DEAN RIANO EVIDENCE FINALS REVIEWER and LAST MINUTE TIPS

by Bimby and Klowee

1.

Memorize Falsus in uno falsus in omnibus

Falsus in uno vs. Falsus in Omnibus means false in one thing, false in everything
*interpretation is not strict
*While the witnesses may differ in their recollections of an incident, it does not necessarily
follow from their disagreements that all of them should be disbelieved as liars and their
testimonies completely discarded. It is not a positive rule of law. The witness must have a
conscious and deliberate intention to falsify a material point.

2.

Distinguish Factum Probans vs. Factum Probandum

Factum Probandum
Factum Probans
Ultimate Facts
Material evidencing the proposition
Hypothetical
Existent.

a. Factum probandum is the fact or proposition to be established

b. Factum Probans the facts or material evidencing the fact or proposition to be established
*Example: If P claims to have been injured by the negligence of D who denies having been
negligent, the negligence of D and the causal connection between such negligence, and the
injuries of P taken as a whole = Factum Probandum
The evidence offered by P, whether it be object, documentary or testimonial, constitute the
materials to prove the liability of D. The totality of the evidence to prove the liability refers to the
Factum Probans
*If the defendant admits his negligence in his answer to the complaint, there is no more need to
prove negligence. Hence, negligence ceases to be a factum probandum in this case.
*if the factum probandum signifies the fact or proposition to be established, then matters of 1)
judicial notice, 2)conclusive presumptions, 3)judicial admissions cannot qualify as parts of the
factum probandum of a particular case, because such matters need not be established or proven.
*Factum probandum in civil case refers to the elements of a cause of action from the point of
view of the plaintiff and the elements of the defense from the point of view of the defendant.
*In criminal cases factum probandum includes all matters that the prosecution must prove
beyond reasonable doubt in order to justify a conviction.
3.

Can Rules of Evidence be used in non-judicial proceedings?

The rules of evidence, being parts of the Rules of Court, apply only to judicial proceedings (Sec.
1 Rule 128)
*Sec.4. In what cases not applicable. These Rules shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceeding, and other cases not herein
provided for, except by analogy or in a suppletory character and whenever practicable and
convenient.
Ex. Not applicable in Administrative bodies, CSC, Petition for naturalization, labor cases

4. Best Evidence Rule (Original document rule) (primary evidence rule)

a. Concept

b.

c.

1.

1.
2.

i. Original of the document must be produced; When the subject matter of

the inquiry is the contents of a document , no evidence shall be admissible other than the original
document itself,
Exceptions to the rule
i. When the original has been lost, or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
ii. 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;
iii. 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
iv. When the original is a public record in the custody of a public officer or
is recorded in a public office.
*Involves only the contents of a writing. The rule cannot be invoked unless the contents of a
writing is the subject of judicial inquiry, in such case; the best evidence is the original writing
itself.
*Where the issue is the execution or existence of the document or the circumstances surrounding
its execution, the best evidence rule does not apply and the testimonial evidence is admissible.
*Where the issue is only as to whether such document was actually executed, or exists, or on the
circumstance relevant to or surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissible.
*The best evidence rule applies only when the purpose is to establish the terms of a writing.
When the evidence introduced concerns some external facet about a writing like its existence,
execution or delivery without reference to its terms, the rule cannot be invoked. The subject of
inquiry under the best evidence rule it the CONTENTS of a writing, NOT THE TRUTH thereof.
Where the truth is in issue, the hearsay rule will now be involved.
Illustrative applications
i. 1994 Bar At the trial of ace for the violation of the Dangerous Drugs
Act, the prosecution offers in evidence a photocopy of the marked bills used in the buy-bust
operation. Ace objects to the introduction of the photocopy on the ground that the Best Evidence
Rule prohibits the introduction of secondary evidence in lieu of the original is the photocopy
admissible in evidence?
Yes, the photocopy of the bills being object evidence is admissible in evidence without violation
of the best evidence rule. The rule applies only to documentary evidence and not to object
evidence.
*The reason for the best evidence rule is the prevention and detection of fraud.
*The best evidence rule may be waived if not raised in the trial
*If the original be presented in evidence
1) Find a legal excuse for failure 2) present secondary evidence
If secondary evidence is to be offered in evidence, like a copy, the proponent has to lay the basis
for the admission of the copy of the document.
Excuses for not presenting the original
When the original has been lost or destroyed or cannot be produced in court, without bad faith
on the part of the offeror;
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.
4.

a.
b.
c.
d.

When the original consists of numerous accounts or other documents cannot be examined in
court without great loss of time and the fact sought to be establish is only the general result of the
whole; and
When the original is a public record in the custody of a public officer or is recorded in a public
office.
*How to lay the basis for presenting secondary evidence:
a) The offeror must prove the execution and existence of the original document;
b) The offeror must show the cause of its unavailability
Loss, destruction, or unavailability
c) The offeror must show that the unavailability was not due to his bad faith
Correct order of proof is as follows Existence, execution, loss, and contents.
Due execution and authenticity of the document must be proved either: a) by anyone who saw
the document executed or written, or by evidence of the genuiness of the signature or
handwriting of the maker.
When original is in the custody or control of the adverse party:
Laying the basis requires:
The original exists.
That the said document is under the custody or control of the adverse party;
That the proponent of secondary evidence has given the adverse party reasonable notice to
produce the original document
That the adverse party failed to produce the original document despite the reasonable notice.
*Waiver: Failure to object to the parole evidence presented by the adverse party operates as a
waiver of the protection of the rule.
* The loan may be proved by the photocopy as long as A lays the basis for the introduction of
secondary evidence, to wit: a) the existence and due execution of the original, and b) the loss of
the original without bad faith on his part. (Sec. 5, Rule 130)

Distinction between Best Evidence and parol Evidence

Best Evidence Rule
Parol Evidence Rule
1. Establishes a preference for the original
Presupposes the original is available
document over secondary evidence thereof.
2. Precludes the admission of secondary
Precludes the admission of other evidence to
evidence if the original document is available. prove the terms of a document other than the
contents of the document itself for the purpose
of varying the terms of the writing.
3. Can be invoked by any litigant to an action
Can be invoked only by the parties to the
whether or not said litigant is a party to the
document and their successors in interest.
document involved.
Applies only to written contracts and wills.
4. Applies to all forms of writing
5.

Define Parol Evidence

*Applies to agreements and will. Parol evidence means offering extrinsic evidence that would
modify, explain or add to the terms of the written agreement. BUT it is allowed if any of the
following are shown:
a. An intrinsic ambiguity, mistake, or imperfection in the written agreement;

b. The failure of the written agreement to express the true intent and agreement of the parties;
c. The validity of the written agreement;
d. The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.
And only if it is put in issue in the pleadings.
*The rule applies ONLY to contracts which the parties have decided to set forth in writing. When
n the terms of an agreement is merely oral, the parol evidence rule should not be applied.
*Parol evidence does not apply in oral agreements, public writing, private writing, express trust
(although parol evidence applies to wills.
6.

Testimonial Evidence Adverse party Read Sec. 6. Loss, Destroyed, Unavailable Originals
(Sec 5)
*Showing that the original document is in the custody or under the control of the adverse party
does not ipso facto authorize the introduction of secondary evidence to prove its contents. The
party who seeks to present secondary evidence must lay a basis for its introduction.
Laying the basis:

1) That the original exists;

2) That the document is under the custody or control of the adverse party;
3) That the proponent of secondary evidence has given the adverse party reasonable notice to
produce the original document;
4) That the adverse party failed to produce the original document despite the reasonable notice.
How to notify: motion for the production of the original or by subpoena duces tecum, provided
that the party in custody has sufficient time to produce it.
After the foundational requirement for the introduction of secondary evidence have been
complied with, secondarily evidence may now be presented as in the case of loss. This mean that
the contents of the document may now be proven by
a copy of the document a recital of its contents in some authentic document
By testimony of a witness in the order stated (Sec. 5 Rule 130)
7. Testimonial evidence topics not found in Rule 130
a. 132 (Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11 Impeachment of witnesses
i. Are the rights of the accused violated in case of compulsory HIV
testing? No. There is no testimonial compulsion involved by extracting blood from the
accused for testing purposes. Thus, there is no violation of the right to privacy and the right to be
presumed innocent.
ii. Should DNA evidence be admitted? Yes. The right against self
incrimination applies only to testimonial evidence. Extracting blood samples and cutting strands
of hair do not involve testimonial compulsion but purely mechanical acts which neither requires
discretion or reasoning. (Tijing v. Court of Appeals.
iii. The right against self incrimination does not apply to physical and
mechanical act. It applies only to testimonial compulsion which is not the case under the facts.

iv. Degrading questions although degrading a witness must answer the

question if the degrading answer a) is the very fact in issue; or b) refers to a fact from which the
fact in issue would be presumed. (Rule 132)
8.

What are the elements of a dying declaration? #3 exam

*Must comply with the following foundational elements
1. That the declaration is one made by a dying person;
2. That the declaration was made by said dying person under the consciousness
Of impending death
3. That the declaration refers to the cause and circumstances surrounding the death of
the declarant and not of anyone else;
4. That the declaration is offered in a case where the declarants death is the subject of
inquiry;
5. The declarant is competent as a witness had he survived;
6. The declarant should have died.
Note: must refer to the death of the declarant, not merely injuries.
*If the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF THE
RES GESTAE.
*The former rule embodied in Supreme Court decisions, which declared that a dying declaration
is offered in a criminal case for homicide, murder, or parricide wherein the declarant is the
victim, no longer holds true. As amended
Parts of the Res Gestae
Literally means things done. Res Gestae is the startling event of which the
spontaneous statement is only a part of.

The use of res Gestae in the Philippines is limited to two matters:

1) Spontaneous statements
a. That there is a startling occurrence taking place;
b. That statements were made while the event is taking place or immediately prior to or subsequent
thereto;
c. The statements were made before the declarant had the time to contrive or devise a falsehood
d. That the statement relates to the circumstances of the startling even or occurrence, or that the
statements must concern the occurrence in question and its immediate attending circumstance.
2) Verbal acts Statement accompanying an equivocal act material to the issue, and giving it a
legal significance a conduct that is equivocal or ambiguous, one which in itself does not signify
anything when taken separately (legal significance) To be admissible, the following requisites
must be present:
a. The principal act to be characterized must be equivocal (clear need not be explained);
b. The equivocal act must be material to the issue;
c. The statement must accompany the equivocal act;
d. The statement gives a legal significance to the equivocal act

9.

Exceptions to the hearsay rule, are all hearsay, but are admissible Sec. 36 of Rule 130 ex.
Which of the following is hearsay?
Hearsay
Opinion
vs.
Hearsay evidence is one that is not based on
An opinion evidence is based on the personal
ones personal knowledge of others to prove the knowledge or personal conclusion of the
truth of the matter asserted in an out-or-court
witness based on his skill, training, or
experience.

Examples of Non-hearsay evidence

A statement having probative worth simply by virtue of the fact that it was uttered, if relevant to
a material fact inissue is not hearsay and is generally admissible. Where a statement is not
offered for the truth of the contents of the conversation, but only to show that it was made, then
the statement is not hearsay. For example, a statement that is offered to show its patent falsity, so
as to suggest the defendants consciousness of guilt, is NOT hearsay.
b. A statement relating to the state of mind of the declarant and statement relating to the state of
mind of the listener, these are not hearsay, but merely constitute circumstantial evidence of an
assertion. Ex. To prove by inference the testators state of mind, I am Stalin, Roosevelt,
Saddam Hussein, rolled into one
c. A threat against a witness may be offered in evidence to show its impact on the witness and
where the reasonableness of a persons conduct is an issue, and out of court declaration may be
offered to explain the person's reactions to the declaration.
d. Words offered to prove hearers reaction are admissible when they are offered to show their
effect on one whose conduct is at issue.
a.

Independent relevant statement: The newspaper clipping is admissible as non-hearsay if offered

for the purpose of showing that the statement of X was made to a reporter regardless of the truth
or falsityof the statement. If it is relevant, it is admissible as an independent relevant statement
(non hearsay) It would be hearsay if offered to prove the truth that x was the robber.
Exception to the Hearsay Rule:
1. Dying Declarations
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Parts of the res Gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists
10. Learned treatises
11. Testimony or deposition at a former trial
Dying Declarations
*must be impending, near, and certain.
Declaration about pedigree

*The declaration about pedigree may be received in evidence if the relationship is shown by
evidence other than the declaration. The word pedigree includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where these facts occurred, and the names
of the relatives. It also embraces facts of family history intimately connected with pedigree.

a)
b)
c)
d)
e)
f)

Entries in the course of business.

Elements:
Entries were made at, or near the time of the transactions
Such entries were made in the regular course of business
The person making the entries was in a position to know the facts stated in the entries.
The person making the entries did so in a position to know the facts stated in the entries
The person making the entries did so in his professional capacity, or in the performance of duty
and in the regular course of business
The person making the entry is now dead or unable to testify.
Declarations against Interest
Ex. A statement by the debtor before he died that he owes the creditor a sum of money, or an oral
acknowledgment by the principal that he received the money previously entrusted to his agent,
are clear declarations against the interest of the person making it. Note that declaration against
interest made by the deceased, or by one unable to testify, is admissible even against the
declarants successors in interest or even against third person.
Common reputation
While common reputation in the community may establish a matter of public or general interest,
marriage or moral character, it CANNOT establish pedigree. This is established by reputation in
the family and not in the community.
Commercial Lists and the Like
Must be made by persons engaged in that occupation and are generally used and relied upon by
them and those lists and reports are published.
Learned Treaties.
History books, published finding of scientists fall within this exception IF the subject testifies to
the expertise of the writer of if the court takes judicial notice of such fact.
Testimony or Deposition at a Former Proceeding.
The testimony is one given in a former case or proceeding or administrative, involving the same
parties and the same subject matter. The testimony was given by one who is now dead or unable
to testify. Said testimony may be given in evidence against the adverse party provided the latter
had the opportunity to cross-examine the witness who gave the previous testimony.

Waiver

The rules of evidence may be waived. The rules are established for the protection of the parties.
Except if the rule waived by the parties has been established by law on grounds of public policy.

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Matters need NOT be proved (ISA-JP)

Immaterial allegations
Facts admitted or not denied provided they have been sufficiently alleged (Rule 8)
Agreed and Admitted facts
Facts subject to Judicial Notice
Facts legally Presumed
Section 4. JUDICIAL ADMISSION is and admission, verbal or written, made by a party in the
course of the proceedings.
Elements
The same must be made by a party to the case
The admission must be made in the course of the proceedings in the same case, and
There is no particular form for an admission, it may either be written or verbal.
Judicial Admissions may be made in
Pleadings filed by the parties,
In the course of trial either verbal or written manifestations or stipulations
In other stages of judicial proceedings as in the pre trial of the case
Admissions obtained through depositions, written interrogatories or requests for admissions.

Judicial admissions can be made by either a party or counsel.

Judicial admission may be contradicted only when it is shown that

1. It was made through palpable mistake or 2. That no such admission was made.

Remedy of a party who gave a judicial admission:

In case of written judicial admission motion to withdraw the pleadings, motion, or other
written instrument containing such admission.
Judicial admissions are always conclusive upon the admitter and do not require formal offer as
evidence, unlike in the case of extra-judicial admissions.
Rule on dismissed pleadings
Admissions made in pleadings that have been dismissed are merely extrajudicial admission.
Admissions in civil cases
Admissions in a pleading which had been
withdrawn or superseded by and amended
pleading are considered extra judicial
admission

Admissions in criminal cases

Admissions during arraignment may be
withdrawn at any time before the judgment of
conviction becomes final, but such plea of
guilty later withdrawn is not admissible in
evidence againt the accused who made the
plea.
It is not even considered an extra judicial

admission

Disqualification by reason of Marriage

(sec. 22)

Disqualification by reason of Marital

privilege (sec. 24 (a)

Can be invoke only if one of the spouses

is a party to the action

Can be claimed whether or not the other

spouse is a party to the action

Applies only if the marriage is existing at

the time the testimony is offered
Constitutes a total prohibition for or
against the spouse of the witness
The objection would be raisedon the
ground of marriage. The married witness
would not be allowed to take the stand at
all because of the disqualification. Even if
the testimony is for or against the
objecting spouse, the spouse-witness
cannot testify.

Can be claimed even after the marriage is

dissolved
Applies only to confidential
communications between the spouses
The married person is on the stand but the
objection of privilege is raised when
confidential marital communication is
inquired into.