming that he saw that it was actually the
deceased who attacked the accused without the
latters provocation is a direct evidence.
Circumstantial- Indirectly proves a fact in issue
through an inference which the fact finder draws
from the evidence established
Example: The testimony of the victim that
he dreads the mere presence of the accused is
direct evidence that the statement was made.
It is likewise circumstantial
evidence to show that this fear prevented the victim
from attacking the accused without provocation.
IN CRIMINAL CASES, circumstantial
evidence is sufficient for conviction when:
a.There is more than one circumstance
b.The facts from which the inferences are
derived are proven
c. The combination of all the circumstances
is such as to produce a conviction beyond
reasonable doubt (Sec. 4 Rule 133)
Cumulative v. Corroborative
Cumulative- evidence of the same kind that tends
to prove the same fact
Ex. Two or more witnesses testify that they
saw the event which the first witness claimed he
saw, the subsequent testimonies are cumulative
Corroborative- evidence which tends to confirm,
validate or strengthen evidence already presented.
Evidence may be of the same kind or different kind
and tends to prove the same fact.
Ex. A witness claims that he saw Mr. X sign
the document subject of the action. Mr. X denies
the authenticity of his signature. Evidence by a
handwriting expert is corroborative.
Positive v. Negative Evidence
Positive- A witness affirms in the stand that a
certain state of facts do exist or that a certain event
happened
Negative- A witness states that an event did not
occur or that the facts alleged to exist did not
actually exist. (Denial)
Derivative Evidence- type of evidence that is
inadmissible as proof because of the application of
the fruit of the poisonous tree doctrine, which
treats the original evidence and any evidence
derived from it as tainted because of the illegal way
in which it was obtained by agents of the
government.
Rebuttal Evidence- offered to contradict other
evidence or to rebut a resumption of fact.
Admissibility v. Weight
- Evidence is ADMISSIBLE when it is relevant
and is not excluded by any rule.
- Probative value or WEIGHT is to be
determined by the court when it decides
the case
MULTIPLE ADMISSIBILITY
Evidence is admissible for two or more purposes.
The rule is when a fact satisfies all rules applicable
to it when offered for that purpose, its failure to
satisfy some other rule which would be applicable
to it if offered for another purpose would not
exclude it.
ILLUSTRATION: An extrajudicial confession may be
inadmissible as against a party who did not
subscribe to it, yet such party may use said
document as evidence of lack of guilt.
CONDITIONAL ADMISSIBILITY
GR: The time for determining the admissibility of a
particular fact is ordinarily the time when it is
offered to the court.
Exception: When some facts depend on some other
facts needed to be established first in order that
said former evidentiary facts would be admissible.
ILLUSTRATION: Mr. P files an action for recovery of
ownership of a parcel of land against Mr. D. The
complaint alleges that Mr. P is the owner of the
property. During the trial, Mr. P testifies and
adduces evidence that a certain O bought the
property from D. The testimony of O may be
allowed if it would be shown the chain of events
that led to the ownership of P of the land.
CURATIVE ADMISSIBILITY
There is curative admissibility when a party offers
an inadmissible fact which is received because there
is no objection by the other party. The other party
does not acquire the right to introduce in reply to
the same kind of evidence, EXCEPT whenever it is
needed for removing an unfair prejudice which
might otherwise have ensued from the original
evidence.
ILLUSTRATION: In an action for damages arising
from a car accident, the plaintiff introduced
evidence to show that on several occasions the
defendant in the past had injured pedestrians
because of his negligence. (This is inadmissible
under Sec. 34 Rule 130- Prior acts as evidence).
Under the concept of Curative admissibility the
court must give the party against whom the
evidence was admitted the chance to contradict or
explain the alleged past acts he committed to
counteract the prejudice which the improperly
admitted evidence may have caused.
II. What Need Not be Proved
a. Facts which a court shall or may take
judicial notice. (Secs. 1 and 2, Rule 129, ROC)
b. Judicial admissions. (Sec. 4, Rule 129,
ROC)
c. Conclusive presumptions
d. Disputable presumptions not disputed
Distinguish mandatory judicial notice from
discretionary judicial notice.
a. For mandatory judicial notice the court is
compelled to take judicial notice because of the use
of the word "shall" in Sec. 1, Rule 129, ROC WHILE
for discretionary judicial notice the court is not
compelled because of the use of the word "may" in
Sec. 2, Rule 129, ROC.
b. Mandatory judicial notice takes place at the
court's own initiative WHILE discretionary judicial
notice may take place at the court's initiative, or on
request of a party.
c. Discretionary judicial notice requires a hearing
and presentation of evidence WHILE mandatory
judicial notice does not require hearing and
presentation of evidence.
A. Judicial Notice Rule 129, Secs 1-3; Rule 10,
Sec. 8
1. When Mandatory [EPF-SLAP-OL-MG]
- Existence and territorial extent of states
- Their political history
- Forms of government
- Symbols of nationality
- Law of nations
- Admiralty and maritime courts of the world and
their seals
- Political constitution and history of the
Philippines
- Official acts of the legislative, executive, and
judicial departments of the Philippines
- Laws of nature
- Measure of time
- Geographical divisions
2. When Discretionary
- Matters of public knowledge
- Matters capable of unquestionable
demonstration
- Matters which ought to be known to judges
because of their judicial functions.
3. When Hearing is 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.
MUNICIPAL ORDINANCES
Courts are not mandated to take judicial
notice of municipal ordinances unless the charter of
the concerned city provides for such judicial notice.
(City of Manila vs. Garcia, 1967). But INFERIOR
COURTS sitting in the respective municipalities or
cities are
MANDATED to take judicial notice. The
reason is that violations of the ordinances are
usually vested to the inferior court EXCLUSIVELY in
the exercise of their original jurisdiction.\
IF inferior court took judicial notice and
there was an appeal, such court taking the appeal
should likewise take judicial notice. (U.S. v. Blanco,
37 Phil. 126)
COURT RECORDS:
Courts may take judicial notice of its own
records of cases pending before it. (Ex.
Pleadings; period of perfecting appeals.)
Records of preliminary investigation shall not
form part of the record, however the court on
its own initiative or that of any party may order
the production of the record or any part thereof
whenever the same shall be necessary in the
resolution of the case or any incident therein or
shall be introduced as evidence by the party
requesting for its production.
Courts are not authorized to take judicial notice
of the contents of the record of other cases
pending or heard before them notwithstanding
they are pending before the same judge.
Exceptions:
1. In the absence of objection from the adverse
party, with the knowledge of the adverse party; or
at the request or with the consent of the parties, the
case is clearly referred to or the original or 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. (Tabuena vs. CA, 1991)
2. The other case is so closely connected or
interdependent
3. When interests of the public in ascertaining the
truth is of paramount importance
4. In cases seeking to determine what is reasonable
exercise of discretion
5. The finality of judgment in a case
FOREIGN LAWS
In general, courts may not take judicial notice of
foreign laws, EXCEPT in a few instances where, in
the exercise of sound discretion, they may take
judicial notice of such foreign laws of which they are
evidently familiar. (Delgado v. Republic, L-2546,
January 28, 1950; Pardo v. Republic, 85 Phil. 323)
When foreign laws may be the subject of judicial
notice.
a. When the local court is evidently familiar with the
foreign law.
b. When the foreign law refers to the law of nations.
(Sec. 1, Rule 129, ROC)
c. When the court takes judicial notice of a
published treatise, periodical or pamphlet on a
subject of law as a learned treartise. (Sec. 46, Rule
130, Ibid.)
d. When the foreign statute is acepted by the
Philippine governemnt. (Republic v. Guanzon, 61
SCRA 360)
e. When a foreign judgmen containing foreign law is
recognized for enforcement. (Sec. 48, Rule 39, ROC)
f. If the foreign law refers to common law doctrines
and rules from which many of our laws were
derived. (Alzua v. Johnson, 21 Phil. 308)
Doctrine of Processual Presumption: Foreign law is
the same as the law of the forum. It arises if the
foreign law, though properly applicable is either not
alleged or if alleged is not duly proved before a
competent court.
B. Judicial Admissions Rule 129, Sec. 4
-Definition: admissions, verbal or written, made by
the party in the course of the proceedings in the
same case
-Proof is not required.
-How contradicted: ONLY by showing
That it was made through palpable mistake
or
That no such admission was made
Having been amended, the original
complaint lost its character as a judicial admission,
which would have required no proof and became
merely any extrajudicial admission requiring a
formal offer in order to be admissible. (Torres vs. CA,
1984)
FORMS OF ADMISSIONS:
1. Implied admissions of allegations of usury and
in actionable documents if not specifically
denied under oath (Sec. 11 & 8, Rule 8)
2. Admissions in pre-trial of civil cases and
criminal cases (In criminal cases the admission
must be reduced in writing and signed by
accused and counsel- Sec. 4 Rule 118)
3. Implied admissions in the modes of discovery
(Depositions; Interrogatories- Rule 23; Failure to
specifically deny under oath w/in 15 days a
Request for Admission in a pending case- Rule
26; )
4. Admissions in amended pleadings (Sec. 8 Rule
10) [N.B. Admissions in superseded pleadings
are extra-judicial admissions which must be
proven. Dismissed pleadings are likewise
extrajudicial admissions]
5. Plea of guilt in criminal case (N.B. A withdrawn
plea of guilt is inadmissible, unlike in civil cases
where a withdrawn judicial admission is
considered an extrajudicial admission)
6. Admissions by counsel are generally conclusive
upon a client absent any gross negligence which
deprives counsel of due process of law or there
is outright deprivation of property or liberty.
Note: Admissions in pleadings may not always be
considered as judicial admissions because there are
hypothetical admissions in civil cases. (i.e.
Affirmative defenses in an answer; Motion to
dismiss, where defendant admits allegations but
sets up grounds such as lack of jurisdiction etc.)
Notes: 1. It is not essential that an admission is
contrary to the interest of party at the time it is
made. It is enough that it be INCONSISTENT with
the position a party takes in his pleadings or at trial.
2. Averments in pleadings not deemed
admissions even if there is failure to make a specific
denial: a) Immaterial allegations; b) Conclusions and
non-unltimate facts; c) Amount of unliquidated
damages.
Adoptive Admissions
A partys reaction to a statement or action by
another person when it is reasonable to treat the
partys reaction as an admission of something
stated or implied by the other person.
Adopted Confessions
A co-accused impliedly acquiesced in or adopted
the others confession by not questioning its
truthfulness, as where it was made in his presence
and he did not demonstrate against his being
implicated therein
III. Rules of Admissibility
A. Object (Real) Evidence Rule 130, Sec. 1.
- Evidence addressed to the senses of the court.
- When an object is relevant to the fact in issue, it
may be exhibited to, examined or viewed by the
court.
AUTOPTIC PROFERENCE (VIEW OF AN OBJECT)
- Where the object in question cannot be produced
in court because it is immovable or inconvenient to
remove, the natural recourse is for the court to
order an ocular inspection and go to the object in its
place and observe it there.
Is there an exclusionary rule when it comes to
object evidence?
There is none. However, the court is given enough
discretion to determine which object evidence
should be presented, upon determination whether
or not it will result to scandal or it does not work
any additional benefit to the plaintiff or that it will
give undue prejudice to the defendant.
ILLUSTRATIONS:
Footprints
A bloody foot print was found upon a floor near the
dead body of a person. Upon being arrested, the
accused was taken to the house where the incident
happen. Upon placing his foot over the foot print it
was found that his foot corresponded exactly to said
footprint. HELD: Proof of this circumstance is
admissible, notwithstanding that no photograph of
the footprint was submitted in evidence and that
the board itself upon which the footprint was made
was not produced in court. (US v. Zara, 43 Phil. 308)
Resemblance, Race, Age or Parentage
To determine whether a person is alien or not,
his personal appearance, ethnological and racial
characteristic, language, customs, dress and
manners may be taken into consideration.
In determining the age of the accused who had
no positive information on the subject, the
court took into account his appearance and
judged that he was a youth of 18 or 19 years of
 age.
A physical comparison may be made between a
minor Chinese applying for admission into the
country with his alleged father.
Photographs
Where deposition of subscribing witnesses to a
will are taken, a photographic copy of the will
may be presented to the witnesses on their
examination and they may be asked the same
question with respect to said copy as if it were
the original will and testimony as to the identity
of the photographic copy shown to the
witnesses is admissible in evidence.
Photographs may be admissible upon proof of
their exactness and accuracy by the
photographer himself who can testify of his
personal knowledge of the correctness of the
representation. (Tan It v. Sun Insurance Office,
51 Phil. 212)
NOTES:
The photographer is not the only witness
who can identify the pictures. The faithful
representation of the photograph may be proved
prima facie by the testimony of those who were
present at the time it was taken, or by any other
competent witness who can testify as to its
exactness and accuracy. Once proved, the court
may admit it subject to impeachment as to its
accuracy.
The value of a photograph lies in its being a
correct representation or reproduction of the
original, and its admissibility is determined by its
accuracy in portraying the scene at the time the
picture was taken. (Sison v. People, 250 SCRA 58,
75-76)
Photocopies or xerox copies of signed
documents are not duplicate originals because they
are not signed. (Mahilum v. Court of Appeals, 17
SCRA 482)
Computer printouts.
If the data are stored in a computer or
similar device, any printout or other output
readable by sight, shown to reflect the data
accurately, is an original. (Evidence Code of
California, Added by Stats. 1977, Sec. 1)
In a labor case, IBM Philippines, Inc., et al.,
v. NLRC, et al., G.R. No. 117221, prom. April 13,
1999, the Supreme Court held that computer
printouts which were not signed because they are
unsigned. The Court went on further to say that its
decisions, while adhering to a liberal view in the
conduct of proceedings before administrative
agencies, have nonetheless consistently required
some proof of authenticity or reliability as condition
for the admission of documents.
Not one of the 18 print-out copies
submitted by IBM was ever signed, either by the
sender or the receiver. There is thus no guarantee
that the message sent was the same message
received. Neither were the print-outs certified or
authenticated by any company official who could
properly attest that these came from IBMs
computer system or that the data stored in the
system were not and/or could not haved been
tampered with before the same were printed out.
Ballots
- Every ballot needs to be presented in a case of
election protest. Every ballot constitutes the will of
every voter.
DEMONSTRATIVE EVIDENCE
- one which or represents demonstrates the real
thing. (ex. Map, diagram, photograph, or a model)
Photographs: Must faithfully represent what it
depicts (Same rules apply to motion pictures and
recordings)
X-Rays: Must show location and extent of injury
Scientific tests, demonstrations by physical act and
experiments: This is a matter of judicial discretion.
B. Documentary Evidence Rule 130, Sec.
2.
- Writings or any material containing letters, words,
numbers, figures, symbols or other modes of
written expression offered as proof of their
contents.
1. Best Evidence Rule Rule 130, Secs. 3-4
General Rule: When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document itself.
Exceptions:
1. When the original has been lost or destroyed,
or cannot be produced in court, without bad
faith on the part of the offeror;
2. When the original is in the custody or under the
control of the party against whom the evidence
is offered, and the latter fails to produce it after
reasonable notice;
3. When the original consists of numerous
accounts or other documents which cannot be
examined in court without great loss of time
and the fact sought to be established from
them is only the general result of the whole;
and
4. When the original is a public record in the
custody of a public officer or is recorded in a
public office.
Original of a Document
1 The original of the document is one the
contents of which are the subject of inquiry.
2 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.
3 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.
Rules on Electronic Evidence (Rule 4)
Sec. 1. Original of an Electronic Document An
electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
accurately.
Sec. 2. Copies as equivalent of the originals
When a document is in two or more copies
executed at or about the same time with identical
contents, or is a counterpart produced by the same
impression as the original, or from the same matrix,
or by mechanical or electronic re-recording, or by
chemical reproduction, or by other equivalent
techniques which accurately reproduces the
original. Notwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
extent as the original if: a genuine question is
raised as to the authenticity of the original; or in the
circumstances it would be unjust or inequitable to
admit the copy in lieu of the original.
Carbon copies are deemed duplicate
originals. They may be introduced as evidence
without accounting for the non-production of the
original. (People vs. Tan, 1959)
The Best Evidence Rule applies only when
the contents of the document are the subject of
inquiry. It does not apply when the issue is only as
to whether or not such document was actually
executed or in the circumstances relevant to its
execution. (People vs. Tandoy, 1990)
SOME EXAMPLES:
1. Baptismal and Marriage Certificate
- They are only evidence to prove the
administration of the sacraments on the
dates therein specified
- Baptismal certificate is not conclusive proof
of filiation being hearsay
2. Medical Certificate
- To prove torture inflicted by the police, the
medical certificate alone without the
testimony of the examining physician is
inadmissible (People v. Villagracia, 226
SCRA 398)
3. Residence Certificate
- The place of obtaining a residence
certificate and the date contained are not
conclusive as to the real residence or
domicile of a person owning said
certificate. (Zuellig v. Republic, 83 Phil. 768)
4. Tax declaration
- It can be used as evidence that a portion of
land had been sold. (Gacos v. CA, 212 SCRA
8)
5. Accounts and Account Books
- Where the custom brokers authorized
representative accepted the cargo OK and
complete as shown in the surveyors
report countersigned by him and it was
obviously his assigned task to note defects
in the cargo, said acceptanceif not being
outright upon the customs brokeris at
least evidence of the condition of the goods
when thus received. (Insurance Company of
North America vs. C.F. Sharp & Co., Inc. 18
SCRA 462)
- An audit made by or the testimony of a
private auditor is inadmissible in evidence
as proof of the original records, books of
accounts, reports or the like. (Compania
Maritima vs. Allied Free Workers Union, 77
SCRA 24)
After complying with the BEST EVIDENCE RULE will
the court necessarily admit the original writing?
No.
1) The requirements of authentication of
documents must be met. There must be proof of
authentication. However this applies only when the
writing is a private document.
2) After authentication, the proponent has to
comply with the rule that if the original writing is
not in an official language (English or Filipino), it is
his duty to give to the court a translation thereof.
3) If there is an alteration, he must explain such
alteration. He may show that the alteration was
made:
by another,
without his concurrence, or
made with the consent of the parties
affected by it, or
was otherwise properly or innocent made,
or
The alteration did not change the meaning
or language of the instrument.
PRIVATE DOCUMENTS. How Proven = Rule 132, Sec.
20
Before any private document offered as
authentic is received in evidence, its due execution
and authenticity must be proved either: (1) by
anyone who say the document executed or written;
or (2) 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.
Ancient Document Rule = Rule 132, Sec. 21 (Not
Required to Authenticate)
Requisites:
(1) The private document is more than 30 years old;
(2) It is produced from a custody in which it would
naturally be found if genuine;
(3) It is unblemished by any alterations or
circumstances of suspicion.
If all requisites have been met, no other evidence of
its authenticity is required.
How Genuineness of Handwriting is Proven = Rule
132, Sec. 22
It may be proved by 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.
Not much weight is given to handwriting experts.
Unless, therefore, there is, in a given case, absolute
absence, or manifest dearth, or direct or
circumstantial competent evidence of the character
of a questioned handwriting, much weight should
not be given to characteristic similarities, or
dissimilarities, between the questioned handwriting
and an authentic one. (Punzalan v. Commission on
Elections, G.R. No. 132435 prom. April 27, 1998
citing Lorenzo v. Diaz, 53 O.G. 4110-4111, cited in
Francisco on Evidence, Vol. VII, Part I, 1997 Edition,
p. 674)
Questions involving the mere similarity or
dissimilarity of handwritings could be determined
by the court itself as authorized under Sec. 22, Rule
132 of the Rules of Court by making a comparison
of the disputed handwriting "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." (Punzalan v.
Commission on Elections, supra)
2. Secondary Evidence Rule 130, Secs. 5-8
Instances when secondary evidence may be
introduced:
when original document is unavailable
(lost, destroyed or cannot be produced in
court)
The offeror, upon proof of (1) its
execution or existence and (2) cause of its
unavailability, without bad faith on his
part may prove its contents by:
A copy
A recital of its contents in some
authentic document
The testimony of witnesses.
The order stated must be followed.
When original document is in adverse
partys custody or control.
If after reasonable notice is given to the
adverse party to produce the document
and after satisfactory proof of the
existence of the document is made, he
fails to produce the document, secondary
evidence may be presented.
when original document is a public record.
Its contents may be proved by a certified
copy issued by the public officer in
custody thereof.
A party who calls for the production of a
document and inspects it is not obliged to offer it
as evidence.
The voluminous character of the document
must be established before evidence other than the
original may be introduced. (Compania Maritima
vs. Allied Free Workers, 1977)
In the case where the original is in the
custody of the adverse party, it is not necessary that
it be in the actual possession of the adverse party.
It is enough that the circumstances show that the
writing is in his possession or under his control.
Secondary evidence is admissible where the adverse
party denies having it in his possession. (Villa Rey
Transit vs. Ferrer, 1968)
All duplicates or counterparts must be
accounted for before using copies as evidence. (De
Vera vs. Aguilar, 1983)
3. Parol Evidence Rule Rule 130, Sec. 9
Nature of parol evidence rule:
It is not a rule of evidence but of substantive law.
It is part of the law of contracts, the law of
negotiable instruments, and the law of wills. It is
founded upon the substantive rights of the
parties. It was made part of the rules of evidence
in order
that it may be considered in all its phases in one
place.
Reasons for the parol evidence rule:
When the parties have reduced their
agreement in 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 or
abandoned.
General Rule: When the terms of an AGREEMENT
(including WILLS) 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
(testimonial or documentary) of such terms other
than the contents of the written agreement.
Exceptions: A party may present evidence to
Modify,
Explain or
Add to
the terms of written agreement if he
puts in issue in his pleading:
An intrinsic ambiguity, mistake or
imperfection in the written
agreement;
The failure of the written
agreement to express the true
intent and agreement of the
parties thereto;
The validity of the written
agreement; or
The existence of other terms
agreed to by the parties or their
successors in interest after the
execution of the written
agreement.
ILLUSTRATION: The vendee can validly tell the court
that the deed of sale is not really one of sale but
one or mortgage as long as he puts in issue in the
pleadings, any of the matters enumerated above.
[N.B. Art. 1602, NCC presumes that a deed of sale is
an equitable mortgage when: 1] price of sale with
right to purchase is unusually inadequate; 2) Vendor
remains in possession as lessee or otherwise; 3)
When another instrument extending period of
redemption is executed; 4) When purchaser retains
for himself a part of purchase price; 5) Vendor
assumes tax; 6) Other circumstances]
ILLUSTRATION: There is a sale of a piece of land in
favor of Juan dela Cruz. If you read the document
there is really nothing wrong because there is a
vendor, there is a vendee and there is an object and
consideration. But it turns out that there are two
persons who carry the name Juan de la Cruz. That
document is intrinsically ambiguous because we do
not know who the vendee in that sale. The defect
can be remedied by the introduction of testimonial
evidence or other documentary evidence to show to
the court who is the Juan dela Cruz mentioned in
the deed of sale as the vendee.
But if in that deed of sale where Juan dela Cruz is
the vendee, and there is only one Juan dela Cruz,
but the property sold is simply a piece of land.
There is an ambiguity what particular land is sold as
there is no description. The ambiguity is extrinsic. It
arises from the face of the document itself. Here we
cannot introduce evidence aliunde. The contract is
void, which under the Rules cannot allow be
corrected and converted into a valid contract.
US cases and some Philippine cases recognized
intermediate ambiguity, and evidence aliunde
may be admitted by the court to explain or add
to its meaning. This arises by the use of
equivocal word/s which is susceptible of more
than one interpretation.
Example: Defendant sold to plaintiff a distilling
apparatus of guaranteed capacity of 6,000 liters
daily. Defendant claimed that the phrase referred to
receiving capacity. Here the word capacity was
susceptible of two interpretations. SC held that
parol evidence is admissible to show which of the
two interpretations meant by the parties. (Palanca
v. Fred Wilson & Co., 37 Phil. 506)
What is the coverage of the parol evidence rule
and what are the exceptions to the parol evidence
rule ?
Covered. Only prior and contemporaneous
agreements which are deemed to have been
merged in the writing conformably to the
"integration of the agreement rule."
(Woodhouse v. Halili, 93 Phil. 526)
Not covered.
Subsequent agreements, notwithstanding
that such agreements may have the effect
of adding to, changing, modifying, or even
altogether abrogating the contract of the
parties as evidenced by the writing.
Collateral agreements which although oral
and contemporaneous with the writing are
separate and distinct agreements. (PNB v.
Seeto, 91 Phil. 756)
It also does not apply if the issue revolves
around fraud and false representation since
they are incidental to the execution and not
to the integration. (Woodhouse vs. Halili,
1953)
It does not apply either when third parties
are involved. (Lechugas vs. CA, 1986)
NOTES:
Contemporaneous agreement. A
contemporaneous agreement is one entered
into at the same time as the agreement which
has been reduced to writing.
Tests to determine whether a
contemporaneous oral agreement is separate
and distinct from the written agreement and
therefore provable by parol evidence:
The first test is the subject-matter of the
two agreements. If the subject-matter of
the written agreement is different from
that of the contemporaneous oral
agreement, then the latter is a separate and
distinct agreement and, therefore, provable
by parol evidence.
 If the two agreements refer to the same
subject-matter, the test is to determine
whether or not the contemporaneous oral
agreement is separable, then the
contemporaneous oral agreement is
separate and distinct and, therefore,
probable by parol evidence. (Lese v.
Lamprecht, 196 N.Y. 32)
Example of agreement which CANNOT be
proven by parol evidence: Express trusts
concerning real property cannot be proven by
parol evidence because title and possession
cannot be defeated by oral evidence which can
easily be fabricated and contradicted. (Sinaon,
et al., v. Sorongon, et al., 136 SCRA 410)
Examples of collateral agreements which CAN
be proved by parol evidence:
An agreement of reconveyance is a distinct
agreement, separate from the sale itself,
although the two agreements are usually
contained in one and the same document.
(Laureano v. Kilayco, 34 Phil. 148; Yacapin v.
Neri, 40 Phil. 61)
Inducements and representations which led
to the execution of an agreement may be
proven by parol evidence because they do
not vary the terms of the agreement.
(Woodhouse v. Halili, 93 Phil. 526; Bough v.
Cantiveros, 40 Phil. 209)
Parol evidence is admissible to prove an
independent and collateral agreement
which constitutes an inducement to the
making of the sale or part of the
consideration thereof. (Robles v. Lizarraga
Hnos., 50 Phil. 387)
A condition precedent not stipulated in
writing is provable by oral evidence.
REASON: Before the happening of the
condition, there is no written agreement
yet to which the parol evidence may apply.
Verbal assurances given by the indorser of
an out-of-town check to the employees of
the bank where it was presented for
encashment that he would refund the
amount if the check should be dishonored
by the drawee bank is a collateral
agreement separate and distinct from the
indorsement, by virtue of which the first
bank was induced to cash the same, and
therefore, provable by parol evidence.
(PNB v. Seeto, 91 Phil. 756)
Any prior or contemporaneous conversaion
in connection with a note or its
indorsement may be proved by parol
evidence. (PNB v. Seeto, 91 Phil. 756;
Philips v. Preston, 5 How. [U.S.] 278)
An extrinsic agreement between indorser
and indorsee which cannot be embodied in
the instrument without impairing its credit
may be proved by parol evidence. (PNB v.
Seeto, 91 Phil. 756; 9 Wigmore 148)
The fact that parties who appear to have
signed as principals did so as merely
sureties is provable by parol evidence. (Tan
Machan v. De la Trinidad, 3 Phil. 684)
FALSA DEMONSTRATION NON NOCET
- False description will not invalidate an
instrument
- The erroneous description will be
considered as a surplusage.
ILLUSTRATION: In a deed of sale of a parcel of land
covered by: TCT 12345, located in City of
Muntinlupa. There is really a land covered by TCT
12345 with same technical description however it is
not located in Muntinlupa, but in Laguna. The
erroneous description will not invalidate the
contract.
Best evidence rule distinguished from parol
evidence rule:
1) Under the best evidence rule, the issue is
contents of a writing (Sec. 3, Rule 130, ROC) WHILE
under the parol evidence rule, there is no issue as to
contents of a writing (Sec. 9, Rule 130, ROC);
2) Under the best evidence rule, secondary
evidence is offered to prove the contents of a
writing, which is not allowed unless the case falls
under any of the exceptions (Sec. 3, Rule 130, ROC)
WHILE under the parol evidence rule, the purpose
of the offer of parol evidence is to change, vary,
modify, qualify, or contradict the terms of a
complete written agreement, which is not allowed
unless the case falls under any of the exceptions.
(Sec. 9, Rule 130, ROC)
Only the parties and their successors in interest, and
not strangers may invoke the protection of the parol
evidence rule. (Sec. 9, Rule 130, ROC)
PAROLE EVIDENCE DISTINGUISHED FROM STATUTE
OF FRAUDS
The Statute of Frauds requires that certain
agreements be proved by writing or by some note
or memorandum thereof in order to be enforceable.
On the other hand, the Parole Evidence Rule has
nothing to do with the manner of proving
agreements. Its object is to prohibit alteration,
change, modification, variation or contradiction of
the terms of a written agreement by parol
evidence.
4. Interpretation of Documents Rule 130, Secs.
10-19
SEC. 10. Interpretation of a writing according to its
legal meaning. The language of a writing is to be
interpreted according to the legal meaning it bears
in the place of its execution, unless the parties
intended otherwise.
SEC. 11. Instrument construed so as to give effect to
all provisions. 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.
SEC. 12. Interpretation according to intention;
general and particular provisions. In the
construction of an 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
control a general one that is inconsistent with it.
SEC. 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.
SEC. 14. Peculiar signification of terms. The terms
of a writing are presumed to have been used 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.
SEC. 15. Written words control printed. When an
instrument consists partly of written words and
partly of a printed form, and the two are
inconsistent, the former controls the latter.
SEC. 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 who understand the
language, is admissible to declare the characters or
the meaning of the language.
SEC. 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 is made.
SEC. 18. Construction in favor of natural right.
When 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.
SEC. 19. Interpretation according to usage. An
instrument may be construed according to usage, in
order to determine its true character.
C. Testimonial Evidence
Qualifications of Witnesses Rule 130, Sec. 20
- Can perceive, and perceiving, can make their
known perception to others.
GR: A disinterested person could be compelled to
give his testimony through subpoena
Exceptions: Persons who are immune from the
process of subpoena by tradition, convention or law:
Ambassadors of foreign countries by virtue
of treaty obligations
President of the Philippines or other
country
Disqualifications
Mental incapacity or immaturity (Sec. 21, Rule
130, ROC);
Marriage (Sec. 22, Ibid);
Death or insanity of adverse party (Sec. 23, Ibid.)
Privileged communication (Sec. 24, Ibid.)
[Applies to Rules on Electronic Evidence]
Marital privileged communication rule (Sec.
24 [a], Ibid.);
Lawyer-client privileged communication
rule (Sec. 24 [b], Ibid.);
Doctor-patient privileged communication
rule (Sec. 24 [c], Ibid.)- (N/A in criminal
cases)
Priest-penitent privileged communication
rule (Sec. 24 [d], Ibid.); and
Public officer privileged communication
rule (Sec. 24 [e], Ibid.).
Parental and filial testimonial privilege rule (Sec.
25, Rule 130, ROC)
Note: Conviction of a crime does not
disqualify a person from testifying but may
disqualify him from being discharged as a state
witness. (Sec. 9 [e], Rule 119, ROC)
Note: This is not an exclusive enumeration of
the Rules on privilege communication. Other
examples are:
Under Rules on Alternative dispute
Resolution, information or communication
given by parties who participate in ADR is
confidential
Information derived by editors, reporters
and publishers
The negotiations under the Witness
Protection Program (Accused discharged
as state witness)
A. By reason of mental incapacity or immaturity
Rule 30, Sec. 21
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;
Children whose mental maturity is such as to
render them incapable of perceiving the facts
respecting which they are examined and of
relating them truthfully.
A mental retardate is not for this reason
alone disqualified from being a witness. (People vs.
Salomon, 1993)
Requisites of competency of a child as
witness: capacity of observation; capacity of
recollection; and capacity of communication.
(People vs. Mendoza, 1996)
B. Marital Disqualification Rule 130, Sec. 22
General Rule: During their marriage, neither the
husband nor the wife may testify for or against the
other without the consent of the affected spouse.
Exceptions:
- 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.
The right to invoke this disqualification belongs to
the spouse-party (Ortiz v. Arambulo, 8 Phil. 98)
against or for whom the testimony is being
proferred. It may be waived:
1) By a failure to interpose timely objection, or
2) By calling the other spouse as witness (Ibid.,
People v. Francisco, 78 Phil. 694)
The privilege could be invoked even if the
spouse is testifying in favor of the spouse-party
because damaging testimony may be elicited during
the cross-examination.
DIFFERENCE B/W PRIVILEGE AND MARITAL
DISQUALIFICATION
1) Privilege is applicable regardless of whether
the spouses are parties or not while Marital
disqualification is applicable only when one or
both spouses are parties
2) The privilege applies to testimonies on
confidential communication only while Marital
disqualification applies to testimony on any fact
3) Marital disqualification ceases after
dissolution of marriage while Privileged
communication lasts even after the death of
either spouse
4) Even if the communication is not
confidential, the marital disqualification may still
be invoked
5) Marital disqualification is more concerned
with the consequences. If the rule is not there,
perjury and domestic disunity may result. On the
other hand, Privilege protects the hallowed
confidences inherent in marriage b/w 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.
Marrying the Witness
An accused can effectively seal the lips of
a witness by marrying the witness. As long as a valid
marriage is in existence at the time of the trial, the
witness-spouse cannot be compelled to testify
even where the crime charged is against the
witness person, and even though the marriage was
entered into for the express purpose of suppressing
the testimony. (Marriage for convenience)
CASE: A filed a complaint against husband and wife
for annulment of a contract by reason of fraud.
(H&W both defendants). A subpoenaed the wife to
be his hostile witness which is allowed in civil cases.
When the wife received the subpoena, the husband
filed a motion in court for the quashing of the
subpoeana, on the ground that there is a violation
of the rule on marital disqualification/spousal
immunity. A told the court that this is not a case
where the wife will be giving testimony as an
adverse witness in favor of the plaintiff. So the rule
on spousal immunity does not apply. Ruling of the
Court: Spousal immunity applies. If the wife was
allowed to testify as an adverse witness for the
plaintiff, she might give testimony that he will harm
her interest and that of her husband. So that there
will be a violation of the spousal immunity.
A conceded. A told the court now that if he
cannot compel the wife to be an adverse witness,
then he should be allowed to get the deposition of
the wife, because under the Rules of Court when
the deposition of a person is taken, it does not
necessarily mean that the deponent will be used as
a witness in court, since it is only a mode of
discovery. Ruling of the Court: Even if the purpose is
just to get the deposition of the wife the rule on
spousal immunity applies.
CASE: A son filed a complaint against his own father
for recovery of property or some assets. The son
asked her mother to testify in his favor. SC held that
there will be a violation of the spousal immunity
rule.
Note: As long as there is a case INVOLVING the
husband OR wife, the disqualification is absolute.
C. Dead Mans Statute Rule 130, Sec. 23
- Sometime called the Survivors
disqualification rule
Parties or assignor of parties to a case, or persons in
whose behalf a case is prosecuted, against
- An executor or
- Administrator or
- Other representative of a deceased person, or
against a person of unsound mind, upon a claim or
demand against the estate of such deceased person
or against such person of unsound mind, cannot
testify as to any matter of fact occurring BEFORE the
death of such deceased person or before such
person became of unsound mind.
Exceptions to the survivors disqualification rule:
Ordinary witnesses, who are not the plaintiff,
assignor of plaintiff, or person in whose behalf
the case is prosecuted may testify. (Francia v.
Hipolito, 93 Phil. 968)
When the plaintiff is a corporation, the officers
or stockholders thereof are not disqualified.
(Lichauco v. Atlantic Gulf, et c., 84 Phil. 330)
When there is an imputation of fraud against
the deceased, the plaintiff is not barred from
testifying to such fraud. (Go Chi Gun v. Co Cho,
96 Phil. 622)
When the plaintiff is the executor, administrator
or legal representative of the deceased, or the
person of unsound mind, the defendant or
defendants are free to testify against the
plaintiff. (Tongco v. Vianzon, 50 Phil. 698)
When the defendant or defendants, though
heirs of the deceased, are sued in their personal
and individual capacities, the plaintiff may
testify against them. (Go Chi Gun v. Co Cho, 96
Phil. 622)
When the survivor's testimony refers to a
negative fact. (Mendezona v. vda. de Goitia, 54
Phil. 557)
When the survivor's testimony is favorable to
the deceased. (Icard v. Marasigan, 71 Phil. 419)
The adverse party is competent to testify to
transactions or communications with the
deceased or incompetent person which were
made with an agent of such person in cases in
which the agent is still alive and competent to
testify. But the testimony of the adverse party
must be confined o those transactions or
communications which were had with the
agent. (Goni, et al., v. Court of Appeals, et al.,
144 SCRA 231)
How protection of the dead mans statute is
waived:
By not objecting to plaintiff's testimony on
prohibited matters. (Marella v. Reyes, 12 Phil.
1)
By cross-examining the plaintiff on prohibited
matters. (Tongco v. Vianzon, 50 Phil. 698)
By calling witnesses to testify on prohibited
matters. (Arroyo v. Azur, 76 Phil. 493)
When the plaintiff's deposition is taken by the
representative of the estate or when counsel
for the representative cross-examined the
plaintiff as to matters occurring during the
deceased's lifetime. (Goni, et al., v. Court of
Appeals, et al., 144 SCRA 231)
CASE: Mr. D approaches Mr. C to borrow P100,000
to be paid next year. Mr. C gives Mr. D the amount.
Mr. C did not require Mr. D to execute a promissory
note. A day before the agreed date of payment, Mr.
D died. Mr. C went to the executor of the estate of
Mr. D and claims the payment of the debt.
In this case, Mr. C is incompetent to testify as
to the transaction he had with Mr. D.
D. Privileged Communication
1. Marital Privilege Rule 130, Sec. 24 (a)
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;
CASE: If the communication is made in front of the
children of the husband and wife. Can the privilege
be invoked? YES, if the children are still minors.
Note: The assumption is any communication given
by one spouse to the other is presumably
confidential because there is no standard given in
the Rules.
Applications of the marital privileged
communciation rule:
1) Every communication between spouses is
presumed to be confidential. (Sexton v. Sexton, 129
Ia. 487; Wigmore, Sec. 2336)
2) Communications made in the presence of third
parties are not confidential, unless the third person
may be considered as an agent of the spouses.
(Floyd v. Miller, 61 Ind. 224)
3) Communications overheard by third persons
remain confidential as between the spouses, but
the third person who overheard may be called upon
to testify. (People v. Carlos, 47 Phil. 626)
4) Communications coming into the hands of third
persons, whether legally or illegally, remain
confidential as between the spouses, but the third
person may be called upon to testify. (People, and
Hammons, supra)
But if the third person acquired knowledge of the
communication by collusion and voluntary
disclosure on the part of either of the spouses, he
thereby becomes an agent of such spouses so that
the privilege is claimable against him. (Ibid.)
5) Communications intended for transmission to
third persons are not confidential. (U.S. v. Antipolo,
37 Phil. 726)
Waiver of the marital privileged communication
rule:
 The privilege is claimable by the spouse not
called as witness, so that it its waivable only by him
or her; and it is waivable by any act of such spouse
which might be considered as an express or implied
consent to the disclosure of the communication.
(People v. Hayes, 140 N.Y. 484)
2. Attorney-Client Privilege Rule 30, Sec. 24 (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;
Privilege is owned by the client. It is he who can
invoke the privilege. If the client waives the
privilege, no one else including the attorney can
invoke it. Hence it the client is asked on cross-
examination of his communications to his
lawyer and reveals the same there would be a
waiver. There is also a waiver if the client does
not object to the attorneys testimony.
The attorney-client privilege may not be
invoked to refuse to divulge the identity of the
client, EXCEPT: (1) When a strong probability exists
that revealing the name would implicate that
person in the very same activity for which he sought
the lawyers advice; (2) When disclosure would open
the client to liability; (3) When the name would
furnish the only link that would form the chain of
testimony necessary to convict. (Regala vs.
Sandiganbayan, 1996)
LAST LINK DOCTRINE: Non-privileged
information, such as identity of the client is
protected if the revelation of such information
would necessarily reveal the privileged information.
- It is enough that the client reasonably
believed that the person consulted is a lawyer.
- Communications may refer to anticipated
litigations or may not refer to any litigation at
all.
- Privilege does not extend to
communications where the clients purpose is
the furtherance of a future intended crime or
fraud
3. Physician-Patient Privilege Rule 30, Sec. 24 (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;
This privilege belongs to the patient, so that it is
only he that can claim or waive it. It is waivable
expressly or impliedly. It is impliedly waived like
any other privilege rule. (Penn. Mutual Life Ins.
Co. v. Wiler, 100 Ind. 92)
The waiver may be by a contract as in medical
or life insurance
When the patient answers questions on cross
examination, there is waiver
Under Rule 28 ROC, the court may order a party
to submit to a physical or mental examination,
so long as the mental or physical condition is in
dispute. The party examined may request a
report of the examination. By doing so, he
waives any privilege he may have in that action
regarding the testimony of every other person
who has examined him in respect of the same
examination.
This privilege does not apply when the
doctor is presented as an expert witness and only
hypothetical problems were presented to him. (Lim
vs. CA, 1992)
4. Priest- Penitent Privilege Rule 30, Sec. 24 (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
5. Public Officer Privilege Rule 30, Sec. 24 (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.
6. Parental and Filial Privilege Rule 130, Sec. 25
A person cannot be compelled to testify
against his parents, other direct ascendants,
children or other direct descendants.
N.B. There is an inconsistency between the ROC and
Family Code with respect to this privilege. ROC
prevails since it took effect in 1989 and is made by
the SC. While the Family Code took effect in 1989,
and though substantive is procedural in character.
Who are not covered and may be compelled to
testify:
1) Relatives by affinity.
2) Brothers and sisters.
3) Aunts, uncles, nephews, nieces.
4) Cousins of whatever degree.
5) Other collateral relatives.
 Note: Parental and filial testimony dies not
prohibit voluntary testimony or compelled
testimony against relatives by affinity or collateral
relatives.
Note: It is believed that adopted and
adopter are covered by the parental and filial
testimonial privilege rule but only insofar as the
parent and child is concerned. It does not extend to
the direct ascendants of the adopter because the
adoptive relation is between the adopter and the
adopted only. The reason for this opinion is the
rationale behind the privilege, which is to preserve
harmonious relations between parent and child
which could be ruptured through testifying in court.
Furthermore, perjury may result because the parent
or the child may give false testimony to protect the
other.
Admissions and Confessions
Admissions Rule 130, Sec. 26
- Any act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.
Such admission may be received in
evidence not only against the party who made it or
his successors-in-interest but also against third
persons. (Viacrucis vs. CA, 1986)
The silence of an accused under custody or his
failure to deny statements by another implicating
him in a crime cannot be considered as a tacit
confession of his participation in the commission of
the crime. (People vs. Alegre, 1979)
Self-serving evidence
An admission favorable to the party making it.
(Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342)
a. Self-serving or favorable admissions made out
of court not admissible: REASONS:
1) A man may be safely believed if he declares
against his own interest, but not if he
advocates his interest. (Lichauco v. Atlantic
Gulf & Pacific Co., 84 Phil. 342)
2) It is excluded on the same ground as any
hearsay evidence, that, the lack of opportunity
for cross-examination by the adverse party.
(National Development Co., v. Workmen's
Compensation Commission, 19 SCRA 865)
b. When self-serving or favorable admissions are
admissible:
1) If made in open court
2) giving full opportunity to the adverse party
3) to exercise his right of cross-examination.
Rule 129 Sec. 4 vs. Rule 130 Sec. 26
First is a JUDICIAL ADMISSION, which is
conclusive upon the admitter whether in writing or
oral. This applies to civil, criminal cases and even
special proceedings.
Second is an EXTRAJUDICIAL ADMISSION.
Under this rule, the admission is admissible only if it
is against the interest of the admitter. (otherwise it
is a self-serving statement)
Example: Flight is considered a disserving
act, since it is prejudicial to the interest of the
accused. Flight is considered as circumstantial
evidence of the guilt of the accused. BUT non-flight
cannot be used as evidence to prove his innocence,
because that will be considered as an act that is
favorable to the interest of the accused.
Extra-judicial Confession vs. Admission
A confession, as distinguished from
admission, is a declaration made at any time by a
person, voluntarily and without compulsion or
inducement, stating or acknowledging that he had
committed or participated in the commission of a
crime.
The term, admission, on the other hand, is
usually applied in criminal cases to statements of
fact by the accused which do not directly involve an
acknowledgment of the guilt of the accused or of
criminal intent to commit the offense with which he
is charged. (U.S. v. Corrales, 28 Phil. 365)
Admission by silence.
a. An act or declaration made
1) in the presence and
2) within the hearing or
3) observation
b. of a party who does or says nothing
c. when the act or declaration
1) is such as naturally to call for action or
comment if not true, and
2) when proper and possible for him to do
so,
d. may be given in evidence against him. (Sec. 32,
Rule 130, ROC arrangement and numbering
supplied)
Exceptions to the rule on admission by silence or
instances where there is no admission by silence:
1) Where no good reason exists for the party to
comment on the act or declaration (Veil v. Strong,
10 Vt. 455), as when the act or declaration was not
specifically directed to the party who remained
silent. (80 A.L.R., Anno., 1272)
2) When the party had no opportunity to comment
on the act or declaration. (People v. Ranario, 49
Phil. 220)
3) Where the act or declaration was made in the
course of an official investigation. (People v. Tia
Fong, 98 Phil. 609)
4) When silence is upon advice of counsel. (People
v. Kozlowski, 115 A.L.R. 1505)
Res inter alios acta alteri nocere non debet or res
inter alios acta Rule
(First Part of Rule) Statements made or matters
accomplished between two parties cannot prejudice
a third party. (Blanza v. Arcangel, 21 SCRA 4)
 The rights of a party cannot be prejudiced by an
act, declaration, or omission of another, except as
hereinafter provided. (Sec. 28, Rule 130, ROC)
Exceptions to res inter alios acta:
1) When there is a rational similarity or
resemblance between the conditions giving rise to
he fact offered and the circumstances surrounding
the issue or fact to be proved. (Cruz, et al., v. Court
of Appeals, et al., G.R. No. 126713, prom. July 27,
1998)
2) In actions based on fraud and deceit, because it
sheds light on the state of mind or knowledge of a
person; it provides insight into such person's motive
or intent; it uncovers a scheme, design or plan; or it
reveals a mistake. (Cruz, supra)
3) (Vicarious Admissions)- The rights of a party may
be prejudiced by the act, declaration or omission of
another when between the party making the
admission and against whom it is offered there
exists a relation of:
a) partnership;
b) agency;
c) joint interest;
d) conspiracy; or
e) privity.
Exceptions to the rule that extrajudicial statements
of an accused implicating a co-accused may not be
utilized against the latter:
(1) the co-accused impliedly acquiesced in or
adopted the confession by not questioning its
truthfulness;
(2) the accused persons voluntarily and
independently executed identical confessions
without collusion and without contradiction by the
others present;
(3) the accused admitted the facts after being
apprised of the confession;
(4) if they are charged as co-conspirators of the
crime which was confessed by 1 of the accused and
the confession is used only as a corroborating
evidence;
(5) the confession is used as circumstantial evidence
to show the probability of participation by the co-
conspirator;
(6) the confessant testified for his co-defendant;
(7) the co-conspirators extrajudicial confession is
corroborated by other evidence on record. (People
vs. Raquel, 1996)
Rule on admission by co-partner or agent:
1) The act or declaration of a partner or
2) agent within the scope of his authority and
during the existence of the partnership or agency,
3) may be given in evidence against such party
4) after the partnership or agency
a) is shown by evidence [(testimonial or
documentary, which may be 2ndary evidence)]
b) other than such act or declaration.
5) The same rule applies to the act or declaration of
a joint owner, joint debtor, or other person jointly
interested with the party. (Sec. 29, Rule 130, ROC
arrangement and numbering supplied)
Rule on admission by conspirator:
1) The act or declaration of a conspirator
2) relating to the conspiracy and during its
existence,
3) may be given in evidence against the co-
conspirator
4) after the conspiracy
a) is shown by evidence (Circumstantial
Evidence- cannot be proven by documentary
evidence, since conspirators do not normally reduce
their agreement in writing)
b) other than such act or declaration. (Sec.
30, Rule 130)
*This refers to extrajudicial acts and declarations of
a conspirator and not to his testimony as a witness
in the trial. (People v. Atencio, L-222518, Jan. 17,
1968)
Rule on Admission by Privies Rule 130, Sec. 31
- 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
Example: X, father of Z, while the former
was alive, openly told his acquaintances, that the
land where his house stood had already been sold
to Y. Here, the declaration by X is not admissible
against Z, the sole heir of Y, because the statement
was made after X held title to the land.
Second Part of Inter alios acta Rule (Similar Acts as
Evidence)
Rule 130, Secs. 34
- Evidence that one did or did not do a certain thing
at one time is not admissible to prove that he did or
did not do the same or similar thing at another
time; but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme,
habit, custom or usage, and the like.
Confessions Rule 130, Sec. 133; Rule 115 (e); Art.
III, Sec. 17, 1987 Constitution
- Declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily
included therein; may be given in evidence against
him.
- Confession is evidence of high order:
1) There is no evidence of a higher quality than a
confession; It represents the outward manifestation
of a man. Unless, therefore, the confession is
nullified by evidence of duress, the same is
admissible as an evidence of guilt of a high quality.
(People v. Garcia, 54 Phil. 329, 358)
2) If a confession be true and voluntary, the
deliberate act of the accused with a full
comprehension of its significance, there is no
impediment to its admission as evidence and it then
becomes evidence of a high order, since it is
supported by the presumption, a very strong one,
that no person of normal mind will deliberately and
knowingly confess himself to be the perpetrator of a
crime, especially if it be a serious crime, unless
prompted by truth and conscience. (People v. Zea,
et al., 130 SCRA 87, 88)
Probative value of recantations: They are looked
upon with disfavor as recantations are usually
secured through intimidation or for a monetary
consideration. (Molina v. People, 259 SCRA 138)
General rule on admissibility of confession: A
confession is admissible only against the accused
who made it and not against his co-accused, for as
against the latter, the confession would be hearsay
and res inter alios acta. (People v. Talledo, 85 Phil.
533)
Exceptions: when a confession is admissible
against co-accused:
1) When the confession of an accused implicating
his co-accused is made judicially at a joint trial (U.S.
v. Macamay, 36 Phil. 893) or when the extrajudicial
statements implicating a co-accused are repeated in
open court (People v. Ola, G.R. No. L-47147, July 3,
1987), because the co-accused as a chance to cross-
examine.
2) When the offer in evidence of an extrajudicial
confession against a co-accused is not objected to.
(People v. Atienza, 86 Phil. 576)
3) When the co-accused against whom an
extrajudicial confession is offered had, by his acts,
conducts and declarations adopted he confession as
his own. (People v. Atienza, supra; People v.
Orencia, 47 Phil. 970)
4) Where several accused, without collusion, made
extrajduicial confessions which are identical in
essential details and corroborated by other
evidence, such confession is admissible against the
others. (People v. Pelonia, L-14624, July 24, 1960)
5) The confession of a conspirator is admissible
against his co-conspirator provided it was made
during the existence of the conspiracy. (Sec. 30,
Rule 130, ROC; People v. Ramirez, L-5875, May 15,
1953)
6) When the recitals in the extrajudicial confession
of an accused is corroborated in its important
details by other proofs in the record, it may be
admitted against the other accused. (People v.
Villanueva, L-12687, July 31, 1962)
Extrajudicial confessions identical in material
respects (also known as interlocking confessions)
admissible against all declarants:
1) As circumstantial evidence. Extrajudicial
confessions independently made without collusion
and are identical with each other in their material
respects and confirmatory of the other are
admissible as circumstantial evidence against co-
accused implicated therein to show the probability
of the latter's actual participation in the commission
of the crime. (People v. Encipido, et al., 146 SCRA
492)
2) As corroborative evidence. They are admissible
as corroborative evidence against the other
accused, if it is clear from other facts and
circumstances presented that persons other than
the declarants themselves participated in the
commission of the crime charged and proved. (Ibid.)
They are what is commonly known as
interlocking confession and constitute an exception
to the general rule that extrajudicial
confessions/admissions are admissible in evidence
only against the declarants thereof. (Ibid.)
The invocation of amnesty is in the nature
of a plea of confession and avoidance, which means
that the pleader admits the allegations against him,
but disclaims liability therefor on account of
intervening facts which, if proved, would bring the
crime charged within the scope of the amnesty
proclamation. (People v. Salig, et al., 133 SCRA 69
citing Vera v. People, 7 SCRA 153)
What is meant by corpus delicti ?
a. It refers to a particular crime and
signifies that the specific offense had been actually
committed by someone, being composed of two
elements:
1) certain results were produced, and
2) someone is criminally responsible.
(People v. Marquez, 77 Phil. 83)
b. It also means actual commission of the
crime charged. (People v. Madrid, 88 Phil. 1; People
v. Sanchez, 89 Phil. 423), or the specific fact of loss
or injury. (People v. Garcia, 99 Phil. 381)
Examples of corpus delicti:
a. In murder or homicide, the corpus delicti is the
fact of death (People v. Garcia, 99 Phil. 381), which
may be proved even circumstantially. (People v.
Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil.
44).
b. In robbery or theft, the fact of loss. (People v.
Niem, 75 Phil. 668)
c. In arson, the fact of burning, (People v. Marquez,
77 Phil. 83; People v. Mones, 58 Phil. 46)
d. In an affray, the fact that pistol shots were heard
and a bystander was killed by one of the shots
constitute evidence of corpus delicti, which is the
violent death of a person, whether feloniously
caused or not. (People v. Nocum, 77 Phil. 1018)
Conviction for murder proper even if victims body is
not produced: In all crimes against persons in which
the death of the victim is an essential element of
the offense, there must be satisfactory evidence of
the fact of death and the identity of the victim that
a crime has been committed which is what corpus
delicti really means.
The failure of the prosecution to produce the body
of the victim does not imply the absence of corpus
delicti for the term does not refer to the body of the
murdered person. (People v. Centeno, et al., 130
SCRA 209)
- Sec. 17, Art III No person shall be compelled to
be a witness against himself.
The operative act in determining whether
the right against self-incrimination has been
violated is when the police investigation is no longer
a general inquiry into an unsolved crime but has
begun to focus on a particular suspect who has
been taken into custody by the police to carry out a
process of interrogation that lends itself to eliciting
incriminatory statements and not the signing by the
suspect of his supposed extrajudicial confession.
(People vs. Compil, 1995)
By affixing their signatures on the boxes,
accused in effect made a tacit admission of the
crime charged. These signatures are tantamount to
an extrajudicial confession made without the
assistance of counsel, which is not sanctioned by the
Bill of Rights. (People vs. Wong Chuen Ming, 1996)
Any confession, including a re-enactment
without admonition of the right to silence and to
counsel, and without counsel chosen by the accused
is inadmissible in evidence. (People vs. Yip Wai
Ming, 1996)
The declaration of an accused expressly
acknowledging his guilt of the offense may be given
in evidence against him and any person, otherwise
competent to testify as a witness who heard the
confession is competent to testify as to the
substance of what he heard if he heard and
understood it. (People vs. Maqueda, 1995)
Compromises Rule 130, Sec. 27
1.Civil Cases An offer of compromise is not an
admission of any liability, and is not admissible
against the offeror.
2. Criminal Cases An offer of compromise by the
accused may be received in evidence as an implied
admission of guilt EXCEPT in cases involving quasi-
offenses
(criminal negligence) or those allowed by law to be
compromised.
- A plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to lesser offense, is not
admissible in evidence against the accused who
made the plea or offer.
The Good Samaritan Rule: 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.
It has long been held that in cases of public
crimes, the accused is permitted to show that the
offer was not made under a consciousness of guilt
but merely to avoid the inconvenience of
imprisonment of for some other reason which
would justify a claim by the accused that the offer
was not in truth an admission of his guilt or an
attempt to avoid the legal consequences which
would ordinarily ensue therefrom. (People vs.
Godoy, 1995)
A plea of forgiveness may be considered as
analogous to an attempt to compromise. (People
vs. De Guzman, 1996)
An offer to compromise does not require that
a criminal complaint be first filed before the offer
can be received as evidence against the offeror.
(People vs. Yparriguirre, 1997)
THE Hearsay Rule
1. Testimonial Knowledge Rule 130, Sec. 36
1 What can a witness testify to?
- A witness can testify only to those facts which he
knows of his personal knowledge = those which are
derived from his own perception, except as
otherwise provided in these rules.
The hearsay evidence rule applies also to
affidavits when the supposed affiant never
identified the affidavit and there was no
opportunity for the prosecution to cross-examine
him/her. (People vs. Brioso, 1971).
The testimony of a witness regarding a
statement made by another person, if intended to
establish the truth of the facts asserted in the
statement is clearly hearsay evidence. It is
otherwise if the purpose is merely to establish the
fact that the statement was made, or the tenor of
such statement. (People vs. Cusi, 1965)
The testimony of a witness on the
confession made to him by the accused is not
hearsay. He is testifying to a fact which he knows of
his personal knowledge (was testifying to the fact
that the accused told him that he stabbed the
victim) and not to the truth of the statement of the
accused. (People vs. Gaddi, 1989)
Examples of hearsay evidence:
1) The testimony of a witness as to what he has
heard another person say about the facts in dispute.
(People v. Reyes, 76 Phil. 354; Aldecoa & Co., v.
WArner Barnes & Co., 30 Phil. 153) NOTE: See
concept of independent relevant statement.
2) Affidavits. (Marisfosque v. Luna, L-9095, May 25,
1957; People v. Pagkaliwagan, 76 Phil.
457)
General rule: Affidavits without
presenting affiant in court is mere hearsay: The
constitutional right to confrontation precludes
reliance on affidavits. Such a constitutional
safeguard cannot be satisfied unless the
opportunity is given to the accused to test the
credibility of any person, who, by affidavit or
deposition would impute the commission of an
offense to him. It would be to disregard one of the
most valuable guarantees of a person accused if
solely on the affidavits presented, his guilt could be
predicated. (People v. Santos, et al., 139 SCRA 586-
587 citing People v. Lavarez, 23 SCRA 1301)
Exceptions: when affidavits are given
weight:
1) Where said affidavits are overwhelming,
uncontroverted by competent evidence and
not inherently improbable. (Top-Weld
Manufacturing, Inc. v. ECED, S.A., et al., 138
SCRA 132)
2) Under the Rule on Summary Procedure
for civil cases;
3) When a motion is based on facts not
appearing of record the court may hear the
matter on affidavits or depositions
presented by the respective parties, but the
court may direct hat the matter be heard
wholly or partly on oral testimony or
depositions. (Sec. 7, Rule 133, ROC)
3) A letter offered in evidence to establish the facts
in issue. (Pastor v. Gaspar, 2 Phil. 592; People v.
Carlos, 47 Phil. 626)
4) A medical certificate to the extent of the injuries
found by the doctor on the offended party's body.
(De Guia v. Meralco, 40 Phil. 706)
5) A resolution of the municipal council of a certain
municipality as to the character of an accused in a
criminal case. (U.S. v. Tanjuatco, 1 Phil. 374)
6) Newspaper Articles- (Double deck hearsay or
Double hearsay)
Theory of the hearsay rule: When a human
utterance is offered as evidence of the truth of the
fact asserted in it, the credit of the assertor
becomes the basis of inference, and therefore the
assertion can be received as evidence only when
made on the witness stand, subject to the test of
cross-examination.
TWO CONCEPTS OF HEARSAY EVIDENCE:
1. Second hand information (not derived from
personal knowledge of witness)
2. Testimony by a witness derived from his
personal knowledge BUT the adverse party
is not given opportunity to cross-examine
Example (No. 2): Plaintiff presents witness
A. A testifies in court on matters personally
known to him. After direct examination,
court tells that defendant can cross
examine on next scheduled hearing. On the
next scheduled hearing witness A no longer
appears and could no longer be located.
[The remedy here now is to ask that the
testimony of witness A be stricken out since
it now becomes hearsay]
Rationale behind the non-admissibility of hearsay
evidence:
1) A witness can testify only to those facts which he
knows of his own knowledge; and
2) To preserve the right of parties to cross-examine
the original witness or person claiming to have
knowledge of the transaction or occurrence.
(People v. Pagkaliwagan, 76 Phil. 457)
The right to cross-examine he adverse party's
witnesses is essential in the administration of justice
for it is the only means of testing the credibility of
witnesses and their testimony, and this right is not
available in respect of hearsay evidence since he
declarant is not in court. (Donnelly v. U.S., 228 U.S.
243)
Principle of Independently Relevant Statements
- Under this principle regardless of the truth or
falsity of a statement, the fact that such statements
have been made is relevant. The hearsay rule does
not apply, and the statements are admissible as
evidence. Evidence as to the making of such
statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such
a fact.
- Independent relevant statements are hearsay in
character but not legal hearsay, hence they are not
considered as exceptions to the hearsay rule.
Illustration: A was drinking with his buddies. A told
them that: My neighbor is a thief. Later on As
neighbor was charged with theft. Prosecution calls
as his witness one of the drinking buddies. The
drinking buddy testifies in court saying: The
accused is a thief because I heard A says so. [THIS
IS HEARSAY EVIDENCE]
Now, supposing the neighbor filed a libel
case against A. The drinking buddy serves as a
witness for the plaintiff, and says: I heard A said
that the plaintiff is a thief.. [Now this time this is
not hearsay, because the FACT IN ISSUE is whether
or not the utterances were made by a particular
person, regardless of the truth or falsity of the
statement]
CASE: ESTRADA v. DESIERTO, APRIL 3, 2001
Issue: Whether or not the use of the Angara diary to
determine the state of mind of President Estrada
violates the rule against the admission of hearsay
evidence
Held: 1) Angara diary is not an OUT-OF-COURT
STATEMENT, since it is part of the pleadings in the
case.
2) Angara diary is not covered by the hearsay rule.
Evidence is called hearsay when its probative force
depends in whole or in part, on the competency and
credibility of some persons other than the witness
by whom it is sought to produce it.
3) Admission are not excluded by hearsay evidence.
The Angara diary contains direct statements of
petitioner which can be categorized as admissions
of a party. And though the diary is not Estradas
hence non-binding on him, SC held that the doctrine
of adoptive admission applies.
4) res inter alios acta rule- exception: admissions by
a co-partner or agent. Executive Secretary Angara
was the little president, an alter ego of the
president. Indeed, he was authorized by the
petitioner to act for him in the critical hours and
days before he abandoned Malacanan.
5) Independently Relevant Statement- there are two
classes: (1) Statements which are the very facts in
issue; (2) Statements which are circumstantial
evidence. The second class includes:
a. Statement of a person knowing his state
of mind, that is his mental condition, knowledge,
belief, intention, ill will and other emotions
b. Statements of a person which show his
physical condition as illnesses and the like
c. Statements of a person which an
inference may be made as to the state of mind of
another, that is the knowledge, belief, motive, good
or bad faith of the latter
d. Statements which may identify the date,
place and persons in questions
e. Statements showing the lack of
credibility of a witness
The Angara diary contains statements of the
petitioner which reflect his state of mind and are
circumstantial evidence of his intent to resign .
2. Exceptions
2.1 Dying Declaration Rule 130, Sec. 37
- Declaration was made under the consciousness of
an impending death
- Declaration refers to cause and surrounding
circumstances of the death of the declarant
- Declaration may be received in any case wherein
declarants death is the subject of inquiry (In one
case. The husband was shot and wife was stabbed.
The wife died instantly. The husband was brought to
the hospital and made a statement that it was X
who stab her wife. The husband then died. The
statement is not a dying declaration because it
pertains to the wife)
- The declarant must be competent as a witness
(What if declarant is proved to be a congenital liar?
Still this exception may apply, because he is not
disqualified from testifying in court if he were alive)
- The declarant actually died, otherwise, the
declaration may be admitted as part of the res
gestae and not as a dying declaration
APPLICABILITY: Both Civil and Criminal. [Criminal:
Only those which involve death, homicide, murder,
parricide, robbery with homicide, rape with
homicide]
Victim need not state that he has lost all hope of
recovery. It is sufficient that circumstances are such
as to inevitably lead to the conclusion that at the
time the declaration was made, the declarant would
not expect to survive the injury from which he
actually died.
The degree and seriousness of the wounds
and the fact that death supervened thereafter
constitute substantial evidence of the victim's
consciousness of his impending death. (People v.
Tanaman, et al., G.R. No. 71768, July 28, 1987)
Dying declaration has weight even if declarant did
not die immediately after his declaration: The fact
that the declarant died four (4) hours after his
statement does not diminish the probative value of
the dying declaration since it is not indispensable
that the a declarant expires immediately thereafter.
It is the belief of impending death and not
the rapid succession of death that renders the dying
declaration admissible. (People v. Bautista, G.R. No.
111149, prom. September 5, 1997)
Mere gesture of dying victim inconclusive: The
gesture of a dying woman in pointing to a direction,
when asked for the identity of her assailant, is too
vague to be given such probative value in
determining the culpability of the accused.
REASON: Unlike an oral or a written
declaration, a simple gesture of the hand
unaccompanied by words, is open to various
interpretations by the witness who testifies to its
existence. Thus, the evidence comes to the court
couched in the witness' second hand perception
and possibly, imbued with his personal meanings
and biases. This is what makes hearsay evidence
objectionable. The second hand evidence is placed
before the court without the benefit of cross-
examination by the party against whom it is
brought, nor of any other means of assessing the
competence and credibility of the source. (People v.
Ola, G.R. No. L-47147, July 3, 1987)
CASE: The crime charged is rape with homicide. The
victim before death tells to the police
investigator/doctor: I was raped. [This is not a
dying declaration, because the statement has
nothing to do with the cause and circumstances
surrounding the death. But this may be admitted as
part of res gestae]
2.2 Res Gestae Rule 130, Sec. 42
- What are admissible as part of the res gestae:
- Statements made by a person while a starting
occurrence is taking place or immediately prior or
subsequent thereto with respect to the
circumstances thereof
- Statements accompanying an equivocal act
material to the issue and giving it legal significance
TWO CONCEPTS:
A. Spontaneous Statements
B. Statements accompanying Equivocal Acts-
Equivocal means ambiguous; capable of different
interpretations.
EXAMPLE: a) SPONTANEOUS STATEMENT: X
barged into the house of Y, tied her to a chair and
robbed her. X brought Ys maid to a bedroom and
raped her. Y could hear the maid crying: Huwag!
Maawa ka sa akin!. When X fled, Y with the maid
rushed to the police station and told the police what
happened. The maid told the police that despite her
pleas X still raped her. The police noticed that the
maid was hysterical and on the verge of collapse. X
was charged with robbery with rape. During the trial
the maid could no longer be located. The
prosecution presents the policeman to testify on
what the maid told him. [The testimony would be
hearsay but as an exception to the hearsay rule. The
statements made by the maid fall within the res
gestae rule]
b) EQUIVOCAL/VERBAL ACTS: A witness
testifies on the stand for the plaintiff in a collection
case where the defendant denies having borrowed
P10,000 from the plaintiff. The debt is not
evidenced by a promissory note because plaintiff
claims that defendant had orally borrowed money
from him in the past and had always paid. This time
he refuses to pay. The witness testifies that one year
ago he saw the plaintiff give money to the
defendant. And that he heart the plaintiff said that:
Heres the money you are borrowing from me.
Further, he said that he heard the defendant say:
Thank you, I will pay one year after. [Here the
equivocal act of handing the money was given
significance by the statement of the plaintiff]
DYING DECLARATION vs. RES GESTAE
Time when statements made: DYING DECLARATION-
statements must be made after the injury has been
inflicted upon the applicant.
RES GESTAE- in so far as
startling occurrence is concerned, the statements
could be made prior or simultaneous with or after
the startling occurrence.
Death of declarant: DYING DECLARATION- declarant
must die
RES GESTAE- no need for declarant
to die
Declarant: DYING DECLARATION- must be the victim
RES GESTAE- anybody
PEOPLE vs. CLOUD (265 SCRA 472) Concept of
independently relevant statements and res gestae
applied simultaneously. [N.B. dying declaration
may likewise be applied simultaneously with
independently relevant statement]
Josephine Aguilar was at the emergency room of a
hospital to have some stitches removed from her
daughters head when she saw a boy being carried
by a man, followed by an old woman who was
shouting hysterically. The boys face was swollen
and bruised and his body covered with dry blood.
The old woman, apparently the boys grandmother,
cried and repeatedly screamed. Pinatay siya ng
sariling ama!. The old woman told the people
inside the emergency room that the boys father
had beaten him up, tied his hands, and stabbed him.
Ruling of SC: Insofar as the statements of Rufina
Alconyes(old woman) are concerned, they are
admissible as part of the res gestae, they having
been caused by and did result from the startling, if
not gruesome, occurrence that she witnessed; and
these were shortly thereafter uttered by her with
spontaneity, without prior opportunity to contrive
the same.
The report made thereof by Josephine
Aguilar is not hearsay since she was actually there
and personally heard the statements of Alconyes
which she recounted in court. Her account of said
statements of Alconyes are admissible under the
doctrine of independently relevant statements, with
respect to the tenor and not the truth thereof, since
independent of the truth or falsity of the same they
are relevant to the issue on the cause of the death
of the victim.
2.3 Declaration Against Interest Rule 130, Sec. 38
By whom made: a person deceased, or unable to
testify, against the interest of the declarant
Subject of declaration/act: 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
Against whom received: such may be received in
evidence against himself or his successors in
interest and against third persons.
REQUISITES:
a. The declaration is made by
1) a person deceased, or
2) unable to testify [i.e. in foreign country
or physical/mental impairments]
b. against the interest of the declarant, [declarant
MUST KNOW that it is against his interest]
c. if the fact asserted in the declaration
1) was at the time it was made
2) so far contrary to declarant's own
interest,
3) that a reasonable man in his position
a) would not have made the
declaration
b) unless he believed it to be true.
(Sec. 38, Rule 130, ROC)
Declaration against interest distinguished from
admission:
1) An admission is not necessarily against the
interest of the admitter WHILE the declaration must
be against the declarant's own interest(penal,
proprietary, financial)
2) An admission may be received even if the
admitter is alive WHILE the declarant must be dead
or is unable to testify;
3) An admission may be received in evidence only
against the admitter and those identified with him
in legal interest WHILE the declaration may be
received even against third persons. (Smith v.
Moore, 142 N.C. 277)
Inability to testify = either dead, mentally
incapacitated or physically incompetent. Mere
absence from the jurisdiction does not make him
ipso facto unavailable. Fuentes vs. CA (1996)
CASE: People v. Holgado
Jose was killed. Pedro admitted that he was the one
who killed Jose. Unfortunately, Pedro also died. The
prosecutor filed an information charging Juan with
homicide of Jose. The defense presented a witness
who heard Pedro say that he was the one who killed
Jose. SC held that Pedros declaration is a
declaration against interest. It is therefore
admissible to show that the accused did not commit
the crime charged.
2.4 Pedigree Rule 130, Sec. 39
By whom made: person deceased, or unable to
testify
Subject of declaration/act: pedigree of another
person related to him by birth or marriage
When admissible: occurred before the controversy,
and the relationship between the two persons is
shown by evidence other than such act or
declaration.
Pedigree - includes relationship, family genealogy,
birth, marriage, death, the dates when and the
places where these fast occurred, and the names of
the relatives. It embraces also facts of family history
intimately connected with pedigree.
2.5 Family Tradition Rule 130, Sec. 40
Subject of exception: reputation or tradition existing
in a family previous to the controversy, in respect to
the pedigree of any one of its members, may be
received in evidence if the witness testifying
thereon be also a member of the family, either by
consanguinity or affinity.
-Entries in family bibles or other family books or
charts, engravings on rings, family portraits and the
like, may be received as evidence of pedigree.
2.6 Common Reputation Rule 130, Sec. 41
- What are admissible?
- Common reputation existing previous to the
controversy, respecting facts of public or general
interest > 30 years old, or respecting marriage or
moral character, may be given in evidence.
- Monuments and inscriptions in public places may
be received as evidence of common reputation
 Note: When it comes to presentation of
evidence concerning the good or bad moral
character, the only evidence admissible is evidence
of COMMON REPUTATION. So if character evidence
is allowed a litigant cannot present proof that he is
of good moral character.
Example: A parish priest of the community
where the accused belongs is presented as witness.
And the parish priest testifies that the accused goes
to mass everyday and receives holy communion.
[The testimony is not admissible to show the
accuseds good moral character; Moral character for
purposes of evidence can be demonstrated ONLY by
evidence of REPUTATION]. So the parish priest
should tell the court what is the reputation of the
accused in the community.
Principle of NEGATIVE REPUTE
If in a community nothing good or bad is heard
about a particular person, the presumption is that
he is really a good person, because that flows from
the established principle in substantive law that
everyone is acting in good faith.
2.7 Entries in the Course of Business Rule 130,
Sec. 42; Rule 8, REE
When made: Entries made at, or near the time of
transactions to which they refer
By whom made: by a person deceased, or unable to
testify, who was in a position to know the facts
therein stated,
Treatment of such evidence: prima facie evidence, if
such person made the entries in his professional
capacity or in the performance of duty and in the
ordinary or regular course of business or duty.
Rule 8, Section 1. Hearsay rule exception: A
memorandum, report, record or data compilation of
acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means
at or near the time of or from transmission or
supply of information by a person with knowledge
thereof, and kept in the regular course or conduct of
a business activity, and such was the regular
practice to make the memorandum, report, record,
or data compilation by electronic, optical or similar
means, all of which are shown by the testimony of
the custodian or other qualified witnesses.
Rule 8, Section 2. This presumption may be
overcome by evidence of the untrustworthiness of
the source of information or the method or
circumstances of the preparation, transmission or
storage thereof.
2.8 Official Records Rule 130, Sec. 44
When made: Entries made at, or near the time of
transactions to which they refer.
By whom made: by a person deceased, or unable to
testify, who was in a position to know the facts
therein stated,
Treatment of such evidence: prima facie evidence, if
such person made the entries in his professional
capacity or in the performance of duty and in the
ordinary or regular course of business or duty.
The report submitted by a police officer in
the performance of his duties on the basis of his
own personal observation of the facts reported,
may properly be constituted as an exception.
(Caltex vs. Africa, 1966)
Entries in a police blotter are not conclusive
proof of the truth of such entries. (People vs.
Cabuang, 1993)
2.9 Commercial Lists Rule 130, Sec. 45
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons engaged
in that occupation and is generally used and relied
upon by them therein.
2.10 Learned Treatises Rule 130, Sec. 46
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.
2.11 Prior Testimony Rule 130, Sec. 47
By whom made: a witness deceased or unable to
testify,
When given: in a former case or proceeding, judicial
or administrative, involving the same parties and
subject matter,
When admissible: may be given in evidence against
the adverse party who had the opportunity to cross-
examine him.
Unable to testify refers to an inability
proceeding from a grave cause almost amounting to
death as when the witness is old and has lost the
power of speech. (Tan vs. CA, 1967)
Conduct and Character as Evidence
Conduct Rule 130, Secs. 34-35
- Evidence that one did or did not do a certain thing
at one time is not admissible to prove that he did or
did not do the same or similar thing at another
time; but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme,
habit, custom or usage, and the like.
- An offer in writing to pay a particular sum of
money or to deliver a written instrument or specific
personal property is, if rejected without valid cause,
equivalent to the actual production and tender of
the money, instrument, or property.
Character Rule 130, Sec. 51; Rule 132, Sec. 14
General Rule: Character evidence is not admissible,
[because it is purely circumstantial] exceptions-
1. In criminal cases
- Accused = may prove his good moral character
which is pertinent to the moral trait involved in the
offense charged.
- Prosecution = may not prove his bad moral
character unless in rebuttal.
- Offended Party = his/her good or bad moral
character may be proved if it tends to establish in
any reasonable degree the probability or
improbability of the offense charged.
2. In civil cases
- Evidence of the moral character of a party in a civil
case is admissible only when pertinent to the issue
of character involved in the case.
- Witness = Evidence of his/her good character is
not admissible until such character has been
impeached.
While evidence of another crime is, as a
rule, not admissible in a prosecution for robbery; it
is admissible when it is otherwise relevant, as when
it tends to identify defendant as the perpetrator and
tends to show is presence at the scene of the crime
or in the vicinity of the crime at the time charged, or
when it is evidence of a circumstance connected
with the crime. (People vs. Irang, 1937)
Good or bad moral character of the victim
is not necessary in a crime of murder where the
killing is committed through treachery or
premeditation. (People vs. Soliman, 1957)
V. Opinion Rule Rule 130, Secs. 48-50
General Rule: The opinion of a witness is not
admissible (R130, 48)
Except:
1. Expert witness: opinion of a witness on a matter
requiring special knowledge, skill, experience or
training which he shown to possess (R130, 49)
2. Ordinary witness: The opinion of a witness for
which proper basis is given, may be received in
evidence regarding
(a) The identity of a person about whom he has
adequate knowledge;
(b) A handwriting with which he has sufficient
familiarity; and
(c) The mental sanity of a person with whom he is
sufficiently acquainted.
(d) The witness may also testify on his impressions
of the emotion, behavior, condition or
appearance of a person. (R130, 50)
There is no precise requirement as to the
mode in which skill or experience shall have been
acquired. Scientific study and training are not
always essential to the competency of a witness as
an expert. Knowledge acquired by doing is no less
valuable than that acquired by study. (Dilag Co. vs.
Merced, 1949)
Polygraph test has not as yet attained
scientific acceptance as a reliable and accurate
means of ascertaining truth or deception. (People
vs. Adoviso, 1999)
Expert opinions are not ordinarily
conclusive in the sense that they must be accepted
as true on the subject of their testimony, but are
generally regarded as purely advisory; the courts
may place whatever weight they choose upon such
testimony and may reject it, if they find that it is
inconsistent with the facts in the case or otherwise
unreasonable.(Punzalan v. Commission on Elections,
et al., G.R. No. 126669)
Testimony of handwriting expert not
indispensable to COMELEC. Handwriting experts,
while probably useful, are not indispensable in
examining or comparing handwriting; this can be
done by the COMELEC itself. It was ruled by the
Supreme Court that evidence aliunde is not allowed
to prove that a ballot is marked, an inspection of
the ballot itself being sufficient. ((Punzalan v.
Commission on Elections, et al., G.R. No. 126669)
VI. Burden of Proof and Presumptions
1. Burden of Proof Rule 131, Sec. 1
Burden of proof (Risk of non-persuasion): duty of a
party to present evidence on the facts in issue
necessary to establish his claim or defense by the
amount required by law.
Criminal Cases: The burden of proof is on the
prosecution, because under Rule 133 the accused is
entitled to acquittal unless his guilt is demonstrated
by proof beyond reasonable doubt
Civil Cases: The usual principle is that whoever
makes an affirmative allegation has the burden of
proof
Infringement cases: The burden of proof to
substantiate a charge of infringement is with the
plaintiff. But where he plaintiff introduces the
patent in evidence, and the same is in due form,
there is created a prima facie presumption of its
correctness and validity. The decision of the
Commissioner of Patent (now the Director of the
Intellectual Property Office), in granting the patent
is presumed to be correct.
The burden of going forward with the evidence
(burden of evidence) then shifts to the defendant to
overcome by competent evidence this legal
presumption. (Maguan v. Court of Appeals, et al.,
146 SCRA 116, 117)
Two separate burdens in Burden of Proof:
1. Burden of going forward- that of producing
evidence
2. Burden of persuasion- burden of
persuading the trier of fact that the
burdened party is entitled to prevail
Illustration of going forward with the evidence: For
example after the existence of a debt has been
proven by the creditor the burden of proving
payment devolves upon the debtor. Where the
debtor introduces evidence of payment, the burden
of going forward with the evidence - as distinct from
the general burden of proof- shifts to the creditor
who is then under the duty of producing evidence
to show non-payment. (Jimenez, et al, v. NLRC, et
al., G.R. No,. 116960, prom. April 2, 1996)
In short, the burden of going forward is the
burden of producing evidence.
EFFECT OF ABSENCE OF EVIDENCE or no
evidence is presented
CRIMINAL CASE: Accused is acquitted
CIVIL CASE:
a. When defendant does not file an answer-
Plaintiff wins
b. When defendant files an answer and sets
up purely negative defenses and no
evidence is presented by both sides-
Defendant wins because plaintiff has not
carried his burden
c. When defendant files an answer and sets
up affirmative defenses and no evidence is
presented by both sides- Plaintiff wins
Example: The defendant filed an
answer: I admit that I borrowed money from the
plaintiff, but the plaintiff has no reason to run after
me because I have paid that account long time
ago. [If no evidence is presented by both sides then
plaintiff wins because the defendant admitted the
existence of loan. And it is the defendants burden
to prove his affirmative defense.]
BURDEN OF EVIDENCE- the duty resting upon a
party, by means of evidence, to create or meet a
prima facie case.
BURDEN OF PROOF vs. BURDEN OF EVIDENCE
Burden of Proof NEVER SHIFTS, while Burden of
Evidence is TRANSFERRED from one litigant to
another depending on the progress of trial.
Illustration: Plaintiff files a complaint for recovery of
a defaulted loan. Defendant files an answer with a
negative defense, denying the existence of the loan.
[ At the start, the plaintiff has the burden of proof
and also burden of evidence, he should go to trial
and present evidence to show that he has a cause of
action. If he has introduced enough proof that he
has a cause of action, the burden of evidence will
now be shifted to the defendant. If defendant
presents enough evidence to prove his negative
defense then the burden of evidence is shifted again
to the plaintiff on rebuttal evidence.]
Can the accused in a criminal/civil case before
presenting his own evidence ascertain
conditionally or provisionally whether the
evidence presented by the prosecution is enough
to convict him?
Yes. In a criminal/civil case, the
accused(defendant/plaintiff) can easily determine
the sentiment of the court concerning the quantum
of evidence presented by the
prosecution(defendant/plaintiff) by simply filing a
demurrer to evidence with leave of court.
PRINCIPLE OF NEGATIVING AVERMENT
A negative averment do not have to be proven
UNLESS the negative averment is an essential part
of the cause of action or defense.
Example: In an information for illegal possession of
firearms, the information will contain an averment
that the accused does not have a license to possess
the firearm[negative averment].
* In this case, the negative averment is an
essential part of the commission of the crime, hence
this must be proven.
Doctrine of equipoise or Equiponderance Rule
Where the evidence on an issue of fact is in
equipoise or there is doubt on which side the
evidence preponderates, the party having the
burden of proof fails upon that issue. (Rivera v.
Court of Appeals, et al., G.R. No. 115625, prom.
January 23, 1998)
Therefore, as neither party was able to make
out a case, neither side could establish its cause of
action and prevail with the evidence it had. They
are thus no better off than before they proceeded to
litigate, and, as a consequence thereof, the courts
can only leave them as they are. (Rivera, supra
citing Municipality of Candijay, Bohol v. Court of
Appeals, 251 SCRA 530)
2. Presumptions Rule 131, Secs. 2-4
Presumption- an inference as to the existence or
non-existence of a fact which courts are permitted
to draw from the proof of other facts.
CLASSIFICATIONS
1. PRESUMPTION JURIS OR OF LAW- a deduction
which the law expressly directs to be made from
particular facts
-Must be made whenever the facts appear
which furnish the basis for the inference
-Reduced to fixed rules and form part of the
system of jurisprudence
2. PRESUMPTION HOMINIS OR OF FACT- a
deduction which reason draws from facts proved
without an express direction from the law to that
effect
-Discretionary on the court
-Derived from circumstances of a particular
case through common experience of mankind
CLASSIFICATIONS OF PRESUMPTIONS OF LAW
1. Conclusive- not permitted to be overcome by any
proof to the contrary
2. Disputable- law permits to be overcome or
contradicted
2.1 Conclusive
2.1.1. Whenever a party by his own declaration, act,
omission, has led another
1 to believe a particular thing to be
true AND
2 to act upon such belief,
he cannot in any litigation arising out of such
declaration, act or omission be permitted to falsify
it. (Estoppel)
2.1.2. The TENANT is not permitted to deny the
title of his landlord at the time of the
COMMENCEMENT of the relation of landlord and
tenant between them.
Note: There is also a conclusive presumption under
the Rule 39, which is a
public policy principle of
res judicata (a judgment is conclusive upon the title
to the thing or upon the political or legal condition
of a person, {judgment in rem or in personam})
2.2 Disputable
CLASSIFICATIONS:
1. Presumption of innocence (Presumption of good
faith)
2. Presumption of regularity of official and judicial
acts
3. Presumption of regularity of private transactions
- Person is innocent of a crime or wrong;
- Unlawful act is done with an unlawful intent;
- Person intends the ordinary consequences of his
voluntary act;
- Person takes ordinary care of his concerns;
- Evidence willfully suppressed would be adverse if
produced
ELEMENTS:
a. The suppression is wilful. (Sec. 3-e, Rule
131, ROC) continue
b. The suppression is not in the exercise of
a privilege.
c. The evidence suppressed is not merely
corroborative.
d. The evidence is at the disposal only of
the suppressing party.
NOTES: Instances where adverse
presumption from suppression of evidence does not
apply:
a. If the evidence is at the disposal of both
parties. (People v. Ducay, 225 SCRA 1)
b. The suppression was not willful.
c. The suppressed evidence is merely
corroborative or cumulative.
d. The suppression is an exercise of a
privilege. (People v. Navaja, 220 SCRA 624)
- Money paid by one to another was due to the
latter;
- Thing delivered by one to another belonged to the
latter;
- Obligation delivered up to the debtor has been
paid;
- Prior rents or installments had been paid when a
receipt for the later ones is produced;
- A person found in possession of a thing taken in
the doing of a recent wrongful act is the taker and
doer of the whole act; otherwise, that things which
a person possesses or exercises acts of ownership
over, are owned by him;
- 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; person acting in public office was
regularly appointed or elected to it;
- Official duty has been regularly performed;
- A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
- All the matters within an issue raised in a case
were laid before the court and passed upon by it; all
matters within an issue raised in a dispute
submitted for arbitration were laid before
arbitrators and passed upon by them;
- Private transactions have been fair and regular;
- ordinary course of business has been followed;
- there was a sufficient consideration for a contract;
- negotiable instrument was given or indorsed for a
sufficient consideration;
- An indorsement of negotiable instrument was
made before the instrument was overdue and at the
place where the instrument is dated;
- A writing is truly dated;
- Letter duly directed and mailed was received in the
regular course of the mail;
- Absentee of 7 years, it being not known whether
or not he is alive, is considered dead for all purposes
except for succession.
= For the purpose of opening his succession: an
absence of 10 years, if disappeared after age of 75,
absence of 5 years.
= The following shall be considered dead for all
purposes including the division of the estate among
the heirs:
= Person on board a vessel lost during a sea voyage,
or an aircraft with is missing, who has not been
heard of for 4 years since the loss of the vessel or
aircraft;
= Member of the armed forces who has taken part
in armed hostilities, and has been missing for 4
years;
= Person who has been in danger of death under
other circumstances and whose existence has not
been known for four years;
= Spouse, of a married person absent for 4
consecutive years, may contract a subsequent
marriage if he or she has well-founded belief that
the absent spouse is already death; 2 years in case
of disappearance, where there is a danger of death
the circumstances hereinabove provided. 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.
- Acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
- Things have happened according to the ordinary
course of nature and ordinary nature habits of life;
- Persons acting as copartners have entered into a
contract of co-partnership;
- A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
- 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.
- 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.
- 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:
- A child born before 180 days after the
solemnization of the subsequent marriage is
considered to have been conceived during such
marriage, even though it is born within the 300 days
after the termination of the former marriage.
- A child born after 180 days following the
celebration of the subsequent marriage is
considered to have been conceived during such
marriage, even though it be born within the 300
days after the termination of the former marriage.
- A thing once proved to exist continues as long as is
usual with things of the nature
- The law has been obeyed;
- A printed or published book, purporting to be
printed or published by public authority, was so
printed or published;
- 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;
- 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;
- Except for purposes of succession, when 2 persons
perish in the same calamity, and it is not shown who
died first, and there are no particular circumstances
from which it can be inferred, the survivorship is
determined from the probabilities resulting from
the strength and the age of the sexes, according to
the following rules:
= Both < 15: older survived;
= Both > 60: younger survived;
= One <15; other >60: <15 survived;
= Both >15, <60 and the sex be different, the male is
deemed to have survived, if the sex be the same,
the older;
= One < 15 or >, and the other between those ages,
the latter is deemed to have survived.
- 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. (5a)
The presumption that evidence not
produced or willfully suppressed is adverse to the
party, will not apply if the evidence is at the disposal
of both the defense and the prosecution and if the
evidence is merely conclusive. (People vs.
Padiernos, 1976)
VII. Presentation of Evidence
Note: The Rules apply to Summary Procedure but in
a modified form, since in Summary Procedure the
testimonies of the witnesses, (in civil cases) will be
reduced into writing in the form of affidavit. Hence,
there is no direct, cross, re-cross or re-direct
examination.
Affiant is not allowed in Summary Procedure
to embody hearsay testimony.
In criminal cases under Summary Procedure,
the affidavits of the witnesses take the place of the
direct examination. There is cross examination
VOIR DIRE- preliminary examination of witnesses
for the purpose of establishing whether or not a
witness really is qualified as such. (Likewise done in
examination of a child witness, but it is only the
judge who can ask questions, plaintiff and
defendant can write their questions and give it to
the judge)
Note: Ordinary witnesses are not allowed to be
examined in a narrative form, except a child
witness.
A. Examination of Witnesses
1. How done Rule 132, Sec. 1
open court
under oath or affirmation
- Mode of answering
General Rule: oral
Exception:
o Witness is incapacitated to speak or
o Question calls for a different mode of
answer
2. Rights and Obligations Rule 132, Sec. 3
Obligation of a witness: answer questions, although
his answer may tend to establish a claim against
him.
Rights of a witness:
2.1 To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
2.2 Not to be detained longer than the interests of
justice require;
2.3 Not to be examined except only as to matters
pertinent to the issue;
2.4 Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
provided by law; or
2.5 Not to give an answer which will tend to
degrade his reputation, unless it to be the very fact
at issue or to a fact from which the fact in issue
would be presumed. But a witness must answer to
the fact of his previous final conviction for an
offense.
Case: Supposing a witness refused to answer
because he feels the question is incriminatory.
However, the court directs the witness to give an
answer and the witness obeys the order of the
court. Later on the answer turns out to be
incriminatory and later on the witness was indicted
for the commission of this offense, can his
testimony in court be given in evidence against him
in the form of an admission?
NO, because the witnsess has initially objected
and he gave the answer only in compliance with an
order of the court. According to some decisions that
could be treated as a compelled testimony given
under duress and therefore could not be used
against the witness.
EXCEPTIONS TO RULE AGAINST SELF-
INCRIMINATION
1. Use Immunity- the witness will still be indicted
for the commission of an offense, but the
statements given by the witness cannot be used
against him. He is not immunized from prosecution.
2. Transactional Immunity- There is absolute
immunity, both to prosecution and use of the
statements given by the witness.
3. Order in the Examination Rule 132, Sec. 4
3.1 Direct Examination Rule 132, Sec. 5
- Examination-in-chief of a witness by the party
presenting him on the facts relevant to the issue.
3.2 Cross-Examination Rule 132, Sec. 6
- When conducted: upon termination of direct
examination
- Matters covered: witness may be cross-examined
by the adverse party as to
= Any 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.
Implied waiver of cross-examination The party
was given the opportunity Dela Paz vs. IAC (1987)
TWO RULES ON LIMITS OF CROSS EXAMINATION
1. English Rule- where a witness is called to testify
to a particular fact, he becomes a witness for all
purposes and may be fully cross-examined upon all
matters material to the issue, the examination not
being confined to the matters inquired about in the
direct examination.
2. American Rule- restricts cross-examination to
facts and circumstances which are connected with
the matters that have been stated in the direct
examination of the witness. (applies when witness
is the accused in a criminal case; and when witness
is hostile or adverse party witness)
3.3 Re-direct Examination Rule 132, Sec. 7
- When conducted: after the cross-examination of
the witness has been concluded
- Why conducted: to explain or supplement his
answers given during the cross-examination. On re-
direct-examination, the court in its discretion may
allow questions on matters not dealt with during
the cross-examination.
3.4 Re-cross Examination Rule 132, Sec. 8
- 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, upon the conclusion of
the re-direct examination.
4. Recalling Witnesses Rule 132, Sec. 9
- After the examination of a witness has been
concluded by both sides has been concluded, the
witness cannot be recalled without leave of court.
The court will grant or withhold leave in its
discretion as the interests of justice may require.
There must be a satisfactory showing of
some concrete, substantial ground (i.e. particularly
identified material points were not covered in the
cross-examination; particularly described vital
documents were not presented to the witness; the
cross-examination was conducted in so inept a
manner as to result in a virtual absence thereof.
(People vs. Rivera, 1991)
5. Leading and Misleading Questions Rule 132,
Sec. 10
Leading questions
Questions that suggest to the witness the
answer, which the examining party desires, are
leading questions.
General Rule: Not allowed
Exceptions:
1. On cross examination;
2. On preliminary matters;
3. 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;
4. Of an unwilling or hostile witness; or
o 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.
6. 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.
When the answer is derived from a leading
question the evidence has no probative
value at all even if there is no objection to a
leading question.
Misleading questions
1 Those that assume as true a fact not yet
testified to by the witness, or contrary to that
which he has previously stated.
2 Not allowed.
DOCTRINE OF INCOMPLETE TESTIMONY: When
cross examination cannot be done or completed
due to causes attributable to the party who offered
the witness, the incomplete testimony is rendered
incompetent and should be stricken from the
record. Except: where the prosecution witness was
extensively cross-examined on the material points
and thereafter failed to appear and cannot be
produced despite a warrant for his arrest. (People v.
GOrospe, GR 51513, May 15, 1984)
Scope of judges participation at trial: A judge who
presides at a trial is not a mere referee. He must
actively participate therein by directing counsel to
the facts in dispute, by asking clarifying questions,
and by showing an interest in a fast a fair trial.
(Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960)
 He can interrogate witnesses to elicit the
truth, to obtain clarification, or to test their
credibility. (People v Moreno, 83 Phil. 286)
However, this power must be exercised by
the court sparingly and judiciously. (People v.
Ferrer, 44 O.G. 112). Of course, the judge cannot
curtail counsel's right to interrogate witnesses.
(People v. Bedia, 83 Phil. 909)
There is no prohibition against the judge
conducting the examination of the witness. The
counsel may object to the questions propounded by
the judge.
Power of court to stop further evidence:
1) The court may stop
2) the introduction of further testimony
3) upon any particular point
4) when the evidence upon it is already so full
5) that more witnesses to the same point
6) cannot be reasonably expected
7) to be additionally persuasive.
But this power should be exercised with caution.
When the evidence already presented on one point
is sufficient and the party merely seeks to present
cumulative evidence which cannot produce
additional persuasive effect or that he is not sure of
what the other witnesses would testify, the court
may in its sound discretion stop the introduction of
such further evidence. (People v. Reyes, et al., 133
SCRA 51)
Role of attorney during presentation of evidence:
An attorney has a dual role to perform relative to
proving the truth respecting a matter of fact.
He must ensure that all evidence supporting the
material allegations, whether raised in the pleadings
or not are admitted by the court. His other role is to
block the admission of evidence supporting his
opponents' material allegations whether raised in
the pleadings or not.
In order to perform this dual role the attorney
should ensure that the evidence he offers are
admissible in accordance with the Rules of Court
and those of his opponent are properly objected to
for being inadmissible
6. Impeachment of Witnesses
6.1. Impeachment of Adverse Partys Witness Rule
132, Sec. 11
- How done:
by contradictory evidence;
by evidence that his general reputation for truth,
honesty or integrity is bad; or
by evidence that he has made at other times
statements inconsistent with his present testimony.
- Evidence of particular wrongful acts is not allowed
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.
6.2. Impeachment of Own Witness Rule 132, Sec.
12
- General Rule: The party producing a witness is not
allowed to impeach the latters credibility.
- Exception: The witness is an unwilling or hostile
witness.
= 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 impeachment may be made by the party
presenting the hostile or unwilling witness in all
respects as if he had been called by the adverse
party, except by evidence of 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.
6.3. Impeachment by Prior Inconsistent Statements
Rule 132, Sec. 13
- 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, be 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 (laying the
predicate).
Laying the foundation or laying the basis- refers to
a situation where an evidence which is otherwise
incompetent will be introduced in evidence because
it falls under the exceptions to that rule on
exclusion.
Example: If a party desires to introduce
secondary or substitutionary evidence he must first
lay the foundation or lay the basis. He must first
proved that there was a writing duly executed and
that the original has been lost or destroyed.
7. Exclusion and Separation of Witnesses Rule
132, Sec. 14
- 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 have the witnesses separated and
prevented from conversing with each other until all
have been examined.
8. Refreshing Recollection of Witnesses Rule 132,
Sec. 16
8.1 Revival of Present Memory
- 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.
Note: The memorandum is not evidence, it is still
the testimony
8.2 Past Recollection Recorded
- A witness may testify from such writing or record,
(as in the case in revival of present memory) 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.
Note: It is the memorandum that will serve as
evidence (documentary evidence)
What is the consequence of giving in evidence a
part of an act, declaration, conversation, writing or
record? (Rule 132, Section 17) [RULE OF
COMPLETENESS]
- 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 on Examination of a Child Witness
Applicability of the Rule. Unless otherwise
provided, this Rule shall govern the examination of
child witnesses who are victims of crime, accused of
a crime, and witnesses to crime. It shall apply in all
criminal proceedings and non-criminal proceedings
involving child witnesses. (1)
Child witness
I. Definition (4(a))
Any person who at the time of giving testimony
is < 18 years.
In child abuse cases: a child includes one over
eighteen (18) years but is found by the court as
unable to fully take care of himself or protect
himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a
physical or mental disability or condition.
II. Competency of a Child Witness: Every child is
presumed qualified to be a witness. To rebut
the presumption of competence enjoyed by a
child, the burden of proof lies on the party
challenging his competence. (6, 6(b))
Competency exam
A. When conducted-
- Motu proprio or on motion of a
party, when it finds that substantial
doubt exists regarding the ability of
the child to perceive, remember,
communicate, distinguish truth
from falsehood, or appreciate the
duty to tell the truth in court. (6)
- A party seeking a competency
examination must present proof of
necessity of competency
examination. The age of the child
by itself is not a sufficient basis for
a competency examination. (6(a))
B. Who are allowed to attend-
- The judge and necessary court
personnel;
- The counsel for the parties;
- The guardian ad litem;
- Support person/s for the child; and
- The defendant, unless the court
determines that competence can
be fully evaluated in his absence.
(6(c))
C. How conducted-
- By whom conducted: by the judge,
counsel for the parties, however,
can submit questions to the judge
that he may, in his discretion, ask
the child. (6(d))
- Questions asked: appropriate to
the age and developmental level of
the child; shall not be related to
the issues at trial; and shall focus
on the ability of the child to
remember, communicate,
distinguish between truth and
falsehood, and appreciate the duty
to testify truthfully. (6(e))
- The court has the duty of
continuously assessing the
 competence of the child
throughout his testimony. (6(f))
III. Testifying
A. Oath: Before testifying, a child shall take an
oath or affirmation to tell the truth. (7)
B. Examination
1. How conducted
General Rule: open court, unless the
witness is incapacitated to speak, or the
question calls for a different mode of
answer, the answers of the witness shall be
given orally. (8)
Exception/s:
a) Exclusion of the public
- Why made:
To protect the right to privacy
of the child or
If the court determines on the
record that requiring the child
to testify in open court would
cause psychological harm to
him, hinder the ascertainment
of truth, or result in his
inability to effectively
communicate due to
embarrassment, fear, or
timidity.
- In making its order, the court shall
consider the developmental level
of the child, the nature of the
crime, the nature of his testimony
regarding the crime, his
relationship to the accused and to
persons attending the trial, his
desires, and the interests of his
parents or legal guardian.
- The court may, motu proprio,
exclude the public from the
courtroom if the evidence to be
produced during trial is of such
character as to be offensive to
decency or public morals.
- The court may also, on motion of
the accused, exclude the public
from trial, except court personnel
and the counsel of the parties.
(23)
b) The court may order that persons
attending the trial shall not enter or
leave the courtroom during the
testimony of the child. (24)
c) Motion by party who presents a child
witness or the guardian ad litem of
such child witness may, however, move
the court to allow him to testify in the
manner provided in this Rule (8):
i. Live-link television testimony in
criminal cases where the child is a
victim or a witness. (25)
Who may apply for an order that
testimony of the child be taken in a
room outside the courtroom and
be televised to the courtroom by
live-link television:
1 prosecutor,
2 counsel or the
3 guardian ad litem
Period for application: The person
seeking such an order shall apply at
least five (5) days before the trial
date, unless the court finds on the
record that the need for such an
order was not reasonably
foreseeable.
Hearing on the application:
The court may motu proprio hear
and determine, with notice to the
parties, the need for taking the
testimony of the child through live-
link television.
The judge may question the child
in chambers, or in some
comfortable place other than the
courtroom, in the presence of the
support person, guardian ad litem,
prosecutor, and counsel for the
parties. The questions of the judge
shall not be related to the issues at
trial but to the feelings of the child
about testifying in the courtroom.
The judge may exclude any person,
including the accused, whose
presence or conduct causes fear to
the child.
Order denying/granting use of live-
link TV:
The court shall issue an order
granting or denying the use of live-
link television and stating the
reasons therefor.
Factors considered by the court in
granting/denying application:
(1)The age and level of
 development of the child;
(2)His physical and
mental health, including any
mental or physical disability;
(3)Any physical,
emotional, or psychological
injury experienced by him;
(4)The nature of the
alleged abuse;
(5)Any threats against
the child;
(6)His relationship with
the accused or adverse party;
(7)His reaction to any
prior encounters with the
accused in court or elsewhere;
(8)His reaction prior to
trial when the topic of
testifying was discussed with
him by parents or
professionals;
(9)Specific symptoms of
stress exhibited by the child in
the days prior to testifying;
(10)Testimony of expert
or lay witnesses;
(11)The custodial
situation of the child and the
attitude of the members of his
family regarding the events
about which he will testify; and
(12)Other relevant
factors, such as court
atmosphere and formalities of
court procedure.
The court may order that the
testimony of the child be taken by
live-link television if there is a
substantial likelihood that the child
would suffer trauma from testifying
in the presence of the accused, his
counsel or the prosecutor as the
case may be. The trauma must be
of a kind which would impair the
completeness or truthfulness of
the testimony of the child.
How done:
where testimony is taken: in a
room separate from the courtroom
who are present:
o guardian ad litem;
o one or both of his support
persons;
o the facilitator
o and interpreter, if any;
o a court officer appointed
by the court;
o persons necessary to
operate the closed-circuit
television equipment; and
o other persons whose
presence are determined
by the court to be
necessary to the welfare
and well-being of the
child;
- The judge, prosecutor,
accused, and counsel for the
parties shall be in the
courtroom. The testimony of
the child shall be transmitted
by live-link television into the
courtroom for viewing and
hearing by the judge,
prosecutor, counsel for the
parties, accused, victim, and
the public unless excluded.
- If it is necessary for the child to
identify the accused at trial,
the court may allow the child
to enter the courtroom for the
limited purpose of identifying
the accused, or the court may
allow the child to identify the
accused by observing the
image of the latter on a
television monitor.
- The court may set other
conditions and limitations on
the taking of the testimony
that it finds just and
appropriate, taking into
consideration the best
interests of the child.
- The testimony of the child shall
be preserved on videotape,
digital disc, or other similar
devices which shall be made
part of the court record and
shall be subject to a protective
order as provided in section
31(b).
ii. Screens, one-way mirrors, and
other devices to shield child from
accused. (26)
Who may apply for an order that
the chair of the child or that a
screen or other device be placed in
 the courtroom in such a manner
that the child cannot see the
accused while testifying:
1 prosecutor or
2 guardian ad litem (consultation
with prosecutor or counsel as
in application for use of live-
link TV. also required)
Order granting application:
The court shall issue an order
stating the reasons and describing
the approved courtroom
arrangement
If the court grants an application to
shield the child from the accused
while testifying in the courtroom,
the courtroom shall be arranged to
enable the accused to view the
child.
iii. Videotaped deposition.
(27)
Who may apply for an order that a
deposition be taken of the testimony
of the child and that it be recorded
and preserved on videotape?
1 prosecutor,
2 counsel, or
3 guardian ad litem (consultation
with prosecutor or counsel as in
application for use of live-link TV.
also required)
When allowed:If the court finds that
the child will not be able to testify in
open court at trial, it shall issue an
order that the deposition of the child
be taken and preserved by
videotape.
Deposition-taking:
Who are present
o Judge who shall preside at
the videotaped deposition of
a child;
o Prosecutor;
o defense counsel;
o Guardian ad litem;
o Accused, provided that, if
the order of the court is
based on evidence that the
child is unable to testify in
the physical presence of the
accused, the court may
direct the latter to be
excluded from the room in
which the deposition is
conducted. In case of
exclusion of the accused, the
court shall order that the
testimony of the child be
taken by live-link television
in accordance with section
25 of this Rule. If the
accused is excluded from the
deposition, it is not
necessary that the child be
able to view an image of the
accused.
o Other persons whose
presence is determined by
the court to be necessary to
the welfare and well-being
of the child;
o Support person/s, the
facilitator and interpreter, if
any;
o Court stenographer; and
o Persons necessary to
operate the videotape
equipment.
Objections to testimony or
evidence; rights of the accused
o Objections to deposition
testimony or evidence, or
parts thereof, and the
grounds for the objection
shall be stated and shall be
ruled upon at the time of the
taking of the deposition.
o The rights of the accused
during trial, especially the
right to counsel and to
confront and cross-examine
the child, shall not be
violated during the
deposition.
The videotaped deposition shall be
preserved and stenographically
recorded. The videotape and the
stenographic notes shall be
transmitted to the clerk of the court
where the case is pending for
 safekeeping and shall be made a part
of the record.
The court may set other conditions
on the taking of the deposition that it
finds just and appropriate, taking into
consideration the best interests of
the child, the constitutional rights of
the accused, and other relevant
factors.
The videotaped deposition and
stenographic notes shall be subject
to a protective order as provided in
section 31(b).
If, at the time of trial, the court finds
that the child is unable to testify for a
reason stated in section 25(f) of this
Rule, or is unavailable for any reason
described in section 4(c), Rule 23 of
the 1997 Rules of Civil Procedure, the
court may admit into evidence the
videotaped deposition of the child in
lieu of his testimony at the trial. The
court shall issue an order stating the
reasons therefor.
After the original videotaping but
before or during trial, any party may
file any motion for additional
videotaping on the ground of newly
discovered evidence. The court may
order an additional videotaped
deposition to receive the newly
discovered evidence.
When conducted: The court may order that
the testimony of the child should be taken
during a time of day when the child is well-
rested. (14)
Provisions for ease of child in
testifying/accommodations for a child
a. Interpreter for child (9)
How appointed: the court
motu proprio or upon motion
When appointed:When a
child does not understand the
English or Filipino language or
is unable to communicate in
said languages due to his
developmental level, fear,
shyness, disability, or other
similar reason
Who may be interpreter?
If a witness or member of
the family of the child is the
only person who can serve as
an interpreter for the child, he
shall not be disqualified and
may serve as the interpreter of
the child. The interpreter,
however, who is also a witness,
shall testify ahead of the child.
An interpreter shall take an
oath or affirmation to make a
true and accurate
interpretation.
b. Facilitator to pose questions to
child (10)
How appointed: The court
motu proprio or upon motion,
When appointed: child is
unable to understand or
respond to questions asked.
Who may be a facilitator: The
facilitator may be a child
psychologist, psychiatrist,
social worker, guidance
counselor, teacher, religious
leader, parent, or relative. The
facilitator shall take an oath or
affirmation to pose questions
to the child according to the
meaning intended by counsel.
Function of facilitator:
Respective counsels for the
parties shall pose questions to
the child only through the
facilitator. The questions shall
either be in the words used by
counsel or, if the child is not
likely to understand the same,
in words that are
comprehensible to the child
and which convey the meaning
intended by counsel.
c. Support persons (11)
A child testifying at a judicial
proceeding or making a
deposition shall have the right
to be accompanied by one or
two persons of his own
choosing to provide him
emotional support.
(1)Both support
persons shall remain
within the view of the
child during his testimony.
(2)One of the
 support persons may
accompany the child to
the witness stand,
provided the support
person does not
completely obscure the
child from the view of the
opposing party, judge, or
hearing officer.
(3)The court may
allow the support person
to hold the hand of the
child or take other
appropriate steps to
provide emotional support
to the child in the course
of the proceedings.
(4)The court shall
instruct the support
persons not to prompt,
sway, or influence the
child during his testimony.
Support person, also a witness
1 Disapproved if it is
sufficiently established
that the attendance of
the support person
during the testimony of
the child would pose a
substantial risk of
influencing or affecting
the content of the
testimony of the child.
2 If allowed his testimony
shall be presented ahead
of the testimony of the
child.
d. Waiting area for child
witnesses (12) that is
separate from waiting areas
used by other persons.
e. Courtroom environment (13)
Aim: create a more comfortable
environment for the child
court may, in its discretion, direct
and supervise the location,
movement and deportment of all
persons in the courtroom including
the parties, their counsel, child,
witnesses, support persons,
guardian ad litem, facilitator, and
court personnel.
The child may be allowed to testify
from a place other than the
witness chair.
The witness chair or other place
from which the child testifies may
be turned to facilitate his
testimony but the opposing party
and his counsel must have a frontal
or profile view of the child during
the testimony of the child. The
witness chair or other place from
which the child testifies may also
be rearranged to allow the child to
see the opposing party and his
counsel, if he chooses to look at
them, without turning his body or
leaving the witness stand.
The judge need not wear his
judicial robe.
Nothing in this section or any other
provision of law, except official in-
court identification provisions,
shall be construed to require a
child to look at the accused.
Accommodations for the child
under this section need not be
supported by a finding of trauma
to the child.
f. Recess during testimony (15)
The child may be allowed
reasonable periods of relief
while undergoing direct, cross,
re-direct, and re-cross
examinations as often as
necessary depending on his
developmental level.
g. Testimonial aids (16): use of
dolls, anatomically-correct
dolls, puppets, drawings,
mannequins, or any other
appropriate demonstrative
device to assist him in his
testimony.
h. Emotional security item (17):
While testifying, a child shall
be allowed to have an item of
his own choosing such as a
blanket, toy, or doll
i. Conduct in questioning the
witness:
i. Conduct of counsel: a
counsel may be
 prohibited from
approaching a child if
it appears that the
child is fearful of or
intimidated by the
counsel. (18)
ii. Mode of questioning:
- The court shall
exercise control over the
questioning of children so
as to
(1) facilitate the
ascertainment of the
truth,
(2) ensure that
questions are stated in a
form appropriate to the
developmental level of the
child,
(3) protect
children from harassment
or undue embarrassment,
and
(4) avoid waste of
time.
- The court may
allow the child witness to
testify in a narrative form.
iii. Questions and
objections thereto
leading questions in all
stages of examination of a
child may be allowed if the
same will further the
interests of justice (20)
Objections to questions
should be couched in a
manner so as not to
mislead, confuse, frighten,
or intimidate the child.
(21)
j. Weight given to testimony of
child witness: strong;
corroboration not required -
His testimony, if credible by
itself, shall be sufficient to
support a finding of fact,
conclusion, or judgment
subject to the standard of
proof required in criminal and
non-criminal cases. (22)
IV. Questions of Admissibility
C. Hearsay Exception in Child Abuse
Cases (28)
Where admitted: child abuse cases,
criminal or non-criminal
How admitted:
1) Before such hearsay statement may be
admitted, its proponent shall make
known to the adverse party the
intention to offer such statement and
its particulars to provide him a fair
opportunity to object.
a. Child is available
The court shall, upon
motion of the adverse
party, require the child to
be present at the
presentation of the
hearsay statement for
cross-examination by the
adverse party.
b. Child is unavailable
the fact of such
circumstance must be
proved by the proponent.
When unavailable:
(1)Is deceased,
suffers from physical
infirmity, lack of memory,
mental illness, or will be
exposed to severe
psychological injury; or
(2)Is absent from
the hearing and the
proponent of his
statement has been
unable to procure his
attendance by process or
other reasonable means.
When the child witness
is unavailable, his hearsay
testimony shall be
admitted only if
corroborated by other
admissible evidence.
2) In ruling on the admissibility of such
hearsay statement, the court shall
consider the time, content and
circumstances thereof which provide
sufficient indicia of reliability. It shall
consider the following factors:
c. Whether there is a motive to
lie;
d. The general character of the
declarant child;
e. Whether more than one
person heard the statement;
f. Whether the statement was
 spontaneous;
g. The timing of the statement
and the relationship between
the declarant child and
witness;
h. Cross-examination could not
show the lack of knowledge of
the declarant child;
i. The possibility of faulty
recollection of the declarant
child is remote; and
j. The circumstances surrounding
the statement are such that
there is no reason to suppose
the declarant child
misrepresented the
involvement of the accused.
D. Videotaped and audiotaped in-depth
investigative or disclosure interviews in
child abuse cases (29)
When admissible:
1 The child witness -
(1)Is deceased, suffers from
physical infirmity, lack of memory,
mental illness, or will be exposed
to severe psychological injury; or
(2)Is absent from the hearing and
the proponent of his statement has
been unable to procure his
attendance by process or other
reasonable means.
2 Before the videotape or audiotape
is offered in evidence, all parties
shall be afforded an opportunity to
view or listen to it and shall be
furnished a copy of a written
transcript of the proceedings.
By whom conducted:
duly trained members of a
multidisciplinary team or representatives of
law enforcement or child protective
services in situations where child abuse is
suspected so as to determine whether child
abuse occurred.
individual conducting the interview of
the child shall be available at trial for
examination by any party.
Proof of the following must be given by
party offering the videotape or audiotape:
(1)The videotape or audiotape discloses
the identity of all individuals present and at
all times includes their images and voices;
(2)The statement was not made in
response to questioning calculated to lead
the child to make a particular statement or
is clearly shown to be the statement of the
child and not the product of improper
suggestion;
(3)The videotape and audiotape machine
or device was capable of recording
testimony;
(4)The person operating the device was
competent to operate it;
(5)The videotape or audiotape is authentic
and correct; and
(6)It has been duly preserved.
Value of an investigative interview that was
not done as required in this Rule: The fact
that an investigative interview is not
videotaped or audiotaped as required by
this section shall not by itself constitute a
basis to exclude from evidence out-of-court
statements or testimony of the child. It
may, however, be considered in
determining the reliability of the
statements of the child describing abuse.
E. Sexual abuse shield rule
Inadmissible evidence in any criminal
proceeding involving alleged child
sexual abuse:
(1) Evidence offered to prove that the
alleged victim engaged in other sexual
behavior; and
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
When admissible: Evidence of
specific instances of sexual
behavior by the alleged victim to
prove that a person other than the
accused was the source of semen,
injury, or other physical evidence
shall be admissible.
How admitted:
1. A party intending to offer
such evidence must:
(1) File a written motion at
least 15 days before trial,
specifically describing the
evidence and stating the
purpose for which it is
offered, unless the court, for
good cause, requires a
different time for filing or
permits filing during trial; and
 (2) Serve the motion on all
parties and the guardian ad
litem at least 3 days before
the hearing of the motion.
2. Before admitting such evidence,
the court must conduct a hearing
in chambers and afford the child,
his guardian ad litem, the parties,
and their counsel a right to attend
and be heard. The motion and the
record of the hearing must be
sealed and remain under seal and
protected by a protective order set
forth in section 31(b). The child
shall not be required to testify at
the hearing in chambers except
with his consent.
V. Other protective measures for the child (31)
F. Confidentiality of records.
When records may be released: upon written
request and order of the court
To whom may be released:
(1) Members of the court staff for
administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law
enforcement agencies; and
(6) Other persons as determined by the
court.
G. Protective order
What are covered: Any videotape or audiotape
of a child that is part of the court record
Provisos of the protective order:
(1) Tapes may be viewed only by parties,
their counsel, their expert witness, and the
guardian ad litem.
(2) No tape, or any portion thereof, shall
be divulged by any person mentioned in sub-
section (a) to any other person, except as
necessary for the trial.
(3) No person shall be granted access to
the tape, its transcription or any part thereof
unless he signs a written affirmation that he
has received and read a copy of the protective
order; that he submits to the jurisdiction of
the court with respect to the protective order;
and that in case of violation thereof, he will be
subject to the contempt power of the court.
(4) Each of the tape cassettes and
transcripts thereof made available to the
parties, their counsel, and respective agents
shall bear the following cautionary notice:
This object or
document and the contents
thereof are subject to a
protective order issued by
the court in (case title),
(case number). They shall
not be examined, inspected,
read, viewed, or copied by
any person, or disclosed to
any person, except as
provided in the protective
order. No additional copies
of the tape or any of its
portion shall be made, given,
sold, or shown to any person
without prior court order.
Any person violating such
protective order is subject to
the contempt power of the
court and other penalties
prescribed by law.
(5) No tape shall be given, loaned, sold,
or shown to any person except as ordered by
the court.
(6) Within 30 days from receipt, all
copies of the tape and any transcripts thereof
shall be returned to the clerk of court for
safekeeping unless the period is extended by
the court on motion of a party.
(7) This protective order shall remain in
full force and effect until further order of the
court.
H. Additional protective orders. The court may,
motu proprio or on motion of any party, the
child, his parents, legal guardian, or the
guardian ad litem, issue additional orders to
protect the privacy of the child.
I. Publication of identity contemptuous.
What is prohibited: Publication or causing
publication in any format the name, address,
telephone number, school, or other identifying
information of a child who is or is alleged to be
a victim or accused of a crime or a witness
thereof, or an immediate family of the child
Liability of violator: contempt of court
J. Physical safety of child; exclusion of evidence.
A child has a right at any court proceeding not
to testify regarding personal identifying
information, including his name, address,
 telephone number, school, and other
information that could endanger his physical
safety or his family.
The court may, however, require the child to
testify regarding personal identifying
information in the interest of justice.
K. Destruction of videotapes and audiotapes
produced under the provisions of this Rule or
otherwise made part of the court record shall
be destroyed after 5 years have elapsed from
the date of entry of judgment.
L. Records of youthful offender: privileged
1. Youthful offender has been charged before
any city or provincial prosecutor or before
any municipal judge and the charges have
been ordered dropped
All the records of the case shall
be considered as privileged and
may not be disclosed directly or
indirectly to anyone for any
purpose whatsoever.
2. Youthful offender has been charged and the
court acquits him, or dismisses the case or
commits him to an institution and
subsequently releases him pursuant to
Chapter 3 of P. D. No. 603,
All the records of his case shall
also be considered as privileged
and may not be disclosed directly
or indirectly to anyone EXCEPT to
determine if a defendant may have
his sentence suspended under
Article 192 of P. D. No. 603 or if he
may be granted probation under
the provisions of P. D. No. 968 or to
enforce his civil liability, if said
liability has been imposed in the
criminal action.
The youthful offender concerned
shall not be held under any
provision of law to be guilty of
perjury or of concealment or
misrepresentation by reason of his
failure to acknowledge the case or
recite any fact related thereto in
response to any inquiry made to
him for any purpose.
VI. Suppletory application of Rules of Court: The
provisions of the Rules of Court on deposition,
conditional examination of witnesses, and
evidence shall be applied in a suppletory
character. (32)
Authentication and Proof of Documents
1. Classes of Documents
1.1 Public Documents Rule 132, Sec. 19
1.1.1-A Written official acts of the sovereign
authority, official bodies and tribunals, and public
officers, whether of the Philippines or of a foreign
country;
- How Proven = Rule 132, Sec. 23
- Documents consisting of entries in public records
made in the performance of a duty by a public
officer are prima 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.
1.1.1-B 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.
- How Proven = Rule 132, Sec. 24
- The record may be evidenced by: (1) an official
publication thereof; (2) 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 record is in a 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 of the Philippines stationed in the foreign
country in which the record is kept, and
authenticated by the seal of his office.
*Contents of Attestation = Rule 132, Sec 25
- The attestation must state 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.
- Irremovability of Record = Rule 132, Sec. 26
- 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.
1.1.2 Notarial Documents except last wills and
testaments;
- How Proven = Rule 132, Sec. 30
- Notarial documents may be presented in evidence
without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved.
1.1.3 Public Records (kept in the Philippines) of
Private Documents required by law to be entered
therein
- How Proven = Sec. 27
- Such may be proved by the original record, or a
copy thereof, attested by the legal custodian of the
record, with an appropriate certificate that such
officer has the custody.
- Proof of Lack of Record = Sec. 28
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 that such officer
has the custody, is admissible to prove that the
records of his office contain no such record or entry.
1.2 Private Documents
- How Proven = Rule 132, Sec. 20
Before any private document offered as authentic is
received in evidence, its due execution and
authenticity must be proved either: (1) by anyone
who say the document executed or written; or (2)
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.
- Ancient Document Rule = Rule 132, Sec. 21
Requisites: (1) The private document is more than
30 years old; (2) It is produced from a custody in
which it would naturally be found if genuine; (3) It is
unblemished by any alterations or circumstances of
suspicion.
If all requisites have been met, no other evidence of
its authenticity is required.
1. How Genuineness of Handwriting is Proven =
Rule 132, Sec. 22
It may be proved by 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.
2. Impeachment of Judicial Record Rule 132, Sec.
29
How done 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.
3. Alterations Rule 132, Sec. 31
- The party producing a document as genuine,
which has been altered and appears to have been
altered after its execution, in a part material to the
question in dispute, must account for the alteration.
Failure to do so would result in the inadmissibility of
evidence.
- He may show that the alteration was made
by another,
without his concurrence, or
made with the consent of the parties
affected by it, or
was otherwise properly or innocent made,
or
The alteration did not change the meaning
or language of the instrument.
Seal Rule 132, Sec. 32
- There shall be no difference between sealed and
unsealed private documents insofar as their
admissibility as evidence is concerned.
Documents Written in an Unofficial Language
Rule 132, Sec.33
- Not admissible unless accompanied with a
translation into English or Filipino; parties or their
attorneys are directed to have such translation
prepared before trial.
IS THERE ANY WAY TO AVOID THE TEDIOUS
PROCESS OF AUTHENTICATION?
1. Rule on actionable documents (Rule 8). It
provides that if an actionable document is the basis
of a complaint of an answer, the law requires that it
should be annexed to the pleading or that the
contents thereof be copied in verbatim. If there is
failure to specifically deny under oath the
genuineness and due execution of an actionable
document that judicial admission will take the place
of authentication
2. Mode of discovery- Request for admission of the
genuineness and due execution of a private writing.
Failure to object within 15 days, deemed admitted.
3. Pre-trial of civil and criminal case wherein parties
may enter into stipulations, where they will admit
the genuineness and due execution of the private
writing.
Offer and Objection
1. Offer of Evidence Rule 132, Sec, 34
1 Why made?
- For evidence to be considered by the court - court
shall consider no evidence, which has not been
formally offered.
1.1 When to make offer Rule 132, Sec. 35
- Testimonial Evidence = at the time the witness is
called to testify.
- Documentary Evidence = after the presentation of
a partys testimonial evidence; offer shall be done
orally unless allowed by the court to be done in
writing.
When evidence admitted even if not formally
offered:
1. The same must have been duly identified by
testimony duly recorded
2. The same must have been incorporated to the
records of the case (Mata Vda. De Onate vs. CA)
STAGES in the presentation of documentary
evidence
1. Identification- proof that the document being
offered is the same one referred to by the witness in
his testimony
2. Marking
3. Authentication- proof of documents due
execution and genuineness
4. Inspection
5. Formal Offer
6. Objections
2. Objection - Rule 132, Sec. 36
- Testimonial Evidence = must be objected to
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 therefore shall become
reasonably apparent.
- Documentary Evidence = shall be objected to
within 3 days after notice of the offer unless a
different period is allowed by the court.
Kinds of Objection
1. General or broadside- does not go beyond
declaring the evidence as immaterial, incompetent,
irrelevant, or inadmissible. Does not specify the
grounds
2. Specific- States the ground
- When repetition is unnecessary Rule 132, Sec.
37 (Rule on Continuing Objection)
It shall not be necessary to repeat the objection
when it becomes reasonably apparent in the course
of the examination of a witness that the questions
being propounded are of the same class as those to
which objection has been made, whether such
objection was sustained or overruled. It shall be
sufficient for the adverse party to record his
continuing objection to such class of questions.
- Ruling Rule 132, Sec. 38
= Given immediately after the objection is made,
unless the court desires to take a reasonable time to
inform itself on the question presented; but the
ruling shall always be made during the trial and at
such time as will give the party against whom it is
made an opportunity to meet the situation
presented by the ruling.
= The reason for sustaining or overruling an
objection need not be stated. However, if the
objection is based on two or more grounds, a ruling
sustaining the objection on one or some of them
must specify the ground or grounds relied upon.
3. Motion to Strike Rule 132, Sec. 39
- The court may sustain an objection and order the
answer given to be stricken off the record should a
witness answer the question before the adverse
party had the opportunity to voice fully its objection
and such objection is found to be meritorious.
- The court may also, upon proper motion, order the
striking out of answers, which are incompetent,
irrelevant or otherwise improper.
4. Tender of Excluded Evidence Rule 132, Sec. 40
- Documentary evidence the offeror may have the
same attached or made part of the record.
- Testimonial evidence the offeror may state for
the record the name and other personal
circumstances of the witness and the substance of
the proposed testimony.
There is a distinction between identification
of documentary evidence and its formal offer as an
exhibit. The former is done in the course of the trial
and is accompanied by the marking of the evidence
while the latter is done only when the party rests
his/her case. That a document has been identified
does not mean that it will be offered. (Interpacific
Transit vs. Aviles, 1990)
While there was no offer of the testimony,
petitioner waived this defect by failing to object
when the ground became reasonably apparent the
moment private respondent was called to testify
without any prior offer having been made. (Catuira
vs. CA, 1994)
The rule requiring that there must be a
formal offer of evidence before the evidence can be
considered may be relaxed provided the evidence
must have duly identified by testimony duly
recorded and they must have been incorporated in
the records of the case. (Vda. De Oate vs. CA,
1995)
OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE
vs. OFFER OF EVIDENCE
First, is only resorted to if admission is refused by
the court for purposes of review on appeal. Second,
refers to testimonial, documentary or object
evidence that are presented or offered in court by a
party so that the court can consider his evidence
when it comes to the preparation of the decision.
VIII. Weight and Sufficiency of Evidence
A. Required Quantum of Evidence
1. Preponderance of Evidence (Civil Cases) Rule
133, Sec. 1
- How determined? The court may consider:
= All the facts and circumstances of the case;
= The witnesses manner of testifying;
= Their intelligence;
= Their means and opportunity of knowing the facts
to which they testify;
= The probability or improbability of their
testimony;
= Their interest or want of interest;
= Personal credibility so far as the same may
legitimately appear upon the trial;
= Number of witnesses (note preponderance that is
not necessarily equated with the no. of witnesses)
2. Proof Beyond Reasonable Doubt (Criminal
Cases) Rule 133, Sec. 2
- What is proof beyond reasonable doubt?
= That degree of proof which produces conviction in
an unprejudiced mind.
= Absolute certainty is not required, only moral
certainty.
3. Substantial Evidence (Administrative/Quasi-
Judicial Cases) Rule133, Sec.
5
- What is substantial evidence? The amount of
relevant evidence which a reasonable mind might
accept as adequate to support a conclusion.
B. Extrajudicial Confessions Rule 133, Sec. 3
- An extrajudicial confession made by an accused, is
not a sufficient ground for conviction UNLESS
corroborated by evidence of corpus delicti.
C. Circumstantial Evidence Rule 133, Sec. 4
- Requisites for circumstantial evidence to be
sufficient for conviction:
a. There is more than 1 circumstance;
b. The facts from which the inferences are derived
are proven; and
c. The combination of all the circumstances is such
as to produce a conviction beyond reasonable
doubt.
OUT-OF-COURT IDENTIFICATION, THE TOTALITY OF
CIRCUMSTANCE TEST
1.Witness opportunity to view the criminal act at
the time of the crime
2.Witness degree of attention at that time
3.The accuracy of any prior description given by
the witness
4.The level of certainty demonstrated by the
witness at the identification
5.The length of time between the crime and the
identification
6.The suggestiveness of the identification
procedure
res ipsa loquitur (The thing speaks for itself)- A
procedural device which presumes that the person
is negligent, when he is in control of an
instrumentality causing an injury in the absence of
some explanation by him.
Falsus in uno, falsus in omnibus (False in one thing,
false in everything)- If the testimony of the witness
on a material issue is willfully false and given with
an intention to deceive, court may disregard all the
witness testimony. (Not a mandatory rule of
evidence)
- It deals only with the weight of evidence
and not a positive rule of law
- The witnesses false or exaggerated
statements on other matters shall not
preclude the acceptance of such evidence
as is relieved from any sign of falsehood
- The court may accept and reject portions of
the witness testimony depending on the
inherent credibility thereof.
*May the court stop the introduction of further
testimony? YES upon any particular point when the
evidence upon it is already so full that more
witnesses to the same point cannot be reasonably
expected to be additionally persuasive; this power
should be exercised with caution. (Rule 133, Section
6)
*How will the court dispose of a motion which is
based on facts not appearing of record? Court may
hear the matter on
- Affidavits or
- Depositions
presented by the respective parties but the court
may direct that the matter be heard wholly or partly
on oral testimony or depositions. (Rule 133, Section
7)
Examples of motion which need hearing hence the
presentation of evidence:
CRIMINAL CASES:
Motion for bail (Under Criminal Procedure,
the evidence taken up during the hearing of the
motion will form part automatically of the records
of the case, so there is no need to repeat in the trial
what have been covered in the hearing of the
motion)
CIVIL CASES:
Application for preliminary
attachment/injunction
Motion to dismiss founded on certain facts
which are not solely predicated on absence of
jurisdiction or failure to state a COA, i.e. it is
predicated on the ground of payment
(Same with Criminal Case, evidence taken up during
hearing made part automatically of records of the
case)
Rules on Electronic Evidence
Scope
Unless otherwise provided herein, these Rules shall
apply whenever an electronic document or
electronic data message (R1, 1)
Cases covered.
All civil actions and proceedings, as well as quasi-
judicial and administrative cases. (R1, 2)
Electronic data message
Information generated, sent, received or stored by
electronic, optical or similar means. (R2, 1g)
Electronic Signatures (R2, 1j)
Refers to any distinctive mark, characteristic and/or
sound in electronic form, representing the identity
of a person and attached to or logically associated
with the electronic data message or electronic
document or any methodology or procedure
employed or adopted by a person and executed or
adopted by such person with the intention of
authenticating, signing or approving an electronic
data message or electronic document.
Includes digital signatures
o Refers to an electronic signature consisting
of a transformation of an electronic
document or an electronic data message
using an asymmetric or public cryptosystem
such that a person having the initial
untransformed electronic document and
the signers public key can accurately
determine:
(i) Whether the transformation was
created using the private key that
corresponds to the signers public key;
and,
(ii) Whether the initial electronic
document had been altered after the
transformation was made. (R2, 1e)
o Digitally signed refers to an electronic
document or electronic data message
bearing a digital signature verified by the
public key listed in a certificate. (R2, 1f)
Admissible in evidence as the functional equivalent
of the signature of a person on a written document.
(R6, 1)
How authenticated? (R6, 2)
1. By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the
judge as establishing the genuineness of
the electronic signature.
Disputable presumptions relating to e-signatures:
(R6, 3)
1. The electronic signature is that of the
person to whom it correlates;
2. The electronic signature was affixed by that
person with the intention of authenticating
or approving the electronic document to
which it is related or to indicate such
persons consent to the transaction
embodied therein; and
3. The methods or processes utilized to affix
or verify the electronic signature operated
without error or fault.
Disputable presumptions relating to digital
signatures: (R6, 4)
1. The information contained in a certificate is
correct;
2. The digital signature was created during the
operational period of a certificate;
3. No cause exists to render a certificate
invalid or revocable;
4. The message associated with a digital
signature has not been altered from the
time it was signed; and,
5. A certificate had been issued by the
certification authority indicated therein.
Electronic document (R2, 1h)
Information or the representation of information,
data, figures, symbols or other modes of written
expression, described or however represented,
by which a right is established or an obligation
extinguished, or
by which a fact may be proved and affirmed,
which is received, recorded, transmitted,
stored, processed, retrieved or produced
electronically.
Includes digitally signed documents and any
printout or output, readable by sight or other
means, which accurately reflects the electronic data
message or electronic document. For purposes of
these Rules, the term electronic document may
be used interchangeably with electronic data
message.
Functional equivalent of paper-based documents.
(R3, 1)
Admissible in evidence if it complies with the rules
on admissibility prescribed by the Rules of Court
and related laws and is authenticated in the manner
prescribed by these Rules. (R3, 2)
Confidential character of a privileged
communication is not lost solely on the ground that
it is in the form of an electronic document. (R3, 3)
BEST EVIDENCE RULE: (R4)
o An electronic document shall be regarded
as the equivalent of an original document
under the Best Evidence Rule if it is a
printout or output readable by sight or
other means, shown to reflect the data
accurately.
o Originals And Copies:
When copies or duplicates regarded as
originals:
1. When a document is in two or
more copies executed at or about
the same time with identical
contents, or
2. Is a counterpart produced by the
same impression as the original, or
from the same matrix, or by
mechanical or electronic re-
recording, or by chemical
reproduction, or by other
equivalent techniques that
accurately reproduces the original.
When copies or duplicates shall not be
admissible to the same extent as the
original:
3. If a genuine question is raised as to
the authenticity of the original; or
4. If in the circumstances it would be
unjust or inequitable to admit the
copy in lieu of the original.
Authentication of Electronic Documents (R5)
1 Burden of proving authenticity: person
seeking to introduce an electronic
document in any legal proceeding has the
burden of proving its authenticity.
2 Manner of authentication Before any
private electronic document offered as
authentic is received in evidence, its
authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally
signed by the person purported to have
signed the same;
(b) by evidence that other appropriate
security procedures or devices as may
be authorized by the Supreme Court or
by law for authentication of electronic
documents were applied to the
document; or
(c) by other evidence showing its integrity
and reliability to the satisfaction of the
judge.
3 A document electronically notarized in
accordance with the rules promulgated by
the Supreme Court shall be considered as a
public document and proved as a notarial
document under the Rules of Court.
Evidentiary Weight Of Electronic Documents
(R7)
> Factors for assessing evidentiary weight.
(a) The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
input and output procedures, controls, tests
and checks for accuracy and reliability of
the electronic data message or document,
in the light of all the circumstances as well
as any relevant agreement;
(b) The reliability of the manner in which its
originator was identified;
(c) The integrity of the information and
communication system in which it is
recorded or stored, including but not
limited to the hardware and computer
programs or software used as well as
programming errors;
(d) The familiarity of the witness or the person
who made the entry with the
communication and information system;
(e) The nature and quality of the information
which went into the communication and
information system upon which the
 electronic data message or electronic
document was based; or
(f) Other factors which the court may consider
as affecting the accuracy or integrity of the
electronic document or electronic data
message.
> Integrity of an information and communication
system. In any dispute involving the integrity of
the information and communication system in
which an electronic document or electronic data
message is recorded or stored, the court may
consider, among others, the following factors:
(a) Whether the information and
communication system or other similar
device was operated in a manner that did
not affect the integrity of the electronic
document, and there are no other
reasonable grounds to doubt the integrity
of the information and communication
system;
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that of
the party using it; or
(c)Whether the electronic document was
recorded or stored in the usual and
ordinary course of business by a person
who is not a party to the proceedings and
who did not act under the control of the
party using it.
Hearsay rule exception: A memorandum, report,
record or data compilation of acts, events,
conditions, opinions, or diagnoses, made by
electronic, optical or other similar means at or near
the time of or from transmission or supply of
information by a person with knowledge thereof,
and kept in the regular course or conduct of a
business activity, and such was the regular practice
to make the memorandum, report, record, or data
compilation by electronic, optical or similar means,
all of which are shown by the testimony of the
custodian or other qualified witnesses. (R8, 1)
This presumption may be overcome by
evidence of the untrustworthiness of the source
of information or the method or circumstances
of the preparation, transmission or storage
thereof. (R8, 2)
How are matters relating to the admissibility and
evidentiary weight of an electronic document
established? (R9)
o by an affidavit stating facts of direct
personal knowledge of the affiant or based
on authentic records.
The affidavit must affirmatively show
the competence of the affiant to testify
on the matters contained therein.
The affiant shall be made to affirm the
contents of the affidavit in open court
and may be cross-examined as a matter
of right by the adverse party.
Examination Of Witnesses (R10)
Electronic testimony
1 After summarily hearing the parties
pursuant to Rule 9 of these Rules, the
court may authorize the presentation
of testimonial evidence by electronic
means. Before so authorizing, the
court shall determine the necessity for
such presentation and prescribe terms
and conditions as may be necessary
under the circumstances, including the
protection of the rights of the parties
and witnesses concerned.
2 When examination of a witness is done
electronically, the entire proceedings,
including the questions and answers,
shall be transcribed by a stenographer,
steno typist or other recorder
authorized for the purpose, who shall
certify as correct the transcript done by
him. The transcript should reflect the
fact that the proceedings, either in
whole or in part, had been
electronically recorded.
3 The electronic evidence and recording
thereof as well as the stenographic
notes shall form part of the record of
the case. Such transcript and recording
shall be deemed prima facie evidence
of such proceedings.
Ephemeral electronic communication
1 Refers to telephone conversations, text
messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. (R2, 1k)
2 Shall be proven by the testimony of a person
who was a party to the same or has personal
knowledge thereof. In the absence or
unavailability of such witnesses, other
competent evidence may be admitted. (R11, 2)
Audio, photographic and video evidence (R11, 1-
2)
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be shown, presented or displayed to the court
and shall be identified, explained or authenticated
by the person who made the recording or by some
other person competent to testify on the accuracy
thereof.
o Same rule covers a recording of the
telephone conversation or ephemeral
electronic communication shall be covered
by the immediately preceding section.
If ephemeral, audio, photographic and video
evidence are recorded or embodied in an electronic
document, then the provisions authentication
electronic documents apply. (R11, 2)
RULE ON DNA EVIDENCE
(a) "Biological sample" means any organic material
originating from a person's body, even if found in
inanimate objects, that is susceptible to DNA
testing. This includes blood, saliva and other body
fluids, tissues, hairs and bones;
(b) "DNA" means deoxyribonucleic acid, which is
the chain of molecules found in every nucleated cell
of the body. The totality of an individual's DNA is
unique for the individual, except identical twins;
(c) "DNA evidence" constitutes the totality of the
DNA profiles, results and other genetic information
directly generated from DNA testing of biological
samples;
(d) "DNA profile" means genetic information
derived from DNA testing of a biological sample
obtained from a person, which biological sample is
clearly identifiable as originating from that person;
(e) "DNA testing" means verified and credible
scientific methods which include the extraction of
DNA from biological samples, the generation of DNA
profiles and the comparison of the information
obtained from the DNA testing of biological samples
for the purpose of determining, with reasonable
certainty, whether or not the DNA obtained from
two or more distinct biological samples originates
from the same person (direct identification) or if the
biological samples originate from related persons
(kinship analysis); and
(f) "Probability of Parentage" means the numerical
estimate for the likelihood of parentage of a
putative parent compared with the probability of a
random match of two unrelated individuals in a
given population.
Application for DNA Testing Order. The appropriate
court may, at any time, either motu proprio or on
application of any person who has a legal interest in
the matter in litigation, order a DNA testing. Such
order shall issue after due hearing and notice to the
parties upon a showing of the following:
(a) A biological sample exists that is relevant to the
case;
(b) The biological sample:
(i) was not previously subjected to the type
of DNA testing now requested; or
(ii) was previously subjected to DNA testing,
but the results may require confirmation for good
reasons;
(c) The DNA testing uses a scientifically valid
technique;
(d) The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case; and chan robles
virtual law library
(e) The existence of other factors, if any, which the
court may consider as potentially affecting the
accuracy or integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without
need of a prior court order, at the behest of any
party, including law enforcement agencies, before a
suit or proceeding is commenced.
An order granting the DNA testing shall be
immediately executory and shall not be
appealable.
Petition for certiorari shall not stay the
implementation of order unless a higher court
issues an injunctive order.
Grant of a DNA testing application NOT an
automatic admission of DNA evidence.
Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final and
executory judgment provided that
(a) a biological sample exists,
(b) such sample is relevant to the case, and
(c) the testing would probably result in the reversal
or modification of the judgment of conviction.
Factors in Assessment of probative value of DNA
evidence.
(a) The chain of custody, including how the
biological samples were collected, how they were
handled, and the possibility of contamination of the
samples;
(b) The DNA testing methodology, including the
procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure,
and compliance with the scientifically valid
standards in conducting the tests;
(c) The forensic DNA laboratory, including
accreditation by any reputable standards-setting
institution and the qualification of the analyst who
conducted the tests. If the laboratory is not
accredited, the relevant experience of the
laboratory in forensic casework and credibility shall
be properly established; and
(d) The reliability of the testing result
FACTORS in evaluating the Reliability of DNA
Testing Methodology.
(a) The falsifiability of the principles or methods
used, that is, whether the theory or technique can
be and has been tested;
(b) The subjection to peer review and publication of
the principles or methods;
(c) The general acceptance of the principles or
methods by the relevant scientific community;
(d) The existence and maintenance of standards
and controls to ensure the correctness of data
generated;
(e) The existence of an appropriate reference
population database; and
(f) The general degree of confidence attributed to
mathematical calculations used in comparing DNA
profiles and the significance and limitation of
statistical calculations used in comparing DNA
profiles.
FACTORS in Evaluation of DNA Testing Results.
(a) The evaluation of the weight of matching DNA
evidence or the relevance of mismatching DNA
evidence;
(b) The results of the DNA testing in the light of the
totality of the other evidence presented in the case;
and
(c) DNA results that exclude the putative parent
from paternity shall be conclusive proof of non-
paternity. If the value of the Probability of Paternity
is less than 99.9%, the results of the DNA testing
shall be considered as corroborative evidence. If the
value of the Probability of Paternity is 99.9% or
higher, there shall be a disputable presumption of
paternity.
Remedy if the Results Are Favorable to the Convict.
The convict or the prosecution may file a petition
for a writ of habeas corpus in the court of origin.
In case the court, after due hearing, finds the
petition to be meritorious, it shall reverse or modify
the judgment of conviction and order the release of
the convict, unless continued detention is justified
for a lawful cause.
A similar petition may be filed either in the Court of
Appeals or the Supreme Court, or with any member
of said courts, which may conduct a hearing
thereon or remand the petition to the court of
origin and issue the appropriate orders.
RELEASE OF DNA results.
Through order of the court.
Shall only be released to any of the following, under
such terms and conditions as may be set forth by
the court:
(a) Person from whom the sample was taken;
(b) Lawyers representing parties in the case or
action where the DNA evidence is offered and
presented or sought to be offered and presented;
(c) Lawyers of private complainants in a criminal
action;
(d) Duly authorized law enforcement agencies; and
(e) Other persons as determined by the court.
Indirect Contempt- to those who publishes or
disclose the DNA results without proper court order
Preservation of DNA Evidence. The trial court shall
preserve the DNA evidence in its totality, including
all biological samples, DNA profiles and results or
other genetic information obtained from DNA
testing. For this purpose, the court may order the
appropriate government agency to preserve the
DNA evidence as follows:
(a) In criminal cases:
i. for not less than the period of time that any
person is under trial for an offense; or
ii. in case the accused is serving sentence, until
such time as the accused has served his sentence;
and
(b) In all other cases, until such time as the
decision in the case where the DNA evidence was
introduced has become final and executory. chan
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Physical destruction of a biological sample before
the expiration of the periods set forth above,
provided that:
(a) There is a court order or
(b) The person from whom the DNA sample was
obtained has consented in writing to the disposal of
the DNA evidence.