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October 21, 2018 (https://etriiilaw.com/evidence-2018-lecture-1/) | By Atty.

Eduardo Reyes III (https://etriiilaw.com/author/attyed/)
In Evidence (https://etriiilaw.com/category/law-jurisprudence/evidence/),
Laws/Jurisprudence (https://etriiilaw.com/category/law-jurisprudence/)

Evidence 2018 – Lecture 1

RULE 128

General Provisions

Section 1. Evidence defined. — Evidence is the means, sanctioned by these

rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.
(1)

Section 2. Scope. — The rules of evidence shall be the same in all courts and in
all trials and hearings, except as otherwise provided by law or these rules. (2a)

Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant

to the issue and is not excluded by the law of these rules. (3a)

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 Section 4. Relevancy; collateral matters. — Evidence must have 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. (4a)

Comments

1. Definition of “Evidence is the means, sanctioned by these rules, of

ascertaining in a judicial proceeding the truth respecting a matter of
fact.”
2. Key words: “Means” and “Truth”. This “means” need only be employed
when there is an “issue regarding a matter of fact”. In other words, when
there is no issue, there is no need for presenting evidence. Thus, in
cases of Judicial Admissions, Judicial Notice, evidence is dispensed
with. If the accused for example pleads self-defense, it means that he
admits both that injuries or death was caused the victim, and that he
caused it.
3. When the law on Evidence therefore uses the word “means”, it means
that Evidence is the “vehicle” which can help the courts arrive at the
“truth” of a factual issue.
4. It can be said that Courts ought to examine the evidence through the
lens or prism of the Rules on Evidence. This highlights the legal truism
that the personality of the judge should be separated from the court
itself because while the Judge may know certain facts based on his own

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 personal knowledge, he should quarantine that at the back of his mind
so as not to interfere with the Evidence which was adduced at trial that
had mustered the test of relevancy and competence.
5. Lady Justice therefore, it can be said, while blind-folded, is not totally
blind. The blind-fold only symbolizes the “cold neutrality of an impartial
judge”. However, Lady Justice may peer through that blind-fold, through
the lens of the Rules on Evidence and accept factual propositions as
truisms when established by competent evidence.
6. This is where Courts must demonstrate mastery of the Rules on
Evidence. Courts must never veer away from the time-tested and
universally proven methods of examining evidence that “separates the
grain from the chaff”.
7. Moreover, Courts must apply finest logic in applying the test of This is
because under the Rules, “Evidence is admissible when relevant to the
issue”.
8. This begs the question: How far must Courts go to consider evidence as
still being within the realm of relevancy?
9. Perhaps our own Supreme Court grappled with this issue when
Philippine courts had their first brush with DNA evidence.

Here are the rulings:

In Agustin v. Court of Appeals,[1]

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 In assessing the probative value of DNA evidence, courts should consider, inter
alia, the following factors: how the samples were collected, how they were
handled, the possibility of contamination of the samples, the procedure followed in
analyzing the samples, whether proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who conducted the tests.

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the
prosecution as an expert witness on DNA print or identification techniques. Based
on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile
of appellant are identical to that of the extracts subject of examination. The blood
sample taken from the appellant showed that he was of the following gene types:
vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with
semen taken from the victims vaginal canal. Verily, a DNA match exists between
the semen found in the victim and the blood sample given by the appellant in open
court during the course of the trial.

Admittedly, we are just beginning to integrate these advances in science and

technology in the Philippine criminal justice system, so we must be cautious as we
traverse these relatively uncharted waters. Fortunately, we can benefit from the
wealth of persuasive jurisprudence that has developed in other jurisdictions.
Specifically, the prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that
pertinent evidence based on scientifically valid principles could be used as long
as it was relevant and reliable. Judges, under Daubert, were allowed greater
discretion over which testimony they would allow at trial, including the introduction
of new kinds of scientific techniques. DNA typing is one such novel procedure.

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 Under Philippine law, evidence is relevant when it relates directly to a fact in
issue as to induce belief in its existence or non-existence. Applying
the Daubert test to the case at bar, the DNA evidence obtained through PCR
testing and utilizing STR analysis, and which was appreciated by the court a
quo is relevant and reliable since it is reasonably based on scientifically valid
principles of human genetics and molecular biology.

While in Herrera v. Alba,[2] DNA Analysis as Evidence was also scrutinized in

terms of its competence and reliability as evidence under our Rules. Thus:

DNA is the fundamental building block of a persons entire genetic make-up. DNA
is found in all human cells and is the same in every cell of the same person.
Genetic identity is unique. Hence, a persons DNA profile can determine his
identity.

DNA analysis is a procedure in which DNA extracted from a biological sample

obtained from an individual is examined. The DNA is processed to generate a
pattern, or a DNA profile, for the individual from whom the sample is taken. This
DNA profile is unique for each person, except for identical twins. We quote
relevant portions of the trial courts 3 February 2000 Order with approval:

Everyone is born with a distinct genetic blueprint

called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in
the rare occurrence of identical twins that share a single, fertilized egg), and
DNA is unchanging throughout life. Being a component of every cell in the

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 human body, the DNA of an individuals blood is the very DNA in his or her
skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva,
or other body parts.

The chemical structure of DNA has four bases. They are known
as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which
the four bases appear in an individuals DNA determines his or her physical
makeup. And since DNA is a double-stranded molecule, it is composed of two
specific paired bases, A-T or T-A and G-C or C-G. These are called genes.

Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic code. Somewhere
in the DNA framework, nonetheless, are sections that differ. They are known
as polymorphic loci, which are the areas analyzed in DNA typing (profiling,
tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or
fingerprinting). In other words, DNA typing simply means determining
the polymorphic loci.

How is DNA typing performed? From a DNA sample obtained or extracted, a

molecular biologist may proceed to analyze it in several ways. There are five
(5) techniques to conduct DNA typing. They are: the RFLP (restriction
fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which
was used in 287 cases that were admitted as evidence by 37 courts in the
U.S. as of November 1994; mtDNA process; VNTR (variable number tandem
repeats); and the most recent which is known as the PCR-([polymerase] chain
reaction) based STR (short tandem repeats) method which, as of 1996, was
availed of by most forensic laboratories in the world. PCR is the process of
replicating or copying DNA in an evidence sample a million times through

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 repeated cycling of a reaction involving the so-called DNA polymerize
enzyme. STR, on the other hand, takes measurements in 13 separate places
and can match two (2) samples with a reported theoretical error rate of less
than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, matches are determined. To

illustrate, when DNA or fingerprint tests are done to identify a suspect in a
criminal case, the evidence collected from the crime scene is compared with
the known print. If a substantial amount of the identifying features are the
same, the DNA or fingerprint is deemed to be a match. But then, even if only
one feature of the DNA or fingerprint is different, it is deemed not to have
come from the suspect.

As earlier stated, certain regions of human DNA show variations between

people. In each of these regions, a person possesses two genetic types
called allele, one inherited from each parent. In [a] paternity test, the forensic
scientist looks at a number of these variable regions in an individual to
produce a DNA profile. Comparing next the DNA profiles of the mother and
child, it is possible to determine which half of the childs DNA was inherited
from the mother. The other half must have been inherited from the biological
father. The alleged fathers profile is then examined to ascertain whether he
has the DNA types in his profile, which match the paternal types in the child.
If the mans DNA types do not match that of the child, the man is excluded as
the father. If the DNA types match, then he is not excluded as the father.
(Emphasis in the original)

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 Although the term DNA testing was mentioned in the 1995 case of People v.
Teehankee, Jr., it was only in the 2001 case of Tijing v. Court of Appeals that
more than a passing mention was given to DNA analysis. In Tijing, we issued a
writ of habeas corpus against respondent who abducted petitioners youngest son.
Testimonial and documentary evidence and physical resemblance were used to
establish parentage. However, we observed that:

Parentage will still be resolved using conventional methods unless we adopt

the modern and scientific ways available. Fortunately, we have now the
facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. xxx For it was said, that
courts should apply the results of science when completely obtained in aid of
situations presented, since to reject said result is to deny progress. Though it
is not necessary in this case to resort to DNA testing, in [the] future it would
be useful to all concerned in the prompt resolution of parentage and identity
issues.

Admissibility of DNA Analysis as Evidence

The 2002 case of People v. Vallejo discussed DNA analysis as evidence. This
may be considered a 180 degree turn from the Courts wary attitude towards DNA
testing in the 1997 PeLim case, where we stated that DNA, being a relatively new
science, xxx has not yet been accorded official recognition by our courts.

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 In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim
matched the accuseds DNA profile. We affirmed the accuseds conviction of rape
with homicide and sentenced him to death. We declared:

In assessing the probative value of DNA evidence, therefore, courts should

consider, among other things, the following data: how the samples were
collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the
proper standards and procedures were followed in conducting the tests, and
the qualification of the analyst who conducted the tests.

Vallejo discussed the probative value, not admissibility, of DNA evidence. By

2002, there was no longer any question on the validity of the use of DNA analysis
as evidence. The Court moved from the issue of according official recognition to
DNA analysis as evidence to the issue of observance of procedures in conducting
DNA analysis.

In 2004, there were two other cases that had a significant impact on jurisprudence
on DNA testing: People v. Yatar and In re: The Writ of Habeas Corpus for
Reynaldo de Villa. In Yatar, a match existed between the DNA profile of the
semen found in the victim and the DNA profile of the blood sample given by
appellant in open court. The Court, following Vallejos footsteps, affirmed the
conviction of appellant because the physical evidence, corroborated by
circumstantial evidence, showed appellant guilty of rape with homicide. In De
Villa, the convict-petitioner presented DNA test results to prove that he is not the
father of the child conceived at the time of commission of the rape. The Court ruled

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 that a difference between the DNA profile of the convict-petitioner and the DNA
profile of the victims child does not preclude the convict-petitioners commission of
rape.

In the present case, the various pleadings filed by petitioner and respondent refer
to two United States cases to support their respective positions on the admissibility
of DNA analysis as evidence: Frye v. U.S. and Daubert v. Merrell Dow
Pharmaceuticals. In Frye v. U.S., the trial court convicted Frye of murder. Frye
appealed his conviction to the Supreme Court of the District of Columbia. During
trial, Fryes counsel offered an expert witness to testify on the result of a systolic
blood pressure deception test made on defendant. The state Supreme Court
affirmed Fryes conviction and ruled that the systolic blood pressure deception test
has not yet gained such standing and scientific recognition among physiological
and psychological authorities as would justify the courts in admitting expert
testimony deduced from the discovery, development, and experiments thus far
made. The Frye standard of general acceptance states as follows:

Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in
this twilight zone the evidential force of the principle must be recognized, and
while courts will go a long way in admitting expert testimony deduced from a
well recognized scientific principle or discovery, the thing from which the
deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.

In 1989, State v. Schwartz modified the Frye standard. Schwartz was charged
with stabbing and murder. Bloodstained articles and blood samples of the
accused and the victim were submitted for DNA testing to a government facility

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 and a private facility. The prosecution introduced the private testing facilitys results
over Schwartzs objection. One of the issues brought before the state Supreme
Court included the admissibility of DNA test results in a criminal proceeding. The
state Supreme Court concluded that:

While we agree with the trial court that forensic DNA typing has gained
general acceptance in the scientific community, we hold that admissibility of
specific test results in a particular case hinges on the laboratorys compliance
with appropriate standards and controls, and the availability of their testing
data and results.

In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc. further modified the Frye-
Schwartz standard. Daubert was a product liability case where both the trial and
appellate courts denied the admissibility of an experts testimony because it failed
to meet the Frye standard of general acceptance. The United States Supreme
Court ruled that in federal trials, the Federal Rules of Evidence have superseded
the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides
the foundation for admissibility of evidence. Thus:

Rule 401. Relevant evidence is defined as that which has any tendency to
make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence.

Rule 402. All relevant evidence is admissible, except as otherwise provided

by the Constitution of the United States, by Act of Congress, by these rules,
or by other rules prescribed by the Supreme Court pursuant to statutory
authority. Evidence which is not relevant is not admissible.

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 Rule 702 of the Federal Rules of Evidence governing expert testimony provides:

If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.

Daubert cautions that departure from the Frye standard of general acceptance
does not mean that the Federal Rules do not place limits on the admissibility of
scientific evidence. Rather, the judge must ensure that the testimonys reasoning or
method is scientifically valid and is relevant to the issue. Admissibility would
depend on factors such as (1) whether the theory or technique can be or has been
tested; (2) whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error; (4) the existence and
maintenance of standards controlling the techniques operation; and (5) whether
the theory or technique is generally accepted in the scientific community.

Another product liability case, Kumho Tires Co. v. Carmichael, further modified
the Daubert standard. This led to the amendment of Rule 702 in 2000 and which
now reads as follows:

If scientific, technical or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.

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 We now determine the applicability in this jurisdiction of these American cases.
Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard
is controlling in the Philippines. At best, American jurisprudence merely has a
persuasive effect on our decisions. Here, evidence is admissible when it is
relevant to the fact in issue and is not otherwise excluded by statute or the Rules of
Court. Evidence is relevant when it has such a relation to the fact in issue as to
induce belief in its existence or non-existence. Section 49 of Rule 130, which
governs the admissibility of expert testimony, provides as follows:

The opinion of a witness on a matter requiring special knowledge, skill,

experience or training which he is shown to possess may be received in
evidence.

This Rule does not pose any legal obstacle to the admissibility of DNA analysis as
evidence. Indeed, even evidence on collateral matters is allowed when it tends in
any reasonable degree to establish the probability or improbability of the fact in
issue.

Indeed, it would have been convenient to merely refer petitioner to our decisions
in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as
evidence. In our jurisdiction, the restrictive tests for admissibility established
by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence.

Probative Value of DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in
giving credence to DNA analysis as evidence. We reiterate our statement
in Vallejo:

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 In assessing the probative value of DNA evidence, therefore, courts should
consider, among other things, the following data: how the samples were
collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the
proper standards and procedures were followed in conducting the tests, and
the qualification of the analyst who conducted the tests.

We also repeat the trial courts explanation of DNA analysis used in paternity
cases:

In [a] paternity test, the forensic scientist looks at a number of these variable
regions in an individual to produce a DNA profile. Comparing next the DNA
profiles of the mother and child, it is possible to determine which half of the
childs DNA was inherited from the mother. The other half must have been
inherited from the biological father. The alleged fathers profile is then
examined to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the mans DNA types do not match
that of the child, the man is excluded as the father. If the DNA types match,
then he is not excluded as the father.

It is not enough to state that the childs DNA profile matches that of the putative
father. A complete match between the DNA profile of the child and the DNA profile
of the putative father does not necessarily establish paternity. For this reason,
following the highest standard adopted in an American jurisdiction, trial courts
should require at least 99.9% as a minimum value of the Probability of Paternity
(W) prior to a paternity inclusion. W is a numerical estimate for the likelihood of
paternity of a putative father compared to the probability of a random match of two
unrelated individuals. An appropriate reference population database, such as the

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 Philippine population database, is required to compute for W. Due to the
probabilistic nature of paternity inclusions, W will never equal to 100%. However,
the accuracy of W estimates is higher when the putative father, mother and child
are subjected to DNA analysis compared to those conducted between the putative
father and child alone.

DNA analysis that excludes the putative father from paternity should be conclusive
proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA
analysis should be considered as corroborative evidence. If the value of W is
99.9% or higher, then there is refutable presumption of paternity. This refutable
presumption of paternity should be subjected to the Vallejo standards.

Right Against Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that no person shall be
compelled to be a witness against himself. Petitioner asserts that obtaining
samples from him for DNA testing violates his right against self-incrimination.
Petitioner ignores our earlier pronouncements that the privilege is applicable only
to testimonial evidence. Again, we quote relevant portions of the trial courts 3
February 2000 Order with approval:

Obtaining DNA samples from an accused in a criminal case or from the

respondent in a paternity case, contrary to the belief of respondent in this
action, will not violate the right against self-incrimination. This privilege
applies only to evidence that is communicative in essence taken under
duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled
that the right against self-incrimination is just a prohibition on the use of

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 physical or moral compulsion to extort communication (testimonial evidence)
from a defendant, not an exclusion of evidence taken from his body when it
may be material. As such, a defendant can be required to submit to a test to
extract virus from his body (as cited in People vs. Olvis, Supra); the
substance emitting from the body of the accused was received as evidence
for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced
out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735);
an order by the judge for the witness to put on pair of pants for size was
allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman
accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41
Phil. 62), since the gist of the privilege is the restriction on testimonial
compulsion.

The policy of the Family Code to liberalize the rule on the investigation of the
paternity and filiation of children, especially of illegitimate children, is without
prejudice to the right of the putative parent to claim his or her own
defenses. Where the evidence to aid this investigation is obtainable through
the facilities of modern science and technology, such evidence should be
considered subject to the limits established by the law, rules, and
jurisprudence.”

So, to summarize, as DNA evidence being universally-accepted as a reliable

scientific method of determining paternity in such cases, which could also be
crucial in rape cases where the victim was purportedly impregnated, and

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 testimonial evidence is usually confined to “He said, She said” , DNA evidence is
Relevant and therefore admissible in evidence in our jurisdiction as it is in many
jurisdictions around the world in these modern times.

PRESENTING EVIDENCE IN COURT IS BOTH AN ART AND A SKILL WHICH

SHOULD BE RESERVED FOR TRIAL LAWYERS

This course is described in the curriculum as “Evidence and Trial

Techniques”. In the world of law practice, it has been observed by jurisprudence
that the practice of law practically embraces in its wingspan, almost all activities
that involve the application of legal knowledge and experience. But far from it, trial
practice is a totally different matter altogether. It requires utmost precision,
adroitness and nimbleness like the hand of a surgeon.

If the student therefore dreams of litigating cases in court, poking holes in the
testimony of a witness, reducing exaggerations to their proper proportions, and
unmasking a perjurer who pretends to be a purveyor of truth in the witness stand,
then a mastery of this subject matter is a must. And that is not all. A mastery of the
Rules on Evidence, it must be remembered, could help ease the court dockets or
calendar. No less than Wellman’s “The Art of Cross Examination” attests to this.
Thus:

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 Francis L. Wellman “The Art of Cross-Examination”, An “Undisputed Classic”
~ According to the New York Times Book Review~ Commenting on the
Importance Of Experience in Litigation of Trial Lawyers and its Impact on
Clogging of Court Dockets

I am aware that many members of my profession still sneer at trial by

jury. Such men, however, – when not among the unsuccessful and disgruntled, –
will, with few exceptions, be found to have had but little practice themselves in
court. They may also belong to that ever growing class in our profession who have
relinquished their court practice and are building up fortunes such as were never
dreamed of in the legal profession until this century by becoming what may be
styled business lawyers – men who are learned in the law as a profession, but
who, through opportunity, combined with rare commercial ability, have come to
apply their learning, especially their knowledge of corporate law, to great
commercial enterprises, combinations, organizations, and reorganizations.

Xxx

This congestion is not due to the fact that there are too few judges, or
that they too are not capable and industrious men; but is largely, it seems to me,
the fault of the system in vogue in all our American courts of allowing any lawyer
duly enrolled as a member of the Bar, to practice in the highest courts. X x x One

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 has but to frequent the courts to become convinced that, so long as the more than
ten thousand members at the New York County Bar all avail themselves of their
privilege to appear in court and try their own clients’ cases, the great majority of
the trials will be poorly conducted, and much valuable time will be wasted.

The conduct of a case in court is a peculiar art for which many men,
however learned in the law, are not fitted; and where a lawyer has but one or even
a dozen appearances in court in each year, he can never become a competent
trial lawyer. I am not addressing myself to clients, who often assume that, because
we are duly qualified as lawyers, we are therefore competent to try their cases; I
am speaking in behalf of our courts, against the congestion of the calendars, and
the consequent crowding out of weighty commercial litigations.

One experienced in the trial of causes will not require, at the utmost,
more than a quarter of the time taken by the most learned inexperienced lawyer in
developing his facts. His case will be thoroughly prepared and understood before
the trial begins. His points of law and issues of fact will be clearly defined and
presented to the court and jury in the fewest possible words. He will in this way
avoid many of the erroneous rulings on questions of law and evidence which are
now upsetting so many verdicts on appeal. He will not only complete his trial in
shorter time, but he will be likely to bring about an equitable verdict in the case
which may not be appealed from at all, or, if appealed, will be sustained by a
higher court, instead of being sent back for a retrial and the consequent
consumption of the time of another judge and jury in doing the work all over again.
X x x”

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 More interestingly, has a student of law ever wondered, if the Rules on
Evidence has any relation to the Bible? For Religious scholars, what the Bible says
is the only truth, thus the proverbial “Gospel truth”.

But could there really be a relation? Can the Bible be considered as

evidence?

The following article answers these questions.

“The Bible and the Ancient Document Rule”

Either for the purpose of mere lawyerly intellectual calisthenics or for the more
sublime reason of re-affirming Christian faith viewed through the prism of the law
on evidence, it is a most strikingly intriguing question to answer whether the Bible
can qualify as “admissible or competent documentary piece of evidence” and the
testimonies of the Four Evangelists, i.e, Matthew, Mark, Luke and John, as
competent testimonial evidence, in our courts.

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 Section 21, Rule 132, of the Rules on Evidence states that: “When evidence of
authenticity of private documents necessary.- Where a Private document is more
than thirty years old, is produced from a custody in which it would naturally be
found if genuine, and is unblemished by any alterations or circumstances of
suspicion, no other evidence of its authenticity need be given”.

This is how the universally-accepted “Ancient Document Rule” is couched in the

Rules on Evidence.

In turn, doctrinal-jurisprudence[1] (https://etriiilaw.com/the-law-on-evidence-christmas-and-the-

bible-a-christmas-tribute/#_ftn1)
teaches about the REQUISITES for the rule to apply, viz:

“Petitioners contend that the Court of Appeals wrongfully applied the “ancient
document rule” provided in Sec. 22, Rule 132 of the Rules of Court. The rule states
that:

Sec. 22. Evidence of execution not necessary.— Were a private writing is more
than thirty years old, is produced from a custody in which it would naturally be
found if genuine, and is unblemished by any alterations or circumstances of
suspicion, no other evidence of its execution and authenticity need be given.

It is submitted by petitioners that under this rule, for a document to be classified

as an “ancient document”, it must not only be at least thirty (30) years old but
it must also be found in the proper custody and is unblemished by alterations

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 and is otherwise free from suspicion. Thus, according to petitioners, exhibits “3”
and “7”, entitled “Traduccion Al Castellano de la Escritura de Particion
Extrajudicial” and “Escritura de Venta Absoluta”, respectively, can not qualify
under the foregoing rule, for the reason that since the “first pages” of said
documents do not bear the signatures of the alleged parties thereto, this
constitutes an indelible blemish that can beget unlimited alterations.

We are not persuaded by the contention. Under the “ancient document rule,” for a
private ancient document to be exempt from proof of due execution and
authenticity, it is not enough that it be more than thirty (30) years old; it is
also necessary that the following requirements are fulfilled; (1) that it is
produced from a custody in which it would naturally be found if genuine; and
(2) that it is unblemished by any alteration or circumstances of suspicion.

The first document, Exhibit “3”, entitled ‘Traduccion Al Castellano de la Escritura

de Particion Extrajudicial” was executed on 7 April 1923 whereas the second
document, exhibit “7”, entitled “Escritura de Venta Absoluta” was executed on 20
January 1924. These documents are, therefore, more than thirty (30) years old.
Both copies of the aforementioned documents were certified as exact copies of
the original on file with the Office of the Register of Deeds of Pampanga, by the
Deputy Register of Deeds. There is a further certification with regard to the
Pampango translation of the document of extrajudicial partition which was issued
by the Archives division, Bureau of Records Management of the Department of
General Services.

Documents which affect real property, in order that they may bind third parties,
must be recorded with the appropriate Register of Deeds. The documents in
question, being certified as copies of originals on file with the Register of Deeds of

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 Pampanga, can be said to be found in the proper custody. Clearly, therefore, the
first two (2) requirements of the “ancient document rule” were met.

As to the last requirement that the document must on its face appear to be
genuine, petitioners did not present any conclusive evidence to support their
allegation of falsification of the said documents. They merely alluded to the fact
that the lack of signatures on the first two (2) pages could have easily led to their
substitution. We cannot uphold this surmise absent any proof whatsoever. As held
in one case, a contract apparently honest and lawful on its face must be treated as
such and one who assails the genuineness of such contract must present
conclusive evidence of falsification.

Moreover, the last requirement of the “ancient document rule” that a document
must be unblemished by any alteration or circumstances of suspicion refers to the
extrinsic quality of the document itself. The lack of signatures on the first pages,
therefore, absent any alterations or circumstances of suspicion cannot be held to
detract from the fact that the documents in question, which were certified as
copied of the originals on file with the Register of Deeds of Pampanga, are
genuine and free from any blemish or circumstances of suspicion.

The documents in question are “ancient documents” as envisioned in Sec. 22 of

Rule 132 of the Rules of Court. Further proof of their due execution and authenticity
is no longer required. Having held that the documents in question are private
writings which are more than thirty (30) years old, come from the proper repository
thereof, and are unblemished by any alteration or circumstances of suspicion,
there is no further need for these documents to fulfill the requirements of the 1903
Notarial Law. Hence, the other contentions of the petitioners that the documents do
not fulfill the mandatory requirements of the Notarial Law and that the proper

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 person or public official was not presented to testify on his certification of the
documents in question, need not be resolved as they would no longer serve any
purpose.”

Inevitably, the above-mentioned rule is a rule “exempting” a document from the

stringent requirements of authentication as a pre-requisite for admissibility as
evidence, on the basis of its being “ancient”. This is on account of practicality
given that ancient documents could only be identified by men or women who may
have walked this Earth in the distant past and that today, no living soul is
competent or available to attest to its veracity.

Academic scholars have had some acrimonious debate on the veracity of the
accounts in the Gospels of Matthew, Mark, Luke and John about the “Resurrection
of Jesus Christ”.

The only source of evidence to support a theory either in favour of, or against, the
proposition that indeed the Resurrection is a historical truth and not a hoax, is the
New Testament which comprise of the testimonies of the Evangelists.

There is, without a doubt, a series of discrepancies or inconsistencies in the

accounts of the four Evangelists when their statements are pitted with one another.

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 This became the subject of an in-depth application of the rules on evidence,
foremost of which is the “Ancient Document Rule” by a Harvard professor who was
an Atheist.

Sourced from the Wikipaedia, kindly read on:

Harvard Law Professor Examines the Evidence of Jesus’ Resurrection

A skeptic of the resurrection, Simon Greenleaf (1783–1853) helped to put the

Harvard Law School on the map. He wrote the three-volume legal
masterpiece, A Treatise on the Law of Evidence, which is still regarded as
“the greatest single authority in the entire literature of legal procedure.” The
U.S. judicial system today operates on rules of evidence established by
Greenleaf.

While teaching law at Harvard, Professor Greenleaf stated to his class that the
resurrection of Jesus Christ was simply a legend; as an atheist he thought
miracles to be impossible. In a rebuttal, three of his law students challenged
him to apply his acclaimed rules of evidence to the resurrection account.

After much prodding, Greenleaf accepted his students’ challenge and began
an investigation into the evidence. Focusing his brilliant legal mind on the
facts of history, Greenleaf attempted to prove the resurrection account was
false.

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 Yet the more Greenleaf investigated the record of history, the more stunned he
was at the powerful evidence supporting the claim that Jesus had indeed
risen from the tomb. Greenleaf’s skepticism was being challenged by an
event that had changed the course of human history.

Greenleaf was unable to explain several dramatic changes that took place
shortly after Jesus died, the most baffling being the behavior of the disciples.
It wasn’t just one or two disciples who insisted Jesus had risen; it was all of
them. Applying his own rules of evidence to the facts, Greenleaf arrived at his
verdict.

In a shocking reversal of his position, Greenleaf accepted Jesus’ resurrection

as the best explanation for the events that took place immediately after his
crucifixion. To this brilliant legal scholar and former atheist, it would have
been impossible for the disciples to persist with their conviction that Jesus
had risen if they hadn’t actually seen the risen Christ.

In his book, The Testimony of the Evangelists, Greenleaf documents the

evidence that caused him to change his mind. In his conclusion, he
challenges those who seek the truth about the resurrection to fairly examine
the evidence.

Greenleaf was so persuaded by the evidence that he became a committed

Christian. He believed that any unbiased person who honestly examines the
evidence will conclude what he did—that Jesus Christ has truly risen.

Greenleaf begins his book by arguing for the need to suspend prejudices and
to be open to conviction, “to follow the truth wherever it may lead us” (p. 1).
He cites Bishop Daniel Wilson’s Evidences by stating that Christianity does

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 not “bring irresistible evidence” but offers sufficient evidences for “the serious
inquirer” (p. 2). He limits the scope of his book to an inquiry “to the testimony
of the Four Evangelists, bringing their narratives to the tests to which other
evidence is subjected in human tribunals” (p. 2). His specific inquiry is
concerned with testing “the veracity of these witnesses by the same rules and
means” employed in human tribunals (p. 3). Greenleaf argues the case by
first inquiring as to the genuineness of the four gospels as ancient writings.
Here he applies what is known in law as the ancient documents rule, stating
that “Every document, apparently ancient, coming from the proper repository
or custody, and bearing on its face no evident marks of forgery, the law
presumes to be genuine, and devolves on the opposing party the burden of
proving it to be otherwise” (p. 7). Greenleaf maintains that the Four Gospels
do not bear any marks of being forgeries and the oldest extant copies may be
received into court as genuine documents.

Greenleaf proceeds to argue that “In matters of public and general interest,
all persons must be presumed to be conversant, on the principle that
individuals are presumed to be conversant with their own affairs” (p. 9). On
the basis of this legal rule, Greenleaf briefly profiles those traditionally
attributed as authors of the Four Gospels, Matthew, Mark, Luke and John,
concerning (in the case of John and Matthew) their firsthand knowledge of
the life of Jesus of Nazareth and (in the case of Mark and Luke) their intimate
personal links with Jesus’ original band of disciples.

Greenleaf then builds a cumulative case by claiming to cross-examine the

oral testimony of the evangelists in their accounts of the death and
resurrection of Jesus. Greenleaf develops his case on the basis of the
following tests:

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 “The credit due to the testimony of witnesses depends upon, firstly, their
honesty; secondly, their ability; thirdly, their number and the consistency of
their testimony; fourthly, the conformity of their testimony with experience; and
fifthly, the coincidence of their testimony with collateral circumstances” (p.
28).

Greenleaf then argues that the gospel writers can be shown to be honest in
their character and do not show any motives to falsify their testimony (pp. 28–
31). He claims that keen observations and meticulous details are related by
Matthew and Luke, and he concludes this demonstrates their ability (pp. 31–
32). Greenleaf notes that there are parallel accounts from the evangelists
concerning the central events of Jesus’ life and that these accounts are not
verbally identical. He maintains that discrepancies in their accounts are
evidence that the writers are not guilty of collusion, and that the discrepancies
in their respective accounts can be resolved or harmonized upon careful
cross-examination and comparison of the details (pp 32–35). Greenleaf
argues against the scepticism of the Scottish empirical philosopher David
Hume concerning reports of miracles. He finds fault with Hume’s position
about “immutable laws from the uniform course of human experience” (p. 36),
and goes on to assert that it is a fallacy because “it excludes all knowledge
derived by inference or deduction from facts, confining us to what we derive
from experience alone” (pp. 37–38). Greenleaf takes as his own assumption
that as God exists then such a being is capable of performing miracles. He
then argues that the various miracles reported in Jesus’ ministry occurred in
open or public contexts where friend and foe alike were witnesses (pp 39–

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 42). Lastly, Greenleaf examines the problem of uniform testimony among false
and genuine witnesses, and finds there is sufficient circumstantial evidence to
support the accounts of the Four Evangelists.

Greenleaf sums up his argument with the following plea:

“All that Christianity asks of men on this subject, is, that they would be
consistent with themselves; that they would treat its evidences as they treat
the evidence of other things; and that they would try and judge its actors and
witnesses, as they deal with their fellow men, when testifying to human affairs
and actions, in human tribunals. Let the witnesses be compared with
themselves, with each other, and with the surrounding facts and
circumstances; and let their testimony be sifted, as if it were given in a court
of justice, on the side of the adverse party, the witnesses being subjected to a
rigorous cross-examination. The result, it is confidently believed, will be an
undoubting conviction of their integrity, ability and truth … Either the men of
Galilee were men of superlative wisdom, and extensive knowledge and
experience, and of deeper skill in the arts of deception, than any and all
others, before or after them, or they have truly stated the astonishing things
which they saw and heard” (pp. 46 & 53).

Literary importance in Christian apologetics

In the history of Christian apologetics there have been many lawyers who
have written texts commending and defending their faith. In recent years
writers such as John Warwick Montgomery, Ross Clifford and Philip Johnson
have described the contributions made by lawyers as a distinct school of
thought and use the terms “juridical apologetics”, “jural apologetics” and
“legal apologetics”. These writers point to the Seventeenth century Dutch

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 legal scholar Hugo Grotius as one of the first juridical apologists.
Montgomery, Clifford and Johnson argue that Greenleaf may be ranked as
one of the most important representative figures of this particular school of
apologetic thought. Johnson states that Greenleaf, “must be regarded
as the pivotal figure in juridical apologetics.”

As a Christian apologist of the mid-Nineteenth century, Greenleaf was one of

many writers who contributed to the debates that ensued on both sides of the
Atlantic concerning the historicity of the gospel accounts in general, and
specifically the miracle of the resurrection of Jesus Christ. Part of his
argument relied on earlier Christian apologists such as William Paley, Thomas
Hartwell Horne, and Mark Hopkins, and he cites their works in The Testimony
of the Evangelists. Here he followed the basic appeals to logic, reason, and
historical evidences on behalf of the Bible generally, and in defence of the
possibility of miracles occurring.

However, what distinguished Greenleaf from previous apologists is that he is

the first American apologist to develop an argument favoring the reliability of
the gospels and specifically on the evidences for the resurrection of Jesus
Christ using technical legal criteria. His technical arguments concerning the
evidentiary weight of the eyewitness passages found in the gospel narratives,
the criteria for cross-examining that eyewitness testimony, and the claimed
status of the gospels as competent evidence, have been relied on and
restated by several American Christian apologists of the nineteenth and
twentieth centuries, such as Clarence Bartlett (As A Lawyer Sees Jesus),
Walter M. Chandler (The Trial of Jesus), Pamela Binnings Ewen (Faith on
Trial), Francis J. Lamb (Miracle and Science), Irwin H. Linton (A Lawyer
Examines the Bible), Josh McDowell(More Than A Carpenter, The

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 Resurrection Factor), Howard Hyde Russell (A Lawyer’s Examination of the
Bible),Joseph Evans Sagebeer (The Bible in Court), and Stephen D. Williams
(The Bible in Court or Truth vs Error).

Critical assessment

There are two examples of writers in recent years who have made critical
assessments of Greenleaf’s work, and of legal apologists who model their
arguments on his book. Howard Richard Packham is a retired foreign
language instructor and former part-time estate planning attorney who holds
to an atheist worldview. He has written an internet article criticising the
technical arguments set forth by Greenleaf and others. Packham holds that
what Greenleaf submits as eyewitness testimony is technically hearsay and
therefore does not comprise direct evidence to demonstrate the resurrection
of Jesus. He also holds that the criteria for the “ancient documents rule” is not
met by the gospel documents and that the force of Greenleaf’s argument is
thereby undermined. Packham argues that the ancient documents rule
technically only applies to a limited genre of legal documents, such as wills
and contracts and other specific legal instruments, to which the gospels do
not belong. However, there are problems in Packham’s argument. The Ancient
Documents Rule is not limited to express legal instruments, but covers any
type of documents. The criteria for the Ancient Documents Rule is simple and
straightforward. According to legal authorities, documents of any type must
meet three criteria in order to qualify for the Ancient Documents Rule: 1) that
the document is at least 20 years old, 2) presumed to be genuine, 3) come
from proper custody (cf. Black’s Law Dictionary, FRE 901(b)(8)). Greenleaf, as
a writer of highest legal authority, concluded that the Gospels should be
received under the ancient documents rule. In §9 of his Testimony of the

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 Evangelists, Greenleaf cites the legal reception by the British Record
Commission of the Domesday Book and Ancient Statues of Wales, as well as
many other ancient writings. Packham maintains that in a court procedure it is
up to a judge to decide if a document may be admitted. However, the issue of
allowing any evidence is whether the evidence has enough value for the trier
of fact to reach a conclusion, whether for or against (FRE 104 (b) notes).
Packham also argues that admitting a document is not tantamount to saying
that its contents have automatically been authenticated by the judge’s
decision. However, that means the written document is allowed into evidence
in the case and that evidence of its contents have to be further weighed by
the trier of fact. The interesting dilemma is that both advocates and
opponents must cite the Gospels in order to admit or omit their contents. Thus
the probative value, and the logical and conditional relevancy of the Gospel
materials is exhibited. Packham liberally cites the Gospel material and biblical
higher critics in order to make his points.

Ross Clifford, who is a former Australian barrister and a theologian, has often
written about the subject of legal apologists. Clifford affirms the case for the
resurrection of Jesus. He states that it may appear to opponents that legal
apologists like Greenleaf have at different points overstated their case. In his
first book Leading Lawyers’ Case for the Resurrection he devoted a brief
chapter on Greenleaf’s life and work. In that text he raised a technical
question about the ancient documents rule and suggested that hypothetically
a court could admit the gospels as ancient documents, but that does not
mean that their specific contents are automatically acknowledged as facts
(p. 141). However, the trier of fact is allowed to weigh the evidence of the
contents of the writings. Clifford clarifies the purpose of the ancient

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 documents rule in his book John Warwick Montgomery’s Legal
Apologetic (pp. 51–65). Clifford says that apologists may appear to their
opponents to have overstated their conclusions based on the ancient
documents rule. But Clifford supports Greenleaf’s and Montgomery’s legal
apologetic approach. Clifford states:

“The ‘Ancient Documents’ rule at common law has traditionally related more
to the authentication of the document than with the admissibility of its
contents. It does not automatically lead to admission of the substance of the
document irrespective of its credibility. (It can be argued this is even true
today for the United States, even though the Federal Rule of Evidence 803
[16] states statements in Ancient Documents are admissible as exemptions to
hearsay). Greenleaf takes no cognisance of this position and asserts that
when an instrument is admitted under the said rule the court is bound to
receive into evidence its substance as well unless the opposing party is able
to impeach it … The question as to whether the authentication of the gospels
under the ‘Ancient Documents’ rule leads to receiving their substance into
evidence is contentious. It could be strongly pleaded there is justification for
doing so. Yet, it should be noted such pleading would be met by the adverse
party’s strong rejoinder” (pp. 60-61 & 63).

As an apologist Clifford argues a case on the evidences for the resurrection

and touches Packham’s arguments.

Greenleaf’s book remains the subject of contemporary interest as proved by

these two writers: from Packham as sceptic and from Clifford as Christian
advocate.”

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 Assuredly, Professor Greenleaf’s conversion from being a non-believer into a
believer of the Resurrection of Jesus Christ after his application of the Rules on
Evidence to the proposition that it is not mere legend but historically verifiable,
would send shivers down the spine.

But regardless of whether Faith has been increased or decreased, what is vital is
the point that the “Ancient Document Rule” is a universal rule on evidence which
purpose is to shun rigidity in requiring authentication of any and all documents. Of
course, authentication under Sec. 22, Rule 132 is accomplished 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 x x x”. But this witness may sometimes be unavailable or
even if available, may refuse to participate in the trial. Thus, the expedience of the
“Ancient Document Rule” which in the end may either correct a skewed part of
history or unearth a long historically hidden truth.

Indeed, faith or religion may not be totally divorced from law after all.

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 [1] (https://etriiilaw.com/the-law-on-evidence-christmas-and-the-bible-a-christmas-
tribute/#_ftnref1) G.R. Nos. 79597-98 May 20, 1991

HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS, VIRGINIA

CABAIS, LEONOR CABAIS-PENA and DOLORES CABAIS-MAGPAYO, petitioners,
vs.
COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO
ENCARNACION D. SONGCO, LOURDES D. SONGCO, ANGELA S. SONGCO,
LUDIVINA S. SONGCO, JOSEPHINE S. SONGCO, ALBERT S. SONGCO,
INOSENCIO S. SONGCO, JAIME S. SONGCO, MARTIN S. SONGCO, and
BERNARD S. SONGCO, Being Heirs of Inocencio Songco, respondents

[1] G.R. No. 162571, June 15, 2005

[2] G.R. No. 148220, June 15, 2005

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