RULE 128 1.

Lack of marriage license

2. Psychological incapacity
SEC 2  Tape recordings were made by the wife (wire tapped
conversation)
- The rules of evidence shall be the same in all courts and in all trials and hearings, except
 The wire tapped conversations were admitted as
as otherwise provided by law or these rules.
evidence in the annulment case
- Rule 1 Sec 4 of the Rules of court: These Rules shall not apply to election cases,
 Husband contends that the tapes were acquired without
land registration, cadastral, naturalization and insolvency proceedings, and other cases
his knowledge and against his consent. Therefore, the
not herein provided for, except by analogy or in a suppletory character and whenever
tapes are inadmissible.
practicable and convenient.
 HELD:
- GR: Rules of evidence is applicable to all courts and in all trials and hearings
 Sec 1 of RA 4200 provides that it is unlawful for a party
- XPN: except as otherwise provided by law
to record private conversation of another without the
- Remember, the rules on evidence is not applicable in all courts. Neither in all hearings
latter’s consent
and litigation
 GR: Wire tapping is not allowed between the parties
- Reyes v CA (ROE not applicable in all courts)
 XPN: Both parties agreed to have their conversation wire
o The case was based on affidavits. Other parties were not given a chance to
tapped (only instance where the tapes will be allowed)
cross examine
 There is no evidence that the husband consented to the
o The court admitted the affidavits in support of the case
wire tapping
o HELD: Rules on evidence does not apply to agrarian cases because there is
 Only one of the parties privy to the conversation
a specific rule there that states otherwise
consented (wife)
o Sec 16 of PD 946 provides that ROC shall not apply to agrarian cases even in
 Absent clear showing that both parties in the
suppletory character
conversation consented to the recording, the tapes are
o Affidavits may be allowed and are admissible in evidence even if the affiants
not admissible as evidence under RA 4200
were not cross examined precisely because of PD 946
 Ramirez v CA
- ROE not applicable in all hearings and litigation
 Civil case filed by Ramirez against Garcia for having
o In labor cases, position papers are allowed even if there is no cross
vexed and humiliated her in a hostile manner
examination of the party
 In support thereof, she produced verbatim transcription
o In rules on summary procedure, when preliminary order is issued and
of their conversation from a tape recorder
received by the parties, the filing of affidavits and position papers comes next.
 As a result, Garcia filed a criminal case against Ramirez
These affidavits and position papers are the testimonial evidence. Walang
for violating RA 4200
cross examination diyan. But the court can rule on the case.
 Ramirez contends that the law does not apply to taping
o In immigration proceedings, ROE is not applicable in deportation cases
private conversations by one of the parties to the
o In immunity statutes,
conversation
o In RA 1379, forfeiture of unlawfully acquired properties
 HELD:
o In witnesses concerning bribery cases
 RA 4200 makes it illegal for any person not authorized
 2 witnesses in a bribery case:
by all parties to any private conversation to secretly
1. The one who gives the bribe (inducer)
record the conversation by means of a tape recorder
2. The public official who accepted the bribe (actual doer)
 The law does not make a distinction between a party
 If the bribe giver testifies against the public official, such cannot be
ought to be penalized as a party to the said conversation
used against you because of the immunity statute.
and as a third party not privy to the conversation
 Such is not considered an admission. It is not admissible because
 In other words, you need not be a third person to be
there is a law providing for such
covered by the law
o In RA 4200, any evidence obtained in violation of such law is inadmissible.
 Even if you are a party to the conversation, you can be
Rule of exclusion
penalized if the other parties do not consent
 Salcedo-Ortanez v CA
 The intention of the law is to penalize all persons who
 Annulment Case was filed by husband against the wife
make unauthorized recording. The law used the word
on the ground of:
“any person”

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  Therefore, such recording is inadmissible in evidence
 Gaanan v IAC
 Atty. Tintor called Laconico (respondent in a criminal
case for direct assault)
 Laconico requested Gaanan to listen to the conversation
thru a telephone extension line
 In the conversation, Laconico promised to give money in
exchange of the withdrawal of the case for direct assault
 When the money was given to Atty. Tintor, he was
arrested
 A case for extortion was filed against Atty. Tintor
 Among the evidence presented was the testimony of
Gaanan saying that he heard the conversation
(extortion) between Atty. Tintor and Laconico thru the
extension line
 CFI and CA ruled that the evidence is inadmissible in
violation of RA 4200
 The present case is a criminal case against Gaanan, for
violating RA 4200
 IAC convicted Gaanan
 ISSUE: is the use of a telephone line constitutes
violation of RA 4200
 HELD: NO
 Telephone line (extension) is not one of the devices
listed in RA 4200
 What is prohibited by the law is secretly recording the
conversation without the consent of all the parties by
using Dictaphone, tape recorder or any device otherwise
described
 In the present case, he is just secretly listening
 The term “other device’ does not include an extension
line because such is not under the same category as
those devices enumerated. An extension line is not used
for that purpose
 Andun na yung extension line. It is a common device in
a telephone. Therefore, it is not considered as one for
wiretapping.
 This case is penal. Not one of evidence.
- Therefore, the Rules of Court is not the only source of rules on evidence. There are
rules provided for in the civil code, special laws, rpc, special penal statutes (if a public
official earns this much and his assets is disproportionate to his salary, then his assets
is presumed to be ill gotten), bill of rights under the constitution (even if evidence is
relevant, it is admissible if the accused was not informed of his Miranda rights)
RULE 129
- Q: What is judicial notice?
- A: it is the cognizance which the court may take without proof of fact because they are
bound to know it. It is something which they ought to know.
- If you are preparing your witness, make sure that his testimony is in accord with nature/
human experience.
- Q: What is the purpose of judicial notice?
- A: It takes the place of evidence. Since it stands for proof, it already fulfills the object
for which the evidence is designed to fulfil. It makes evidence unnecessary.
- The principle of judicial notice is based on the obvious reason of convenience and
expediency. It operates to save the trouble, expense and time which would be lost in
establishing in ordinary way the facts which would not admit any contravention
- Q: May our courts take judicial notice of treatise entered into by the Philippines
- A: Yes. Courts should take judicial notice of treatise affecting the Philippines because it
is party of history and it forms part of the law of the land
- Courts can take judicial notice of the Treaty of Paris
- Q: May our courts take judicial notice of foreign laws?
- A: GR: No. Foreign law should be proved as facts
- Q: May courts take judicial notice of municipal laws?
- A: MTC should take judicial notice of municipal laws of the municipality where it has
jurisdiction.
- Q: If you are an MTC judge, can you take judicial notice of municipal laws of another
municipality?
- A: No
o Galiego v People
 There is nothing in our laws that prohibits a court from taking
judicial notice of a municipal ordinance provided that the ordinance
was issued within the territorial jurisdiction of the court
- Q: May our courts take judicial notice of common law?
- A: Yes (Pardo v Republic)
- Q: May our courts take judicial notice of judicial proceedings?
- A:
GR: A court will take judicial notice of its records and the records which establishes the
case. However, the court will not take judicial notice of another case even if it is pending
in the same court or before the same judge
XPN:
1. In the absence of any objections or with the consent of the parties, the records of
a previous case are deemed admitted in the case then pending
2. When the other proceeding has close connection with the matter pending in the
present case
- Case
o After the case was filed, there was a MTD on the ground of res judicata
o The case involves the same parties and same subject matter
o The lawyer filed a MTD without presenting the previous order of the court
denying the first case (Buang ‘tong abagodong to.  )
o The same judge who dismissed the first case dismissed the present case
without evidence
o SC: Pwede yan.
o What is involved here is a final judgment (not merely a pending case)
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- Baguio v Jalagat
o The case started with a complaint for quieting of title
o MTD was filed on the ground that the case is barred by a prior judgment
o Defendant claims that the present case is identical to the previous case filed
by the plaintiff
o The sole error assigned is that a bar by prior judgment cannot be raised in a
motion to dismiss when such ground does not appear on the face of the
complaint. What immediately calls attention in the rather sketchy and
inconclusive discussion in the six-page brief of appellant is that there was no
denial as to the truth of the statement made by Judge Gorospe that there
was a previous dismissal of the same plaintiff's complaint against the
predecessor-in-interest of defendants, who as expressly admitted by
appellant was the deceased husband of one of them and father of the rest.
There was no denial either of the property involved being the same and of
the finality of the decision in the previous case which would show that
appellant's claim was devoid of any support in law. It would be therefore
futile for the court to continue with the case as there had been such a prior
judgment certainly binding on appellant.
o ISSUE: What then was there for the lower court to do? Was there any sense
in its being engaged in what was essentially a fruitless endeavor as the
outcome was predictable?
o HELD: Court can take judicial notice of a case previously decided by it
o It ought to be clear even to appellant that under the circumstances, the lower
court certainly could take judicial notice of the finality of a judgment in a case
that was previously pending and thereafter decided by it.
o That was all that was done by the lower court in decreeing the dismissal.
o Certainly such an order is not contrary to law. A citation from the comments
of former Chief Justice Moran is relevant. Thus: "Courts have also taken
judicial notice of previous cases to determine whether or not the case pending
is a moot one or whether or not a previous ruling is applicable in the case
under consideration."
- NOTE: Kapag decided na ang case, meaning, it was already final, the court can now
take judicial notice
- Tabuena v CA
o Juan and Alfredo are friends. In 1926, they were in US.
o There was an agreement between Juan and Alfredo concerning the sale of a
property. When Alfredo returned in the Philippines, Juan’s mother conveyed
the lot to Alfredo.
o Mother requested that she be allowed to stay on the property.
o Alfredo agreed provided, she must pay real property taxes which she
promised to pay.
o Tabuena (brother of Juan) took possession of the property.
o A complaint was filed by Alfredo against Tabuena.
o Tabuena claims that the property was never sold to Alfredo.
o TC ruled in favor of Alfredo.
o Tabuena appealed claiming that TC motu proprio took cognizance of Exhibits
A, B and C which have been marked but was never formally submitted in
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evidence. Furthermore, TC took cognizance of the proceedings in another
case concerning the same parties but the subject matter is a different parcel
of land
o HELD:
o The trial court erred when it relied on the evidence submitted in the first case
and took judicial notice thereof without the consent or knowledge of the
petitioner, in violation of existing doctrine.
o RE: FORMAL OFFER OF EVIDENCE (Not yet our lesson accdng to Sir)
 If hindi formally offered, wala yan ha.
 GR: Evidence not formally offered cannot be given any evidentiary
rule. The mere fact that a particular document is marked as an
exhibit does not mean it has thereby already been offered as part
of the evidence of a party.
 Rationale: The offer is necessary because it is the duty of a judge
to rest his findings of facts and his judgment only and strictly upon
the evidence offered by the parties at the trial.
 XPN: even if there be no formal offer of an exhibit, it may still be
admitted against the adverse party if:
 it has been duly identified by testimony duly recorded
 it has itself been incorporated in the records of the case.
o RE: PROCEEDING IN ANOTHER CASE WAS CONSIDERED
 GR: courts are not authorized to take judicial notice, in the
adjudication of cases pending before them, of the contents of the
records of other cases, even when such cases have been tried or
are pending in the same court, and notwithstanding the fact that
both cases may have been heard or are actually pending before
the same judge.
 * XPN: …in the absence of objection, and as a matter of
convenience to all parties, a court may properly treat all or any part
of the original record of a case filed in its archives as read into the
record of a case pending before it, when, with the knowledge of
the opposing party, reference is made to it for that purpose, by
name and number or in some other manner by which it is
sufficiently designated; or when the original record of the former
case or any part of it, is actually withdrawn from the archives by
the court's direction, at the request or with the consent of the
parties, and admitted as a part of the record of the case then
pending
 *It is clear, though, that this exception is applicable only
when, "in the absence of objection," "with the knowledge of the
opposing party," or "at the request or with the consent of the
parties," the case is clearly referred to or "the original 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."
 These conditions have not been established here.
 On the contrary, the petitioner was completely unaware that his
testimony in the previous case was being considered by the trial
3
 court in the case then pending before it. As the petitioner puts it, o Strict procedural rules generally frown upon the submission of the Return
the matter was never taken up at the trial and was "unfairly after the trial.
sprung" upon him, leaving him no opportunity to counteract. o The law creating the Court of Tax Appeals, however, specifically
- NOTE: Remember the GR and XPNS (cited above) provides that proceedings before it "shall not be governed strictly
- Q: May a court take judicial notice of an event occurring at another country? by the technical rules of evidence." (old rule accdg to Sir)
- A: o As a rule, "courts are not authorized to take judicial notice of the contents of
GR: No, if they are purely local in that country the records of other cases, even when such cases have been tried or are
XPN: if they are of international interest pending in the same court, and notwithstanding the fact that both cases may
- Q: May a court take judicial notice of the fact that the UN was founded on this date? have been heard or are actually pending before the same judge."
- A: Yes, because we are part of the treaty creating UN and it was of an international o Be that as it may, Section 2, Rule 129 provides that courts may take judicial
event notice of matters ought to be known to judges because of their judicial
- Q: May a court take judicial notice of the fact that WW2 terminated on this date? functions.
- A: Yes, because it is of international interest
- Q: May a court take judicial notice of facts of art and sciences? SEC 1
- A: Yes, if they are well known to a man of common understanding
- Q: What are the things that you need not prove?
- Q: May a court take judicial notice of a pardon granted by the President?
- A:
- A: No, because a pardon is a private act of the President
1. Those which the court shall take judicial notice
- Q: May a court take judicial notice of a proclamation of general amnesty?
o the existence and territorial extent of states, their political history, forms of
- A: Yes, because that is a judicial act of the President
government and symbols of nationality, the law of nations, the admiralty and
- Q: May a court take judicial notice of legislative journals?
maritime courts of the world and their seals, the political constitution and
- A: Yes. It is useful in determining the intent of the lawmakers
history of the Philippines, the official acts of legislative (all judges are
- Q: May a court take judicial notice of the events occurring during the Japanese
presumed to know the law even if they haven’t read the law), executive and
occupation?
judicial departments of the Philippines, the laws of nature (no need to prove
- A: Yes, because such is part of Philippine history
the law of gravity), the measure of time, and the geographical divisions
- BPI Family Savings Bank v CA
o Judicial Notice v Actual Notice
o Sir doesn’t want to discuss this case anymore because CTA is now a regular
 Q: Is judicial notice equivalent to actual knowledge of the judge?
court (it is no longer a quasi judicial court)
 A: No
o Principle: Court cannot take judicial notice of another case pending before it
 There is a difference between judicial notice and judicial knowledge
o BPI pays taxes. It files quarterly and yearly.
of the judge
o It turned out that there is overpayment. So, there is tax credit.
 A fact may be known to the judge but it is not proper for judicial
o However, biglang nalugi. Therefore, it cannot apply the tax credit.
notice
o BPI asked for refund.
 In the same way, a fact may be unknown to the judge but it is
o CTA denied the refund because there was no evidence to show that it did not
proper for a judicial notice
apply the tax credit in the previous taxable year.
 Ex. a mitigating circumstance of minority
o BPI contends that CTA should take judicial notice of the losses because it was
 It will be improper for the judge to stop the presentation
able to attach the evidence required in its MR
of evidence proving such fact just because he knows the
o Sir: Before, there is no application of strict rules on evidence in CTA
age of the accused
o HELD:
 Kahit na siya pa ang ninong nung bata, he cant take
o CTA is not bound with strict rules on evidence
judicial notice
o BPI could not have applied the tax credit as shown by the evidence attached
 When the judge looks out of his window, he saw the crime being
in the MR
committed
o As a rule, the factual findings of the appellate court are binding on this Court.
 Then, he became the presiding judge of the case
This rule, however, does not apply where, inter alia, the judgment is premised
 Q: Can he take judicial notice of the fact that he saw the crime?
on a misapprehension of facts, or when the appellate court failed to notice
 A: No. That was actual notice. Even if he had actual knowledge, he
certain relevant facts which if considered would justify a different conclusion.
shall not use it in determining the case. He shall not put it in his
This case is one such exception.
decision. He is the judge, not the witness

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  Remember, if you are the witness you cannot be the judge of the
same case
2. Judicially admitted
 Ex. In the answer, defendant says “I admit…”
 Inadmit na, ipprove mo pa ba? Eh di nag aksaya ka ng panahon.
 Q: Again, When may the court render judgment on the pleadings?
 A:
1. When the answer fails to tender an issue
 Although it denies, it does not comply with the
requirements of a specific denial.
 If you invoke lack of knowledge on your part, you must
prove it.
o But if you are expected to know it, aba’y hindi
pwede.
o Capitol Motors case
 Bought car in installments as
evidenced by a PN
 However, he even claim that he
lacks knowledge na may PN pala
 Motion for judgment on the
pleadings was properly invoked
 His claim that he lacks knowledge
was done in BF
 Such has the effect of admission of
the averments of the plaintiff
 In cases involving actionable document-> specific denial
+ under oath
o If it is not under oath, there is a technical
admission of the genuineness and due
execution of the actionable document
 Q: How do you appeal a judgment on the pleadings?
 A: Go to the SC. Mode of appeal is record on appeal (Rule
45). It now involves only question of law. Wala nang
question of facts kasi admitted na
2. When the defendant otherwise admits the material averments
of the plaintiff
 In judgment on the pleadings, there is no need to present evidence
 Q: What is the effect of an amended pleading?
 A: The admissions that are not incorporated in the amended
pleading loses their character as judicial admission
 Q: Would it now be necessary to prove them?
 A: Yes, because they are now considered as extrajudicial admission
(Rule 10, Sec 8)
 Torres v CA
 This is a family dispute over a parcel of land
 In the original complaint, the petitioner was named as
an heir
 However, her name was removed in the amended
complaint
 According to petitioner, the statement in the pleading is
the admission of her filiation and is therefore controlling
in her participation in the disputed property
 HELD:
 The effect of the amendment of the original complaint:
The admission that was not incorporated in the amended
complant ceases to be a judicial admission
 It now becomes an extrajudicial admission. Therefore, it
would now be necessary to prove them
 If petitioner had desired to utilize the original complaint
she should have offered it in evidence.
 Having been amended, the original complaint lost
its character as a judicial admission, which would
have required no proof, and became merely an
extrajudicial admission, the admissibility of
which, as evidence, required its formal offer.
 Contrary to petitioner's submission, therefore, there can
be no estoppel by extrajudicial admission made in the
original complaint, for failure to offer it in evidence.
3. Presumptions
o You don’t have to prove it, but you must overcome it by presenting evidence
RULE 130
- Q: What are the 3 kinds of evidence?
- A:
1. Object (real)
2. Documentary
3. Testimonial
SEC 1
OBJECT (REAL) EVIDENCE
- Q: What is real evidence?
- A: Those addressed to the senses of the court. The purpose of which is to show the
existence, situation, condition of an object
- Real evidence is also called octopic preference (?) or demonstrative evidence
- Ex. fingerprints, paraffin test, ballistic findings, photographs, maps, presence of blood
stain, medical certificate, autopsy reports
- Q: How may these be proved?
- A:
1. Exhibiting, Examined, Viewed by the court
2. Testimonial evidence
o Ex. You want to prove cause of death in a criminal case, you sometimes put
a forensic expert on the witness stand
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 o Expert will say, 12 hours na siyang patay kasi may rigor mortis na etc
- Q: What is the probative value of object evidence?
- A: It is considered the best and the highest form of proof
- Q: Why?
- A: Because it is res ipsa loquitur
- Q: What is the scope of real evidence?
- A: It extends to all the senses – taste, smell, texture, condition, character, situation of
a thing
- Real evidence may be classified into 3:
1. Inspection inside the courtroom
2. Inspection outside the courtroom
o Ocular inspection
o Taking a view is inspection by the judge outside the courtroom.
o In order to be admissible, parties must have due process so they may be
present at the viewing since such will be part of the trial
o Ex. Boundary cases
3. Experiments
- Q: Is there a pre-requisite for the admission of real evidence?
- A: Yes. The object must first be identified. It means that it must be shown by
independent evidence that the object offered is the thing in dispute
- Ex. You file for land registration. Eto kaya talaga yung lupang pinag aawayan niyo?
Technical description is only understood by experts
- Photographs are real evidence
- Q: What are the 2 ways to prove a photograph
- A:
1. By presenting the one who took the photograph
o That he was there at the time the incident in question took place and he took
the photograph. That he was the one who actually took it
2. By presenting a witness that could properly say that that was the situation at the
time of incident in question
o In this case, you don’t need to present the photographer
- Sison v People
o Marcos loyalists v Coryistas
o Salcedo was mauled and died from the injuries he sustained therein
o The incident happened in a pro-Marcos rally which turned violent after the
organizers announced that the Coryistas (on the other side of the rally) be
beaten up
o Despite being helped by a pro-Marcos rallyist, Salcedo died
o Witnesses were presented (street vendor, bystander, members of the press).
They identified the accused as the assailant
o Some of the members of the press were able to take photographs and videos
of the incident. These were used in the trial
o The accused (more than 1) raised the evidence among others that they were
not there in the incriminating photos, they interposed alibi, they said that
they were there but they intended to pacify the situation
o The accused were convicted by TC. CA affirmed
o One of the defenses raised before the SC is the admissibility of the
photographs on the ground that the one who took the photographs were
never presented during trial and were not identified as the one who took the
pictures
o According to them, there was lack of proper identification
o HELD:
o These are the rules on presenting photographs as evidence:
1. Photographs are identified by the photographer as to its production
2. He will testify as to the circumstances under which the photographs
were produced
 What are the true events reflected on the pictures
o The value of this kind of evidence lies in its being a correct representation
or reproduction of the original (the actual thing which happened) because
what is in the photographs is just a reproduction
o Its admissibility is determined by its accuracy of the representation of the
scene at the time of the crime in question
o However, the SC clarified that the photographer or the one who took the
video is not the only witness who can identify the pictures that has been the
taken
o The correctness of the photographs as representation of the event can be
proved prima facie either by:
1. Testimony of the person who made it (photographer)
2. By other competent witnesses as to its exactness or accuracy
 Therefore, hindi lang yung photographer yung pwedeng I present
to prove the accuracy of the photographs
o In the present case, the accused even use the same photographs in dispute
to prove that they are not in the scene/event
o Since they also used it as evidence, estopped na din sila.
- Adam Schook v Hollaway
o This is an action against the defendant for personal injuries arising from a
collision plus damages
o Collision between a car owned by Schook and Cohen (driven by Hollaway)
o A photograph was presented as evidence for the plaintiff. Schook identified
the roads and buildings appearing in the picture to prove that the conditions
represented by the picture truly depicted the conditions at the crossing at the
time of the accident except for the fact of day light or dark.
o However, no proof as to who took the photograph other than the physical
view thereon where the camera was standing
o The question in the present case is the lack of identification as to who the
photographer is
o HELD:
o As long as there is another witness who can identify the photo, it is admissible
o If the witness is familiar with the scene and is competent to testify that the
photograph correctly represents the original (the actual scene) it should be
admitted if it is relevant
o The picture’s verification depends on the competence of the verifying witness
and not on the fact that he took the picture
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 o A photography may be presented if relevant and if verified. But, it does not
need to be verified by the taker (photographer)
o Its verification depends on the competency of the verifying witness
o Therefore, the trial judge must first decide WON to accept it
- NOTE: There are 2 ways to prove photographs as real evidence. One, by the one who
took it. Two, by any competent witness who can verify that that was the situation at
the time in question
- State of Washington v Tatum
o A certain William receives his monthly welfare check from the State of
Washington
o In Feb 1960, he failed to receive his check.
o Usually, the check is mailed to him and is left at his window pane
o It appears that this check has been indorsed and cashed in a food store by a
person other than William (payee)
o A certain Caroline (employee of the store) testified that the initials appearing
on the check was hers but he cannot specifically recall the questioned
transaction
o According to her, whenever a check was presented to her in the store, he
was instructed by the manager to initial it and insert it into a machine called
regiscope (?), which is designed to simultaneously photograph thru 2
separate lenses both the check and the person facing the machine
o The one presenting the machine is asked to stand infront of the machine so
he can be photographed
o The processed film of the regiscope shows the check and the accused Tatum,
who is living in the same tenement where William lives
o Both the negatives and the printed form were admitted as evidence
o The question in this case was WON the negatives and the printed form were
properly admitted by the court
o HELD: Yes
o SC admits demonstrative evidence including photographs
o The admission/rejection of photographs as evidence lies on the sound
discretion of the trial court
o Q: What quantum of authentication does the court requires before a
photograph may be admissible in evidence?
o A: that some witness (not necessarily the photographer) be able to give some
indication as to when, where, and under what circumstances the photograph
was taken, and that the photograph accurately portrays the subject or
subjects illustrated.
o The photographs only needs to be accurate in portraying the subject in order
for it to be admitted
o Q: Was the testimony of the store employee sufficient enough to identify the
negatives/ print outs from the regiscope portrays the scene in the picture
o A: Yes
DOCUMENTARY EVIDENCE
SEC 2
- Documentary Evidence may either be:
1. Best Evidence Rule
2. Parol Evidence Rule
- Q: When is evidence considered as documentary evidence?
- A: Documents as evidence consist of writing or any material containing letters, words,
numbers, figures, symbols or other modes of written expression offered as proof of
their contents.
- In other words, documentary evidence can also be real evidence if you are not proving
the contents. In that case, you are proving the existence, condition and the situation.
- Q: Can you probate a lost will?
- A: Yes. There is no question when it comes to notarial wills.
- Q: What is it is holographic? Can you probate a lost holographic will?
- A: GR: No, because according to Manresa, the material proof of the authenticity is the
holographic will itself because what you are proving there is the signature and the
handwriting of the testator. Kung wala yung will, how can you prove that? You cannot
just use your imagination to say that that was the testator’s handwriting
- However, if there is a photostatic copy, a lost holographic will can still be probated
because the handwriting is there.
- Q: What is the requirement before a lost or destroyed will (notarial/holo) is probated?
- A:
1. Prove its existence and due execution
2. That it was there at the time of the death of the testator or if not, that it was
fraudulently/ accidentally destroyed without his knowledge or consent
3. That the testamentary disposition is testified by atleast 2 credible witnesses (hindi
3 ah. Only 2)
- 1 and 2 are the subject of object (real evidence) while 3 is the subject of documentary
evidence since it involves proof of their contents subject to the Best evidence rule (BER)
- NOTE: Kapag object evidence, you ask Why do you present it as evidence? To prove
its existence, situation or condition. But if the subject of the inquiry is the contents,
documentary evidence yan.
BEST EVIDENCE RULE
SEC 3
- Take note that most of the rules on evidence are exclusionary
- Q: What is best evidence?
- A: When the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself
- GR: Original document must be produced
- XPN:
1. When the original has been lost or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
o There are conditions before secondary evidence may be admitted. Not just
because the original was lost or destroyed, pwede ka na mag secondary
evidence
o Relate to Sec 5
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 7
 2. When the original is in the custody or under the control of the party - People v Tandoy
against whom the evidence is offered, and the latter fails to produce it after o There was a buy bust operation by the Makati police
reasonable notice; o One of the policeman posed as a buyer
o Relate to Sec 6 o Defendant Tandoy asked the policeman “Gusto mo bang umiskor?”
3. When the original consists of numerous accounts or other documents which o Tandoy received marked money (2 pcs P5 bill) in exchange of 2 coils of
cannot be examined in court without great loss of time and the fact sought marijuana
to be established from them is only the general result of the whole; and o When the deal was consummated, Tandoy was arrested
o No related codal provision. Cases lang. o During the trial, photocopies of the marked money was presented
4. When the original is a public record in the custody of a public officer or is o Tandoy was charged and convicted
recorded in a public office. o Tandoy appealed. He contends that the marked money he received was
o Relate to Sec 7 actually a bet money. He claims that the photocopies of the marked money
were inadmissible (hindi original ang pinresenta). Therefore, TC erred in
SEC 4 convicting him
o HELD:
- Q: What are considered originals?
o BER does not apply to marked money because the contents of such are not
- A:
the subject matter of the inquiry
1. The original of the document is one the contents of which are the subject of
o The best evidence rule applies only when the contents of the document are
inquiry.
the subject of inquiry.
o Yan ang pinaka original.
o Where the issue is only as to whether or not such document was actually
o Ex. you wrote a letter in your handwriting. If the contents ang pinag aawayan,
executed, or exists, or in the circumstances relevant to or surrounding its
yan yun.
execution, the best evidence rule does not apply and testimonial evidence is
2. When a document is in two or more copies executed at or about the same time,
admissible.
with identical contents, all such copies are equally regarded as originals.
o Since the aforesaid marked money was presented by the prosecution solely
o Kapag nag notaryo ka, usually 5 copies yun. Lahat yun original.
for the purpose of establishing its existence and not its contents, other
3. When an entry is repeated in the regular course of business, one being copied
substitutionary evidence, like a xerox copy thereof, is therefore admissible
from another at or near the time of the transaction, all the entries are likewise
without the need of accounting for the original.
equally regarded as originals.
o The purpose of presenting the photocopies is to prove the existence of the
o Ex. When you withdraw money, the passbook you are holding and the bank
marked money that was used in the buy bust. They were not presented to
book of the bank are both considered originals
prove the contents of the marked money (ilang piraso? Magkano?).
- NOTE: Best evidence rule states that there can be no evidence of any writing, the
o Therefore, photocopies and parol evidence are admissible
contents of which is the subject of the inquiry other than the original writing itself
- People v Tan
- Outline of the rules:
o Gonzales was charged of falsification of public document in their capacities
1. In proving a writing
as public officials
2. Production must be made
o Kunwari bumili ng relief goods pero hindi naman
3. Of the original writing itself
o Prosecution presented 2 witnesses
4. Whenever the purpose is to prove its contents
1. Salesman who issued booklet of receipts in triplicates
- Remember the XPNS (cited above)
2. Accountant issued duplicates
- Remember what are considered as originals (cited above)
o Trial judge ruled that the testimonies were inadmissible because original (not
- Q: Does the best evidence rule apply to the execution of a writing?
just the triplicate copy) must be produced in court since it just forwarded in
- A: No, because BER only applies to the contents of a writing (not the execution)
the main office
- Q: If we are talking about the execution of a writing, what kind of evidence is that?
o Prosecution contends the invoice sought to be introduced are regarded as
- A: Object (real) evidence
duplicate originals and may be introduced even without accounting for the
- if I want to prove that your grades exist in this paper-> Object evidence
non-production of the originals
o The only issue is WON I issued your grades already
o HELD:
- If I want to prove that the grade I gave you is 75 -> Documentary evidence
o The duplicates/triplicates are admissible because the carbon copies are
o If the issue is how come your grade is 75 or kung dinoktor ni Ramil yung
considered originals within the meaning of BER
grades niyo

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 8

 o Eventhough the signing is only done once (use of carbon sheets) the effect o CA ruled that the alleged lost or destruction of the DOAS was not duly proven
is production of 3 originals o HELD:
o You didn’t not repeat the signing, it was actually repeated because of the use o SC sustained the ruling of CA
of carbon sheets o Secondary evidence is admissible when the original documents were actually lost
or destroyed.
SECONDARY EVIDENCE o *But prior to the introduction of such secondary evidence, the proponent must
establish the former existence of the instrument.
XPN NO. 1: When the original has been lost or destroyed, or cannot be produced in court, without
o The correct order of proof is as
bad faith on the part of the offeror;
follows: Existence; execution; loss; contents although this order may be
SEC 5 changed if necessary in the discretion of the court.
o *Q: How do you prove the existence?
- Q: What is secondary evidence? o A:
- A: It is evidence of a writing other than the original. Kapag hindi orig, eh di secondary. 1. by the person or persons who executed it,
- Q: How many kinds of secondary evidence are recognized by the rules? 2. by the person before whom its execution was acknowledged, or
- A: 3 3. by any person who was present and saw it executed or who, after its execution,
1. Copy saw it and recognized the signatures; or
2. recital of its contents in some authentic document, 4. by a person to whom the parties to the instrument had previously confessed the
3. testimony of witnesses (in the order stated) execution thereof.
- Q: What are the prerequisites before secondary evidence may be presented? o In the present case, existence was duly proven by preponderance of evidence
- A: o However, the issue in this case is: Whether the lost or destruction is proven
1. Prove its Existence or execution o Q: How does lost or destruction be proven?
2. Availability o A:
o Nawala ba yung orig? Or nasunog? 1. The lost
o But when you say that the originals are lost, you must account for all of them 2. may be shown by any person who knew the fact of its loss, or by any one who
3. Prove its contents (in that order) had made, in the judgment of the court, a sufficient examination in the place or
o In here, you can now present secondary evidence places where the document or papers of similar character are usually kept by the
1. Copy person in whose custody the document lost was, and has been unable to find it;
2. recital of its contents in some authentic document, or
3. testimony of witnesses (in the order stated) o Testimony nung taong nakawala nung document
o State how many times he looked for the document to convince the court
- De Vera v Aguilar na hinanap mo nga, pero wala pa din
3. who has made any other investigation which is sufficient to satisfy the court that
o This case involves a quarrel between the heirs. a parcel of land was in dispute.
the instrument is indeed lost.
o The owners of the land at the time the case was filed are the Sps Aguilar (wife is
o Nagpatulong ka na sa ibang tao (pulis) pero wala pa din.
the sister of petitioner Basilio De Vera)
o When you deal with documents which were lost or destroyed, remember one
o The property in question was mortgaged by Marcosa (previous owner), the mother
important requirement: all duplicates or counterparts must be accounted
of the petitioners and Aguilar
for before using copies.
o But when it matured, the owner cannot pay the debt.
o In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the
o One of the children (Aguilar) offered to pay
document testified that the alleged deed of sale has about four or five original
o Marcosa sold the property to Sps Aguilar
copies.
o However, the petitioners claim that they are co-owners of the property. They claim
o Hence, all originals must be accounted for before secondary evidence can be given
that after their mother sold the property to Sps Aguilar, the latter resold it to the
of any one. This petitioners failed to do.
mother
o Records show that petitioners merely accounted for three out of four or five
o During the trial, the original DOAS was not presented because it was allegedly lost
original copies.
or destroyed. What was presented are the photocopy of DOAS plus the testimony
o If a document is notarized, usually 5 to 6 copies ang original.
of numerous witnesses
o Q: Who usually has copies?
o TC ruled in favor of the petitioners.
o A: the parties, the notary public, clerk of court, national archives

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 9

 o Notarized documents are public documents that is why a copy is found
in the national archives
o In the present case, one of the petitioners testified that an original of the document
was submitted to the RD of Malolos for registration.
o The appellees, therefore, should have asked the office to produce it in court and
if it could not be produced for one reason or another should have called the
Register of Deeds or his representative to explain why. That they failed to do.
o The loss or destruction of the original of the document in question has not,
therefore, been established. Hence, secondary evidence of it is inadmissible
o In this case, the copies in the RD and the Assessor’s Office was not accounted for.
The petitioners cannot just say that the originals cannot be produced.
o Remember, if the reason is lost or destruction, all copies must be accounted for.
o Neither did the testimony of the notary public, officers of the Assessor’s Office and
the National Archives to the effect that their respective copy was lost establish the
loss or destruction of the original document in question.
- Hutchison v Buscas
o Sps Hutchison bought a parcel of land.
o The adjacent lot was bought by Buscas.
o Buscas hired a geodetic engineer to survey the lot
o Buscas found that there was an encroachment by the Sps Hutchison
o This action is to recover the area that was encroached
o During trial, Buscas presented a Quitclaim, which is actually the DOAS.
o The technical description of the purchased lot of Buscas is stated in the Annex
A of the Quitclaim
o The problem is that the Annex A is missing
o TC dismissed the complaint of Buscas for lack of merit
o CA reversed the decision.
o HELD:
o SC reversed CA
o The original document (Annex A) should be presented because the contents
thereof contains the technical description of the lot in dispute
o The Quitclaim merely marked the territory as X and only stated the area of
the land in question
o The basis of the survey was merely the self-serving statement of Buscas
(Anyone can do that)
o Therefore, the survey cannot be given weight
o The issue in this case is the identity of the land that was bought by Buscas
because there was an alleged encroachment
o The Quitclaim was not enough to identify the metes and bounds of the land
in question. Therefore, it is insufficient to prove ownership of the alleged
encroached area
o Therefore, the Best evidence (Annex A) was not presented. The contents of
Annex A was the fact in issue.
- ***Ebreo v Ebreo
o The property in question originally belong to Felipe, who later on died. He
has 5 children.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE
o His property was divided extrajudicially into 6 (5 children and 1 portion will
be owned by them in common)
o Later on, they found out that the property is already in the name of their
nephew (son of one of the children of Felipe named Felino) together with
Felipe and his wife. There is already a tax declaration in their name
o Heirs filed a case concerning the 6th portion supposedly owned by them in
common
o Defendant’s story:
 6th portion was sold to Santiago. A tax dec in his favor was issued
 Later on, Santiago sold the 6th portion to them and a new tax dec
was issued in the name of the defendants
o The issue in this case is the sale between Santiago and the defendants
o DOAS was not presented. Only tax dec.
o Since DOAS was not presented, secondary evidence (Copy, recital of its
contents in some authentic document, and testimony of witnesses) may be
presented
o How do you prove secondary evidence?
 prior to the introduction of such secondary evidence, the proponent
must establish the former existence of the instrument.
 The correct order of proof is as follows: Existence; execution; loss;
contents
o In the tax dec, it is only stated that a DOAS was executed
o The heirs refutes such claim
o TC ruled in favor of the heirs.
o HELD:
o SC sustained the TC
o Lost of DOAS was not properly established
o All of the copies of the DOAS were not properly accounted for
o It did not follow order of proof
o Tax dec was not sufficient to prove transfer of property. Such is not enough
evidence to prove the lost of DOAS
o The testimony of one of the officers in the Assessor’s Office is inconclusive
because he is not party of the contract and even testified that he was not
present
o Testimony of Felino merits scant consideration because he said there were 3
copies of the DOAS but he failed to present any one of them.
o Testimony of Felino’s step daughter also merits scant consideration because
she only said that she saw the DOAS when Felino purchased the property.
Such does not relate to the existence or due execution and delivery of the
document
o REQUISITES BEFORE A PARTY IS ALLOWED TO ADDUCE
SECONDARY EVIDENCE TO PROVE THE CONTENTS OF THE
ORIGINAL OF THE DEED
i. the execution and existence of the original
ii. the loss and destruction of the original or its non-production in
court; and
10
 iii. unavailability of the original is not due to bad faith on the part of transactions with those made in the name of the Corporation, are very
the offeror illuminating evidence.
o In the present case, the above requisites were not complied and the o Section 5 of Rule 130 of the Rules of Court provides for the requisites for the
testimonies of the witnesses cannot be considered as secondary evidence admissibility of secondary evidence when the original is in the custody of the
adverse party, thus:
XPN NO. 2: When the original is in the custody or under the control of the party against whom 1. opponent's possession of the original;
the evidence is offered, and the latter fails to produce it after reasonable notice; 2. reasonable notice to opponent to produce the original;
3. satisfactory proof of its existence; and
- recall our lesson in actionable document. If you want to question an actionable
4. failure or refusal of opponent to produce the original in court.
document, you must make a specific denial and it must be under oath. There is an XPN
o *Sir: Hindi maganda ung logical sequence. Eto dapat:
to the rule that it must be under oath -> that is when there is refusal to produce the
1. Prove its existence
original. Same rule here.
2. Prove that it is in the possession of the opponent
- Q: When may a party be allowed to present secondary evidence?
3. Prove that you gave notice to your opponent to product the document
- A: When the original is in the custody or under the control of the party against whom
4. He refused
the evidence is offered, and the latter fails to produce it after reasonable notice;
o Villarama has practically admitted the second and fourth requisites.
- Q: What is reasonable notice?
o As to the third, he admitted their previous existence in the files of the
- A:
Corporation and also that he had seen some of them.
1. To ask the court for production (best way)
o Regarding the first element, Villarama's theory is that since even at the time
2. To ask the person formally to produce it
of the issuance of the subpoena duces tecum, the originals were already
- Q: What are the requirements before you can present evidence?
missing, therefore, the Corporation was no longer in possession of the same.
- A: Give notice and ask for its production
o However, it is not necessary for a party seeking to introduce
- *Villarey Transit v Ferrer
secondary evidence to show that the original is in the actual
o X has been granted a franchise to operate units of bus
possession of his adversary.
o Later on, X sold his franchise to PANTRANCO
o It is enough that the circumstances are such as to indicate that the
o One of the conditions of the sale: For a certain period, X shall not engage in
writing is in his possession or under his control.
the same transport business
o Neither is it required that the party entitled to the custody of the
o After some time, X put up a new bus company. He is not a SH. It was allegedly
instrument should, on being notified to produce it, admit having it
owned by his wife.
in his possession.
o wife is just a dummy
o Hence, secondary evidence is admissible where he denies having it
o Records shows that X was the one signing the docs. X did not provide for the
in his possession.
docs syempre. Eh di huli siya.
 Q: In which case, anong XPN na siya?
o PANTRANCO presented photostatic copies of ledger entries and vouchers
 A: Loss. Another instance where BER does not apply is when the
o X assailed the admissibility of these exhibits, contending that no evidentiary
original is lost or cannot be produced in court
value should be given to them since they were merely photostatic copies of
o The party calling for such evidence may introduce a copy thereof as in the
the originals the best evidence being the originals themselves
case of loss.
o According to him, at the time Pantranco offered the said exhibits, it was the
o For, among the exceptions to the best evidence rule is "when the original has
most likely possessor of the originals thereof because they were stolen from
been lost, destroyed, or cannot be produced in court."
the files of the Corporation and only Pantranco was able to produce the
o The originals of the vouchers in question must be deemed to have been lost,
alleged photostat copies thereof.
as even the Corporation admits such loss.
o Issue: WON such docs are admissible
- Q: If you are asking for the handwriting, is that documentary evidence?
o TC: it is presumed na kay X pero ayaw lang niya ibigay
- A: Sir: it seems it is not because you are not debating on the contents. You are
o X claims that the preconditions were not complied. Hindi naman sila humingi
determining, is that the handwriting? Remember, when you speak of the contents you
sakin eh.
determine kung nagdagdag ba ng zero o hindi.
o HELD: PHOTOSTATIC COPIES ARE ADMISSIBLE
- If you want to prove handwriting, pwede ang photostatic copies.
o Exhibits 6 to 19 and Exh. 22, which are photostatic copies of ledger entries
and vouchers showing that Villarama had co-mingled his personal funds and

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 11

XPN NO. 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
- Compana Maritima v Allied Free Workers Union
o The stevedores held a strike
o Their stevedoring contract was not renewed so they block the ingress and
egress of the company
o Compana sued for damages (for unearned income due to the strike)
o It presented an accountant claiming na nalugi sila
o TC awarded 100,000 in favor of Compana
o ISSUE: Was the report of the accountant saying that Compana suffered this
amount as loss due to the strike admissible
o The company argues that the accountants' reports are admissible in evidence
because of the rule that "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", the original writings need not be produced
o HELD: NO
o First, he is not an independent auditor. He is the auditor of the company.
o The summary shall not include conclusions and inferences
o Sabihin lang dapat yung figures. Hindi pwedeng sabihin yung cause ng loss
o That rule cannot be applied in this case because the voluminous character of
the records, on which the accountants' reports were based, was not duly
established
o It is also a requisite for the application of the rule that the records and
accounts should be made accessible to the adverse party so that the
correctness of the summary may be tested on cross-examination
o What applies to this case is the general rule "that 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"
o That general rule cannot be relaxed in this case because the company failed
to make a preliminary showing as to the difficulty or impossibility attending
the production of the records in court and their examination and analysis as
evidence by the court
o *Q: therefore, what are the requisites before the XPN will apply?
o A:
1. Voluminous character records
2. The records should be made accessible to the adverse party
3. There should be a preliminary showing of the difficulty of producing
records in court
- US v Gregorio and Balistoy
o Accused was charged of falsification of document and memorandum of Deed
of Sale
o Salazar was able to get a favorable judgment against Balistory
o 2 properties were attached and set for sale to satisfy the judgment
o Gregorio filed a 3rd party complaint claiming that he bought the properties
from Balistoy prior the commencement of the case filed by Salazar
o Gregorio attached a memorandum (Deed of Sale) which supposedly prove
that the properties were sold to him
o Balistoy was charged of falsification. He allegedly changed the date in the
document and that the conveyance was just simulated
o Since the original of the document was not presented and since it could not
be ascertained who has the original and since the exact date of execution
could not be determined, doubts arises if the original document really exist
o ISSUE: WON the copy of the memorandum of sale was sufficient to convict
the accused for falsification
o HELD: NO
o In criminal proceedings for the falsification of a document, it is indispensable
that the judges and courts have before them the document alleged to have
been simulated, counterfeited, or falsified, in order that they may find,
pursuant to the evidence produced in the cause, whether or not the crime of
falsification was committed, and also, at the same time, to enable them to
determine the degree of each defendant's liability in the falsification under
prosecution.
o Through the lack of the original document containing the memorandum
alleged to be false, it is improper to hold, with only a copy of the said original
in view, that the crime prosecuted was committed; and although, judging
from the testimony of the witnesses who were examined in the two
consolidated causes, there is reason to entertain much doubt as to the
defendants' innocence, yet, withal, this case does not furnish decisive and
conclusive proof of their respective guilt as coprincipals of the crime charged
- US v Meyers
o Meyers incorporated a company named Aviation Electric Inc
o The President was Lamarre
o War ensued
o Meyers was appointed as deputy chief of procurement of aircraft and parts
of the USAFFE (Uy, sakto ang negosyo niya)
o After the war, there was a congressional hearing to determine whether there
was corruption relating to US war efforts
o Lamarre testified in the hearing because there was a transaction between his
company and the government
o The testimony of Lamarre was the subject of this case for perjury
o Lamarre was charged of testifying falsely and it was alleged that Meyers was
not financially interested with the company
o However, Meyers bought a Cadillac using the name of the company
o Meyers also had his apartment renovated. He claims that the money he used
were gifts from Lamarre (company’s check was used)
o After trial, Lamarre was found guilty of perjury. Meyers was also found guilty
of subornation of perjury
o Meyers appealed
o The original transcripts of the congressional hearing were never produced in
court
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 12
 o Q: Who testified that they perjured?
o A: Rogers (chief counsel of the committee)
o ISSUE: Is the testimony given by Rogers as to what transpired in the
congressional hearing be admissible in evidence to prove what Lamarre has
sworn to before the committee? Does it not violate the BER?
o HELD: YES
o BER does not apply in this case
o the best evidence rule is limited to cases where the contents of a
writing are to be proved.
o Here there was no attempt to prove the contents of a writing; the issue was
what Lamarre had said, not what the transcript contained.
o The transcript made from shorthand notes of his testimony was, to be sure,
evidence of what he had said, but it was not the only admissible evidence
concerning it.
o Rogers' testimony was equally competent, and was admissible whether given
before or after the transcript was received in evidence.
o Statements alleged to be perjurious may be provbany person who heard
them, as well as by a reporter who recorded them in shorthand.
o Q: Therefore, how do you prove perjury?
o A:
1. By stenographic notes (but this is not the only evidence to show perjury)
2. By the testimony of one who has heard the perjured statement
o Q: Is the BER applicable to prove perjury?
o A: No. TSN can also be an evidence but it is not indispensable because a
witness can also prove perjury. The witness only testifies on what he heard
from the accused
- To prove secondary evidence on the ground of loss, you have to prove the existence,
execution and the fact of loss before you can present secondary evidence
- If the original is in the control of the opponent, you must show that the original is with
the kalaban, the reason for the loss, the notice given to kalaban
- Q: How do you do the notice?
- A: Magdayao v People
o There was an issuance of a check. It bounced.
o Then, the issuer requested the payee that the payment be in installments
o As a result, 2 checks were issued. Then, the original check (which bounced)
was returned to the issuer
o Evidence was shown to present secondary evidence
o HELD:
o The notice may be in the form of a motion for the production of the original
or made in open court in the presence of the adverse party orvia a subpoena
duces tecum, provided that the party in custody of the original has sufficient
time to produce the same.
o When such party has the original of the writing and does not voluntarily offer
to produce it or refuses to produce it, secondary evidence may be admitted
- Q: Again, what are the requisites before secondary evidence may be presented if your
ground is that the adverse party has the original?
- A:
1. opponent's possession of the original;
2. reasonable notice to opponent to produce the original;
3. satisfactory proof of its existence; and
4. failure or refusal of opponent to produce the original in court.
XPN NO. 4: When the original is a public record in the custody of a public officer or is recorded
in a public office.
- Section 7. Evidence admissible when original document is a public record. — When
the original of document is in the custody of public officer or is recorded in a public
office, its contents may be proved by a certified copy issued by the public officer in
custody thereof.
- Q: what are the three kinds of secondary evidence?
- A:
1. Copy of the original
2. Recital of its contents in some authentic documents
3. By testimony of witnesses (in the order stated)
- Follow the order.
Seiler v Lucas film
- This involves copyright infringement
- Seiler is a graphic artist, he is a creator of sci fi creatures
- He filed a complaint against Lucas film alleging that George Lucas copied his concept
of his Garthian stiders
- Lucas allegedly copied it and used it in his Imperial Walkers in the movie Star Wars:
The Empire Strikes back
- Seiler claimed that he published his work in 1979 but he only obtained his copyright on
1980 by depositing the “reconstructions” of his original creatures
- Seiler propose to show his work in a blow up comparison
- TC rejected his proposal applying BER, ruling that Seiler either lost or destroyed his
original works in bad faith
- ISSUE: WON the BER applies in this case
- HELD: YES
- "To prove the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided in these rules or by
Act of Congress." Writings and recordings are defined in Rule 1001 as "letters, words,
or numbers, or their equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic recording, or
other form of data compilation."
- We hold that Seiler's drawings were "writings" within the meaning of Rule 1001(1); they
consist not of "letters, words, or numbers" but of "their equivalent."
- To hold otherwise would frustrate the policies underlying the rule and introduce
undesirable inconsistencies into the application of the rule
- Q: what is the purpose of BER?
- A:
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 13
 1. To prevent fraud
2. To recognize that writings occupies a central position in law because when the
contents of the writing is in issue, oral testimony is subject to greater risks of error
- When the terms of the writing is in issue, the original document is necessary to prove
it
- In this case, the contents of Seiler’s work is in issue
- There can be no proof of "substantial similarity" and thus of copyright infringement
unless Seiler's works are juxtaposed with Lucas' and their contents compared.
- Since the contents are material and must be proved, Seiler must either produce the
original or show that it is unavailable through no fault of his own. Rule 1004(1). This
he could not do.
- Seiler alleges infringement by The Empire Strikes Back, but he can produce no
documentary evidence of any originals existing before the release of the movie.
- His secondary evidence does not consist of true copies or exact duplicates but of
"reconstructions" made after The Empire Strikes Back. (Baka naman siya ang nangopya
kya wag naman sana yung reconstruction lang ang ipepresent niya)
- In short, Seiler claims that the movie infringed his originals, yet he has no proof of those
originals.
- Sir: In libel cases, original document must also be presented
Municipality of Victorias v CA
- Gonzalo was the original owner of an Haciena of the Victoria’s cadaster
- After his demise, the land passed to his widow and daughter (who died later but left an
offspring named Isabel)
- The property was eventually inherited by the granddaughter.
- She donated a portion to the Municipality to be used as a school. Remaining portion is
leased to another person
- When the property was surveyed, it was found that the municipality used 4 hec as
cemetery
- Isabel demanded payment of rents from the municipality and seeks to repossess the 4
hec (Yawa, sementeryo na nga kukunin pa niya)
- The municipality claims that it bought the portion from the grandmother of Isabel. It
presented in evidence a certification showing the notarial book of the lawyer who
notarized the Deed of Sale
- HELD: ADMISSIBLE
- contents may be proved by a copy, or by a recital of its contents in some authentic
document
Vda de Corpus v Trabanco
- 2 parcels of land in Iloilo was formerly owned by Tiburcia, the mother of Felix
- The surviving widow and children of Corpus alleged that the land was sold to their
father by Tiburcia
- Their father was in possession of the land
- But 6 months before his death, Felix entered the property
- Felix claims that they merely allowed them to stay because of charity
- The deed of sale was allegedly lost during the war
- Oral evidence was presented to prove due execution of the document and its contents
- Defendants claim that plaintiffs were unable to give the recital of the contents of the
document
- The witness only testified on the substance of the contents (without the specfics)
- HELD:
- Okay na yan
- When secondary evidence is done by oral testimony, substance of the contents is
sufficient
- It is not necessary that the witness will be able to testify with verbal accuracy
- A witness is not expected to state the contents of the document word for word
- Q: Suppose only a copy a document is presented and there is no objection from the
other party, what will happen to the secondary evidence?
- A: Secondary evidence becomes admissible
- Admissibility is only governed by 2 rules
1. Relevancy
2. Competency
- However, when evidence is not objected, it becomes admissible
- But it doesn’t not mean that when the evidence is admissible it is already credible (non
sequitur)
- Admitted lang. To give it a probative value is another story
PAROL EVIDENCE
- Section 9. Evidence of written agreements. — When the terms of an agreement
have been reduced to writing, it is considered as containing all the terms agreed upon
and there can be, between the parties and their successors in interest, no evidence of
such terms other than the contents of the written agreement.
- Q: What is the nature of this rule?
- A: It is not really a rule of evidence. It is a rule of substantive law. It is part of the law
of contracts, negotiable instruments, wills. It is founded by the substantive rights of the
parties. It was just made part of the rules of evidence so that it will be found in one
place
- Q: What is parol evidence?
- A: Literally, it means oral or verbal testimony of the witness. However, in the application
of the rule, the term has been extended to writing. See the phrase: “other than the
contents of the written agreement.”
- Another term for parol evidence is extrinsic evidence or sometimes known as evidence
aliunde (other than the writing itself)
- Reason for this rule: When the parties have reduced their agreement into writing, it
is presumed that they have made that writing as the only repository or memorial of the
truth. Whatever is not found in the writing has been deemed waived by the parties
- The parol evidence rule may be stated in this way: Once a writing has been executed
as a confirmation of the negotiation between the parties, no one may offer oral evidence
the effect of which would vary, alter or change the terms of the writing. That is why it
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 14
 is said that parol evidence is under substantive law. It is part of the law of contracts,
wills etc.
- A contract is always a product of mutual consent. Ito ang pinag usapan, bawal nang
palitan.
- *Q: What is the evil sought to be avoided by this rule?
- A: For one party to vary, alter or change what has been agreed upon
- Q: To what agreements does the parol evidence rule (PER) apply?
- A: It applies only to prior and contemporaneous agreements (don’t apply to subsequent
agreements)
- *Prior and contemporaneous agreements are deemed to have been merged into that
writing conformably known as the Integration of Agreement Rule
- Once an agreement is reduced into writing, kung ano lang yung andun yun lang. Those
which are not there are deemed abandoned or waived
- PER does not apply to subsequent agreements
- GR: no parol evidence is allowed once an agreement is reduced in writing
- XPN: However, a party may present evidence to modify, explain or add to the terms of
written agreement if he puts in issue in his pleading:
(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 thereto;
- there was mutual understanding, but it is not reflected in the contract
- If there is no mutual understanding, you cannot ask for reformation of the
contract. You ask for annulment
- Ex. you annul the contract if the subject lot is supposed to be Lot A but the
other party says it is Lot B
(c) The validity of the written agreement;
- Ex. Your agreement relates to gambling. You are not varying the terms of
the agreement but you are assaling its validity kasi tungkol sa sugal (the
consideration is illegal -> that is a defense)
(d) The existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement.
- Sir: technically, this enumeration is not considered as XPNs
- See (d): after the execution of the written agreement.
o Remember, PER applies to prior contemporaneous agreements
o Q: Why does it not apply to subsequent agreements?
o A: Parties can change their minds. Hindi niyo iniiba yung dati niyong
agreement. Nagkasundo lang talaga kayo na ibahin yung agreement.
- PER does not apply to agreements, although contemporaneous and/or in writing,
nonetheless they are separate and distinct agreements (These are known as Collateral
Agreements)
- Q: What are the tests to determine WON a contemporaneous oral agreement is separate
and distinct from the written agreement?
- A:
1. The subject matter of the two agreements
o If the subject matter of the written agreement is different from the
contemporaneous oral agreement, then the oral agreement is a separate and
distinct agreement. Therefore, it is provable by parol evidence
2. If the two agreements refer to the same subject matter, then the test is to
determine WON the contemporaneous oral agreement is separable from the
written agreement. If it is separable, then the contemporaneous agreement is
separate and distinct from the written agreement. Therefore, it is provable by
parol evidence
o Ex. You executed a sale. Pero you agreed that after 10 years, ibabalik sayo.
After 10 years, you were asking for reconveyance. But, nothing in the
agreement indicates such condition. Can you prove by parol evidence your
oral contemporaneous agreement that he shall sell the property back to you
after 10 years? Yes, because it was a separable agreement.
- Q: May collateral agreement of reconveyance be proved by parol evidence?
- A: Yes, because it was a distinct agreement separate from the sale itself although the
two agreements are usually contained in one and the same document
- Q: What are other examples of collateral agreements which are not subject to PER?
- A: PNB v Seeto
- Parol evidence is also admissible to prove an independent collateral agreement which
constitutes an inducement in the making of the sale or part of the consideration of the
sale (Robles v Lizzaraga Hermanos)
- Any prior and contemporaneous conversation in connection with a note relating to its
indorsement, the inducement or an intrinsic agreement between the indorser and
indorsee which cannot be embodied in the instrument without impairing its credit may
be proved by parol evidence (PNB v Seeto)
- Q: What is a condition precedent within the meaning of the PER?
- A: A condition precedent is that the happening of which depends the operation of a
complete written agreement. The contract is subject to a condition
- Q: May it be proven by parol evidence?
- A: Yes, because before the happening of the condition there is no written agreement
yet to which the PER will apply
- However, if the condition precedent is stipulated in the writing itself (it appears on the
face of the writing) and it has been complied with, it cannot be varied by parol evidence
- Ex. of a condition precedent:
o A executed a PN in favor of B
o At the time of the execution of the PN, it was orally agreed between the two
that the note may not be effective unless it is signed by X (surety)
o Such agreement may be proved by parol evidence because the signature of
X is a condition precedent
o At that point in time, there is no written agreement yet to which the PER will
apply
o Parol evidence may be presented to prove such oral agreement
- When the condition precedent has been complied with, it cannot be varied by parol
evidence
o A executed a PN in favor of B
o It was stipulated in the note itself that it will not be effective unless X signed
o X signed it
o In a suit for enforcement, may parol evidence be presented to prove that the
signate of Y (another person) is needed before the note will be effective? No
o Because the condition precedent is part of the agreement itself
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 15
- Q: What is a condition subsequent within the meaning of PER?
- A: It is that on which the happening of which a complete written agreement becomes
inoperative and void
- Q: May it be proven by parol evidence?
- A: No, because its effect is to render a contract effective which is otherwise
unenforceable written agreement (parang a resolutory condition in Civil Code.)
- Q: Why is condition subsequent not subject to PER?
- A: Because the parties can later on change their minds. The evil sought to be prevented
by PER is to prevent one party from varying the terms of the agreement. But if they
later on agreed to change their agreement, such can be proven by parol evidence
(because it is a subsequent agreement. Go back to the XPNs.)
- Another reason is that the parties to a written agreement is not expected to incorporate
in their writing all the possible subsequent agreements. But you don’t vary what is
originally there in your contract. It is just that you both agreed to change it
subsequently. The subsequent agreement is provable by parol evidence.
- But it must be put in issue in the pleadings. You cannot just do that in the trial
- Going back to the XPNs:
- (a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
- Q: What is intrinsic ambiguity?
- A: It is one which does not appear in the face of the writing itself. It lies
hidden in the object, subject or of the person where the writing speaks
- Ex.
- Reconveyance of land made to A. It turns out there are 2 As
- In a will, a disposition is made in favor of Juan. Eh may Juan Jr and Sr.
o The ambiguity lies in the person. Sino bang Juan yan?
o Then, you can prove it by parol evidence since it is an intrinsic
ambiguity
- A sale of a parcel of land erroneously described in the deed
o It is an intrinsic ambiguity lying in the thing whereof the
writing speaks
o It may be corrected by parol evidence
- Note, Hindi pwede if extrinsic ambiguity.
- Q: What is extrinsic ambiguity?
- A: When the ambiguity appears on the face of the writing itself. It
renders the writing void. Therefore, it cannot be cured by parol evidence
- Ex.
- A donation of a parcel of land without any description. The donation is
void because the ambiguity appears on the face of the writing itself
- American authors give another category: Intermediate
- Sir: Para sakin, intrinsic pa rin to
- Q: What is intermediate ambiguity?
- A: It is arising from the use of words susceptible of different
interpretations. It may be cured by parol evidence because it is not
varying the terms of the writing, rather it only shows the true intent of
the parties
- Ex.
- A deed of sale of a distilling apparatus described as one with 100
capacity
- Does capacity means working capacity? Or producing capacity?
(b) The failure of the written agreement to express the true intent and agreement of
the parties thereto;
(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.
- On the matter of mistake:
- If there is a mistake, you correct the mistake
- Q: How about imperfection?
- A: Imperfection simply means that the writing is incomplete and does not show the
whole agreement of the parties. It only defines some of the terms.
- The best evidence of whether the writing complete or not/imperfect or not is the writing
itself (LASEDECO v Garcia Plantation Co. Inc)
- Q: does PER apply to a person not a party in the contract?
- A: Yes (Lechugas v CA). According to the rules, you exclude parol evidence among
the parties or their successors in interest after the execution of the written agreement.
But if you are a third party to the agreement, pwede.
- Cases for the GR in Parol Evidence: When the terms of the agreement has been reduced
into writing, the writing is considered to contain all the terms agreed upon (Integration
Rule).
- Pascor v Gaspar
o X borrowed money from A (20k). To secure payment, he pledged 10 jeepneys
o Corresponding document was executed
o When the debtor failed to pay on the due date, the creditor sued the debtor
o On the trial, debtor tried to prove that their real agreement is a partnership.
Since the partnership failed, he cannot recover the 20k
o ISSUE: Is the oral evidence by the debtor admissible?
o HELD: NO
o The written agreement is a loan secured by a pledge. Under the PER, its
nature cannot be varied by the so called oral testimony of the debtor
- Old case
o A was hired by a mining company
o They executed a contract of employment
o Pursuant to the agreement, A is to receive not only a salary but also
allowances etc
o The company failed to pay
o A sued the company
o During trial, the company sought to prove that the contract of employment
is conditional. The condition is that: he will be paid depending on the
successful operation of A as a mining engineer
o ISSUE: Is the oral testimony admissible?
o HELD: NO
o Because the oral testimony tends to prove a condition which does not appear
in the written agreement.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 16
 o The rules is that conditions qualifying the operation of a clear and complete
agreement cannot be proved by parol evidence
- Another case:
o During the war, the Japanese occupants required that all aliens owned banks
be liquidated
o X (debtor) paid to the liquidator (Bank of Taiwan, occupied by the Japanese)
o After liberation, X applied for a credit line in NY. The latter refused unless X
pays his pre-war debts. X paid the bank. He was granted a credit line
o The parties executed the corresponding the document
o Later on, SC ruled that all payments made during the Japanese occupation
are valid payments
o X now sued to recover what he has paid in NY claiming that the payment
must be refunded because he only paid because such was a precondition for
credit line to be granted
o ISSUE: Is the oral testimony of X admissible to prove the alleged agreement
in NY
o HELD: NO
o Because the condition tends to qualify the terms of a written agreement with
a bank in NY.
o GR: agreements of the parties reduced in writing can only be proved by the
writing itself. You cannot vary the terms
- Yu tek v Gonzales
o Gonzales received 3k from Yu tek. Gonzales is to deliver 600 piculs of sugar
o For failure to comply, Gonzales is ought to return the 3k
o Yu tek sued Gonzales
o Judgement was made in favor of Yu Tek
o Gonzales appealed contending that the court erred in not allowing the
admission of parol evidence. He was claiming that the agreement was that
the piculs shall come from the plantation from his plantation alone. Since
there was a total failure of crops coming from his plantation, he claims that
his failure to deliver was justified
o ISSUE: WON parol evidence presented by Gonzales is admissible
o HELD: NO
o Parties are presumed to have reduced to writing all the essential conditions
of their contract. While parol evidence is admissible in a variety of ways to
explain the meaning of written contracts, it cannot serve the purpose of
incorporating into the contract additional contemporaneous conditions which
are not mentioned at all in the writing, unless there has been fraud or
mistake.
o In the case at bar, it is sought to show that the sugar was to be obtained
exclusively from the crop raised by the defendant. There is no clause in the
written contract which even remotely suggests such a condition.
o Our conclusion is that the condition which the defendant seeks to add to the
contract by parol evidence cannot be considered. The rights of the parties
must be determined by the writing itself.
- LASEDECO v Garcia Plantation
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE
o In This case, parol evidence was allowed because there is an imperfection in
the original document. There was a condition indicated in the contract
o This is a case for specific performance filed by LASEDECO against Sps Garcia
for the recovery of 6k
o The claim represents the unpaid balance for the 2 tractors bought by the Sps
o The Sps are alternative co defendants because the 2 PN was executed by
wife. She was the one managing it. The husband owned it
o SPs admitted that they executed the PNs but they claim that such was already
novated as evidenced by a letter sent by LASEDECO to them
o LASEDECO admitted the execution of the letter but claims that the true
agreement was not reflected there
o The letter states that an extension to pay was granted pursuant to the
agreement between LASEDECO and the husband
o Therefore, LASEDECO presented parol evidence
o At the trial, LASEDECO presented a witness to testify on the true agreement
concerning the letter
o TC excluded the testimony on the ground that it violates the parol evidence
rule
o ISSUE: Is parol evidence admissible to prove the agreement between
LASEDECO and the husband
o HELD: YES
o The subject agreement aliuded in the letter is the condition to be complied
with before the extension will be granted
o Parol evidence is admissible to prove the true intent of the parties
o When the operation of the contract is made to depend upon the occurrence
of an event, which, for that reason is a condition precedent, such may be
established by parol evidence.
o This is not varying the terms of the written contract by extrinsic agreement,
for the simple reason that there is no contract in existence; there is nothing
to which to apply the excluding rule
o This rule does not prevent the introduction of extrinsic evidence to show that
a supposed contract never became effective by reason of the failure of some
collateral condition or stipulation, pre-requisite to liability" The rule excluding
parol evidence to vary or contradict a writing, does not extend so far as to
preclude the admission of extrinsic evidence, to show prior or
contemporaneous collateral parol agreements between the parties, but such
evidence may be received, regardless of whether or not the written
agreement contains reference to such collateral agreement
o In the case at bar, reference is made of a previous agreement, in the second
paragraph of the letter (agreement between LASEDECO and the husband),
and although a document is usually to be interpreted in the precise terms in
which it is couched, Courts, in the exercise of sound discretion, may admit
evidence of surrounding circumstances, in order to arrive at the true intention
of the parties
o The agreement is not complete, it is not yet perfect.
17
 o Sir: I don’t agree that the letter does not show the true intention of the
agreement. It actually does. What is actually involved here is that: there is a
question as to what is that agreement.
o Q: How do you determine whether the agreement is imperfect?
o A: Look at the very agreement itself whether it is complete or not
o Since the written agreement is incomplete, parol evidence is admissible. The
terms are not spelled out. Therefore, LASEDECO has the opportunity to prove
what is that agreement between it and the husband
o In this case the agreement was: Atty. Kintanar gave the defendants up to
May 31, 1957 (extension to pay), to coincide with their ramie harvest
"provided that they will make a substantial down payment immediately, with
the understanding that upon non-payment of the substantial amount, the
extension shall be deemed as not granted and the LASEDECO shall feel free
to seek redress in court".
- Ortaez v CA
o Inocentes sold 2 parcels of land to Ortaez
o He received the payment but failed to deliver because Lot 1 was in the
possession of another person while Lot 2’s delivery was subject to certain
conditions
o Ortaez sued Inocentes
o Inocentes claims that there was an oral condition which were not reflected in
the Deed of Sale
o Conditions: Make a right of way and pay CPG tax first
o A former judge testified that the sale was subject to the above conditions
o Inocentes opposed the presentation of parol evidence
o ISSUE: WON parol evidence presented is admissible
o HELD: NO
o private respondents' oral testimony on the alleged conditions, coming from a
party who has an interest in the outcome of the case, depending exclusively
on human memory, is not as reliable as written or documentary evidence.
o under the general rule in Section 9 of Rule 130 of the Rules of Court, when
the terms of an agreement were reduced to writing, as in this case, it is
deemed to contain all the terms agreed upon and no evidence of such terms
can be admitted other than the contents thereof.
o Considering that the written deeds of sale were the only repository of the
truth, whatever is not found in said instruments must have been waived and
abandoned by the parties.
o SC not persuaded by private respondents contention that they "put in issue
by the pleadings" the failure of the written agreement to express the true
intent of the parties.
o Record shows that private respondents did not expressly plead that the deeds
of sale were incomplete or that it did not reflect the intention of the buyer
(petitioner) and the seller (private respondents).
o *Such issue must be "squarely presented."
o Sir: You must spell out in your pleading that the true intent of the agreement
is not expressed in the written agreement
o Since they did not plead any of the exceptions mentioned in the parol
evidence rule, their case is covered by the general rule that the contents of
the writing are the only repository of the terms of the agreement.
o Considering that private respondent Oscar Inocentes is a lawyer (and former
judge) he was "supposed to be steeped in legal knowledge and practices"
and was "expected to know the consequences" of his signing a deed of
absolute sale.
- PNB v Seeto
o Note: This is an old case. The rules on Negotiable Instruments is now
different
o Seeto is the payee of a check issued in Cebu drawn against Phil Bank
Communications. He made general indorsement.
o The check was being presented for encashment in PNB Surigao
o There was no sufficient funds
o According to Seeto, if only the check was presented on time there will be
sufficient funds
o PNB claims that they relied on the assurances of Seeto that he will return the
5k in the event the check bounced
o PNB presented witnesses to prove such assurances
o ISSUE: WON the parol evidence to prove the assurances may be admitted
in evidence
o HELD: YES
o Because PER does not apply to collateral agreements
o Q: What is the nature of the assurances?
o A: Collateral agreement. It is considered as separate agreement from the
original agreement (indorsement of the check)
o Q: What is the test for separability?
o A:
1. Subject matter is different
2. Even if the subject matter is the same (check), nonetheless it is
separable (from the inforsement)
o an extrinsic agreement between indorser and indorsee which cannot be
embodied in the instrument without impairing its credit is provable by parol
o If, therefore, the supposed assurances that the drawer had funds and that
the respondent herein would refund the amount of the check if the drawer
had no funds, were the considerations or reasons that induced the branch
agency of the petitioners to go out of its ordinary practice of not cashing out
of town checks and accept the check and to pay its face value, the same
would be provable by parol, provided, of course, that the assurances or
inducements offered would not vary, alter, or destroy the obligations attached
by law to the indorsement.
o Q: Is he still liable as an indorser?
o A: Yes, he is liable even if he did not make any assurances. When you indorse
an instrument, you assure that the check is funded
o However, there was delay in the presentment. Such was a defense under the
substantive law
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 18
 o the supposed assurances of refund in case of dishonor of the check are - But it is recognized that this rule is to be taken with proper qualifications; and all the
precisely the ordinary obligations of an indorser, and these obligations are, authorities are agreed that proof is admissible of any collateral, parol agreement that is
under the law, considered discharged by an unreasonable delay in the not inconsistent with the terms of the written contract, though it may relate to the same
presentation of the check for payment subject-matter
o Therefore, the obligation of Seeto as an indorser was not varied - As expressed in a standard legal encyclopedia, the doctrine here referred to is as
o Focus on the evil sought to be prevented by parol evidence. follows: "The rule excluding parol evidence to vary or contradict a writing does not
extend so far as to preclude the admission of extrinsic evidence to show prior or
*Robles v Lizaraga Hermanos contemporaneous collateral parol agreements between the parties, but such evidence
may be received, regardless of whether or not the written agreement contains any
- Robles instituted a case against Lizaraga to recover the compensation for the
reference to such collateral agreement, and whether the action is at law or in equity."
improvements
- It has accordingly been held that, in case of a written contract of lease, the lessee may
- Hacienda was owned by the parents of Robles
prove an independent verbal agreement on the part of the landlord to put the leased
- After the father died, the mother leased the property to Robles
premises in a safe condition; and a vendor of realty may show by parol evidence that
- Robles introduced improvements
crops growing on the land were reserved, though no such reservation was made in the
- After the mother died, Lizaraga was able to convince the heirs to sell the hacienda
deed of conveyance
- However, the lease of Robles is still existing (there are still 3 years)
- In the case before us the deed of conveyance purports to transfer to the defendant
- The land was purchased by Lizaraga as evidenced by a deed of sale
only such interests in certain properties as had come to the conveyors by inheritance.
- Robles now contends that there was an oral agreement between him and Lizaraga. The
- Nothing is said concerning the rights in the hacienda which the plaintiff had acquired
latter promised to reimburse him for the improvements he made before the sale was
by lease or concerning the things that he had placed thereon by way of improvement
concluded
or had acquired by purchase.
- But Lizaraga failed to pay. Robles sued him
- The verbal contract which the plaintiff has established in this case is therefore clearly
- Lizaraga contends that there was nothing in the deed which will show such alleged
independent of the main contract of conveyance, and evidence of such verbal contract
agreement to pay fpr the improvements
is admissible under the doctrine above stated.
- Robles presented parol evidence (oral testimony and a letter)
- The rule that a preliminary or contemporaneous oral agreement is not admissible to
- ISSUE: WON the payment of the unexpired portion of the lease as well as the
vary a written contract appears to have more particular reference to the obligation
improvements may be proved by parol evidence
expressed in the written agreement, and the rule had never been interpreted as being
- HELD: YES
applicable to matters of consideration or inducement.
- Such evidence is not contrary to the Deed of Sale executed by the parties
- In the case before us the written contract is complete in itself; the oral agreement is
- The subject matter is separate and distinct
also complete in itself, and it is a collateral to the written contract, notwithstanding the
- The subject matter of the Deed of Sale is only the hereditary rights of the heirs. It does
fact that it deals with related matters.
not show what Robles owns (improvements)
- On the other hand, the subject matter of the evidence sought to be presented is to PNB v Seeto
collect upon the price of the improvements as well as the unexpired term of the lease
- Therefore, the latter is provable by parol evidence because it does not vary the terms - Q: Can Parol evidence be shown that the defendant made an undertaking that he would
of the Deed of Sale pay the full amount of the check in case it was dishonored?
- Another reason why parol evidence is admissible: The evidence merely shows how he - A: Yes, because they are mere inducements. Provable by parol evidence
was induced to enter into an agreement. It shows that the seller would not have sold
his hereditary rights if the lease and improvements were not paid Woodhouse v Halili
- The case is not one for the reformation of a document on the ground of mistake or
- Woodhouse and Halili entered into a partnership agreement
fraud in its execution
- Woodhouse is the industrial partner while Halili is the capitalist
- The purpose is to enforce an independent or collateral agreement which constituted an
- Woodhouse asked the Mission Dry Co. in US to grant him the exclusive distributorship
inducement to the making of the sale, or part of the consideration therefor.
in the Philippines for a limited period of time so that he can close the deal with Halili
- There is no rule of evidence of wider application than that which declares extrinsic
- Mission Dry granted such request
evidence inadmissible either to contradict or vary the terms of a written contract.
- Business operation commenced
- The execution of a contract in writing is deemed to supersede all oral negotiations or
- Woodhouse now asks for his 30% share, which was agreed upon. He also asked for the
stipulations concerning its terms and the subject-matter which preceded the execute
execution of the partnership agreement between him and Halili
on of the instrument, in the absence of accident, fraud or mistake of fact
- However, Halili refused to heed his demands.

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 19

- Woodhouse filed a case to compel Halili to execute the partnership agreement plus the
payment of his share
- Halili now contends that he was defrauded by Woodhouse. According to him,
Woodhouse made misrepresentations (kunwari exclusive distributor siya, eh hindi
naman). These misrepresentations were his very reason in entering into such
partnership agreement
- During the trial, Halili presented drafts agreement which shows that Woodhouse’s
alleged misrepresentations
- HELD:
- Parol evidence is admissible because it does not vary or alter the terms of the contract
- The evidence sought to be presented merely shows the circumstances which have
induced Halili in entering into such agreement
- In this case, the very validity of the contract is in question
- However, Halili cannot be forced to enter into the partnership agreement because the
obligation is “to do or not to do”
- Rule: if the evidence sought to be presented will not modify or alter the contract, parol
evidence is admissible
- Purpose of Parol evidence rule: Not to alter the contract between the parties
because that is what they have intended
- Parol evidence rule applied to wills. Wills cannot be altered. What is there is what the
testator wishes. You cannot present evidence to refute such will
- GR: You cannot present parol evidence
- XPN: a party may present evidence to modify, explain or add to the terms of written
agreement if he puts in issue in his pleading:
(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 thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement.
- Q: What is intrinsic ambiguity?
- A: One which does not appear in the face of the writing. It lies in the person, subject
whereof the writing speaks. Parol evidence is admissible to show the person intended
Ex. Sale of land erroneously described in the Deed of Sale (In the Deed, the land is
described to be located in Manila. In reality, it is located in Makati)
- Q: What is latent ambiguity?
- A: Ex. Sale of land to Juan dela Cruz. It turns out that there are 2 or more persons
answering to that name.
- Q: What is extrinsic ambiguity?
- A: it is patent ambiguity. When the ambiguity appears on the face of the writing. It
renders the writing void and therefore, it cannot be cured by parol evidence.
Ex. Donation of a land without a particular description
- Q: What is intermediate ambiguity?
- A: One arises with use of words susceptible of different meaning. It is curable by parol
evidence. This is also a latent ambiguity
Ex. Sale of a distilling apparatus with 600 L capacity. Capacity may mean working
capacity or producing capacity
- Q: What is imperfection?
- A: Means that the writing is incomplete and does not show the whole agreement of the
parties. The best evidence WON the writing is complete is the writing itself.
Ex. LASEDECO case
Lasedeco v Garcia Plantation
- This is an action for specific performance by LASEDECO against the Garcia Plantation
- Salud Garcia issued a PN whereby it says that she assumed the debts of the Plantation
- She admitted the execution of the PN but claims that such was novated already by a
subsequent agreement as evidenced by a letter sent by the Board of Liquidators of
LASEDECO
- The letter shows that LASEDECO allegedly gave Salud an extension of time to pay the
account until May 1957
- The complaint was filed in February
- So, One of the defenses raised by Salud is prematurity.
- During the hearing, letter was presented stating that she was granted an extension
- Parol evidence was presented by LASEDECO to show that such extension is given if
considerable DP will be made
- Presenting parol evidence was being objected
- HELD:
- Admissble, because that letter states that such extension was made subject to the
agreement between her husband and the company
- Since such agreement was not spelled out, we can say that this is an example of
IMPERFECTION
- Civil Code has a provision on mistake (discussion to follow)
Canuto v Mariano
- Case involves a sale with right of repurchase (1 year period)
- According to seller, although the redemption period has lapsed, he met the buyer 2
days prior such period to ask for an extension
- Although the buyer did not initially agree, he later on agreed
- They were supposed to meet at a particular time (4pm to dawn) but he did not appear
- ISSUE: WON evidence to prove that he was given an extension violates the parol
evidence rule
- HELD: NO
- Admissible, because it did not vary the contract. He agreed to give extension
- Parol evidence apply only to contemporaneous agreement and not to subsequent
agreement
- When you say vary the contract -> it means that there was unilateral change.
- The evil sought to be protected is to prevent one party to change the contract without
the consent of the other.
- In this case, he consented to give an extension
- In this case, the extension was a subsequent agreement between the parties
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 20
 - The rule forbidding the admission of parol or extrinsic evidence to alter, vary, or
contradict a written instrument does not apply so as to prohibit the establishment by
parol of an agreement between the parties to a writing, entered into subsequent to the
time when the written instrument was executed, notwithstanding such agreement may
have the effect of adding to, changing, modifying, or even altogether abrogating the
contract of the parties as evidenced by the writing; for the parol evidence does not in
any way deny that the original agreement of the parties was that which the writing
purports to express, but merely goes to show that the parties have exercised their right
to change or abrogate the same, or to make a new and independent contract.
- It makes no difference how soon after the execution of the written contract the parol
one was made. If it was in fact subsequent and is otherwise unobjectionable it may be
proved and enforced.
- The rule forbidding the admission of parol or extrinsic evidence to alter, vary, or
contradict a written instrument does not apply so as to prohibit the establishment by
parol of an agreement between the parties to a writing, entered into subsequent to the
time when the written instrument was executed, notwithstanding such agreement may
have the effect of adding to, changing, modifying, or even altogether abrogating the
contract of the parties as evidenced by the writing.
- Sir: varying the terms means unilateral change by one of the parties. That is the evil
sought to be prevented. In this case, it was a subsequent agreement. Nag agree ka eh.
So, pwede yan I prove by parol evidence.
- For the parol evidence does not in any way deny that the original agreement of the
parties was that which the writing purports to express, but merely goes to show that
the parties have exercised their right to change or abrogate the same, or to make a
new and independent contract.
Enriquez v Ramos
- Del Rosario bought parcels of land from Enriquez
- DR gave a performance bond in order to take possession of the land
- Contract was rescinded because he failed to pay
- In order to somehow save DR, Ramos (maybe a friend of DR) bought 20 parcels of land
previously bought by DR to release the performance bond. Such was subject to an
agreement that she will pay 50k as her share in the construction of the roads of the
subd
- Deed of Sale was issued in favor of Ramos
- Ramos claims that the contract failed to mention certain important conditions of the
agreement: Promise to construct roads on the part of Enriquez
- Enriquez failed to construct the roads
- What was objected here are 2 things:
1. Exhibit 3- saying that 50k is a contribution for the construction of roads of the
subdivision
2. Oral testimony of the defendant’s lawyer – providing for reason why such
agreement (contribution) is not in the contract
- It is argued that the court a quo erred in allowing the presentation of parol evidence to
prove that a contemporaneous oral agreement was also reached between the parties
relative to the construction of the roads for the same is in violation of our rule which
provides that when the terms of an agreement had been reduced to writing it is to be
considered as containing all that has been agreed upon and that no evidence other than
the terms thereof can be admitted between the parties
- HELD:
- Re: Plaintiff’s argument: the, however, only holds true if there is no allegation that the
agreement does not express the true intent of the parties.
- If there is and this claim is put in issue in the pleadings, the same may be the subject
of parol evidence
- The fact that such failure has been put in issue in this case is patent in the answer
wherein defendant has specifically pleaded that the contract of sale in question does
not express the true intent of the parties with regard to the construction of the roads.
Maulini v Serrano
- This is a claim by the indorsee against the indorser
- There was a contract of loan, where Serrano acted as an agent for a company
- Serrano acts as a broker. Raket: He look for those who want to borrow money and look
for those who want to lend money
- He has commission for these
- Company issued PN in the name of Serrano (not in the name of the Company itself, the
debtor). Reason: The company does not want the loan to appear in its books
- Serrano then indorsed the PN to creditor
- Company fails to pay
- Maulini sued Serrano.
- Serrano claims that he merely acted as an agent
- Is his testimony (parol evidence) admissible to prove that he only acted as agent
- HELD:
- Admissible, because he is attacking the very validity of the indorsement
- Parol evidence applies only to a valid agreement.
- If you are attacking the very validity, claiming that the indorsement did not exist at all,
parol evidence can be admitted
- The case at bar is not one where the evidence offered varies, alters, modifies or
contradicts the terms of the contract of indorsement admittedly existing. The evidence
was not offered for that purpose.
- The purpose was to show that no contract of indorsement ever existed; that the minds
of the parties never met on the terms of such contract; that they never mutually agreed
to enter into such a contract; and that there never existed a consideration upon which
such an agreement could be founded
- The evidence was not offered to vary, alter, modify, or contradict the terms of an
agreement which it is admitted existed between the parties, but to deny that there ever
existed any agreement whatever; to wipe out all apparent relations between the parties,
and not to vary, alter or contradict the terms of a relation admittedly existing;
- in other words, the purpose of the parol evidence was to demonstrate, not that the
indorser did not intend to make the particular indorsement which he did make; not that
he did not intend to make the indorsement in the terms made; but, rather, to deny the
reality of any indorsement; that a relation of any kind whatever was created or existed
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 21
 between him and the indorsee by reason of the writing on the back of the instrument;
that no consideration ever passed to sustain an indorsement of any kind whatsoever.
Madrigal v CA
- Property was owned by Sps Mallari
- They planned to go the US. Their son convinced them to just transfer the property in
his name instead of selling it. Son promised to return the property to his parents anytime
they acquires enough money to redeem it
- A deed of sale in favor of the son was executed
- Son sold the property to Madrigal without the knowledge of the Sps
- Father found out that his son sold the property so he filed a case to annul the sale
- TC and CA ruled in favor of the father on the ground that the deed executed was an
equitable mortgage and not an absolute sale
- ISSUE: WON parol evidence is admissible to prove that the sale was one of an equitable
mortgage
- HELD: YES
- Evidence clearly shows that there was indeed no intent to sell the subject property.
Rather, what transpired between the parties, who were father and son, was only a
mortgage involving P50,000.00 over a portion of a lot
- SC cannot view the Deed of Absolute Sale in question in isolation of the circumstances
under which the same was executed by Virgilio’s parents, more so in the light of his
father’s disavowal of what the document, on its face, purports to state.
- Lustan v CA: Even when a document appears on its face to be a sale, the owner of the
property may prove that the contract is really a loan with mortgage by raising as an
issue the fact that the document does not express the true intent of the parties. In this
case, parol evidence then becomes competent and admissible to prove that the
instrument was in truth and in fact given merely as a security for the repayment of a
loan.
Bough v Cantiveros
- husband and wife separated
- they agreed on how to partition the property
- husband went to Samar
- niece went to her auntie (wife in this case) to inform that her husband is in town. They
told her that the husband might cause trouble to her that is why she should transfer
her property in their name
- She executed a deed of sale in their favor. He relatives told her that they will execute
a document in her favor in the form of a donation to make sure that her property will
be reverted back to her
- It turned out that the husband never bothered her wife
- The relatives are actually the one who caused her trouble
- Sps Bough sued Cantiveros
- Cantiveros says that it was a simulated sale.
- Cantiveros was put on witness stand
- Objection to such was made on the ground that what is involved is an actionable
document and it violates the parol evidence rule.
- They claim, Deed of sale yan, hindi mo pwedeng sabihing peke.
- HELD:
- Admissible, because she is attacking the very validity/ existence of the instrument
- PER only applies to a valid agreement
- If you are attacking the very validity of the instrument, Such is an exception the rule
- The evidence sought to be presented tends to show that there was no contract at all.
- Same rationale as the case of Maulini v CA
Cruz v CA
- Cruz alleged contracted a loan
- Plaintiff presented evidence stating that “35k is received from Quiambao and Salonga.
Signed by Cruz” (Exhibit D)
- Salonga claim that the loan was extended to Cruz in exchange from the
- Cruz did not pay. According to him, he did not contract any loan from Salonga. He claim
that Salonga will buy all the fish from the fishpond (owned by Mayor-> leased by Cruz-
> subleased it to Salonga for 1 day)
- Cruz admitted that he received 35k. 20k of which covered full payment by Salonga of
the pakyaw agreement to buy the fish. The remaining 15k is advance payment of
Salonga for the sublease
- TC ruled against Cruz
- One of the issues raised in this case is that: if you will accept the parol evidence
- HELD:
- Admissible, because parol evidence apply to an agreement so that one party cannot
change the contract unilaterally
- Receipt is not a contract. Therefore, parol evidence does not apply
- In the present case, parol evidence is not applicable in the case at bar, Section 7, Rule
130 is predicated on the existence of a document embodying the terms of an
agreement, but Exhibit D does not contain such an agreement.
- It is only a receipt attesting to the fact that on May 4, 1982, the petitioner received
from the private respondent the amount of P35,000.
- It is not and could have not been intended by the parties to be the sole memorial of
their agreement.
- As a matter of fact, Exhibit D does not even mention the transaction that gave rise to
its issuance.
- At most, Exhibit D can only be considered a casual memorandum of a transaction
between the parties and an acknowledgment of the receipt of money executed by the
petitioner for the private respondent's satisfaction
- A writing of this nature, as Wigmore observed is not covered by the parol evidence rule.
- A receipt — i.e. a written acknowledgment, handed by one party to the other, of the
manual custody of money or other personality — will in general fall without the line of
the rule; i.e. it is not intended to be an exclusive memorial, and the facts may be shown
irrespective of the terms of the receipt.
- This is because usually a receipt is merely a written admission of a transaction
independently existing, and, like other admissions, is not conclusive.
- Another reason: parol evidence was not objected by Cruz. So, even if assuming it
covered by the rule, it is still admissible
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 22
 o Section 12. Interpretation according to intention; general and
particular provisions. — In the construction of an instrument, the intention
Reformation of Instrument 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
- 1359 (1) and 1361 of the Civil Code
will control a general one that is inconsistent with it. (10)
- Rules:
 Purpose is to reconcile
1. Mistake must be mutual.
 Special prevails over general just like the rules in Statcon
o Otherwise, you don’t file for reformation of instrument. You should file for
o Section 13. Interpretation according to circumstances. — For the
annulment of the instrument
proper construction of an instrument, the circumstances under which it was
o There was no mistake as to the intention. There was only a mistake as to the
made, including the situation of the subject thereof and of the parties to it,
document
may be shown, so that the judge may be placed in the position of those who
o If not mutual, the mistake should not be corrected through reformation
language he is to interpret. (11)
2. Mistake must be of fact not of law
 Interpret according to the circumstance under which it is made
3. Mistake must be put in the pleadings
(contemporaneous circumstances)
4. Mistake must be proved by clear evidence (not just by preponderance of evidence)
o Section 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
- Q: Is there a distinction between PER and BER?
peculiar signification, and were so used and understood in the particular
- A: Yes
instance, in which case the agreement must be construed accordingly. (12)
1. PER
 Some laws define the terms, you follow that
o There is no issue as to the contents of the writing
 GR: In the absence of any specific definition of the terms, you
o The purpose of the offer of parol evidence is to change, vary or modify the
interpret the terms according to its general significance (consult
terms of the writing (which is not allowed unless the case falls in any of the
the dictionary)
XPNs)
 XPN: if the term has attained a technical meaning
2. BER
 Ex. In law, the word “action” has technical meaning
o The issue is the contents of the writing
o Section 15. Written words control printed. — When an instrument
o Secondary evidence is presented to prove the contents of the writing (which
consists partly of written words and partly of a printed form, and the two are
is not allowed unless the case falls in any of the XPNs)
inconsistent, the former controls the latter. (13)
Two parts of the Parol Evidence Rule  Yung sinulat ang controlling kasi pinalitan mo yung nka print
o Section 16. Experts and interpreters to be used in explaining certain
1. Integration of contract rule writings. — When the characters in which an instrument is written are
o Sec 9 difficult to be deciphered, or the language is not understood by the court, the
2. Interpretation of Contracts evidence of persons skilled in deciphering the characters, or who understand
o Sec 10-19 the language, is admissible to declare the characters or the meaning of the
o Section 10. Interpretation of a writing according to its legal language. (14)
meaning. — The language of a writing is to be interpreted according to the o Section 17. Of Two constructions, which preferred. — When the terms
legal meaning it bears in the place of its execution, unless the parties of an agreement have been intended in a different sense by the different
intended otherwise. (8) parties to it, that sense is to prevail against either party in which he supposed
 If the contract is entered in the Philippines, it must be interpreted the other understood it, and when different constructions of a provision are
according to its legal meaning in the Philippines otherwise equally proper, that is to be taken which is the most favorable to
o Section 11. Instrument construed so as to give effect to all the party in whose favor the provision was made. (15)
provisions. — In the construction of an instrument, where there are several  First part applies to contract of adhesion
provisions or particulars, such a construction is, if possible, to be adopted as  Contract of adhesion is valid but in case of doubt, resolve in favor
will give effect to all. (9) of the one who merely signed
 Don’t render the provisions nugatory o Section 18. Construction in favor of natural right. — When an
 Q: When do you interpret? instrument is equally susceptible of two interpretations, one in favor of
 A: If there is ambiguity. If none, don’t interpret natural right and the other against it, the former is to be adopted. (16)

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 23

  Statutes in derogation of rights are strictly construed against the
state (penal laws, tax laws)
o Section 19. Interpretation according to usage. — An instrument may
be construed according to usage, in order to determine its true character.
 Ex. May specific rules sa sabungan. May meaning ang hand
gestures
- When you say ambiguous, it means there are 2 interpretations
- Q: How do you distinguish it from intrinsic ambiguity?
- A: Remember, the two are different. In intrinsic ambiguity, You are only allowed to
introduce parol evidence if it is intrinsic, meaning latent. The ambiguity is hidden in the
thing, person or the subject. Unlike in interpretation, from itself, dalawa talaga yung
meaning
REVIEW:
- There are 2 rules in Documentary evidence:
1. BER
2. PER
- Q: Why only 2 rules?
- A: Because it is already written in the document itself
TESTIMONIAL EVIDENCE
- This part is long because Man’s memory falters. Even his perception. Another reason
is: Marami ang sinungaling.
SEC 1
- Q: Who may be witnesses?
- A: any person who can perceive, and perceiving, can make their known perception to
others, may be witnesses
- If you can perceive, pero pipi ka. Eh di wala din.
- Religious or political belief, interest in the outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not be ground for disqualification.
o But these circumstances affect credibility
o Although they are qualified to become a witness, but their testimony might
not be taken seriously
o Reason: they may have interest on the outcome
o Ex. the credibility of a witness who does not believe in the value of oath due
to his religious belief might affect his credibility
o Generally, conviction of a crime is not a ground for disqualification unless
otherwise provided by law
 Law: One who is convicted of perjury or falsification cannot be
witness to a probate of a will (that is a specific disqualification)
 But when there is no law prohibiting it, you can be a witness. It
might just affect your credibility
 Conviction of a crime will not generally prohibit you to testify unless
there is a law which says so
EXCLUSIONS:
SET 1: By reason of mental incapacity and mental immaturity
- SEC 2
- The following persons cannot be witnesses:
a. Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known
their perception to others;
- Q: How do you account that there is already a mental condition during perception?
- A: It just affects credibility but not disqualification
- Q: Why?
- A: A buang has also a lucid interval
- 2 points:
1. Perceiving
2. Making known his perception
- Note: disqualification if the incapacity is at the time of their production
(b) 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.
- (b) involves point a quo and point a quem (?)
- It refers to children because of mental immaturity
- Q: Who may be a witness?
- A: Any person who can perceive and can make known their perception known
- Q: how do we perceive?
- A: through our senses (sense perception). We have 5 senses.
- According to rational psychology, we only acquire knowledge through our senses. There
is no such thing as “a priori knowledge” (we know it already when we are born)
- GR: Hearsay evidence is not admissible
- Reason: The one testifying was not the one who actually perceive it.
- Remember, a witness shall be the one who perceived the matter he is testifying on.
Hindi pwedeng iba ang nag perceive
3 SETS OF WITNESSES WHO ARE DISQUALIFED FROM TESTIFYING
There are 3 sets of witnesses who are disqualified:
- SET 1: BY REASON OF MENTAL CONDITION AND MENTAL IMMATURITY
- SET 2: BY REASON OF INTEREST OR RELATIONSHIP
 Disqualification by reason of marriage
 Dead man statute or Survivor’s Disqualification
- SET 3: THOSE WHO CANNOT TESTIFY IN CERTAIN MATTERS LEARNED IN
CONFIDENCE
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 24
SET 1: BY REASON OF MENTAL CONDITION AND MENTAL IMMATURITY testimony was positive, clear, plain, coherent and credible." Her mental
condition did not vitiate her credibility.
1.a By reason of mental incapacity o People v Mendoza
 Paul Michael wants to go with his father but his father refused
o Emphasis is their mental condition at the time of their examination or production for
 The mother got angry with the father
examination (It is not mental incapacity at the time he actually perceived it)
 Father put kerosene on the wife
o Reason: He cannot make an accurate account of what he has perceived
 Brother of Paul Michael told him that their mother is already dead
o Q: Will that disqualify them for instance, for reason of insanity at the time when they
 Then, Paul Michael narrated the facts (father killed his mother
perceive?
 He was only 5 years old
o A: The rules does not answer that because we are not sure if he is in his lucid interval.
 ISSUE: Can he be a competent witness?
One thing is definite -> we can know if he can made his perception known
 HELD: Yes
o However, the other party may show that at the time of perception, he is at the state
 It is thus clear that any child, regardless of age, can be a competent witness
of mental illness
if he can perceive, and perceiving, can make known his perception to others
o Remember, he will not be disqualified. It will only affect his credibility. You can no
and of relating truthfully facts respecting which he is examined.
longer prevent him from testifying because under (a), what is emphasized is the fact
 no rule defines any particular age as conclusive of incapacity; in each
that he was insane at the time he is to testify
instance the capacity of the particular child is to be investigated.
o People v De Jesus
 The requirements then of a child's competency as a witness are
 Clara (feeble-minded) was raped.
the:
 Mother went back to the house sensing that it was about to rain
(a) capacity of observation,
 She saw that accused was on top of Clara
(b) capacity of recollection, and
 She looked for a weapon but accused already escaped
(c) capacity of communication.
 During trial, the testimony of Clara was presented as evidence
 A close and careful examination of the testimony of Paul Michael shows that
 ISSUE: Was she a competent witness?
at the time he testified, he could be deemed a child of above average
 HELD: Yes
intelligence, i.e., capable of giving responsive answers to the questions
 Being a feeble minded is not per se warrants disqualification as a witness
asked of him by the trial judge, as well as recalling events and relating them
 The acceptance of his or her testimony depends on the quality of his or her
to such recollections.
perceptions and the manner he or she can make them known to the court.
 He was just hesitant because his father was present during trial
 There is no showing that she could not convey her Ideas by words or signs.
 You can ask direct questions to a child
It appears in the records that complainant gave sufficiently intelligent
o People v Macapal
answers to the questions propounded by the court and the counsels.
 Ligaya (retardate )was about to buy kerosene
 The court is satisfied that the complainant can perceive and transmit in her
 Accused dragged her in a secluded area and was raped
own way her own perceptions to others. She is a competent witness
 6 months later, she visited her sister
o People v Solomon
 The sister noticed that her stomach is bulging
 Sylvia (retardate) was raped
 Then, she narrated the facts (how she was raped)
 She was raped in the ricefield by the accused.
 During trial, she testified
 Sylvia reported to his family and the police
 She had a mind of a 9-12 year old kid (Mild to moderate retardate)
 Sylvia testified alleging that she was mentally incapacitated.
 ISSUE: Was her testimony admissible?
 Is her testimony competent?
 HELD: Yes
 A mental retardate is not for this reason alone disqualified from being a
 While it may be difficult to determine the credibility of one who is a mental
witness. As in the case of other witnesses, acceptance of his testimony
retardate, it can still be attained by deducing from the manner he or she
depends on its nature and credibility or, otherwise put, the quality of his
testifies in court as to the surrounding facts of the crime committed.
perceptions and the manner he can make them known to the court.
 As long as a witness' testimony is straightforward, candid and unflawed by
 the Court accepted the testimony of a rape victim notwithstanding that she
inconsistencies or contradictions in its material points, and his or her
had the mentality of a nine or ten-year old "because she was able to
demeanor is consistent with one who has been victimized to thus bolster
communicate her ordeal... clearly and consistently."
credibility with the verity born out of human nature and experience, as in
 In the case before us, the trial court noted that although Sylvia's speech
the herein victim's case, credibility can be accorded to him or her.
was slurred and it was necessary at times to ask her leading questions, "her

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 25

  Mental retardation per se does not affect credibility. A mentally retarded
may be a credible witness.33
 The acceptance of his or her testimony depends on the quality of his or her
perceptions and the manner he or she can make them known to the court.
o Sir: I don’t know if judicial affidavit rule applies to a child. Maybe it applies But I think
you must first establish the 3 requirements above
o One of the objections to Judicial affidavit rule is that you deprive the courts of the
opportunity to observe the behavior of the witness
o If penalty exceeds 6 years -> judicial affidavit rule is optional
1.b By reason of mental immaturity
o Such that renders him incapable of perceiving the facts in which they are examined
o Note: We perceive differently when we are young
o 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
o It is not enough that the child has perceived it accurately. It is also important that
he has capacity to relate it truthfully
o You ask, “Do you know what is lying?” “When do you say that someone is lying?” “Is
lying good or bad?”
SET 2: BY REASON OF RELATIONSHIP
2.a By reason of marriage
o GR: During the marriage, they cannot testify without the consent of the affected
spouse
 After marriage -> pwede na
 This is different from the rule provided in privileged communication where
the spouses cannot testify even after marriage
o XPN:
1. in a civil case by one against the other, or
2. in a criminal case for a crime committed by one against the other or the
latter's direct descendants or ascendants
 Jurisprudence added yung “latter’s direct descendants or ascendants
 If you commit a crime against his child, parang ginawa mo na din sa kaniya
yun
o Q: What are the requisites?
o A:
1. Spouses are legally married
o Therefore, it does not apply to common law husband and wife
2. One of the spouse is a party to the case
3. It is not an XPN (enumerated above)
o There is a third kind but technically, it does not refer to marital disqualification.. The
third kind is parental and filial privilege
Parental and filial privilege
o Section 25. Parental and filial privilege. — No person may be compelled to
testify against his parents, other direct ascendants, children or other direct
descendants.
o In here, the option is on the witness himself
o Unlike in disqualification by reason of marriage, nasa spouse yan against whom you
will testify. That is the privilege of the other spouse.
o In here, it is the privilege of the witness himself. He may refuse to testify.
o This privilege applies to both criminal and civil cases
o The witness descent has the choice to testify or not
o REASON: to preserve the sacred sentiments among the family
- Back to marital disqualification:
o Reason for the rule: To preserve the harmony between husband and wife. To
preserve the harmony of marital relationship (Baka later on, kayo na mag away)
o Scope: Anything. What is important is that during the marriage, they cannot testify
against the other. Unless, sila ang nag aaway
o The wife may testify on relevant things but remember the reason for the rule bakit
hindi admissible
o Q: Is it necessary that the other spouse is a party to the case?
o A: Not necessarily
o Lezama v Rodriguez
 An action for annulment of judgment against an ice plant
 Ice plant is represented by a receiver
 Receiver alleged that because of mismanagement by the Sps Lezamas, the
ice plant became bankrupt
 During the mismanagement, a case was filed by Roque against the ice plant
 Receiver allege that summons was served to the Sps and not the receiver.
Since the ice plant is already in receivership, the summons must be served
to the receiver. Failure to serve to the receiver means that the court did not
acquire jurisdiction.
 Receiver claims that there was a collusion between Roque and Sps
 Sps answered that although the company is in receivership, Mr. Lezama is
still the President. Therefore, summons can be served to him
 Decision was rendered in favor of Roque
 In the case for annulment of judgment, Mrs. Lezama (CorSec) was called to
testify as an adverse party witness on the basis of her participation in the
alleged fraudulent scheme
 Sps were objecting on the ground that she cannot testify under the marital
disqualification rule
 ISSUE: WON the wife can testify in a case where the wife is a co-defendant
in a suit charging fraud against the sps
 HELD: NO
 There are 2 conflicting principles in this case:
1. Right of the party to call on a witness by subpoena
o You can even present the kalaban to the witness stand. You call him
a hostile witness
2. Marital Disqualification rule
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  Q: Which will prevail?
 A: Marital disqualification rule.
 Marital disqualification rule deals with two grounds which rest on different
policies:
1. Disqualification of the husband and wife to testify on each other’s behalf
2. The privilege not to testify against each other
 
 The fundamental theory in marital disqualification is the relationship of the
sps regardless of whether the testimony will be for or against the party
calling the witnes
 The reason for the privilege of husband and wife not to testify against each
other is the natural repugnance in every fair-minded person to
compelling a wife or husband to be the means of the other's
condemnation and to subjecting the culprit to the humiliation of
being condemned by the words of his intimate life partner.
 In this case, the wife was called to testify more than as an adverse
party witness
 Wife was the one who signed the minutes when an alleged loan transaction
was made or approved
 Whether her testimony will turn out to be adverse or beneficial to her own
interest, the inevitable result would be to pit her against her husband.
 The interests of husband and wife in this case are necessarily
interrelated that might prove collusion between them.
 Testimony adverse to the wife's own interests would tend to show the
existence of collusive fraud between the spouses and would then work
havoc upon their common defense that the loan was not fictitious. There is
the possibility, too, that the wife, in order to soften her own guilt, if guilty
she is, may unwittingly testify in a manner entirely disparaging to the
interests of the husband.
 Thus, while the petitioners denied the charge that the loan was fictitious,
they did not deny the allegation that it was Paquita Lezama who, as
secretary of the company, signed the minutes of the meeting at which Jose
Manuel Lezama was allegedly authorized to negotiate the loan and that it
was she who, likewise as secretary, made the entry in the books of the
corporation.
 It was obviously to test the truth of the assertion that the loan transaction
was above board that Dineros, the company receiver, wanted Paquita
Lezama on the witness stand, not as a spouse witness "for or against her
husband," but rather as an adverse party in the case.
RE: DEPOSITIONS
o Q: When you take deposition, does it make your deponent your witness?
o A: No.
o Section 7. Effect of taking depositions. — A party shall not be deemed to make a
person his own witness for any purpose by taking his deposition.
o Q: therefore, if the deponent does not become your witness, can you take the
deposition of the wife in a case against the husband?
o A: No.
o Q: Why?
o A: because a deposition is a mode of discovery
o Subpoena v Deposition
Subpoena -> the thing sought to be discovered must be specified. You
cannot fish
 Deposition -> You can fish here
o Taking deposition is by leave of court after jurisdiction has been taken (before
answer). If there is answer already, you only file a notice (no need for leave of court)
o the testimony of any person, whether a party or not, may be taken, at the instance
of any party, by deposition upon oral examination or written interrogatories. The
attendance of witnesses may be compelled by the use of a subpoena as provided in
Rule 21.
o Q: Do you have to secure court approval when taking depositions?
o A: No, all you have to show the clerk is that you have given notice to the kalaban
that you will take his deposition
o the deponent may be examined regarding any matter, not privileged, which is
relevant to the subject of the pending action
 The term privileged there is broad. It also include marital disqualification
o Q: Can you invoke marital disqualification rule in taking of deposition?
o A: Yes, because there is a possibility that they can use it in court. There is a
possibility that you can present him as witness in court. What you cannot be done
directly cannot be done indirectly.
o Q: What are the uses of a deposition?
o A: any part or all of a deposition, so far as admissible under the rules of evidence,
may be used against any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any one of the following
provisions (See enumeration in Sec 4 Rule 23)
o GR in depositions: Even if you have taken his deposition prior trial, you must still
present him against in court during the trial. You can only use his deposition without
presenting him in court if he is already dead, etc.
People v Castaneda
o Wife filed a complaint of falsification of public document against her husband
o Husband forged a deed of sale to sell a H&L belonging to their conjugal partnership
o Prosecution presented wife to testify
o Defense opposed it on the ground of marital disqualification rule (MDR)
o HELD: WIFE CAN TESTIFY
o The case is an XPN to the MDR
o It is a criminal case committed by one of the spouse against the other
o Q: What is the purpose of the marital disqualification rule?
o A: To preserve marital harmony/ conjugal relation (this is the evil sought to be
avoided by this rule)
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 27
 o In this case, the falsification of document in itself already attacks the relation between
the husband and the wife
o Q: When may a specific offense be classified as a crime commited by one spouse
against the other?
o A: Test: when it directly or vitally attacks/ affects conjugal relation. Then it comes
within the XPN of MDR
o Even if the case is not murder/homicide, it has already impaired the conjugal relation
o Previous case: rape committed by husband against their child affects the conjugal
relation
o In this case, the fact that the conjugal relation has already been impaired is apparent
not only in the act of the wife in personally lodging her complaint with the Office of
the Provincial Fiscal, but also in her insistent efforts in connection with the instant
petition, which seeks to set aside the order disqualifying her from testifying her
husband.
o Taken collectively, the actuations of the witness-wife underscore the fact that the
marital and domestic relations between her and the accused-husband have become
so strained that there is no more harmony to be preserved nor peace and
tranquility which may be disturbed.
2.b Dead Man Statute
- Section 23. Disqualification by reason of death or insanity of adverse party.
— 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
- Q: What is the prohibition?
- A: cannot testify as to any matter of fact occurring before the death of such deceased
person or against such person of unsound mind
- This is sometimes called the Survivor’s Disqualification or Dead Man Statute
- It means that when a person’s lips are sealed because of death or insanity, the other
party’s lips are also sealed because the dead man or the insane can no longer defend
himself from what the other person is saying
- The very evil here is: The other party is concocting a story because the Dead Man is
already dead. Eh di tabla sila.
- Q: Who is being disqualified under the rule? Against whom is the disqualification is
directed to?
- A: The disqualification is directed to Parties or assignor of parties to a case, or persons
in whose behalf a case is prosecuted (in other words: the plaintiff, the assignor of the
plaintiff or person in whose behalf a case is prosecuted)
- Q: Who are protected by this rule?
- A: executor or administrator or other representative of a deceased person, or against a
person of unsound mind
- Q: When may this rule be invoked?
- A: upon a claim or demand against the estate of such deceased person or against such
person of unsound mind (you are claiming against the estate)
- Q: What kind of testimony does the rule exclude?
- A: Take note that not all testimonies are excluded. This rule excludes testimony only of
a matter of fact occurring before the death of the deceased or matter of fact occurring
before the insane became of an unsound mind.
o Lichauco v Atlantic Gulf
 Fitzsimmons is the Pres and the largest SH of Atlantic Gulf
 Out of 1000 shares, 545 are not yet paid (1 share amounts to P450. Malaki
yan noon ah.)
 Company has 2 options:
1. Reacquire the said 545 shares by returning to his estate the amount applied
2. Issue in favor of his estate the corresponding shares equivalent to the
amount paid
 Fitz died and settlement of his estate was filed
 Company filed 2 claims against the estate of Fitz
1. 64,500 (utang ni Fitz sa company. These are his unpaid advances)
2. Barya barya (pabayaan na to)
 Administrator denied the claim of Fitz
 During trial, witnesses for the Company was not allowed to testify
1. Accountant and assistant accountant – testified that directors and the
President made advancements. At the end of the year, the advancement
become credit balance. The advancement are paid by the dividends. (Kita
minus utang). They testified that there is still 64,500 balance because they
still recall it.
- Sir: Dapat they objected on this testimonies. But they did not.
2. VP and other officers- supposed to testify on the debt of the deceased
 Lichauco (counsel of the estate) opposed the testimony of VP on the ground
of Dead Man statute
 TC sustained Lichauco
 Sir: If evidence if not admitted, you have to make an offer of proof saying
that: If the witness was allowed to testify, he should have testified on the
following matters.. (Put it in record so that in appeal, your case doesn’t need
to be remanded)
 HELD: NOT DISQUALIFIED TO TESTIFY
 To hold that the statute disqualifies all persons from testifying who are
officers or stockholders of a corporation would be equivalent to materially
amending the statute by judicial interpretation. Plainly the law disqualifies
only "parties or assignors of parties," and does not apply to persons who
are merely employed by such parties or assignors of parties.
 The weight of authority sustains appellant's first assignment of error.
Inasmuch as section 26(c) of Rule 123 disqualifies only parties or assignors
of parties, we are constrained to hold that the officers and/or stockholders
of a corporation are not disqualified from testifying, for or against the
corporation which is a party to an action upon a claim or demand against
the estate of a deceased person, as to any matter of fact occurring before
the death of such deceased person.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 28
  RULE: expression unius est exclusion alterius
 Officers are separate and distinct from the corporation
 Q: Who are disqualified?
 A: The corporation
 Q: Are the officers of the corporation also disqualifies being agents of the
corporation?
 A: No, because it is not in the enumeration
 City Savings Bank vs. Enos (California case): The provision applies only to
parties or assignors of parties, and Haslam was neither the one nor the
other. If he was a stockholder, which it is claimed he was, that fact would
make no difference, for interest no longer disqualifies under our law, Civ.
Code Proc. sec. 1879. Appellant cites section 14, Civ. Code, to the effect
that the word "person" includes a corporation; and claims that, as the
corporation can only speak through its officers, the section must be held to
apply to all who are officially related to section must be held to apply to all
who are officially related to the corporation. A corporation may be conceded
to be a person, but the concession does not help appellant. To hold that
the statute disqualifies all persons from testifying who are officers
or stockholders of a corporation would be equivalent to materially
amending the statute by judicial interpretation. Plainly the law
disqualifies only "parties or assignors of parties," and does not
apply to persons who are merely employed by such parties or
assignors of parties.
Reyes v Wells
- HELD: NOT DISQUALIFIED TO TESTIFY
- It is true that Saturnino Guerrero, as an interested party in the case, is incompetent to
testify upon transactions had between himself and the deceased Rader and Northcott
but the record shows that their is another witness, Eduardo Bustamante, who has no
interest in this case, and who testified that he witnessed and heard the conversations
between Guerrero and Rader, and Northcott, respecting the delivery of the money
represented by the promissory notes in question, and his testimony appears to be
corroborated, in so far as it refers to the conversations between Guerrero and Rader,
by Marcelino Benito and Apolinar Pasion. The testimony of said witness Eduardo
Bustamante is admissible to prove that the defendants never delivered the money which
was the consideration of said promissory notes.
- By the weight of authority statutes rendering a party to or person interested in the
event of an action against the estate of a decedent or a lunatic, incompetent to testify
concerning a personal transaction had with the latter, do not disqualify such party or
person from testifying to communications or transactions between a deceased and a
third person had in his presence or within his hearing, if he took no active part therein
himself. Unless the transactions or communications are personal, and had with the
deceased by the witness, either literally or in practical effect, as by participating in or
influencing them, they do not fall under the prohibition of the statute."
- RULE: A 3rd person is not disqualified from testifying in a case between two parties who
are parties in the litigation
- Note: The rule protects executor or administrator or other representative of a deceased
person, or against a person of unsound mind who are defendants in this case
- Guerrero v St. Clare realty
o The property in question was owned by Guerrero originally
o He has 6 children
o During his lifetime, he assigned the property in question to Andres (one of his son)
o Andres took possession of the property and he leased it to a tenant
o Later on, he gave the possession of the property to his sister Cristina because she
has less in life
o The tenant and Cristina are now sharing the property
o When Andres passed away, his children learned that the property is now owned by
St. Clare
o St. Clare has already transacted with another corporation for its development
o St. Clare is a partnership owned by the Guerrero defendants.
o Before St. Clare, the property was owned by Manuel Guerrero (cousin of Andres and
Cristina)
o According to Manuel, he bought the property from Cristina
o During the lifetime of Cristina, she loaned from Manuel (she was sick)
o During the trial of the case, the children of Cristina testified that Manuel always go
to their house to lend Cristina money. One of the children testified that she signed a
document showing that her mother is indebted to Manuel. According to them, Manuel
knew that the property is not owned by Cristina. He knew that Andres was the owner
of the property.
o Their testimony was objected on the ground of Dead Man Statute
o The real transaction between Cristina and Manuel is one of mortgage
o ISSUE: Does the Dead Man Statute (DMS) prohibits the children of Cristina from
testifying to prove that their mother is not the owner of the property and that Manuel
is merely a mortgagor
o HELD: NO. THE CHILDREN CAN TESTIFY
o The plain truth is that Laura Cervantes and Jose Cervantes are not parties in the
present case, and neither are they assignors of the parties nor "persons in whose
behalf a case is prosecuted."
o Q: Who are the plaintiffs in this case?
o A: The heirs of Andres (cousins of Laura and Jose)
o They are mere witnesses by whose testimonies the plaintiffs aimed to establish that
it was not Cristina Guerrero, but Andres Guerrero, who owned the disputed land at
the time of its alleged sale to Manuel Guerrero; that Cristina Guerrero did not really
sell but merely mortgaged the property to Manuel Guerrero.
o It may be said that competency to testify established in Sec. 20(a), Rule 130, Rules
of Court, affects only the persons therein mentioned, and no others, that is, only
parties plaintiff or their assignors, persons in whose behalf a case is prosecuted. Mere
witnesses who are neither parties plaintiff, nor their assignors, nor persons in whose
behalf a case is prosecuted, are not included in the prohibition. (Moran, Comments
on the Rules of Court, 1970 ed., Vol. 5, p. 166) By excluding the testimonies of the
two witnesses and by barring them from further testifying, upon reasoning that
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 29
 unduly strained the meaning of the provisions of the Rules of Court relied upon, the
trial court deprived itself of the opportunity of knowing the truth in this case.
o Sir: Court applied Statcon rules. Only those specifically mentioned in the rule are the
ones who are prohibited from testifying
o Moreover, The present case is not a claim or demand against the estate of the
deceased Manuel Guerrero.
o The defendants Guerreros are not the executors or administrators or representatives
of such deceased. They are being sued as claimants of ownership in their individual
capacities of the disputed lot. The lot is not a part of the estate of Manuel Guerrero.
Hence, the inapplicability of dead man's rule.
o . "It has been held that statutes providing that a party in interest is incompetent to
testify where the adverse party is dead or insane, must be applied strictly in
accordance with their express wording, irrespective of their spirit. The law uses the
word 'against an executor or administrator or other representative of a deceased
person.' It should be noted that after the mention of an executor or administrator
the words or other representative follows, which means that the word 'representative'
includes only those who, like the executor or administrator, are sued in their
representative, not personal, capacity. And that is emphasized by the law by using
the words 'against the estate of such deceased persons,' which convey the idea of
an estate actually owned by the deceased at the time the case was brought and that,
therefore, it is only his rights that are to be asserted and defendant in the litigation
by the person representing him, not the personal rights of such representative.
Goni v CA
- This involves 3 haciendas owned by TABACALERA (San Sebastian, Saria and Dulce
Nombre de Maria)
- Villanueva wanted to buy the 3 haciendas but does not have sufficient funds to pay
- Villanueva wanted to buy then sell Saria to Villegas (Gusto niya mag buy and sell para
mabili niya yung tatlo. Matalino si kolokoy)
- TABACALERA does not agree with the plan of Villanueva unless there is a guarantor
- Don Vicente stood as guarantor in favor of Villegas
- After such transaction, the funds are still insufficient.
- Villanueva executed a contract promising to sell to Don Vicente 3 fields (3,4,15) in Dolce
Nombre de Maria (para makumpleto niya yung pambayad)
- In all these transactions, Villanueva was transacting through an agent named Goni
- Villanueva was able to pay TABACALERA. Nag over pay pa nga.
- So instead of refunding, the agreement was that the 3 fields will be merely leased to
Vicente for a period of 5 years instead of a promise to sell
- Fields 4 and 13 were delivered to Vicente
- Then, Villanueva died. Intestate proceedings were instituted
- Among the properties included in the inventory were the 3 fields subject to the lease
- The day before the intestate proceedings is closed, Vicente filed a suit against Goni to
recover field 3 based on the promise to sell
- Goni filed a counterclaim (for the accounting of the harvest in the fields pursuant to the
lease agreement)
- Vicente amended his complaint to include a prayer for damages for the harvest in field
3
- Witnesses for Vicente: Himself. He testified on the transaction
- Defendant objected the testimony concerning facts occurring before the death of
Villanueva
- TC ruled in favor of Vicente. His testimony was admitted
- ISSUE: WON Vicente may testify on the matter of fact occurring prior to the death of
Villanueva.
- HELD: YES
- The case at bar, although instituted against the heirs of Praxedes Villanueva after the
estate of the latter had been distributed to them, remains within the ambit of the
protection. The reason is that the defendants-heirs are properly the "representatives"
of the deceased, not only because they succeeded to the decedent's right by descent
or operation of law, but more importantly because they are so placed in litigation that
they are called on to defend which they have obtained from the deceased and make
the defense which the deceased might have made if living, or to establish a claim which
deceased might have been interested to establish, if living.
- *While it is true that this is a case against the estate of Villanueva, nonetheless, the
DMS does not apply because he acted through an agent, who is still alive.
- The agent, Goni was the one who transacted and signed all documents in question
- Q: What is the evil sought to be prevented?
- A: You will concoct a story.
- In this case, he transacted with an agent who is still alive.
- According to the court, while there is a prohibition if it is a claim against the estate,
Vicente is also testifying against the counterclaim filed by the estate against him (dual
capacity)
- Prohibition applies only if there is claim against the estate. But in this case, there is a
counterclaim filed by the estate itself against the plaintiff (Ang daya naman kung hindi
mo papag testify si Vicente)
- Furthermore, there is already a waiver of the prohibition. The estate procured the
deposition of Vicente. (Sa inyo nag umpisa pala eh.) The plaintiff was also cross
examined. Such constitutes waiver.
- 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 to those transactions or communications which were
had with the agent.
- The contract/promise to sell under consideration was signed by petitioner Goñi as
attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances
surrounding the execution of such contract and therefore could either confirm or deny
any allegations made by private respondent Vicente with respect to said contract.
- The inequality or injustice sought to be avoided by Section 20(a) of Rule
130, where one of the parties no longer has the opportunity to either confirm
or rebut the testimony of the other because death has permanently sealed
the former's lips, does not actually exist in the case at bar, for the reason
that petitioner Goñi could and did not negate the binding effect of the
contract/promise to sell.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 30
 - Thus, while admitting the existence of the said contract/promise to sell, petitioner Goñi - A:
testified that the same was subsequently novated into a verbal contract of lease over 1. By not objecting on the plaintiff’s testimony on prohibited matters
fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria. o Evidence is admissible if it is relevant and it is not incompetent
o If you don’t object, then it is admissible
Razon v IAC o However, admissibility does not mean that the evidence is credible
o Ex. Nag testify ka, ok lang kasi hindi ka disqualified. Pero kilalang
- Enrique Razon organized E. Razon Inc
sinungaling ka. Eh di di ka rin paniniwalaan.
- Certificate of stocks in the name of Chuidian was held by Razon because he was the
2. By calling witnesses to testify on prohibited matters
one who paid it. According to Razon, he will release it if the amount of the shares will
o You yourself are presenting such evidence
be paid
3. By cross examining the plaintiff on the prohibited matted
- Chuidian died and his heirs found out that their father has shares in E. Razon Inc
- Estate of Chuidian filed a case against Razon to compel him to release the certificate of
stocks to them Abraham v Intestate estate of Ysmael
- Razon refused saying that the amount equivalent to the shares were not paid by
Chuidian o Ysmael loaned from Abraham (12k Japanese notes)
- Razon testified on matters occurring before the death of Chuidian o The one who witnessed the PN is the wife of Abraham
- ISSUE: Is Razon disqualified to testify under the DMS o Then, Abraham died
- HELD: NO o Ysmael also died without paying
- Because the claimant is the estate. You only apply the DMS if the claim is against the o A special proceeding for the settlement of the estate of Ysmael was opened
estate (same ruling with Londres v CA) o Vda de Abraham filed a claim against the estate
- If the deceased is the one who has a claim against somebody, don’t apply DMS o Administratrix interposed an objection to the testimony of Vda de Abraham on the
ground of DMS
o However, after she testified, she was lengthily cross examined
o HELD: THERE WAS WAIVER
- Q: What are the matters covered by the prohibition under DMS?
o The record shows that petitioners have established the due execution and
- A: Matters occurring before the death of the deceased or matter of fact occurring before
genuineness of the promissory note and that respondents failed to present any
the insane became of an unsound mind.
evidence to destroy the same. Thus, in the Order-Decree appealed from, the lower
- Case:
court observed:
 Claim in a tort case
o "It is interesting to note that the promissory note executed by the deceased was
 Victim is claiming hospital expenses etc plus moral damages
produced before the Court and marked as Exhibit B-1, and the circumstances under
 His testimony was being objected
which the same was executed was extensively described by Florencia Q. de Abraham
 HELD:
during the hearing, who, strikingly is one of the witnesses to the said instrument.
 Prohibition applies to matters occurring before the death
Much to the surprise of the Court this description was more vividly given by the said
 In this case, he is testifying on matters after the death
witness not in answer to the questions propounded by her lawyer but on cross-
- If the case involves the insane, don’t call it DMS. It is called Survivor’s disqualification
examination of counsel for the administratrix, who feebly attempted to destroy the
- When the defendants (although heirs of the deceased) are sued in their individual
due execution and genuineness of the said document. It is indeed unfortunate that
capacity, plaintiff may testify against them. The one protected by the rule are executor
counsel for the administratrix did not choose to present evidence to destroy the
and administrator
alleged genuineness of the promissory note (Exhibit B-1) in support of his theory,
- When the testimony is favorable to the deceased, such is not covered by the rule. What
despite insinuation during the course of the trial that he might try to secure the
is prohibited is that you are testifying against the estate. (Goni v CA -> There was
services of an expert to determine the genuineness of the signature of the late Juan
novation -> favorable to them)
C. Ysmael mentioned therein. (t.s.n., p. 83) Again counsel manifested that if Exhibit
- When a survivor’s testimony refers to a negative fact (This does not happen etc), it is
B-1 is a genuine document the same has been fully paid already, (t.s.n., p. 85),
not covered by the rule
however, counsel did not present any proof to support this contention."
- When there is an imputation of fraud against the deceased, the plaintiff is not barred
o However, there was a waiver of the prohibition when the counsel for the
from testifying for such fraud. Provided that such fraud is first established by
administratrix extensively cross-examined the witness on the very matters subject of
independent evidence (evidence aliunde)
the prohibition. It was for this reason that the trial judge eventually overruled the
- The protection afforded by DMS may also be waived
counsel's previous general and continuing objection and admitted the testimony of
- Q: How may it be waived?

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 31

 the witness. Furthermore, it is difficult to believe that the counsel's lengthy cross-
examination on the prohibited matters was merely for the purpose of establishing
the "motive, prejudices and predilection" of the witness.
o Sir: Therefore, don’t cross examine. Stand by your objection but make sure you are
correct.
- Q: May the rule on marital disqualification be waived?
- A: Yes
- *Q: Who may invoke the marital disqualification?
- A: Only one of the spouses may invoke it. This is personal. The right to invoke it only
applies to the spouse party. He or she alone can claim or waive it.
- Q: How is it waived?
- A:
1. Failure to impose a timely objection
2. By calling the other spouse as a witness
- People v Francisco
o This is an XPN by jurisprudence
o Francisco was arrested for robbery
o He requested permission to allow him to go home to his wife in order for him to
procure money for bail
o The police granted him but with escort
o Few minutes after he arrived at their house, screams of a woman were heard by the
escort
o When the policeman went to the house, he saw the wife going out of the room
holding her breast which is bleeding
o Then, he saw Francisco lying down holding his child (already dead)
o Prosecution relied on the admission of Francisco
o However, when he was put in the witness stand, he claims that his wife was the one
who killed their child
o To rebut that, the wife was called to testify
o Now, Francisco objects the testimony of his wife on the ground of marital
disqualification
o HELD: WIFE IS ALLOWED TO TESTIFY
o Hoy, ang daya mo ah. Gusto mo ikaw lang mag testify.
o Although there is such a thing as marital disqualification, in this case, he is already
pointing to his wife as the culprit
o It would not be fair for her to just keep quiet when you are accusing her of killing
your child
o *Sir: I would reason that the crime here is against the descendant. Since, their child
(descendant) was killed, the rule on marital disqualification does not apply
o Where the appellant gave his testimony, the state has the right to rebut the new
matter contained in the testimony through the only witness who is his wife
o The wife could not be expected to expose herself from danger of criminal prosecution
or carry the stigma of killing her own child
o If the wife should be allowed to testify on rebuttal, the scope of her testimony should
atleast be assailed by that of the husband for the simple reason of justice and fairness
SET 3: THOSE WHO CANNOT TESTIFY IN CERTAIN MATTERS LEARNED IN
CONFIDENCE
Privileged Communication/ Confidential Communication
- Q: Who may not be a witness as to any matter learned in confidence?
- A: Section 24. Disqualification by reason of privileged communication.
1. Husband and wife during the marriage or afterwards
2. Attorney
3. Person authorized to practice medicine, surgery or obstetrics
1. Husband and wife
- Q: What are the requisites?
- A:
1. Valid marriage
 Husband and wife who are legally married
 Not common law husband and wife
 Reason: Provision says “during and after the marriage”
 If people are living togethere without the benefit of marriage, you cannot
speak of “during and after the marriage”
2. Communication received in confidence
 Q: What is prohibited?
 A: Any communication (oral or written) received in confidence
 Q: When made?
 A: During the marriage.
 Hindi kasali yung nagliligawan pa lang. That was done during courtship
 Not after! (how can you communicate? Eh ayaw niyo na ngang Makita isat
isa nun eh.)
3. Confidential
 Remember, there are many things which are not confidential
 Q: When is it considered confidential?
 A: Discussed below. This is the crux of this rule
4. Civil case (hindi sila magkalaban); Crim Case (magkalaban)
- Reason for the privilege: To maintain the sacred institution of marriage. Because if
there is a danger that later on your spouse will turn against you, then you will not tell
everything to your spouse. (Sir: When you marry someone, he becomes your best
friend)
- Q: How do you distinguish the following concepts:
- Marital disqualification
o Requires that one of the spouses be a party to a case (or both of them)
o Applies to any fact (the mere fact of marriage disallows you to divulge) -> anything
before, during or after the marriage -> regardless if confidential or not
o Claimable only during the marriage
- Marital Communication
o Does not require that one of the spouse is a party
o Applies only to Confidential communication
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 32
 o Claimable during and after marriage (Reason: The very idea of the rule is that the
spouses will not feel that the other spouse will divulge the info after marriage. So,
hindi ko na lang sasabihin)
2. ATTY- CLIENT
Concept of Confidentiality
- This applies whether between husband and wife, attorneys, priest etc.
- The following rules general apply to all
- Q: When is a communication considered confidential?
- A:
1. Presumption is that every communication between the parties (sps, atty-
client etc) are confidential (Wigmore)
2. Communication made in the presence of 3rd persons are not anymore
confidential
 But if the 3rd person who overheard it is the parties’ agent, the
communication remain confidential
3. Communications overheard by 3rd persons remain confidential remain
confidential as between the parties
 But the 3rd person who overheard may be called upon to testify
 Ex. Husband was detained. Wife went there to ask what happen. Husband
admitted that he killed A. But a prisoner overheard their conversation
o The prisoner may be called to testify
o But privileged pa din between the spouses
 But if the 3rd person who overheard it is the parties’ agent, the
communication remain confidential
4. Communication coming in the hands of 3rd persons (whether legally or illegally)
remain confidential between the parties
 But the 3rd person who learned the info may be called upon to testify
 If the 3rd person acquires knowledge of the communication by collusion or
voluntary disclosure on the part of either of the parties, he then became the
agent of the parties. Therefore, the privilege is claimable against him
5.Communication intended to be given to 3rd persons is not confidential
- Rule 28
o Action to declare a person incompetent
o If you are that person, don’t conform -> then, you undergo
examination
o If you are the lawyer of the alleged incompetent, get your
own examiner
o In such an instance, there is waiver.
 Reason: The very purpose of the examination is for
you to determine WON you are insane
 Such is not privileged because the court shall know
the result to rule on your case
 Your purpose in undergoing such examination is to
convince the court that you are not insane
- Q: What are the requisites?
- A:
1. There must be a relation of an atty and client
- Q: What is the scope of that?
- A:
 In the course of professional employment
 With a view to professional employment
 It is not required that the lawyer actually accepted your case.
It is not required that there is already a retainer ccontract
 It is enough that the client intends to get the services of the
lawyer
2. There must be a communication by the client to the atty or advise given by the atty
to the client
- Not only the info given by the client is protected. Also the info given by the
atty.
3. Communication is given in confidence
4. The communication is given in the professional employment
- Reason: To promote confidence of the people to the work of the lawyers. To encourage
freedom of consultation of people to lawyers
- Scope: Not necessary that there be a case involving the client. It is enough that the
services of the lawyer is retained in view of an impending case
- Q: May a lawyer be compelled to produce document belonging to the client?
- A: If such documents constitute communication and were deliverd to the lawyer in the
course of employment, he cannot produce them without the consent of the client
- Q: May a lawyer be compelled to testify on the contents of such documents?
- A: No, if such document is delivered to the lawyer as part of the confidential
communication and in the course of his professional employment. He cannot testify
unless with consent of the client
- Q: May the client be compelled to testify on the communication made by him to his
lawyer?
- A: No, otherwise the privilege would be easily defeated. What the law disallows directly
is also disallowed indirectly.
- Q: May a lawyer be required to testify on communication made in connection with a
future wrong?
- A: Yes, because it is not privileged. Reason: Lawyer should not be consulted on a future
wrong or crime to be done
- Q: May a lawyer be required to testify on communication made in connection with a
past wrong?
- A: No, such are privileged. That is the very communication protected by the privilege.
- Q: What is the duration of the privilege?
- A: Forever and ever.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 33
 - Q: Is there an XPN to the application of this privilege? 3. Disclosure will affect public interest
- A: Yes. Privilege does not apply to cases filed by a lawyer against the client. Sila na ang - Reason: Protection of public interest
nag aaway. (Claim for atty’s fees). The XPN is for the protection of the lawyer - Q: Who determines WON the disclosure would affect public interest?
- Q: Is this privilege waivable? - A: The court. By making such determination, the court may accept information which
- A: Yes (even between husband and wife, atty-client etc) if: may come from the executive branch or the head of the office having custody of the
a. there is failure to object to other’s testimony information
b. you give evidence connected to the confidential communication - Q: When is it considered confidential?
c. You call your lawyer/physician to testify - A: Presumption: Any information given is confidential
d. You cross examine his lawyer regarding said privilege communication - Q: When is it not confidential?
- A:
3. PHYSICIAN- PATIENT 1. Parties revealed it in the presence of a third person (Unless the third person is
their agent)
- Q: what are the requisites?
2. Communication heard by a third person remains confidential between the
- A:
parties but the third person who hear it may be called on to testify
1. Privilege is claimed in a civil case
3. Communication came into the hands of a third person whether legally or
2. It is claimed against a person authorized to practice medicine, surgery or
illegally, the communication remains confidential between the parties but the
obstetrics
third person who hear it may be called on to testify
 Claim it only against doctors (but must be authorized to
4. If the 3rd person acquires knowledge of the communication by collusion or
practice)
voluntary disclosure on the part of either of the parties, he then became the
3. Communication was obtained while attending the patient in his professional
agent of the parties. Therefore, the privilege is claimable against him
capacity
5. Communication intended for transmission to third persons are not confidential
4. Communication is confidential
5. If disclosed, it will blacken the reputation of the patient CASES:
 Sir: Kalokohan ‘to. Ibig sabihin kapag it will not blacken your
reputation, hindi na privileged? People v Carlos
 Lim Case: It will ‘tend’ to blacken. (But now, inalis na yung
tend) - Sityar is a physician who operated the wife of the accused
- Reason: So that there can be an open communication. A doctor can better cure you if - Accused killed Sityar
he really knows what you feel. - Wife wrote a letter to the accused, her husband (Darling, wag mong gawin yan.)
- Letter came into the hands of the police
4. PRIEST/ MINISTERS - The letter was crucial in determining WON he is guilty of murder (or homicide)
- Wife invokes privilege communication
- Q: What are the requisites? - HELD:
- A: - The privileged communication cannot be invoked because the letter came to the hands
1. There must be a confession of a third person (whether illegally or legally)
 Does not mean that you are confessing/admitting your sins. - Hindi naman si misis ang nag tetestify (nakuha na yung letter by the policeman)
Also include asking for spiritual help - While her testimony is admissible, it is still inadmissible because it is hearsay
2. Confession was made in his professional capacity
3. Confession was made in the course of discipline enjoined by the church to Barton v Leyte Asphalt
which the minister or priest belongs
- Reason for the privilege: To preserve the sanctity of the confessional institution - Leyte Asphalt owns a mining company. They sell their products to other countries
- Barton is an agent of Leyte
5. PUBLIC OFFICERS - The transaction initially was for Barton to represent Leyte in Australia and New Zealand
(they were scale of prices for this)
- Q: What are the requisites? - Their relation turned sour when Barton tries to represent Leyte in other countries
- A: - Barton filed an action to claim damages on the ground of breach of contract and asked
1. There must be a confidential official communication for extension of his agency contract
2. Communication was made to a public officer (not 3rd person) - One of the evidence presented by Leyte is a letter written by Barton to his lawyer

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 34

 - In the letter, Barton told his lawyer the profits he obtained from Leyte
- Counsel of Barton did not object initially as long as Leyte will explain how they got the
letter
- Leyte explained that it was given by the previous lawyers of the company without
explanation of the manner how it came to their possession
- TC denied the admission of the letter
- HELD: NOT PRIVILEGED
- Because the letter was in possession of a third person (whether legally or illegally
obtained)
- There is no difference how the adversary acquired possession
- As far as the defendants are concerned, it ceased to be privileged
- The communication is still privileged between Barton and his lawyer
- for even supposing that the letter was within the privilege which protects
communications between attorney and client, this privilege was lost when the letter
came to the hands of the adverse party.
- And it makes no difference how the adversary acquired possession.
- The law protects the client from the effect of disclosures made by him to his attorney
in the confidence of the legal relation, but when such a document, containing
admissions of the client, comes to the hand of a third party, and reaches the adversary,
it is admissible in evidence.
- Wigmore: Since the means of preserving secrecy of communication are entirely in the
client's hands, and since the privilege is a derogation from the general
testimonial duty and should be strictly construed, it would be improper to
extend its prohibition to third persons who obtain knowledge of the
communications. One who overhears the communication, whether with or without
the client's knowledge, is not within the protection of the privilege. The same rule ought
to apply to one who surreptitiously reads or obtains possession of a document in original
or copy.
- Although the precedents are somewhat confusing, the better doctrine is to the effect
that when papers are offered in evidence a court will take no notice of how
they were obtained, whether legally or illegally, properly or improperly; nor
will it form a collateral issue to try that question.
Uy Chico v Union Life Insurance
- Uy Chico inherited the business of his father Uy layco
- He took over the business after he bought his brother’s interest
- A fire razed the bodega. The dry goods were destroyed
- At that time, the business is heavily indebted
- Because of that, the creditors of his father filed a petition for the appointment of
administrator of the estate of Uy Layco
- Uy Chico instructed his lawyer to surrender the insurance policy to the administrator
- Administrator compromised with the insurance company for only ½ of the face value
of the policy
- After the compromise agreement, Uy Chico brings an action against the insurance
company claiming the value of the insurance policies
- He claims that the company must pay him not the estate of the father because the
insurance belongs to him. He said that he is not bound by the compromise agreement
- The insurance company presented Uy Chico’s lawyer. The latter testified that Uy Chico
instructed him to surrender the policies to the estate
- Uy Chico objected on the ground of privilege communication
- HELD: NOT PRIVILEGED
- PRINCIPLE: Communication intended to be made to a third person is not privileged.
Such communication ceased to be privileged
- In this case, the communication was intended to be conveyed to a third person
(administrator)
- He understood that there was a compromise to be effected
- GR: "A lawyer must strictly maintain inviolate the confidence and preserve the secrets
of his client. He shall not be permitted in any court, without the consent of his client,
given in open court, to testify to any facts imparted to him by his client in professional
consultation, or for the purpose of obtaining advice upon legal matters.
- It will be noted that the evidence in question concerned the dealings of the plaintiff's
attorney with a third person. Of the very essence of the veil of secrecy which surrounds
communications made between attorney and client, is that such communications are
not intended for the information of third persons or to be acted upon by them, put of
the purpose of advising the client as to his rights.
- It is evident that a communication made by a client to his attorney for the
express purpose of its being communicated to a third person is essentially
inconsistent with the confidential relation.
- When the attorney has faithfully carried out his instructions be delivering the
communication to the third person for whom it was intended and the latter acts upon
it, it cannot, by any reasoning whatever, be classified in a legal sense as a privileged
communication between the attorney and his client.
- It is plain that such a communication, after reaching the party for whom it
was intended at least, is a communication between the client and a third
person, and that the attorney simply occupies the role of intermediary or
agent.
- The testimony was to the effect that when the attorney delivered the policies to the
administrator, he understood that there was a compromise to be effected, and that
when he informed the plaintiff of the surrender of the policies for that purpose the
plaintiff made no objection whatever.
- The evidence is sufficient to show that the plaintiff acquiesced in the
compromise settlement of the policies. Having agreed to the compromise, he
cannot now disavow it and maintain an action for the recovery of their face value.
Orient Insurance v Revilla
- Teal Motor filed an action against Orient Insurance to recover upon 2 fire insurance
policies
- Orient’s defense was prescription (Because it sent a letter to Teal but Teal failed to file
within 3 months from rejection)
- On the other hand, Teal claims that they did not file an action because Orient told them
that an amicable settlement is possible
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 35
 - According to Teal, their lawyers were the only ones who urged them to file an action - The communications concerned matters within the scope of the employees’ corporate
- Teal presented a portion of a letter containing the fact that their lawyers urged them to duties and the employees themselves were sufficiently aware that they were being
file a case questioned in order that the corporation could obtain legal advice
- Orient moved for the reading of the letter but it was objected by Teal on the ground - Therefore, the communication is covered by atty-client privilege
that it violates atty-client privilege
- TC only allowed the reading of a part of the letter on which Bachrach has testified on Hickman v Taylor (not the same ruling as Upjohn case)
- Orient tried again to have the entire letter be read but it was denied
- Tug boat sank; 5 out of 9 crews died
- Teal claims that the other parts of the letter are privileged because it related to atty’s
- Tug owner retained the services of a lawyer to defend them from potential suits
fees
- Lawyer privately interviewed the survivors and took their statements with an eye to
- HELD: NOT PRIVILEGED
anticipation of future cases
- RULE 1: Once a portion of the letter has been presented, that constitutes waiver.
- Hickman (rep of 1 of the deceased) asked for the records of interviews
Therefore, the entire letter may be presented
- Tug owners admitted that they took the statements of the survivors but claims that
- RULE 2: Contract between a lawyer and client relating to atty’s fees is not privileged
such are privileged because they are obtained in view of an impending litigation
because it does not in any way pertains to the case
- HELD: NOT PRIVILEGED
- Privilege primarily refers to communications from client to atty, an idea of which of
- The protective cloak of the privilege does not extend to information that an atty secures
course includes communications from atty to client relative to privileged matters
from a witness (not from a client) while acting for his client in anticipation of litigation
- Contracts between attys and clients are inherently personal and private matters but
- Unlike in Upjohn, the info was given by the client (although thru the employees)
they are not of privileged nature
- But even supposing that the matter contained in the letter and withheld from the People v Sandiganbayan
inspection of the adversary was originally of a privileged nature, the privilege was
waived by the introduction in evidence of part of the letter - Paredes applied for a free patent over a land. This was approved and a certificate of
title in his name
Upjohn v US - Dir. of lands filed an action to cancel his patent and title because the land had been
reserved as a school sire
- Independent auditors of Upjohn informed the company that its subsidiary made
- TC nullified his patent because he obtained it through fraudulent misrepresentation
payments to foreign government officials to secure business permits
- Sansaet represented Paredes in 3 cases:
- General counsel of Upjohn instructed all their subsidiaries to answer a questionnaire
1. Civil case to nullify his patent
- Based from results, the Internal Revenue Services determined the tax consequences of
2. Perjury case
these transactions. It requires all documents relating to the investigation to be
3. Prelim investigation in Tanodbayan for RA 3019/Graft (using his position to
submitted to the general counsel
influence)
- Upjohn claims that the reports are privileged between atty and client since it is a work
- Criminal case was filed against Paredes in Sandiganbayan but it was dismissed on the
product prepared in anticipation of a litigation
ground of prescription
- ISSUE: WON the reports given to the general counsel considered privileged
- Gelacio sought the investigation of Paredes, Sansaet and Honrada for falsification of
- HELD: YES
public document.
- Privilege exists not only to protect the giving of professional advice but also the giving
- Paredes allegedly falsified a document to support his contention of double jeopardy
of information to the lawyer to enable him to give a sound legal advice
- But Sansaet revealed that it was all Paredes’ idea. He wanted to be discharged as state
- In case of individuals, it is the individual who discloses. But in case of a corporation, the
witness
officers are the one who disclose. Therefore, the communication made by the officers
- Ombudsman denied his request to be discharged as a state witness because his statemt
to a counsel is privileged.
is under the atty client privilege
- The test proposes by the CA frustrate the very purpose of the privilege by discouraging
- HELD: NOT PRIVILEGED
the communication or relevant information by employees of the client corporation to
- Because the testimony of Sansaet relates to a future crime and such is not covered by
attys seeking to render legal advice to the client
atty-client privilege
- Communications at issue were made by petitioner’s employees to counsel for petitioner,
- Q: May a lawyer be required to testify on matters relating to future crime?
acting as such, at the direction of corporate superiors in order to secure legal advice
- A: Yes, because it is not privileged. A lawyer shall not be consulted for a future crime.
from cousel
- Q: May a lawyer be required to testify on matters relating to past crime?
- Information not available from the management was needed to supply a basis for legal
- A: No, because it is privileged.
advice cocncerning compliance with tax laws and potential litigation

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 36

 - A distinction must be made between confidential communications relating to past crimes
already committed, and future crimes intended to be committed, by the client.
- Corollarily, it is admitted that the announced intention of a client to commit a crime is
not included within the confidences which his attorney is bound to respect.
- For the application of the attorney-client privilege, however, the period to be considered
is the date when the privileged communication was made by the client to the attorney
in relation to either a crime committed in the past or with respect to a crime intended
to be committed in the future.
- In other words, if the client seeks his lawyer's advice with respect to a crime that the
former has theretofore committed, he is given the protection of a virtual confessional
seal which the attorney-client privilege declares cannot be broken by the attorney
without the client's consent.
- The same privileged confidentiality, however, does not attach with regard to a crime
which a client intends to commit thereafter or in the future and for purposes of which
he seeks the lawyer's advice.
Lim v CA
- Juan and Nelly Lim are husband and wife
- Husband filed a petition for annulment on the ground that the wife is suffering from
schizophrenia
- During trial, he wanted to subpoena a psychiatrist to testify on his behalf
- The psychiatrist is the head of National Mental Hospital who had been the doctor of the
wife
- Wife moved to quash the subpoena but it was denied
- Wife objected the testimony of the psychiatrist on the ground that it was privileged
(physician-client) since the doctor has diagnosed and treated the wife
- The husband contended that the psychiatrist will be presented as an expert witness
- TC allowed the testimony
- HELD: NOT PRIVILEGED
- REQUISITES IN ORDER THAT THE PRIVILEGE MAY BE SUCCESSFULLY
CLAIMED
a. the privilege is claimed in a civil case;
b. the person against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics;
c. such person acquired the information while he was attending to the patient
in his professional capacity;
d. the information was necessary to enable him to act in that capacity; and 5.
e. the information was confidential, and, if disclosed, would blacken the
reputation (formerly character) of the patient."
- The physician may be considered to be acting in his professional capacity when he
attends to the patient for curative, preventive, or palliative treatment.
- Thus, only disclosures which would have been made to the physician to enable him
"safely and efficaciously to treat his patient" are covered by the privilege.
- It is to be emphasized that "it is the tenor only of the communication that is privileged.
- The mere fact of making a communication, as well as the date of a
consultation and the number of consultations, are therefore not privileged
from disclosure, so long as the subject communicated is not stated."
- Sir: You can ask, “Pumunta ba si Nelly sayo para magpakonsulta? Ilang beses?” But you
cannot ask, “Ano sabi niya sayo nung nagpa check up?”
- the statutory physician-patient privilege is not violated by permitting a physician to
give expert opinion testimony in response to a strictly hypothetical question in a
lawsuit involving the physical mental condition of a patient whom he has attended
professionally, where his opinion is based strictly upon the hypothetical facts stated,
excluding and disregarding any personal professional knowledge he may have
concerning such patient.
- In this case, the witness was not asked on the communication obtained in
the course of her examination, interview or treatment
- the facts and conditions alleged in the hypothetical problem did not refer to and had
no bearing on whatever information or findings the doctor obtained while attending to
the patient.
- Sir: You can ask, “Do you know Nelly? Did she come to you for consultation? How many
times did she consult you” That is not privileged.
Khron v CA
- Edgar and Maria are husband and wife. They had 3 children.
- Their relationship turned sour.
- Maria undergone a psychological test
- Husband filed an action for annulment
- During trial, husband testified on a confidential psychiatric report issued by 2 doctors
who treated Maria
- Such was objected on the ground of physician- patient privilege. Counsel claims that if
the physician is barred from testifying, there is more reason to bar a third party like the
husband
- TC and Ca overruled the objection
- HELD: NOT COVERED BY THE PRIVILEGE
- Q: Who is testifying?
- A: Husband
- Q: Can you disqualify the husband from testifying?
- A: No, because it is not covered by the privilege
- Q: Can you invoke marital disqualification?
- A: No, because the case is between the husband and the wife
- Go back to the requisites enumerated in Lim v CA
1. the privilege is claimed in a civil case;
 Complied
2. the person against whom the privilege is claimed is one duly authorized to practice
medicine, surgery or obstetrics;
 Not complied because the one who is testifying is the husband (not the doctor)
 You can only invoke this privilege against a doctor
3. such person acquired the information while he was attending to the patient in his
professional capacity;
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 37
 4. the information was necessary to enable him to act in that capacity; and 5. the
information was confidential, and, if disclosed, would blacken the reputation
(formerly character) of the patient."
- Allowing the husband to testify will not have the effect of circumventing the prohibition
because his testimony has no force and effect as the testimony the physician
- Sir: You can object his testimony on the ground of hearsay (same with People v Carlos)
RE: FRUIT OF THE POISONOUS TREE
- GR: Evidence is not admissible if obtained illegally by the police/ authorities
- XPN: Evidence came into the hands of a third person
- XPN to the XPN: wife obtained the evidence against his husband (searched the office
drawer of her husband to obtain the love letters)
 Sir: Bat inapply kay Misis eh hindi naman siya pulis? Kasi si Misis ay bulldog. -.-
 Kasi ma chicks din ang mga justices
Banco Filipino v Monetary Board
- The subject of the petition is to set aside the order to produce certain copies, papers
which are claimed to be needed by Banco Filipino for the preparation of its comments,
objections to the Conservator’s report and receiver’s report
- Later on, the case against the bank was dismissed. So, the bank now seeks for damages
- Bank wanted to present the transcript of the deliberation of the Monetary Board in the
closure of the bank in order to bolster its claim
- Central Bank claims that the transcripts are privilege
- HELD: NOT PRIVILEGE
- Q: Who determines WON public interest requires the disclosure?
- A: Court
- This deliberation may be confidential but not necessarily absolute and privileged
- There is no specific provision in the Central Bank Act which prohibits absolutely the
courts from conducting an inquiry on said deliberations when these are relevant or
material to a matter subject of a suit pending before it
- Significantly, it is the bank itself that is interested in obtaining what it considers as
information useful and indispensably needed by it to support its position in the matter
being inquired to by the court below
- The state privilege is intended not for the protection of public officers but for the
protection of public interest. Where there is no public interest that would be prejudiced,
this invoked rule will not be applicable.
- Q: Is the case one of public interest?
- A: No, because Banco Filipino has long been closed
OTHER PRIVILEGED COMMUNICATION
- Q: What are the examples?
- A: Informants/ assets of the police
ADMISSIONS AND CONFESSIONS
SEC 26
- Section 26. Admission of a party: The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him
- Q: what kind of act, declaration or omission?
- A: Refers to extrajudicial act, declaration or omission. It is done not in the course of a
judicial proceeding
- Q: Why do we say that it refers to extrajudicial act, declaration or omission?
- A: Because of the phrase “may be given in evidence”
- Classification of admission:
1. Judicial –
- it is not necessary to give it in evidence.
- This is one of the things that need not be proved
- Q: What are those need not be provedA:
1. those the court may take judicial notice of
2. judicial admission
3. presumptions
- Note: when the pleading is amended and the new pleading don’t
contain previous admissions, it ceased to be a judicial admission. In
which case, you must present it in evidence. Present the original
pleading that ceased to be a pleading
2. Extrajudicial
- Q: What kind of admission by act, declaration, or omission may be given in evidence?
- A: Admissible only of those act, declaration or omission are not favorable to the party
making it. It is against the interest of the person who made it
- If it is in favor of the person giving it, it is not admissible.
- Q: How do we classify such which are in favor of the person giving it?
- A: Self serving
- Q: Who is the brightest in this class?
- A says, “I am the brightest” -> not Admissible in evidence (because it is sel serving. It
is hearsay.
- But if A says, “I am not the brightest” -> Admissible in evidence
- Q: What is self-serving evidence?
- A: Those which are favorable to the party making it. It is not admissible because of its
hearsay character. Further, a man is believed if he says something adverse to him but
not if he advocates his own interest.
- Reason: No one will say something against his interest. Kaya pinapaniwalaan siya.
- Admissions can either be judicial or extrajudicial.
- If extrajudicial, you have to prove that ha.
- Q: I heard A say that he is the brightest. Can I testify in court?
- A: Yes, but that can be objected on the ground that it is self-serving. He cannot be
cross examined because his knowledge is only based on what he heard from A saying
that he is the brightest. He has no personal knowledge. In this case, the fact in issue is
known to A but not to the one testifying (This is the rule if it is extrajudicial)
- If A himself said in the court room that he is the brightest, that becomes admissible.
That is not self-serving technically. It is no longer hearsay. He can now be cross
examined.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 38
- If A declares in court: “I am not the son of X.” in a case where paternity is in issue.
Such is a judicial admission. No need to prove.
- Q: What is evidence?
- A: Where parties prove their factual allegations in the complaint. They are proving the
ultimate facts constituting a party’s cause of action or defense.
- Every ordinary action must have a cause of action. Cause of action involves: 1. Rght 2.
Wrong 3. Delict or wrong. Therefore, you must prove it.
- On the other hand, failure to state a cause of action is a ground for MTD.
- The determination of WON there is a cause of action must be based on the allegations
in the complaint.
- Ex. You are filing an action for recovery of ownership (reconveyance). But you declare
in your allegation that you are a tenant only. Therefore, you have no cause of action
because you are not a real party in interest in an action for reconveyance. Inamin mong
di ka owner eh.
- Formal v Informal Judicial Admissions
1. Formal- those made in writing
2. Informal- those made orally
- Extrajudicial admission can be classified into two:
1. Express
 Those made in a definite, certain and unequivocal language
2. Implied
 Those inferred only from the act, conduct, declaration or omission of a
party
 Implied admission are subject by special rules
 Ex. Admission by silence, offer to compromise, laches
 Q: What is the effect of laches
 A: It is unreasonable delay in prosecution of suits (civil or criminal). It
implies lack of merit because a person who is aggrieved will not waste
time to seek relief
 *Implied admission is subject to explanation
 Ex. Matagal ka nang di nag ffile. You explain na tinatakot ka kasi.
 Flight and concealment (guilty man flee even if no one
pursues him)
 If you escape after something happens, pagduduhan ka talaga
 But you must explain your side. Natakot ka kasi baka bubugbugin ka ng
kamag anak nung biktima
 Efforts to have a criminal case dropped through the help of relatives or
various influential people are strong indication of guilt (An innocent
depends on the strength of his case)
 Influencing the witnesses not to say this or that, is an implied admission
by a party making it that he has no strong case. Unless, it is not
necessary for him to influence the witness. It is a strong indication of
guilt
 But you still need to explain.
 Ex. Personal injury case.
 Plaintiff does not want to submit himself to physical
examination
 He is declining to produce the best evidence possible
 It gives rise to an adverse inference
 Wala ka sigurong injury. Arte ka lang.
- Remember that an implied admission is not absolute. It is subject to explanation.
ADMISSION BY SILENCE
SEC 32
- An act or declaration made in the presence and within the hearing or observation of a
party who does or says nothing when the act or declaration is such as naturally to call
for action or comment if not true, and when proper and possible for him to do so, may
be given in evidence against him.
- It is a tacit consent if you keep silent when you are confronted with it.
- Ex. Sinabihan ka: Hoy, marami kang chicks! Tapos di ka kumibo.
- Q: What are the elements for silence to be admissible?
- A:
1. Declaration/ statement was heard and understood by the party
2. There was opportunity to deny it
XPNS:
 Where the proceeding does not give you a chance to deny (hindi mo pa
turn mag salita during an official investigation, baka ma-contempt ka
pa)
 Where you are invoking your right to remain silent/ right against self-
incrimination
 You were advised by your counsel not to speak (counsel is protecting
your constitutional right)
3. The statement refers to matters affecting his rights
4. The facts are within the knowledge of the party
5. The facts are material to the issue of the case
OFFER OF COMPROMISE
SEC 27
- Offer of compromise may also be considered as an admission. But there are rules to be
observed.
- In civil cases, an offer of compromise is not an admission of any liability, and is not
admissible in evidence against the offeror.
- In criminal cases, except those involving quasi-offenses (criminal negligence) or those
allowed by law to be compromised, an offer of compromised by the accused may be
received in evidence as an implied admission of guilt.
 GR: admissible in evidence as an implied admission of guilt.
 XPN: Quasi offenses or those allowed by law to be compromised
- ex. Binangga mo yung tao and you offered to compromise even if it is not
your fault. Naawa ka lang. Without this XPN, no one will help the victim.
Everyone will be cautious that his act may be taken as an admission of guilt.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 39
 - 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.
- *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.
 Offer to pay medical expenses only ha. If you are offering more than that, ibang
usapan na yan
- Q: What are those allowed by law to be compromised?
- A:
1. In rape cases, may offer marriage
2. Katarungang Pambarangay Law cases
 Civil cases and some criminal cases that pass through barangay conciliation
 GR: Criminal cases do not undergo brgy conciliation
 XPN: Where the penalty does not exceed 1 year or a fine not 5k (if nag exceed
na, you don’t have to go through brgy conciliation
 *BP 29 cases can be compromised because the penalty is only 1 year
 Case is dismissible if you don’t undergo barangay conciliation
 XPN to the XPN: where the accused is under preventive suspension (kung nag
brgy conciliation ka pa, kawawa naman yung naka kulong)
3. Tax cases
 CIR has the authority to compromise
4. Other cases allowed by RPC to be compromised. Bahala na kayo maghanap.
- Sec 27 is within the concept of implied admission
ADMISSION BY THIRD PARTY
SEC 28
- Q: What is the res inter alios acta rule?
- A: The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
- GR: the act, declaration, omission is only admissible against the declarant. It is not
admissible against a third person.
- Ex. X told A, “I killed B.” Can A testify later on? Yes, that is admissible against X (because
the declaration of X is against his own interest)
- However, If X told A, “I killed B. Kasama ko sila Y and Z.” Can A testify that X killed A
and with him are his co conspirators, Y and Z? It is is admissible against the declarant
X. But that is not admissible against the third parties (Y and Z). the act, declaration,
omission is only admissible against the declarant and not against his co conspirators
- Reason: Such is hearsay. How can the third person cross examine A if the one who
has personal knowledge is not the one testifying in court?
- XPN:
1. Sec 29 (Admission by co-partner or agent)
2. Sec 30 (Admission by conspirator.)
3. Sec 31 (Admission by privies)
- Q: If the one who committed the act or omission testifies in court that he did or did
not do it.
- A: That is judicial admission. You don’t need to give or present it in evidence. Sinabi
niya na eh.
- *PREMISE: Remember that under this rule, we are referring to extrajudicial admission.
The testimony is given not be the declarant.
- Under our topic, the testimony is given by a person other than the declarant.
XPN 1: THERE IS PARTNERSHIP, AGENCY
- Section 29. Admission by co-partner or agent. — The act or declaration of a partner
or agent of the party within the scope of his authority and during the existence of the
partnership or agency, may be given in evidence against such party after the
partnership or agency is shown by evidence other than such act or declaration. The
same rule applies to the act or declaration of a joint owner, joint debtor, or other person
jointly interested with the party
- Q: When may an admission of a partner may be received in evidence against a co
partner?
- A: Admissible when the following requisites concur:
1. Partnership must be established by an independent evidence (evidence
independent of the act, declaration or omission)
2. Statement made by a partner must refer to matters within the scope of
the partnership or within the scope of his authority
3. Statement was made during the existence of the partnership
 If tapos na ang partnership, wala nang bias yan.
- Q: When is an admission by the agent be received in evidence against the principal?
- A:
1. The agency must be established by evidence independent of the act,
declaration or omission
2. The statement of the agent refer to matters within the scope of the agency
3. The statement was made during the existence of the agency
- Ex. Agent goes to you offering a parcel of land. Saying: the price is this etx.
- Q: Are those admissions by the agent binding upon the principal?
- A: Yes, provided the requirements above are complied.
- Q: What is the extent of the application of the rule on agency?
- A: It applies to relationship between:
1. atty and client in all matters concerning the management case or litigation
- Kung ano man sabihin ng abogado mo, bound ka.
2. husband and wife on all matters involving their community/conjugal property
- Under FC, both husband and wife are administrators
3. A party who expressly refers a person to a third person for a statement on
any particular subject
- Spokesman of the sikat
- Q: If nag admit ang counsel mo, are you (as his client) bound by the admission?
- A: Yes
- The same rule applies to the act or declaration of a joint owner, joint debtor, or other
person jointly interested with the party
- Q: What are the requisites for the act or declaration of a joint owner, joint debtor, or
other person jointly interested with the party be admissible
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 40
 - A:
1. The joint interest must be established by evidence independent of the act,
declaration or omission
2. The statement of the agent refer to matters within the scope of the joint
interest
3. The statement was made during the existence of the joint interest
- Q: what kind of interest is contemplated by this rule?
- A: In solidum
- Ex. principal and surety relation
- But this does not include the acts of joint tort feasors
XPN 2: THERE IS CONSIPIRACY
- Section 30. Admission by conspirator. — The act or declaration of a conspirator
relating to the conspiracy and during its existence, may be given in evidence against
the co-conspirator after the conspiracy is shown by evidence other than such act of
declaration
- Facts: A, B and C killed X. There is conspiracy. Is that already within the XPN?
- It depends. See the requirements below.
- Q: When is the admission by a conspirator receivable in evidence against his co-
conspirator?
- A:
1. Conspiracy must be established by evidence independent of the act,
declaration or omission of one of the co-conspirator
2. The statement must refer to the purpose or object of the conspiracy
3. The statement was made during the existence of the conspiracy
XPN 3: THERE IS PRIVITY
- Section 31. Admission by privies. — Where one derives title to property from another,
the act, declaration, or omission of the latter, while holding the title, in relation to the
property, is evidence against the former
- This rule refers to all kinds of properties (real or personal)
- *This rule simple means that the act, declaration or omission of the predecessor in
interest with respect to the title while holding the title in relation to the property is
admissible against the successor in interest
- Q: What kind of privity is contemplated by this rule?
- A: Includes both privity of acts Inter vivos and mortis causa
Ormachea v Trillana
- This involves partnership
- Defendant made several vales (advances/utang) which he was unable to pay until the
dissolution of partnership
- The debt was assigned to plaintiff after the dissolution
- Plaintiff brought an action saying that the debt is not yet paid
- Defendant presented a letter from managing partner which states that he has no debt
or whatsoever when the partnership was dissolved
- HELD: NOT ADMISSBLE
- Because the letter was made by Lopez two years after he resigned as the managing
partner
- After the close of the business of the distillery owned by Ormachea and Vizmanos, and
after Lawa (general manager) had ceased for two years to act in the administration and
management thereof, he was not authorized to sign the document marked "A," made
out by the debtor, by which the credit of Ormachea should be considered as settled,
and the obligation contracted by Santiago Trillana, as shown by the vales which appear
in the record, extinguished.
- Go back to the requisites to determine if admissible or not
People v Alegre
- Adelina was strangled to death
- No witness saw the commission of the crime
- Alegre was renting a room on the ground floor of Adelina’s wife
- Cudillan was apprehended after he pawned a jewelry belonging to Adelina
- Cudillan made an extrajudicial confession where he implicated other co-conspirators
- On the basis of his statement, an information of robber with homicide was filed
- They all pleaded not guilty
- The only evidence presented by the prosecution were the Testimony of:
1. Isla -> Cudillan pointed at the appellants as his coconspirators. But they
remained there standing. They did not deny Cudillan’s statement
- Appellants contend that the extrajudicial admission of Cudillian is inadmissible against
them and that their silence
- HELD: extrajudicial confession of Cudilla is not admissible against the co
accused
- RE: SILENCE
- They have the right to remain silent and right against self incrimination (constitutional
right)
- The settled rule is that the silence of an accused in criminal cases, meaning his failure
or refusal to testify, may not be taken as evidence against him, 4 and that he may refuse
to answer an incriminating question. 5 It has also been held that while an accused is
under custody, his silence may not be taken as evidence against him as he has a right
to remain silent; his silence when in custody may not be used as evidence against him,
otherwise, his right of silence would be illusory. 6 The leading case of Miranda v. Arizona
7
held that the prosecution may not use at trial the fact that an individual stood mute,
or claimed his privilege against self-incrimination, in the face of an accusation made at
a police custodial interrogation.
- RE: EXTRAJUDICIAL CONFESSION OF CUDILLA
- The extrajudicial confessions of Melecio Cudillan,on the basis of which the trial court
was able to reconstruct how Melecio Cudillan committed the crime in question, cannot
be used as evidence and are not competent proof against appellants Ramiro Alegre and
Jesus Medalla, under the principle of "res inter alios acta alteri nocere non debet" there
being no independent evidence of conspiracy.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 41
 - As a general rule, the extrajudicial declaration of an accused, although deliberately
made, is not admissible and does not have probative value against his co- accused. It
is merely hearsay evidence as far as the other accused are concerned.
- In this case, only the extrajudicial confession is being presented without Cudilla being
put on the witness stand
People v Raquel
- The victim answered a backdoor call
- When he opened the door, armed men came in and declared holdup and fired towards
him. Victim also fired his gun (nanlaban pa.)
- His wife went down and found his lifeless body
- Then, he saw a man who took his husband’s gun and hurriedly left
- Police came and saw an accused (Ponce) injured near the house of the victim
- Ponce named the other the perpetrators including the Raquel brothers
- Ponce pointed his co conspirators (as stated in his extrajudicial statement)
- HELD: EXTRAJUDICIAL ADMISISON IS NOT ADMISSIBLE
- The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another. An extrajudicial confession is binding only upon the
confessant and is not admissible against his co-accused. The reason for the rule is that,
on a principle of good faith and mutual convenience, a man's own acts are binding upon
himself, and are evidence against him. So are his conduct and declarations. Yet it would
not only be rightly inconvenient, but also manifestly unjust, that a man should be bound
by the acts of mere unauthorized strangers; and if a party ought not to be bound by
the acts of strangers, neither ought their acts or conduct be used as evidence against
him
- except for that extrajudicial statement of accused Amado Ponce, there exists no
evidence whatsoever linking appellants to the crime
- this extrajudicial statement, ironically relied upon as prosecution evidence, was made
in violation of the constitutional rights of accused Amado Ponce since it was done
without assistance of a counsel.
- While the right to counsel may be waived, the waiver must be with the assistance of a
counsel
- Q: Why is the extrajudicial confession of an accused not admissible against his co
accused?
- A: because if the accused did not have any opportunity to cross examine his co accused
on matters relating to latter’s extrajudicial statement, then the same is considered as
hearsay.
- Unless, the declarant repeat his statements in his extrajudicial confession in open court,
dun pa lang mag iiba ang Sistema diyan
People v Serrano (distinguished from People v Raquel)
- Serrano convinced other co accused that Navarro has been prompting people to testify
on a massacre
- Serrano wants to do away with Navarro
- Eulogio and others waited for Navarro in Bacolor and killed him in Dolores
- Guevarra was also killed and put the two in a same pit
- One of the accused, Reyes was discharged as a state witness.
- All of the Accused were found guilty
- Only 3 of the accused appealed
- They claim that in order for the testimony of Reyes may be admitted against his co-
conspirators, it must appear and shown by evidence other than the admission itself that
the conspiracy actually existed
- According to them, since there is nothing other than the testimony of Reyes, conspiracy
is not properly proven
- HELD: TESTIMONY OF REYES IS ADMISSIBLE
- This is no longer extrajudicial. This is already a judicial admission
- The contention does not merit serious consideration, because the rule that
"The act or declaration of a conspirator relating to the conspiracy and during
its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration,"1 applies
only to extra-judicial acts or declaration, but not to testimony given on the
stand at the trial,2 where the defendant has the opportunity to cross-
examine the declarant.
- If the declarant himself is put on the witness stand, don’t consider the requisites to
determine WON it is admissible. No longer hearsay. There is no violation of due process
anymore since the declarant can now be cross examined
- Remember, the res inter alios acta rule (Sec 26) only applies to extrajudicial confession
where there is no opportunity to cross examine the declarant
People v Cabrera
- Policemen received instruction from their superior to proceed to the hospital to
investigate an abandoned person (dela Cruz) who suffered from stab wounds
- Dela cruz made an ante mortem statement saying that Cabrera was the one who hired
his jeep and robbed him. According to him, he did not know the other 4 assailants who
stabbed him and took his jeep
- Cabrera was apprehended and she made an extrajudicial confession naming Villanueva
as the master mind of the crime
- Defendant did not take the witness stand
- The two were prosecuted
- ISSUE: Is the testimony of Cabrera admissible against Villanueva
- HELD: NOT ADMISSIBLE AGAINST VILLANUEVA
- The extrajudicial statement of accused Cabrera does point to appellant as the
mastermind and perpetrator, together with two persons whose identities are still
unknown, of the killing of the deceased Luis dela Cruz and the taking of the jeep he
was driving. But said statement is obviously inadmissible against appellant, who made
timely objection thereto.
- There is no question that Cabrera's inculpatory statements were made by her during
the investigation conducted by the Valenzuela police on January 20, 1972, two days
after the date of the incident in question. For this reason alone, that is, that said
statement was not made during the existence of the alleged conspiracy
between her and appellant, but after said supposed conspiracy had already
ceased and when she was already in the hands of the authorities (at that
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 42
 point, whatever statement she gave to the police cannot be considered as an
XPN to the res inter alios acta rule)
- Go back to the requisites.
People v Yatco
- There were 3 accused (Consunji, Panganiban and John Doe) for having conspired in the
murder of Ramos
- One of the prosecution witness was Javier (from the NBI). He was testifying on the
extrajudicial confession of Consunji implicating his co-conspirators
- The counsel of Panganiban opposed on the ground that it was hearsay. Therefore,
incompetent against Panganiban
- TC ordered the exclusion of the confession of Consunji
- HELD: EXTRAJUDICIAL CONFESSION OF CONSUNJI NOT PROPERLY
EXCLUDED
- It was only inadmissible against Panganiban but admissible against the confessant. It
was erroneous for TC to altogether exclude it.
- Furthermore, the admission was not yet formally offered in evidence
- You can only object after it was formally offered in evidence
- RE: MULTIPLE ADMISSIBILITY OF EVIDENCE
o Evidence may be admitted for different purposes
o In this case, the evidence is only objectionable against Panganiban. It is a
competent evidence against the declarant
People v Chaw Yun Shun
- Crisostomo was tasked to apprehend dollar smugglers
- He was shot dead.
- A check was found in the crime scene in the name of Alvarez
- Alvarez was questioned. He admitted that he shot Crisostomo.
- The next day, he executed a writing saying that a certain Johnny shot Crisostomo
- On the same day, he made another statement repeating his first narration that Johnny
shot Crisostomo
- On the third day, he now admits that he killed Crisostomo. He was with Chaw Yaw Shun
(aka George Chua), who is the mastermind. He was just the triggerman
- A case was filed against all of them
- George was investigated. He made statements with the police. But the police does not
believe him so they destroyed his statements
- George was taken to Alabang where he was investigated in from of CIS agents
- George then made a statement saying that he ordered the killing of Crisostomo (Siguro
tinorture siya)
- HELD: NOT ADMISSIBLE
- Rule: For the declaration of a co-conspirator to be admissible against his co
conspirators, the conspiracy must be proved by independent evidence in order to be
excluded in the res inter alios acta rule
- The finding of the court that there was conspiracy among the accused, notwithstanding
the fact that on the same evidence, the court found one defendant not guilty, but
sufficient to convict the two others, on the court's finding and conclusion "As regards
the testimony of Arturo Cayetano, the court is inclined to give a margin of error in his
identifying Carasig on the night in question . . .," is indeed, somewhat illogical —
- conspiracy must be proved by independent evidence other than the
confession. The admissibility of a confession by one accused against the
other in the same case, must relate to statements made by one conspirator
during the pendency of the unlawful enterprise (or during its existence) and
in furtherance of its objects, and not to a confession made, as in this case,
long after the conspiracy had been brought to an end.
- Conspiracy must be real and not presumptive.
- It must be proved as the crime itself, independent from the confession.
- But in the case at bar, the trial court admitted the conflicting confession of Alvarez
which are not binding on the appellant for being hearsay, aside from having been
repudiated by Alvarez himself during the trial. There is, therefore, no inter-locking
confession so to say, for there being no independent evidence establishing an overt act
of appellant Chua connected to the crime, conspiracy must necessarily be discarded.
Alpuerto v Pastor
- Alpuerto and Pastor are both claiming ownership over 3 parcels of land
- Alpuerto based his claim on a deed of sale
- Pastor based his claim on a public sale
- ALpuerto claims that by reason of contract of sale, he acquired title to the land with the
right to repurchase
- Pastor claims that the transaction with ALpuerto is simulated
- ISSUE: Is the execution of contract of sale with pacto de retro by the former owner an
act declaring that he sold the land to Alpuerto binding upon Pastor
- HELD: YES. BUT PASTOR STILL WINS
- it is clear that Jose Perez Pastor, the purchaser at the public sale under an execution
directed against Juan Llenos, must be considered a privy or successor in interest of the
execution debtor.
- He is therefore undoubtedly bound by the instrument which conveyed the property to
Eladio Alpuerto — and this from the date of the execution of that instrument as a private
document
- Nonetheless, the sale was one in fraud of creditors
*City of Manila v Del Rosario
- Case filed by City of Manila against Del Rosario over a certain property
- Brother of DR acquired the lots from Rocco. Then, Brother sold it to DR
- City wants to recover the land claiming that it owns it
- City traced its title from the admissions from the brother:
1. Letter by brother addressed to Mayor of Manila
2. Letter by brother addressed to City Board
- Both letters contain offer of brother to buy the land in question
- Brother was called to the witness stand and admitted the authenticity of the letters and
his offer
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 43
 - Brother explained that he wrote the letter because he thought that the City owned it.
Later, he found out that Rocco owns it so he went to Rocco and made the offer to the
latter.
- ISSUE: are the 2 letters of the previous owner (brother) are admissible in evidence to
show that the owner of the property is the City
- HELD: NOT ADMISSIBLE
- Because those offers are made when brother was not yet the owner
- To be admissible under the rules concerning privy, the act or declaration must be made
while holding title to the property
- In this case, he was not yet the owner
- whatever statements Lorenzo del Rosario might have made in the documents
mentioned, they are not binding upon the defendant, because, under section 278 of
the Code of Civil Procedure, "where one derives title to real property from another, the
declaration, act, or omission of the latter, in relation to the property, is evidence against
the former only when made while the latter holds the title."
- On the other hand, the second letter was made after he had transferred the property
to DR. Therefore, he is no longer the owner. Same rule as above. The second letter
does not bind DR.
CONFESSION
- Q: Is there a distinction between a confession and an admission?
- A:
- Section 33. Confession. — The 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.
- Q: What kind of confession is this?
- A: extrajudicial because the acknowledgement of guilt “may be given in evidence”.
Implication: he did not give it during the trial. It was done
- If judicial, that is already considered plea of guilty.
- The one testifying here is one other than the declarant
- Ex. Sinabi mo sa kaibigan mo na pinatay mo si A. The friend can testify
- If sinabi mo sa asawa mon a pinatay mo si A. Can she testify? No. Although relevant, it
is incompetent due to marital disqualification and marital privilege. (People v Carlos)
- Suppose, you confessed to a policeman.
- Supposed, you confessed to a third person not a policeman.
- If a third person not a policeman, made a search. -> Admissible. Illegal search and
seizure can only be invoked against the state. (XPN: If the wife made the search ->
inadmissible pa din because a wife is worse than the police  )
- Miranda doctrine:
 If you are not informed of your rights, your confession is not admissible
 If you are informed of your rights but you are not assisted by a counsel, still
note admissible
 Waiver of your right to counsel must be also with the assistance of a counsel
- Confession is admissible if it is voluntary
CONSTITUTIONAL REQUIREMENT
People v Endino
- Accused allowed himself to be interviewed by the press
- He admitted having committed the offense
- HELD: ADMISSIBLE
- Admissible because it was not done with the police but with the press
- The interview was recorded on video and it showed accused-appellant unburdening his
guilt willingly, openly and publicly in the presence of newsmen.
- Such confession does not form part of custodial investigation as it was not given to
police officers but to media men in an attempt to elicit sympathy and forgiveness from
the public.
- Besides, if he had indeed been forced into confessing, he could have easily sought
succor from the newsmen who, in all likelihood, would have been symphatetic with him
- As the trial court stated in its Decision13:
- Furthermore, accused, in his TV interview (Exh. H), freely admitted that he had stabbed
Dennis Aquino, and that Edward Endino had shot him (Aquino). There is no showing
that the interview of accused was coerced or against his will. Hence, there is basis to
accept the truth of his statements therein.
- CAVEAT!
- However, because of the inherent danger in the use of television as a medium for
admitting one's guilt, and the recurrence of this phenomenon in several cases, it is
prudent that trial courts are reminded that extreme caution must be taken in further
admitting similar confessions.
- For in all probability, the police, with the connivance of unscrupulous media
practitioners, may attempt to legitimize coerced extrajudicial confessions and place
them beyond the exclusionary rule by having an accused admit an offense on television.
- Such a situation would be detrimental to the guaranteed rights of the accused and thus
imperil our criminal justice system
- We do not suggest that videotaped confessions given before media men by an accused
with the knowledge of and in the presence of police officers are impermissible.
- Indeed, the line between proper and invalid police techniques and conduct is a difficult
one to draw, particularly in cases such as this where it is essential to make sharp
judgments in determining whether a confession was given under coercive physical or
psychological atmosphere.
- *Miranda Doctrine only applies to the police (not to private individuals)
*People v Marra
- Accused Mara was convicted of murder
- SPO3 received a report about a shooting incident
- They were informed that the man who killed the victim was wearing a polo shirt
similar to a security guard’s uniform
- When they saw a guard of a bus company wearing uniform, the police asked if he
saw anything unusual in the vicinity
- The guard said that he saw another guard of Linda’s ihaw ihaw chasing two men.
He pointed to Mara, eating in the carinderia as the guard he saw.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 44
- According to Mara, he left his firearm in his house
- They proceeded to his house and handed it to the police.
- The gun still smells gun powder
- Police asked him why he shot the deceased victim
- Mara denied it but when the police told him that someone saw him shoot the
victim, Mara admitted that he shot the victim because of self testimony
- The testimony of the police pertaining to such conversation with Mara was
objected to on the ground that Mara was not Mirandanized (he was not informed
of his rights). It was a confession obtained under custodial investigation without
assistance of counsel
- HELD: CONFESSION IS ADMISSIBLE
- The critical inquiry then is whether or not Marra was under custodial investigation
when he admitted the killing but invoked self-defense. We believe that he was not
so situated. He was not yet under CI
- In the case at bar, appellant was not under custodial investigation when he made
the admission. There was no coercion whatsoever to compel him to make such a
statement. Indeed, he could have refused to answer questions from the very start
when the policemen requested that they all go to his residence. The police inquiry
had not yet reached a level wherein they considered him as a particular suspect.
They were just probing into a number of possibilities, having been merely informed
that the suspect was wearing what could be a security guard's uniform.
- Custodial investigation involves any questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way. It is only after the investigation ceases
to be a general inquiry into an unsolved crime and begins to focus on a particular
suspect,the suspect is taken into custody, and the police carries out a process of
interrogations that lends itself to eliciting incriminating statements that the rule
begins to operate
- the testimony of Sgt. de Vera assumes a dominant dimension because it totally
destroys the defense of denial cum alibi subsequently raised by appellant. In his
answers to Sgt. De Vera, appellant expressly admitted that he shot Tandoc, albeit
with an exculpatory explanation. This admission of Marra is in complete contrast
to the statements he later made in open court.
- In addition, the law provides that the 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 and, in certain circumstances, this admission may
be considered as part of the res gestae
- When he admitted the killing, Marra was not yet under CI. It was just a
general inquiry. He is not yet made a suspect
- Admissible even hearsay under res gestae (You said it immediately after a startling
occurrence)
- GR: Res inter alios acta
- XPN:
o Sec 29 (Admission by co-partner or agent)
o Sec 30 (Admission by conspirator.)
o Sec 31 (Admission by privies)
o Interlocking confession (XPN by jurisprudence)
- Q: What is interlocking confession?
- A: When the conspirators make their own confessions and it is the same on
material points. While confession of one is inadmissible against the other, but if
taken together one can be used against the other to corroborate the other.
Interlocking sila. Pareho ang kwento niyo
- Even if it is extrajudicial, under the interlocking confession rule, it is considered as
corroborating evidence
- People v Sumayo
o A taxi driver was robbed and killed for a measly sum of money
o Group of persons who were drunk decided to do the crime
o HELD:
o Contrary to their contention, the extrajudicial confessions of the accused
were executed voluntary. They are admissible as corroborative evidence
on the ground of interlocking confessions
o They are guilty even if they are just planning to rob the taxi driver
- Q: What is the probative value of confession?
- A: it depends whether the confession is judicial or extrajudicial
- Judicial (like a plea of guilt) is in law and in fact evidence of guilt. Conclusive upon a
court and sufficient to sustain a judgment of conviction
- Extrajudicial is not sufficient to sustain a conviction unless corroborated by evidence of
corpus delicti
- Q: What is corpus delicti?
- A: It means actual commission of the crime charged. It also means the specific fact of
loss or injury. It is the body of the crime.
- 2 elements of corpus delicti
1. That certain results were produced
2. That someone is criminally responsible
- Ex. the corpus delicti in murder is the cadaver (It is the fact of death)
- The corpus delicti in theft or robbery is the fact of loss
- In arson - burning
- But you can also prove it by circumstantial evidence
- Q: Where a crime charged is extrajudicially confessed and the corpus delicti was duly
proved, is it necessary for the prosecution to further show by independent evidence the
criminal connection of the accused to the crime charged?
- A: No longer necessary. The link is furnished by the extrajudicial confession. Otherwise,
the latter will become useless if you will need corroborating evidence.
- Q: If the crime charged is complex and it is extrajudicially confessed, is it required that
the confession be corroborated by the corpus delicti of both or all elements of the
complex crime?
- A: No. It is enough that the corpus delicit of one component offense is proved
PREVIOUS CONDUCT
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 45
 - Another form of res inter alios acta (part 2)
- Section 34. Similar acts as evidence. — 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.
- Res inter alios acta part 2 means that If a person did or did not do an act before, it
doesn’t mean that it could be an evidence that he did this another offense that he is
being charged now
- Ex. Nagnakaw siya before. Ngayon nagnakaw siya ulit. Ibig sabihin ba na yung proof
na nag nakaw siya dati ay proof din na nag nakaw siya ulit ngayon? Hindi ah.
- GR: Just because he did that, does not mean that he also did this
- XPN: However, you can show that to prove plan, system, scheme, habit, custom or
usage, and the like
- Ex. serial killers who only slits the throat
US People v Evangelista
- He was charged of arson made in June 2
- Witnesses were presented to show that 3 days before, an alarm for fire was made in
the adjacent building burned in May 31
- Evidence relating to the fire on May 31 was objected to on the ground that it does not
relate to the crime charged (june 2 fire)
- HELD: ADMISSIBLE
- While it was not the fire charged in the information, and does not by any means amount
to direct evidence against the accused, it was competent to prove the intent of the
accused in setting the fire which was charged in the information.
- In People vs. Shainwold (51 Ca., 468), the court said: On a trial for arson, the
prosecution may prove that the prisoner had attempted to set fire to the house on a
day previous to the burning alleged in the indictment, for the purpose of showing the
intent of the prisoner in subsequently setting fire to the house.
US v Pineda
- Accused was charged of violation of pharmacy law
- Plaintiff went to the pharmacy of the defendant to buy potassium chlorate
- But the accused gave him barium chlorate which was erroneously labeled
- The horses of the plaintiff died because of poisoning
- The chemists went to the pharmacy to buy potassium chlorate. They examined it, it
was indeed barium chlorate.
- The chemists testified for the plaintiff
- Accused claims that the lower court erred in admitting the testimony of the chemist
Pena and Darjuan as to their purchase of potassium chlorate at the drug store of the
accused, which substance proved on analysis to be barium chlorate.
- HELD: ADMISSIBLE
- What the appellant is here relying on is the maxim res inter alios acta.
- As a general rule, the evidence of other offenses committed by a defendant
is inadmissible.
- But appellant has confused this maxim and this rule with certain exceptions
thereto.
- The effort is not to convict the accused of a second offense. Nor is there an attempt to
draw the mind away from the point at issue and thus to prejudice defendant’s case.
The purpose is to ascertain defendant’s knowledge and intent, and to fix his negligence.
- If the defendant has on more than one occasion performed similar acts,
accident in good faith is possibly excluded, negligence is intensified, and
fraudulent intent may even be established. It has been said that there is no
better evidence of negligence than the frequency of accidents.
People v Lira
- Victim was robbed and killed by a man who has white stripes on his face
- Neighbor of the victim also claims that she was robbed and assaulted by the same man
on that night
- HELD:
- While evidence of another crime is inadmissible as a rule, it is admissible when it is
otherwise relevant where it tends to identify the perpetrator or his presence on the
vicinity when the crime was done.
People v Abulencia
- Radio commentator of DZMM testified that Abulencia admitted that he raped Rubelyn
in a radio interview
- HELD:
- It bears stressing that appellant admitted having raped Rebelyn when he was
interviewed by Dennis Mojares, a radio commentator of Bombo Radio. Mojares'
testimony lends support to our conclusion.
- We have held that "a confession to a radio reporter is admissible where it was not
shown that said reporter was acting for the police or that the interview was conducted
under circumstances where it is apparent that the suspect confessed to the killing out
of fear."
*People v Maqueda
- Accused Maqueda filed an application for bail and ask the fiscal to make him a state
witness because he is the least guilty in the case
- The prosecutor talked to Maqueda regarding his statement. He asked him if he is with
a certain personw hen robbery was committed. He revealed it to the prosecutor
- ISSUE: Was the revelation with the prosecutor admissible in evidence
- HELD: YES
- The prosecutor is considered a private person (not a police)
- The extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa
are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily
and freely made them to Prosecutor Zarate not in the course of an investigation, but in
connection with Maqueda's plea to be utilized as a state witness; and as to the other
admission, it was given to a private person. The provisions of the Bill of Rights are
primarily limitations on government, declaring the rights that exist without
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 46
 governmental grant, that may not be taken away by government and that government
has the duty to protect. or restrictions on the power of government found "not in the
particular specific types of action prohibited, but in the general principle that keeps alive
in the public mind the doctrine that governmental power is not unlimited.'' They are the
fundamental safeguards against aggressions of arbitrary power, or state tyranny and
abuse of authority. In laying down the principles of the government and fundamental
liberties of the people, the Constitution did not govern the relationships between
individuals
People v Godoy
- Godoy was charged with rape and kidnapping
- Victim alleged that she was raped in a boarding house then repeat in a local inn
- She said that she was unable to escape the accused because she was threatened
- On the part of the accused, he claims that victim was a crazy lover obsessed with him
(she was a consenting party)
- He adduced evidence that they are in a relationship. She was not forced or threated. It
was even the victim who was obsessed with him
- Godoy’s mother gave the victim and her family 30k. There was even an alleged offer of
marriage
- HELD: OFFER OF COMPROMISE NOT ADMISSIBLE
- Because it was the mother and not the accused who offered a compromise
- where the accused was not present at the time the offer for monetary consideration
was made, such offer of compromise would not save the day for the prosecution.
- no implied admission can be drawn from the efforts to arrive at a settlement outside
the court, where the accused did not take part in any of the negotiations
- Compare this case with People v De guzman
People v De Guzman
- Rape case
- Accused wife, mother and children went to the victim to plea for forgiveness but she
rejected it (this was with the consent of the accused)
- HELD: OFFER OF COMPROMISE ADMISSIBLE
- A plea for forgiveness may be considered as analogous to an attempt to compromise.
In criminal cases, except those involving quasi-offense (criminal negligence) or those
allowed by law to be compromised, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt.
- any scintilla of doubt both as to the identification of the accused and as to his guilt
was dissolved by the overtures of his parents, wife, children and sister-in-law on
pleading for forgiveness from Gilda. The accused did not disown their acts
- Indubitably then, the accused was a party to the decision to seek for forgiveness, or
had prior knowledge of the plan to seek for it and consented to pursue it, or
confirmed and ratified the act of his parent
- Sir: Tactic: whenever you compromise, course it through your relatives then
- Rape case
- Amo raped the kasambahay
- Victim alleged that accused’s wife went to her offered 25k so that she will desist
- During that time, no complaint was filed yet
- But the rape was already known to the wife
- HELD: OFFER WAS AN ADMISSION OF GUILT
- Pending case is not necessary so long as the offer was made after the commission of
the crime
- Sir: I don’t know why it was admitted. There was no showing that the accused
consented to the offer made by the wife
HEARSAY
- Section 36. Testimony generally confined to personal knowledge; hearsay excluded.
— A witness can testify only to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception, except as otherwise provided in
these rules
- Q: Who may be a witness?
- A: You must have a capacity to perceive and capacity to make known your perception
- One can only testify on matters of his personal knowledge
- Q: When is it personal knowledge?
- A: Derived from his own perception
- Q: How do you perceive?
- A: Through your senses. 5 lang ah’. (touch, taste, hearing, hearing, smell and sight)
- Side lesson: GR: We only use 1 sense for 1 activity. But we use more than 1 senses if
our activity is delectable.  But! There is one activity when you use all 5 senses ->
Intimate act. 
- If other people sensed it, then you are the one who will testify-> declarant is not in
court. Then, your testimony is hearsay
- Review:
- GR: the act, declaration, omission is only admissible against the declarant. It is not
admissible against a third person.
- Ex. X told A, “I killed B.” Can A testify later on? Yes, that is admissible against X (because
the declaration of X is against his own interest)
- However, If X told A, “I killed B. Kasama ko sila Y and Z.” Can A testify that X killed A
and with him are his co conspirators, Y and Z? It is is admissible against the declarant
X. But that is not admissible against the third parties (Y and Z). the act, declaration,
omission is only admissible against the declarant and not against his co conspirators
- Reason: Such is hearsay
- But take note: Once one of the conspirators testifies in court saying “Kasama kong
pumatay si Y and Z” Such ceases to be hearsay. He himself (declarant is there in court.
You can cross examine him
- Another reason why such is hearsay: Baka naman mali yung pandinig nung nakarinig
- Q: Why is hearsay evidence not admissible?

People v Ypaguirre

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 47

- A: The value of the truth of his testimony cannot be attributed to him because the - *However, if an extrajudicial utterance is offered not as an assertion to prove the matter
declarant is somewhere else. His declaration was not based on what he knows but what asserted without reference to the truth of the matter asserted, then the hearsay rule
the declarant knows. does not apply
- Ex. I testify on something said by A to me. I am testifying not based on my personal - Ex. slander case
knowledge. The one who has personal knowledge is the declarant. 1. Plaintiff claims that he heard the accused say that he was a thief. This
- How can you cross examine the witness if he does not have personal knowledge? testimony is admissible not to prove that the plaintiff is really a thief but merely
- Wigmore: Hearsay evidence is that which derives its value not from the credit to be to prove that the accused uttered those words that the plaintiff was a thief
given by the witness upon the witness stand but by the veracity or competency of some 2. While it is hearsay, such is not legal hearsay
other person 3. Ex. X said to Y: “you are a thief”. Z heard it.
- Hearsay evidence is not limited to oral testimony. It also covers those in writing 4. Z can testify because he is not testifying that Y is a thief. Rather, he is testifying
- Case: People v Carlos to the fact that Z uttered those words to Y
 Police founf a letter written by the wife saying “Darling, wag mong gawin yan” 5. That is what is known as the doctrine of independent relevant
 HELD: NOT ADMISSIBLE BECAUSE IT IS HEARYSAY evidence
 You cannot call on the wife because of marital privilege and marital
disqualification DOCTRINE OF INDEPENDENT RELEVANT EVIDENCE
 Because you cannot call her to be cross examined, that is hearsay
- There is a distinction between:
- *Hearsay evidence is excluded because it derives its value not on the credit of the
1. The fact that the statement was made to which the hearsay rules does not
witness who is in the witness stand but from the veracity or competency of some other
apply
person. It is inadmissible because it is not based on the personal knowledge of the
2. The truth of the fact asserted to which the hearsay rule apply
person testifying. You can only testify on what you know or what you perceive. Another
- If a person is testifying as to the truth of the facts, that is hearsay.
reason why it is inadmissible is to preserve the right of the accused to cross examine
- But if he is merely testifying that this utterance/ this thing happened, then that it not
the witnesses testifying against him
legal hearsay
- Right to cross examine is essential to the administration of justice because it is the only
- Tracy’s handbook classifies utterances into two (not legal hearsay):
means of testing the credibility of the witnesses and their testimony. In hearsay
1. Utterances constituting the issue or part of the issue in case
evidence, the declarant is not in court. He cannot be cross examined
 Ex. Utterances in the making of a contract: A said, “Binenta ko na
- If witness testifies today, but the cross examination is scheduled tomorrow, his
tong lupa kasi wala na kong pera.”
testimony is excluded if he dies before he was cross examined
 You are not testifying on the fact that wala na siyang pera. You are
- The accused has the basic right to confront his accusers
just testifying that you heard him.
- Ex. of hearsay.
 Ex. Marriage promise by a man: I will not drink anymore (Whether
 Testimony of person of what he has heard another person say about the facts
or not the promise was upheld is not in issue)
in dispute
 Ex. Utterances to prove libel etc.
 Affidavits are not admissible in evidence because it cannot be cross examined
2. Utterances which are circumstantial in the issue of the case
 Medical certificate on the extent of the injuries (if cert. lang)
 Utterances showing the state of mind of the speaker, state of mind
- Q: What is the effect of lack of objection to hearsay evidence?
of the hearer
- A: Admissible but not competent.
 Ex. In a case to prove insanity of a person. You testify that A says
- There are only 2 rules on admissibility.
during full moon that “I am god.” You are not testifying that he is
1. Relevancy
insane. You only testify that you heard him say that.
2. Competency
 Ex. Utterance of a person not feeling well. You cannot testify on
- But if you don’t object, there is waiver. The evidence becomes admissible. The party
what he feels. You just say that you heard him say Aray and he was
against whom it is received cannot object.
crying
- But the mere fact that it is admitted does not mean that it is credible. It might be
 Ex. Utterances to identify the time, place and circumstance. You
admissible because of lack of objection but it is still not credible
heard A say: “Ang kapal na ng damit ko dito.” That means that
- Q: What is the basis of the theory of hearsay rule?
malamig sa lugar niya. “Ang dilim na ditto.” That means madilim na.
- A: When a human utterance is offered as evidence the truth of the fact asserted in it,
- However, there are XPNs (XPN because there is truth to it even if it is hearsay)
the credit of the assertor becomes the basis of inference and therefore, the assertion
- Ex. Your mother told you were born this day. Would you believe her? Yes
may be received as evidence only when made on the witness stand subject to the test
of cross examination

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 48

 - Ex. You were told that this is your uncle. Even if you didn’t perceive it personally, you
will believe it.
- Reason: That is pedigree
- Q: Why are they XPNs to the hearsay rule?
- A: Because we can rely upon the statements
- Q: what are the XPNs?
- A:
 Section 37. Dying declaration
 Section 38. Declaration against interest.
 Section 39. Act or declaration about pedigree.
 Section 40. Family reputation or tradition regarding pedigree.
 Section 42. Part of res gestae.
 Section 43. Entries in the course of business.
 Section 44. Entries in official records.
 Section 45. Commercial lists and the like
 Section 46. Learned treatises.
 Section 47. Testimony or deposition at a former proceeding.
XPN 1: DYING DECLARATION
- Section 37. Dying declaration. — The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his death
is the subject of inquiry, as evidence of the cause and surrounding circumstances of
such death
- Q: What are the requisites?
- A:
1. The declaration was made under the consciousness of an impending
death
2. The declaration refers to the cause or circumstances surrounding the
declarants death
3. The declaration is offered in a case where the subject of inquiry is the
declarant’s death
4. The declarant was a competent witness
 Not insane
 In perceiving, he can make known his percceptions
- Q: Why is dying declaration admissible despite the fact that it is hearsay?
- A: Because on two grounds:
1. Necessity- because the declarant’s death makes it now impossible to
obtain his testimony in court. The victim’s testimony is now the best
evidence available.
2. Trustworthy- because the declaration was made at the point of death
(situation which is so solemn and awful as creating an obligation equal to
that created by a positive oath administered in a court of justice).
Presumption: When you are conscious that you are dying, you will no
longer tell a lie.
- Q: Is dying declaration favorable to the accused also admissible?
- A: Yes, provided that the requisites concur
- Q: May a dying declaration be impeached?
- A: Yes. In as much as it stands in equal footing as a testimony made by a living witness,
it can also be impeached just like the testimony of a living witness
- Q: What is the probative value?
- A: It must be received with utmost care. Received in the same weight as the testimony
of a living witness.
- Q: Is there a required form?
- A: No particular form is required. It may be oral or in writing (with or without oath). It
may consist of acts (nodding, pointing a finger to the assailant etc)
- Q: Suppose a victim of an assault made an oral ante mortem declaration which was
subsequently reduced into writing. Which is the best evidence?
- A: Either or both may be offered in evidence. BER does not apply to dying declarations.
- *Always remember the requirements
People v Laquinon
- Murder case. Brgy capt interviewed the victim
- Victim named his assailant
- He was asked, “Do you think you will dies of your wounds?”
- He answered, “I don’t know Sir.”
- HELD: NOT DYING DECLARATION
- The dying declaration of the deceased Pablo Remonde is not admissible as an ante-
mortem declaration since the deceased was in doubt as to whether he would die or not.
- The declaration fails to show that the deceased believed himself in extremis, "at the
point of death when every hope of recovery is extinct," which is the sole basis for
admitting this kind of declarations as an exception to the hearsay rule."
- First requisite not complied
People v Sabio
- Sabio was convicted with robbery with homicide
- Victim’s dying declaration was used against him.
- Q: Who robbed you?
- A: Sabio
- Q: Why did he hack you?
- A: He demanded money from me
- HELD: NOT DYING DECLRATION
- The admission of dying declarations has always been strictly limited to criminal
prosecutions for homicide or murder 15 as evidence of the cause and surrounding
circumstances of death.
- In this case, the declaration is with regard to the robbery. Not the hacking
People v Agripa
- Accused killed his wife then killed himself
- Corporal Bernas allegedly took down his declration
- Q: What is your name?
- A: Jose
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 49
 - Q: Who stabbed you?
- A: I, myself
- Q: Why did you stab your wife?
- A: family problems
- Q: Would you die from your wounds?
- A: No!
- Q: Did you intend to kill your wife?
- A: Yes, because I want to die with her
- HELD: NOT DYING DECLARATION
- The trial court correctly rejected the above-quoted interrogation as a dying declaration
because it did not comply with all the requirements of this particular exception to the
hearsay rule.
- The statement does not show that it was made by the declarant under the
consciousness of impending death (although it is true that Jose was near
death at that time).
- Nevertheless, it was correctly admitted as part of the res gestae, having been made
soon after the startling occurrence of the multiple stabbing of Jose and Adelfa.
- But the mere fact that evidence is admissible does not necessarily mean that
it is also credible. The testimony of a competent witness may be admissible
if relevant but it is not for this reason alone believable.
- According to Rule 128, Sec. 3, "evidence is admissible if it is relevant to the issue and
is not excluded by the law or these rules." Credibility depends on the evaluation given
to the evidence by the court in accordance with the guidelines provided in Rule 133 of
the Rules of Court and the doctrines laid down by this Court.
- In this case, accused is no longer competent. Buang na.
People v de Joya
- Alvin (10 y/o) arrived from school
- Then, he saw his grandmother lying in the floor drenched with her own blood
- He asked her: “Apo! Apo! what happened?
- A: Si paqui
- HELD: NOT DYING DECLARATION
- It has been held that a dying declaration to be admissible must be complete in itself.
To be complete in itself does not mean that the declarant must recite everything that
constituted the res gestae of the subject of his statement, but that his statement of any
given fact should be a full expression of all that he intended to say as conveying his
meaning in respect of such fact.
- The reason upon which incomplete declarations are generally excluded, or if admitted,
accorded little or no weight, is that since the declarant was prevented (by death or
other circumstance) from saying all that he wished to say, what he did say might have
been qualified by the statements which he was prevented from making.
- That incomplete declaration is not therefore entitled to the presumption of truthfulness
which constitutes the basis upon which dying declarations are received.
- In this case, the statement made was not related to the question asked.
- Q: What happened? (Not who did this to you?)
People v de Barras
- HELD:
- Admissibility is not affected by death occurring hours or days afterwards
- it is sufficient that the declarant did not expect to survive the wounds
- not necessary that there be specific statement saying that he lost hope to survive
- Sir: Add, “Please tell my children that I love him”
- OLD RULE: dying declaration only applies to criminal cases
- NEW RULE: it applies to both civil and criminal cases
- Dying declaration also applies to cases of damages
XPN 2: DECLARATION AGAINST INTEREST
- Section 38. Declaration against interest. — The declaration made by a person
deceased, or unable to testify, against the interest of the declarant, if the fact is asserted
in the declaration was at the time it was made so far contrary to declarant's own
interest, that a reasonable man in his position would not have made the declaration
unless he believed it to be true, may be received in evidence against himself or his
successors in interest and against third persons
- Q: What are the requsiistes?
- A:
1. Declarant is deceased, or unable to testify
2. Declaration is against the declarant’s interest
3. Declarant has knowledge has sufficient knowledge on matters in
his declaration
4. The interest declared was actual or real
- Q: Why is it admissible?
- A:
1. Necessity- because the declarant is dead or not available as witness
2. Trustworthiness – because it is against the declarant’s interest. Therefore,
a guarantee of truth. that a reasonable man in his position would not
have made the declaration unless he believed it to be true
- Q: How is it distinguished from admission under Sec 26?
- A:
1. 26 –
o declarant need not be aware or consider his declaration as
opposing to his interest at the time he made the declaration
o admission is receivable even if the admitter is still alive or
available to testify
o admission is only receivable only against the one who made
the admission and those identified with him to have legal
interest (like a co-conspirator). But generally, it is admissible
only against him
2. 38-
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 50
  declarant must be aware or that he considers his declaration to
be opposed to his interest
 declarant must be dead or is unable to testify for his
declaration to be received as an XPN to the hearsay rule
 declaration is receivable even against 3rd persons
Viacrucis v CA
- Action to recover title and possession
- The original owner of the property is Sanchez
- Sanchez sold it to Oraiz in a notarized document of sale (1936) and the sale was
registered with the RD. (1941)
- However, it appears that the same property was sold to Ruizo. (1945) Then to Marquez
(1959)
- Oraiz filed the case
- According to the defendants, they are the owners and that The Deed of Sale of Oraiz is
a simulated transaction. Even though it was executed earlier, they have the better title
because the deed was simulated only for Oraiz to secure a loan from a bank
- One of the evidence presented was an affidavit executed by Pelagio (1936)
acknowledging that Oraiz is the owner of the property and that Oraiz granted him
passion from 1936 to 1941
- Pelagio is now deceased
- Affidavit of Pelagio is an example of declaration against the interest.
- Wife of Pelagio also testified.
- HELD:
- All the requisites are present
1. Declarant is deceased, or unable to testify
2. Declaration is against the declarant’s interest
- He said that the owner was Oraiz
3. Declarant has knowledge has sufficient knowledge on matters in his
declaration
4. The interest declared was actual or real
- Although an affidavit is hearsay, it is an XPN since it complies to the requirements
- Q: Is it admissible against Viacrucis?
- A: Yes, because under 38 it can be received as evidence even against 3rd persons (unlike
the rule in 26)
- testimony of Mrs. Costelo and this recognition by the now deceased Pelagio Costelo —
which were confirmed by the public document Exh. G — constitute a declaration of Mr.
and Mrs. Costelo adverse to their interest, which is admissible in evidence, pursuant to
section 32 (now 38) of said Rule 130.
- Petitioners have no reason whatsoever to object to the consideration in favor of Orais
of said admission, the same having been made in 1936, more than five (5) years before
their (petitioners) predecessor in interest, Balentin Ruizo, had entered into the picture,
when Orais and Costelo were the only parties who had any interest in the object of said
admission. Pursuant to said legal provision, 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."
XPN 3: PEDIGREE
- Section 39. Act or declaration about pedigree. — The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person related to
him by birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence other
than such act or declaration. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the places where these fast
occurred, and the names of the relatives. It embraces also facts of family history
intimately connected with pedigree
- Pedigree is not only by consanguinity, also by affinity
- Q: what are the requisites?
- A:
1. Declarant is already deceased or unable to testify
2. declarant is related to the person whose pedigree is in question
3. The relation between the declarant and the person whose pedigree is in
question must be proved by evidence other than the act or omission of
the declrant
4. Declarant is made ante lite motam (before the controversy)
- Q: Why is it admissible?
- A:
1. Necessity- because the matters relating to pedigree is usually those which occurred
long time before the trial and known only to a few persons. And the declarant is already
unable to testify
2. Trustworthiness- such are matters which the members of the family are presumed
to be interested in ascertaining the truth. When our mother tells us, we are born this
date: You should believe that. If you testified on that, the court will believe you even if
it is hearsay.
- Q: What is the scope of pedigree?
- A: 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
People v Alegado
- Accused was charged and convicted of raping a 12 year old girl
- Victim testified that her birthday is in 1976 according to her mother
- Grandfather also testified that her daughter (mother of victim) told him that his
granddaughter’s birthday is in 1976 and that he should send her to school (Grade 1 na
nung iniwan siya)
- Declarant was the mother. But she is unable to testify
- HELD: TESTIMONY OF GRANDFATHER IS ADMISSIBLE
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 51
 - D]eclarations in regard to pedigree, although hearsay, are admitted on the principle
that they are natural expressions of persons who must know the truth
- Pedigree testimony is admitted because it is the best that the nature of the case admits
and because greater evil might arise from the rejection of such proof than from its
admission.
- Sir: prove first that declarant is indeed unable to testify. State the circumstances
XPN 4: FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE
- Section 40. Family reputation or tradition regarding pedigree. — The 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.
- Always ante litem
- Q: What may be admitted?
- A: statement oral or written etc
- Family bibles- birthdate is provided usually
- Engravings in your gravestone doesn’t lie
- Q: When is family reputation or tradition regarding pedigree is admissible?
- A:
1. when the reputation or tradition is one existing in the family of a person whose
pedigree is in question
2. The reputation or tradition was formed ante lite motam (before the
controversy/before the case was filed)
3. the witness testifying is a member of the family
- it is indispensable that the one testifying is a member of the family
- Unlike in XPN 4, the one testifying doesn’t need to be a member of the
family
- Q: Is there a distinction between reputation and rumor?
- A: Yes. Reputation is a definite and final formation of opinion. Rumor merely implies an
opinion not finally credited.
Ferrer v Inchausti
- ISSUE: Is she really a daughter who is entitled to inherit? No
- To prove that she was not a daughter of the deceased, Page 9 of a Day Book (diary)
was presented. It appears that a child aged 3 years old was delivered to the deceased’s
mother and she was baptized of an unknown parents
- HELD: ADMISSIBLE
- Such is a proof that she is really not a daughter
XPN 5: COMMON REPUTATION
- Section 41. Common reputation. — Common reputation existing previous to the
controversy, respecting facts of public or general interest more than thirty years old, or
respecting marriage or moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of common reputation
- Q: Can marriage be proved by common reputation?
- A: Yes
- Q: Can pedigree be proved by common reputation?
- A: No. it can only be proved by reputation in the family (not common reputation)
- Q: When is evidence of common reputation admissible?
- A:
1. the reputation refers to public or general interest that is more than 30 yrs old or to
marriage or moral character (enough that it is formed ante lite motam, 30 yrs not
necessary)
2. reputation must be ancient
3. ante lite motam
4. formed in the community interested
- Q: What is common reputation?
- A: It is the general or undivided reputation in the community. It need not be unanimous.
But it must be the consensus of the community
- Q: Why is it admissible?
- A:
1. necessity- because the fact to be proved is too ancient such that eye witnesses are
no longer available
2. trustworthiness- because reputation has existed for a long time. Therefore, there
must be some truth to it
- Q: What does interest mean under this rule?
- A: Means pecuniary interest or some interest by which some legal right of the
community is affected
- Q: What is public interest as distinguished from general interest?
- A:
 Public interest concerns all the members of the state/ entire country
 General interest concerns a community only (ex. existence or character of
public roads, highways, waterways, limits of towns, parishes)
- Q: When is evidence of common reputation not considered hearsay?
- A: When it is the fact in issue or part thereof
- Ex. Prosecution of house of ill-repute/ gambling house or opium joint. Such concerns
common reputation. It is the fact in issue. Therefore, it is not hearsay
- Q: What are the requisites for evidence of common reputation involving moral
character?
- A:
1. formed in the place where the person in question is best known
2. Formed ante lite motam
- Q: Why is it admissible?
- A: Because the good or bad character of a man is quite accurately determined according
to his reputation in the place where he is best known
- Testimony saying that A is known to be violent -> admissible if it is the fact in issue
- Ex. Your defense is self defense. You can show that the victim was violent by presenting
witnesses who will testify on his bad reputation
- Not need to be 30 years
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 52
 - Q: Is reputation synonymous with character?
- A:: No. reputation is what a person purports to be while character is who really a person
he is
- Q: If a person whose moral character is in issue is merely a witness, what reputation
need be shown?
- A: His reputation on or before trial needs to be shown. To know his character.
- Q: When a person whose character in question has testified that he has not heard
anything about the person’s character, what kind of evidence is that?
- A: That is an evidence of good character. Because a person’s character is not talked
about unless there is something flawed to be talked about
- *Q: May the facts of pedigree be proved by common reputation?
- A: No.
- GR: If provable by reputation, it can only be proved by the members of the family
- XPN: Marriage. It can be provable by both the reputation in the family and common
reputation
- If two people have been open in the community as H and W, may reputation yan.
XPN 6: RES GESTAE
- Section 42. Part of 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, may be given in evidence as part of res gestae (1st kind).
So, also, statements accompanying an equivocal act material to the issue, and giving it
a legal significance, may be received as part of the res gestae (2nd kind).
- Q: Why admissible?
- A:
1. Necessity- because such natural and spontaneous utterances are more
convincing than the testimony of a person in the witness stand
2. Trustworthiness- because such are made instinctively
- 2 KINDS
1. Spontaneous exclamation
 Q: What are the requisites?
1. principal act is a startling occurrence
2. statements were made before the declarant had time to contrive or
concoct a story
3. statements refers to the occurrence in question or to immediately
attending circumstances
 Review People v Agripa
 Even if it is not a dying declaration, it was part of res gestae
 There was a starling occurrence. No time to invent a story
 No time to concoct a story. More convincing and trustworthy because
they are made instinctively
 Ex.
 conversation between 2 accused immediately after the crime
 Statement of a wounded person shortly after a violent occurrence
 Statement of a person who has just been shot
2. Verbal acts
 Q: What are the requisites?
 A:
1. the res gestae here is that there is an equivocal act
2. The equivocal act is material to the issue
3. Statement must be necessary for the understanding of the equivocal act’the
statement must accompany the equivocal act
- Not after ha. Because startling occurrence can be immediately after the
occurrence
 It is an equivocal act. It is not spontaneous
 Q: What is an equivocal act?
 A: One that is susceptible of various interpretations. Hindi ka sigurado
kung ano yan
 Ex. You gave a person money. O eto ang pera, donation ko sa church.
Eh may utang siya dun sa pinagbigyan niya ng pera. Creditor sued him
but he claims that he already paid his debt. Somebody can testify that I
heard him say that the money was for donation (not for payment of
debt)
 There was no startling occurrence. You were explaining
 A person is in possession of a land. In what concept does he possess
the land? As lessee? If he says he is just a lessee, that is a verbal act
explaining the character of his possession
 Such is a verbal act, an equivocal act
- Take note, in dying declaration, the accused died
- In res gestate, even if the declarant is still alive, you can testify on the res gestate
- Q: Is there a difference between a dying declaration and res gestae?
- A: Yes. If the requisites of the dying declaration do not concur, then the evidence may
be admitted as part of res gestae but you must prove the startling occurrence there.
- Q: Would it be necessary that the declarant is already dead and unable to testify?
- A: No.
- Q: How do we distinguish spontaneous exclamation and verbal act?
- A:
1. Spontaneous exclamation
 The principal act is the startling occurrence
 The statement may precede/succeed/accompany a startling occurrence
 Statement need not explain the principal act
2. Verbal act
 The principal act of the equivocal act is the res gestate
 The statement explaining the equivocal act must accompany the
equivocal act (dapat sabay)
 Statement must explain the principal act and give its significance
- *If the requisites of a dying declaration does not concur (usually, the one that does
not concur is the requisite that a person is conscious of an impending death), it is
admissible as part of the res gestate.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 53
ENTRIES IN THE COURSE OF BUSINESS
- Another XPN to the hearsay rule
- Section 43. Entries in the course of business. — Entries made at, or near the time of
transactions to which they refer, by a person deceased, or unable to testify, who was
in a position to know the facts therein stated, may be received as prima facie evidence,
if such person made the entries in his professional capacity or in the performance of
duty and in the ordinary or regular course of business or duty ENTRIES IN OFFICIAL RECORDS
- Q: What are the requisites in order for this XPN to the hearsay rule be admissible in
evidence?
- A:
1. The entrant made the entry in his professional capacity or in the performance
of his duty
2. The entry was made in the ordinary course of business or ordinary course of
duty
3. The entry was made near/at the time of the transaction to which it relates
4. The entrant was in a position to know the facts stated in the entry
5. The entrant is already dead or unable to testify
- Q: Why are these entries admissible?
- A:
1. Necessity because the entrant is already dead and not available as witness to
testify on the entries that he made
2. Trustworthiness because a man who makes a regular entry for the purposes
of business or duty will make them with accuracy as these entries are relied
upon by businessman everyday
- Q: To what kind of entries does this entry refer to?
- A: Entry made by a person whose business or duty was to make the entry and which
appears to be part of a regular system of entries kept in that establishment
- Ex. physician’s entry of services, book of the banks recording the deposits and
withdrawals, book of the accountant, bookkeeper entries, hospital records (chart)
- They are prima facie evidence
- Q: What do you mean by prima facie?
- A: It can be rebutted. It is not something which is conclusive.
- Q: If the entrant is still alive and is able to testify on the entries, would his entries be
receivable as independent evidence without his testimony?
- A: No, the entrant must be presented. Reason: The requirement is that he be dead or
is unable to testify
- However, while on the witness stand, he can refer to his entry to refresh his memory
- Notwithstanding the aid of his entry as memorandum, the entrant can no longer
remember his entries, then his entry may now be admissible as an independent
evidence (parang he is is now unable to testify)
- Q: Are the entries in the course of business public or private writing? And what are its
probative value?
- A: Private writings. Hence, the authenticity of the entrant’s handwriting must first be
established
- Q: What is the distinction between public and private writing?
- A:
1. Public writing- you need not proved its due execution and authenticity. It is
presumed to be authentic
2. Private – you must establish its authenticity. That is why you need to first
establish the entrant’s handwriting
- In Code of Commerce, there is what you call: “Merchant’s book of accounts.” Such is
governed by the Code of Commerce
- Section 44. Entries in official records. — Entries in official records made in the
performance of his duty by a public officer of the Philippines (Note: Philippines only),
or by a person in the performance of a duty specially enjoined by law (Note: It means
he is not a public officer), are prima facie evidence of the facts therein stated.
- Q: What are the requisites?
- A:
1. The entry must be made by a public officer in the Philippines or by a person
specifically enjoined by law to do so
2. The entry was made by No. 1 in the performance of his duty
3. The one who made the entry had sufficient knowledge acquired by him
personally or by official information
- Ex.
 Police report. In Car collision cases, you ask for a police report so you can claim
from your insurance. The policeman will go to the scene and make a sketch. He
will look at the extent of the damage by looking at the skid marks etc
 Sheriff’S return. This is submitted to the court. It is a prima facie evidence of
the fact stated therein
 Entries in the RD. There is a day book. Even if the certificate of title will be
released a month later, the date of registration is deemed to be the one which is
indicated in the day book.
 Minutes of the Clerk of court
 Assessor’s office
 Notaries Public
- They are admissible in evidence
- Q: How do you prove secondary evidence?
- A: Copy, entries in an authentic document
- Q: How do we distinguish an entry of a civil registrar from that of a priest?
- A:
1. Entry of a civil registrar
- It is a public record (official record)
- It is a prima facie evidence of the facts contained therein
2. Entry of a priest
- The one by the priest is a private writing which needs to be authenticated.
- It is only an evidence of the facts celebrated and the date thereof
- In order to have a prima facie evidence under Sec 44, the one who made the entry
must have sufficient knowledge of the fact acquired by him personally or through official
information

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 54

- Ex. someone was dead. The cadaver was examined by a public officer (forensic
pathologist) On the other hand, someone died and he was examined by a private
pathologist in a private hospital. The report by the public officer is a public document
whereas the report of the private pathologist is a private document.
- Estonina v CA
 This involves a parcel of land
 It is owned by X first
 X married twice
 In his first marriage, he had 5 children and the wife. In his second marriage, he
had 4 children
 After his death, his heirs in the first marriage sold their pro indiviso share with
the defendants
 The children in the second marriage also sold some of their share to the
defendants
 Later on, the 4 children sold their share to the defendants
 The attachment was annotated
 Then, plaintiff was able to secure a judgment against the surviving wife.
 Upon execution, the entire property was transferred to the plaintiff
 Defendant sued the attaching creditor claiming that he already bought the
property
 Plaintiff counters that ½ portion belongs to the wife plus 1/10 share. Therefore
the wife has 55% share
 TC sustained the judgment creditor’s claim
 Q: What was the basis of the TC in saying that the property was conjugal?
 A: Description in the certificate of title. Property is owned by X, married to
surviving wife
 Q: Does it create a presumption that the property is conjugal?
 A: No. That is merely descriptive that X is married to W
 CA reversed TC saying that the property exclusively belongs to X. therefore, the
entire property after his death belongs to the estate of X. When X died, the
surviving spouse is an heir entitled to a portion
 ISSUE: WON the description in the title saying that X is married to W gives rise
to a prima facie presumption that the property is conjugal
 HELD: NO
 The evidence on record as well as established jurisprudence on the matter lead
us to concur with the finding of the Court of Appeals that the property involved
in this dispute is indeed the exclusive property of the deceased Santiago Garcia.
 It has been repeatedly held by this Court that the presumption under Article
160 of the Civil Code that all property of the marriage belong to the conjugal
partnership applies only when there is proof that the property was acquired
during the marriage.
 Otherwise stated, proof of acquisition during the marriage is a condition sine
qua non for the operation of the presumption in favor of the conjugal
partnership.
 In the case at bench, the petitioners have been unable to present any proof
that the property in question was acquired during the marriage of Santiago and
Consuelo.
 They anchor their claim solely on the fact that when the title over the land in
question was issued, Santiago was already married to Consuelo as evidenced
by the registration in the name of "Santiago Garcia married to Consuelo Gaza".
 This, according to the spouses Estonina, suffices to establish the conjugal nature
of the property.
 The foregoing contention has no merit.
 In the case of Jocson v. Court of Appeals we held that:
"The certificates of title, however, upon which petitioner rests his claim is
insufficient. The fact that the properties were registered in the name of 'Emilio
Jocson, married to Alejandra Poblete' is no proof that the properties were
acquired during the spouses' coverture. Acquisition of title and registration
thereof are two different acts. It is well settled that registration does not confer
title but merely confirms one already existing x x x. It may be that the properties
under dispute were acquired by Emilio Jocson when he was still a bachelor but
were registered only after his marriage to Alejandra Poblete, which explains why
he was described in the certificates of title as married to the latter.
"Contrary to petitioner's position, the certificates of title show, on their face,
that the properties were exclusively Emilio Jocson's, the registered owner. This
is so because the words 'married to' preceding 'Alejandra Poblete' are merely
descriptive of the civil status of Emilio Jocson x x x. In other words, the import
from the certificates of title is that Emilio Jocson is the owner of the properties,
the same having been registered in his name alone, and that he is married to
Alejandra Poblete." [
 Being the exclusive property of Santiago Garcia, it was the entire parcel of land
in question that formed part of his estate and which passed to his ten
heirs by compulsory succession upon his death.
 And as correctly held by the Court of Appeals, what could therefore be attached
and sold at public auction in Civil Case No. 88430 was only the one-tenth
(1/10) pro indivisoshare of Consuelo Garcia in the said parcel of land.
 The sale at public auction of the disputed property in its entirety by the Sheriff
in favor of Trinidad Estonina over and above the one-tenth (1/10) share of
Consuelo Garcia is null and void, belonging as it does to the other heirs of
Santiago Garcia and later to the spouses Atayan.
 RULE: “X married to W” is merely descriptive. The one who entered such has
no personal knowledge
- Belen Angeles v Aleli Angeles
- 2 wives are involved
- Francisco is married to Belen Sagad Angeles. They don’t have a child but Belen claims
that they had an adopted child
- Aleli claims to be the legitimate child of Francisco. Her mother was Genoveva Mercado
- Aleli claims that she was in an open and continuous possession of the status as legimiate
child
- One of the documents where Aleli anchors her legitimate filiation is the certificate of
live birth. It was stated there that her father was Francisco
- She also invokes the ruling in Tison v CA
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 55
- the Court of Appeals, citing and extensibly quoting from Tison vs. Court of Appeals,[16]
stated that since petitioner opted not to present any contrary evidence, the presumption
on respondents legitimacy stands unrebutted.
- Following is an excerpt from Tison:
It seems that both the court a quo and respondent appellate court have regrettably
overlooked the universally recognized presumption on legitimacy. There is no
presumption of the law more firmly established and founded on sounder morality and
more convincing than the presumption that children born in wedlock are legitimate. And
well-settled is the rule that the issue of legitimacy cannot be attacked collaterally.
Upon the expiration of the periods provided in Article 170 [of the Family Code], the
action to impugn the legitimacy of a child can no longer be brought. The status
conferred by the presumption, therefore, becomes fixed, and can no longer be
questioned. The obvious intention of the law is to prevent the status of a child born in
wedlock from being in a state of uncertainty. It also aims to force early action to settle
any doubt as to the paternity of such child so that the evidence material to the matter
. . . may still be easily available
Only the husband can contest the legitimacy of a child born to his wife .
- Sir: Motherhood is a fact but fatherhood is a matter of faith. 
- ISSUE: Is the fact that her father was Francisco as stated in her certificate of live birth
a prima facie presumption under the rule on entries of official records
- HELD: No
- Contextually, the correct lesson of Tison, which the appellate court evidently misapplied,
is that:
(a) a child is presumed legitimate only if conceived or born in wedlock; and
(b) the presumptive legitimacy of such child cannot be attacked collaterally.
- A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. He need not introduce evidence to prove that
fact.
- For, a presumption is prima facie proof of the fact presumed.
- However, it cannot be over-emphasized, that while a fact thusprima facie established
by legal presumption shall, unless overthrown, stand as proved, the presumption of
legitimacy under Article 164 of the Family Code[ may be availed only upon convincing
proof of the factual basis therefor, i.e., that the childs parents were legally married and
that his/her conception or birth occurred during the subsistence of that marriage.
- Else, the presumption of law that a child is legitimate does not arise.
- RULE: The mere facts stated in the certificate of live birth does not immediately
establish the proof or the prima facie presumption that the child is legitimate unless
there is proof that the child was born during wedlock. The conception and birth must
occur during the existence of marriage
- We can concede, because Article 172 of the Family Code appears to say so, that the
legitimate filiation of a child can be established by any of the modes therein defined
even without direct evidence of the marriage of his/her supposed parents. Said article
172 reads:
Art. 172. The filiation of legitimate children is established by any of the following:
1. The record of birth appearing in the civil register or a final judgments; or
2. An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. The open and continuous possession of the status of a legitimate child; or
2. Any other means allowed by the Rules of Court and special laws.
- Here, respondent presented, in support of her claim of legitimacy, a copy of her Birth
Certificate dated November 23, 1939 issued by the Civil Registrar of the City of Manila
(Exh. E). In it, her birth was recorded as the legitimate child of Francisco Angeles and
Genoveva Mercado.
- And the word married is written in the certificate to indicate the union of Francisco and
Genoveva
- Petitioner, however, contends, citing jurisprudence, that [I]t was error for the Court of
Appeals to have ruled . . . that [respondents] Birth Certificate indubitably establishes
that she is the legitimate daughter of Francisco and Genoveva who are legally married.
- The contention commends itself for concurrence.
- The reason is as simple as it is elementary: the Birth Certificate presented was not
signed by Francisco against whom legitimate filiation is asserted. Not even by Genoveva.
It was signed by the attending physician, one Rebecca De Guzman, who certified to
having attended the birth of a child.
- Such certificate, albeit considered a public record of a private document is,
under Section 23, Rule 132 of the Rules of Court, evidence only of the fact
which gave rise to its execution: the fact of birth of a child
- Jurisprudence teaches that a birth certificate, to be considered as validating
proof of paternity and as an instrument of recognition, must be signed by the
father and mother jointly, or by the mother alone if the father refuses.
- Dr. Arturo Tolentino, commenting on the probative value of the entries in a certificate
of birth, wrote:
xxx if the alleged father did not intervene in the making of the birth certificate, the
putting of his name by the mother or doctor or registrar is void; the signature of the
alleged father is necessary.
- The conclusion reached by the Court of Appeals that the Birth Certificate of respondent,
unsigned as it were by Francisco and Genoveva, establishes andindubitably at that - not
only respondents filiation to Francisco but even her being a legitimate daughter of
Francisco and Genoveva, taxes credulity to the limit.
- In a very real sense, the appellate court regarded such certificate as defining proof of
filiation, and not just filiation but of legitimate filiation, by inferring from it that Francisco
and Genoveva are legally married.
- In the apt words of petitioner, the appellate court, out of a Birth Certificate signed by
a physician who merely certified having attended the birth of a child who was born alive
at 3:50 P.M. , created a marriage that of Francisco and Genoveva, and filiation (that
said child)is the daughter of Francisco
- RULE: For the contents of the birth cert to be considered as prima facie evidence of
the facts stated therein, the requirement that the public officer who made the entry
must have sufficient knowledge of the facts by him entered or acquired by him
personally must be complied
- Hindi pwedeng nilagay lang ng nurse or doctor dun. In that case, such will only be a
prima facie evidence of the fact of birth (not the fact of filiation)
- Reason: The public officer had no knowledge of the entry. He had no personal
knowledge or information
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 56
COMMERCIAL LISTS AND THE LIKE
- Section 45. Commercial lists and the like. — 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. (39)
- Ex.
- Encyclopedias and dictionaries
- Almanacs
- Standard pricelist and stock market quotations
- Mortality tables
- Tables of logarithm, weights and measures
- It is relied upon people
- Q: Why is it admissible?
- A:
1. Necessity because of the inconvenience of calling the person who prepared
the list. Tatawagan mo pa ba si Webster? Hindi na ah
2. Trustworthiness because these persons have no motives to falsify and because
of the long use in the practical affairs of life come to be accepted as unvarying
authority
LEARNED TREATISE
- Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is admissible as tending to prove the truth of a
matter stated therein if the court takes judicial notice, or a witness expert in the subject
testifies, that the writer of the statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the subject
- Q: why are these admissible as XPN to the hearsay rule?
- A:
1. Necessity because the author is no longer available as witness
2. Trustworthiness because the author had no motive to misrepresent
- Q: when are they admissible?
- A: If the fact therein stated can be judicially noticed or another expert testifies that the
author is a recognized expert on the topic
- Yao Kee v Sy- Gonzales
 Sy kia died in Caloocan City
 Aida Sy Gonzales et al filed a petition and sought for Aida’s appointment as the
administrator of the estate.
 They allege that they are the children of the deceased with Asuncion and that
they do not recognize Sia Kia’s marriage to Yao Kee (another family claiming)
 Yao Kee and her children opposed the petition saying that she is lawfully married
with Sy Kia in China
 TC ruled in favor of Yao Kee and her children (legitimate) and that Aida et al
are illegitimate offsprings of Sy Kia
 Sze Sook, son of Yao Kee was appointed as administrator
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE
 CA set aside the decision of TC ruling that Sze Sook et al and Aida et al are the
acknowledged natural children of the deceased
 Both parties appealed
 ISSUE: Is the marriage between Sy Kia and Yao Kee duly proven?
 In this case, they are trying to prove an unwritten law
 The evidence presented to prove it is the testimony of the brother of Yao Kee.
According to him, they went to a village and they married there
 HELD: FOREIGN MARRIAGE NOT PROPERLY PROVED
 This case involve an unwritten law
 A person can marry abroad. You apply lex loci celebrationis on the formalities
of the marriage. Required formalities of the foreign law must be complied.
 Evidence presented do not suffice to establish the validity of said marriage in
accordance with Chinese law or custom.
 The law on foreign marriages is provided by Article 71 of the Civil Code which
states that:
Art. 71. All marriages performed outside the Philippines in accordance with
the laws in force in the country where they were performed, and valid there as
such, shall also be valid in this country, except bigamous, polygamous, or
incestuous marriages, as determined by Philippine law.
 In proving a foreign law the procedure is provided in the Rules of Court.
 With respect to an unwritten foreign law, Rule 130 section 45 states that:
SEC. 45. Unwritten law. — The oral testimony of witnesses, skilled therein,
is admissible as evidence of the unwritten law of a foreign country, as are also
printed and published books of reports of decisions of the courts of the foreign
country, if proved to be commonly admitted in such courts.
 Proof of a written foreign law, on the other hand, is provided for under Rule
132 section 25, thus:
 SEC. 25. Proof of public or official record. — An official record or an entry
therein, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody
of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office
in which the record is kept is in a foreign country, the certificate may be made
by a secretary of 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.
 In the case at bar petitioners did not present any competent evidence relative
to the law and custom of China on marriage. The testimonies of Yao and Gan
Ching cannot be considered as proof of China's law or custom on marriage not
only because they are self-serving evidence, but more importantly, there is no
showing that they are competent to testify on the subject matter. For failure to
prove the foreign law or custom, and consequently, the validity of the marriage
in accordance with said law or custom, the marriage between Yao Kee and Sy
Kiat cannot be recognized in this jurisdiction.
57
  Well-established in this jurisdiction is the principle that Philippine courts cannot
take judicial notice of foreign laws. They must be alleged and proved as any
other fact
 RULE: To establish a valid foreign marriage, two things must be proved.
1. Existence of the foreign law (prove it as a matter of fact).
2. the alleged foreign marriage (Prove it by sufficient evidence)
- Portus (?) v Novero
 A baptismal certificate is conclusive proof only of the baptism administered in
conformity of the rites of the Catholic church but it does not prove the veracity
of the declaration and statements contained in the certificate that concerned
the relationship of the person baptized
 It is not a proof of filiation
 In order for such statements and declaration be admitted, it must be
indispensably shown by some proof recognized by law
 Q: How do you recognize filiation?
 A: Art. 172 of the Family Code
- When you get married, you can go to aa judge, priest or the mayor
- However, since we belong to a particular religion we prefer to have the civil and religious
rites in the same occasion
- Priest will enter it to the Book of Marriage. He will enter the name of the father of the
bride and groom etc
- Q: Is that proof of filiation?
- A: No. It is only a proof of the fact that the marriage was celebrated. Unless the father
signed it as the father.
- RULE: A law requiring ministers to keep a registry of marriage, baptism and burial
performed by the church, the registry may prove the fact of marriage, baptism and
burial but not any more
 The lifeless body of Rosita was found in her house
 Her husband was charged and convicted of parricide
 The mother of the deceased testified that at 4:30am, her granddaughter came
to her house and told her that her father was strangling his mother
 During the trial, the granddaughter retracted the affidavit she executed before
the municipal judge
 ISSUE: What should be taken consideration? The retraction or the affidavit
(Note: Affidavit is hearsay)
 HELD: DECLARATION OF GRANDDAUGHTER IS PART OF RES GESTAE
 Note: In res gestae, it is not necessary that declarant is dead. It is sufficient
that he is unable to testify
 The statement she made to her grandmother when she rushed to inform her of
her father's attack on her mother was part of the res gestae under Section 42,
Rule 130 of the Rules of Court. This section provides:
Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of res gestae. So also, statements
accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.
 Res gestae means the "thing done." As held in People v. Sanchez, it refers to
those exclamations and statements made by either the participants, victims or
spectators to a crime immediately before, during or immediately after the
commission of the crime, when the circumstances are such that the statements
were made as a spontaneous reaction or utterance inspired by the excitement
of the occasion and there was no opportunity for the declarant to deliberate and
to fabricate a false statement
 SC took notice of the statements of the granddaughter immediately after the
occurrence

TESTIMONY OR DEPOSITION AT A FORMER PROCEEDINGS

- Lucipec (?) v Torres
- Section 47. Testimony or deposition at a former proceeding. — The testimony or
 On the matter of verbal acts
deposition of a witness deceased or unable to testify, given in a former case or
 Tan Ko Tik made a declaration during the time when he entered the
proceeding, judicial or administrative, involving the same parties and subject matter,
Philippines that the plaintiffs are his children
may be given in evidence against the adverse party who had the opportunity to cross-
 ISSUE: is that declaration admissible as an XPN to the hearsay rule
examine him.
 HELD: YES
- Q: What are the requisites?
- A:
- People v Putian
1. A testimony was given at a former trial
 If all the elements of a dying declaration is present, it can qualify as part of res
2. The former case was between the parties
gestae
3. The former testimony pertains to the same matter or issue
 Although the declaration has not been made by the declarant under the
4. *For it to be admissible, the adverse party has the opportunity to cross
expectation of an impending death, yet if such declaration was immediately
examine the witness
made after a startling occurrence/ event so that the exciting influence the
- Admissions made at other cases/former trial cannot be considered as judicial admission.
declarant’s mind or that the startling occurrence continued when he made the
It is only considered as extrajudicial admission
declaration
- Q: What does opportunity to cross examine means?
- People v Peralta

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 58

- A: It is not really actual cross examination. There is only an opportunity to cross - Ex. Action for slander where the witness testified that he heard the defendant said that
examine. Due process does not mean that you are actually heard. Due process only plaintiff is a thief
requires that there was an opportunity to be heard - He is not testifying as to the fact that the plaintiff is a thief. He is merely testifying that
- Taking of a deposition may be used in evidence. But a mere taking of deposition will the defendant uttered such words
not make the person you are deposing as your witness - It is not legal hearsay. In fact, it is not hearsay at all.
- *The testimony or deposition of the witness who is already dead or unable to testify. - However, there are also XPNs to the hearsay rule. Although they are legal hearsay, they
Kung buhay pa, tawagin mo pa ulit. are still admissible because of necessity and trustworthiness
- Tan v CA
 In this case, petitioner sued their putative father for acknowledgment and - Rule 130 are the rules of admissibility
support - It relates to whether it is competent or not
 But the case was dismissed because of the mother’s statement that he was not - About 70% of the rules are exclusions
the father of her children
 Later on, the maternal grandfather filed the same case OPINION RULE
 But the case was dismissed on the ground of res judicata
- GR: The opinion of the witness is not admissible
 On MR, the case was reconsidered and TC ruled in favor of the children
- Reason: What is generally admissible from the witness are facts known or observed by
 CA reversed it
him (not his opinion based on those facts)
 ISSUE: WON the testimony of the grandfather (2nd case) and the mother (1st
- Whatever is presented to the senses of the witness of which he receives direct
case) admissible under rule 47
knowledge is the one which is admissible
 HELD:
- But what he thinks in respect to the existence or nonexistence of the fact in issue is a
 This testimony does not come to the purview of “unable to testify”
matter of opinion
 They are still available but they just refuse to testify
- Ex. The witness may not declare that the cause of death is heart failure or that one is
 They could have just punished for contempt if they refuse
negligent
- People v Liwanag
- Ex. A states that B acted in bad faith. B claims he acted in good faith. Both of them
 Under the old ROC, there was a right to cross examine during PI
have different opinion. Then, you go to the judge. The judge will be the one who will
(Wala na yan sa present rules)
make the opinion. Witnesses will only state the facts
 The main thrust here is the constitutional right of the accused to meet the
- Remember the rule on pleadings. Pleading is the statement of ultimate facts constituting
witnesses against him
the claim or defenses of the parties. Note: Ultimate facts (not opinion)
 HELD:
- As to what the facts are (WON there is good faith), that is the duty of the judge
 The the testimony sought to be made part of the evidence in chief are not ex-
- Sir: If the witness is being asked WON the defendant was negligent, you object if you
parte affidavits, but testimony of witnesses taken down by question and
are the counsel of the defendant. “Objection your Honor! That calls for an opinion,
answer during the preliminary investigation in the presence of the accused
which only the judge can give.”
and his counsel who subjected the said witnesses to a rigid and close cross-
- Any form of suggestion to the witness for the latter to make an opinion must be objected
examination.
immediately.
 The inclusion of said testimony was made subject to the right of the
- Whenever there is a point that is reached at which the court itself is not able to
defendant to further cross-examine the witnesses whose testimony are
determine without the aid of witnesses, then, opinion becomes vita
sought to be reproduce and, pursuant to said order, the witnesses were
- Generally, when the court can make its own deduction, the witness may not testify
recalled to the stand during the trial and again examined in the presence of
- Q: What are the XPNs to the opinion rule?
the appellant.
- A: There are 2 kinds: (Expert testimony and Opinion of an Ordinary Witness)
 Upon the fact, there was no curtailment of the constitutional right of the
1. Expert testimony
accused to meet the witnesses face to face.
 Q: When is it admissible? What are the requisites?
 A:
- GR: Hearsay is not admissible
1. The fact to be proved is one requiring special knowledge, experience,
- You must make a distinction between mere hearsay and legal hearsay
training or skill
- There is such thing as Independent relevant evidence
 Something in which the court cannot make its own deduction
- The one testifying is not testifying on the truth made by the declarant out of court
 Special Skill- In the OJ Simpson case, DNA was first
rather, the fact that he uttered those words
introduced (if not first, it was relatively new)

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 59

 2. The witness is really an expert  In the absence of any competent witness referred to in the preceding
 You have to qualify your witness paragraph, and if the court deem it necessary, expert testimony may be
 Q: What do you mean by qualifying a witness? resorted to
 A: it means that proving that the witness presented is an  You ask, “Why do you know that this is the handwriting of the
expert decedent?”
 Q: How do you do it?
 A: By asking him preliminary questions as to his education, - The witness may also testify on his impressions of the emotion,
training and the like behavior, condition or appearance of a person.
 Ex. How many years have you been in this field?  Testifying that a person is drunk: How does he walk? Is his
 Q: What is the probative value of an expert witness? speech slurred?
 A: For matters which come in the general knowledge of the judge,  That is admissible under the opinion rule
expert evidence has little weight. The greatest consideration against the  Testifying that a person is sad: How does he look? Was he
testimony of an expert is that he is a paid witness. Ex. The issue is WON crying?
X is insane or not. Both parties will get an expert witness  Testifying that a person is happy: Was he smiling? Is there a
 Wigmore: Experts are no longer impermeable to the influence of thieves. glow in his face?
But where the subject of the inquiry is one which is highly technical in  That is admissible under the opinion rule
nature, the court must rely on expert evidence.
 In forgery, one will call an expert witness to prove that the signature is CHARACTER EVIDENCE
a forgery. The other will call another expert witness to prove that the
- GR: Character evidence is not admissible
signature is genuine.
- XPN:
 After qualifying the witness, you go to the matter of the fact in issue
1. In certain criminal cases
 Then, you give a hypothetical problem which relates to your case. You
2. In certain civil cases
ask, “What is your opinion on this?”
3. Rule 132 Sec 14
 Q: How may an expert witness be examined?
- Section 51. Character evidence not generally admissible; exceptions: —
 A: Wigmore: On direct examination, the facts must first be presented to
- (a) In Criminal Cases:
him asking him to state his opinion on those facts. Then, ask him to
1. The accused may prove his good moral character which is pertinent to the moral
state the basis upon such opinion is anchored
trait involved in the offense charged.
2. Opinion of an Ordinary Witness
 Ex. If he is involved in estafa, a person can prove that he is honest in
 This is also divided into two
his dealings with people
 Section 50. Opinion of ordinary witnesses. — The opinion of a witness
 Note: He may only present such if it is pertinent to the fact in issue/
for which proper basis is given, may be received in evidence regarding
crime charged
(a) the identity of a person about whom he has adequate knowledge;
 If the crime is rape, you cannot prove that he is an honest. Kay layo
(b) A handwriting with which he has sufficient familiarity; and
naman.
(c) The mental sanity of a person with whom he is sufficiently
2. Unless in rebuttal, the prosecution may not prove his bad moral character which
acquainted.
is pertinent to the moral trait involved in the offense charged.
 But before the witness can give his opinion on this matter, you must
 The prosecution can never start or initiate presenting evidence of bad
first lay the predicate/ basis
moral character. The prosecution can only do that in rebuttal if the
 Ex.
defense started proving the defendant’s good moral character
 For (a): How many years have you been acquainted with X? How were
 Q: How do you prove bad moral character?
you acquainted?
 A: By common reputation
 Only after you lay the basis will his opinion will be accepted as credible
3. The good or bad moral character of the offended party may be proved if it tends
 For (b): Article 811. In the probate of a holographic will, it shall be
to establish in any reasonable degree the probability or improbability of the
necessary that at least one witness who knows the handwriting and
offense charged.
signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least
(b) In Civil Cases:
three of such witnesses shall be required.

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 60

 Evidence of the moral character of a party in civil case is admissible only when pertinent
to the issue of character involved in the case.
 If the issue is the character itself
(c) In the case provided for in Rule 132, Section 14
- Yan ang character ng witness
- Section 14. Evidence of good character of witness. — Evidence of the
good character of a witness is not admissible until such character has
been impeached.
- Q: Who may assail/ impeach the character of witness?
- A: Later lesson. But GR: If you are the one presenting the witness, you
don’t impeach the character of your own witness. XPN: If the witness
becomes a hostile witness or when he is an adverse party
- US v Suan
 An essential element of the crime of seduction is that the female must be chaste,
not only by reputation, but as a matter of fact, up to the time of the alleged
seduction.
 If prior to that time, she voluntarily had sexual intercourse with any other man,
the defendant cannot be convicted of seduction.
 Reason: The crime of seduction presupposes that you are chase. In seduction,
walang pilitan. But there is moral ascendancy.

- NOTE:
- Good character may be proved by the accused if pertinent. Accused lang ha.
- In criminal cases, bad character of the accused is not admissible unless by rebuttal
- Good or bad character of the offended party may be proved if it tends to establish the
probability or non-probability of the offense charged (Suan case)
- In civil cases, Evidence of the moral character of a party in civil case is admissible only
when pertinent to the issue of character involved in the case.
- A witness may be impeached by evidence that his general reputation or proof that his
honesty and integrity is bad

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 61

RULE 131
RULE 132
SEC 1
- Q: How is the testimony of a witness given?
- A: The examination of witnesses presented in a trial or hearing shall be done:
1. in open court, and
 Q: What does this mean? Does it mean that the doors should
be open?
 A: Not necessarily. Sayang ang lamig kung aircon. Open court
means that nobody is prevented from entering inside the court
room. It means that anyone who may wish to go in is allowed
to get in
 Q: What is the purpose?
 A: To prevent what has been done during the old times –
torturing the accused. If the public is watching, they will be
prevented from doing that. The purpose is to give the accused
due process (free from torture)
2. under oath or affirmation.
 A witness must take an oath to swear to tell the truth
3. Unless the witness is incapacitated to speak, or the questions calls for a
different mode of answer, the answers of the witness shall be given
orally.
 GR: Answers of the witness shall be given orally
 XPNs:
- The witness is incapacitated to speak
- Sign language is no longer considered “oral”
- Questions calls for a different mode of answer
SEC 2
- Section 2. Proceedings to be recorded. — The entire proceedings of a trial or
hearing, including the questions propounded to a witness and his answers thereto, the
statements made by the judge or any of the parties, counsel, or witnesses with
reference to the case, shall be recorded by means of shorthand or stenotype or by other
means of recording found suitable by the court.
o Take note of the phrase: “or by other means of recording found suitable by
the court”
o You should first ask permission form the court before using it. Otherwise, you
might be sued under anti wire tapping law
o There is an official stenographer
o There are 2 ways to record:
1. Short hand- this is done manually
2. Steno type- there is a stenomachine (this is no longer used today)
- A transcript of the record of the proceedings made by the official stenographer,
stenotypist or recorder and certified as correct by him shall be deemed prima facie a
correct statement of such proceedings.
o Q: Why?
o A: Because it is a public record
SEC 3
- Q: Is a witness bound to answer all questions put to him?
- A: Yes
GR: Witness must answer all questions pertinent to the issue
XPN:
1. Those which will tend to subject him to a penalty for an offense unless otherwise
provided by law;
 This is a right against self incrimination
2. Those 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.
 Old wording: Use character instead of reputation
 Sir: Character is who a person really is while reputation is what other
people think he is
- Q: May a witness be compelled to answer, when the answer tends to establish a claim
against him?
- A: Yes.
Section 3. Rights and obligations of a witness. — A witness must answer questions, although his
answer may tend to establish a claim against him.
- Q: May he be compelled to answer to a fact of his previous conviction of an offense?
- A: Yes (Sec 3 (5))
- Section 3. Rights and obligations of a witness. — A witness must answer questions,
although his answer may tend to establish a claim against him. However, it is the right
of a witness:
(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
- An irrelevant question is not admissible
(2) Not to be detained longer than the interests of justice require;
-Ang haba ng cross examination pero leading no where naman
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him to a penalty for an offense unless
otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact
at issue or to a fact from which the fact in issue would be presumed. But a witness must answer
to the fact of his previous final conviction for an offense
- Q: What is the scope of a witness’ right against self-incrimination?
- A: It is the same as that of the accused. He may refuse to answer not only the fact of
guilt but also other facts which if taken together may establish his guilt
SEC 4
- Read the rules re: presentation of witness in conjunction with other laws such as
judicial affidavit rule, child witness rule (reading matter
- Section 4. Order in the examination of an individual witness. — The order
in which the individual witness may be examined is as follows;
(a) Direct examination by the proponent;
-Before, Q and A din
-Now, we follow the judicial affidavit rule
(b) Cross-examination by the opponent;
- Always oral
(c) Re-direct examination by the proponent;
-Always oral
(d) Re-cross-examination by the opponent.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 62
 -Always oral - A: Cross examination is part of the testimony. So, if the witness is not crossed or the
- Q: What is direct examination? other party was not given an opportunity to cross, you can ask that his testimony be
- A: Direct examination is the examination-in-chief of a witness by the party stricken off for the simple reason that his testimony is not complete.
presenting him on the facts relevant to the issue. - The situation is different if the other party waives his right to cross examine. Remember,
- There are 3 kinds of evidence: such opportunity to cross examine can be waived.
1. Object - Due process only requires that the other party is given an opportunity to test the
- Q: How do you prove object evidence? accuracy, truthfulness or freedom from interest or bias of the witness, or the reverse,
- A: By exhibiting it to the court, by experimentation and by viewing, touching etc. It can also be and to elicit all important facts bearing upon the issue
by testimonial evidence. - If such opportunity is not given, there is violation of due process.
- Q: Is object evidence subject to BER? - However, this right may be waived not only expressly but also impliedly
- A: Yes - Dela Paz v IAC
2. Documentary o Dela Paz (DP) filed a case for declaration of ownership of a parcel of land
3. Testimonial registered in the name of the late Ponciano
- Under Rule 132, eto ang nauuna o DP claims that such property is adjudicated to her and her mother which was
- Q: What is cross examination? approved by the court in a testate proceedings of the estate of Ponciano
- A: Section 6. Cross-examination; its purpose and extent. — Upon the termination of o The defendants are the recognized natural children of Ponciano
the direct examination, the witness may be cross-examined by the adverse party as to o Defendants claim that the disputed land was never accounted for in the
many matters stated in the direct examination, or connected therewith, with probate proceedings. Therefore, it constitutes community property of all the
sufficient fullness and freedom to test his accuracy and truthfulness and freedom from heirs
interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. o DP took the stand and finish direct exam on March 12
- Q: When do you cross examine? o Then, counsel for the defendants started cross examining her on April 25
- A: After direct o However, it is not completed
- Q: What is the purpose of cross examination? o Continuance was granted upon defendant’s motion
- A: o DP’s counsel seeks the rectification of transcript due to some errors in the
1. to test the accuracy and truthfulness and freedom from interest or bias of the direct exam. This was granted
witness, or the reverse, and o Then, the counsel of the defendant asked for the postponement of cross
2. to elicit all important facts bearing upon the issue exam twice
- Q: On what matters may a witness be examined on cross? o Plaintiff’s counsel asked that he be allowed to present more evidence. Court
- A: Not only on matters directly taken up during direct but all those matters connected granted this
with o On the same day, the presentation of evid by plaintiff was completed and the
- We have 2 rules regarding this matter: case was submitted for decision
1. English rule- you can ask questions even if it was not taken up during direct. o Despite such circumstances, counsel for the defendant was allowed to cross
Provided, it is connected with it. We usually follow this rule. examine DP
2. American rule- you can only ask the witness a question provided that it was o DP appeared on the scheduled hearing but the defendant’s counsel failed to
taken up during direct appear again
- However, there are certain instances where our rules strictly follow the American rule o So, the cross exam was deferred for the 4th time
1. Under Rule 115 (d): Rights of the accused o Later, the cross exam was continued but was cut short
o One of the rights of the accused is to testify as witness in his own behalf BUT o Then, DP died
subject to cross examination on matters covered by direct examination o When the trial resumed, the counsel of the defendant moved to strike off the
o Only those connected with direct are allowed to be asked entire testimony of DP on the ground that she was not cross examined
2. Under Rule 132 Sec 12 o TC denied the motion
o Hostile or unwilling witness may be impeached and cross-examined by the o HELD: TC IS WRONG
adverse party, but such cross-examination must only be on the subject matter o "The right of a party to cross-examine the witness of his adversary is
of his examination-in-chief. invaluable as it is inviolable in civil cases, no less than the right of the accused
- Q: What happens if a witness is not crossed? Ex. the witness is to be crossed tomorrow in criminal cases. The express recognition of such right of the accused in the
but he died and was unable to testify. Constitution does not render the right thereto of parties in civil case less
- A: You can ask the court that his testimony on direct be stricken off the record constitutionally based, for it is an indispensable part of the due process
- Q: What is the reason? guaranteed by the fundamental law. xxx Until such cross-examination has
been finished, the testimony of the witness cannot be considered as complete

CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 63

 and may not, therefore, be allowed to form part of the evidence to be
considered by the court in deciding the case."
o But it is not an absolute right which a party can demand at all times.
o "the right is a personal one which may be waived expressly or impliedly by
conduct amounting to a renunciation of the right of cross-examination.
o Thus, where a party has had the opportunity to cross-examine a witness but
failed to avail himself of it, he necessarily forfeits the right to cross-examine
and the testimony given on direct examination of the witness will be received
or allowed to remain in the record.
o "The conduct of a party which may be construed as an implied waiver of the
right to cross-examine may take various forms. But the common basic
principle underlying the application of the rule on implied waiver is that the
party was given the opportunity to confront and cross-examine an opposing
witness but failed to take advantage of it for reasons attributable to himself
alone.
- Fulgado v CA
o Ruperto Fulgado, 80 y/o filed an action against 5 defendants
o After several deferments, pre trial was set
o Defendants failed to appear and was declared as in default
o Their motion for leave was denied
o Judgment was rendered based on the evidence received ex parte
o However, on appeal, the appellate court remanded the case in order for the
defendants to present evidence and to cross examine the witness
o The case was set for trial.
o When the case was set for hearing, the two witnesses for the plaintiff were
no longer available
o Plaintiff himself (one of the witnesses) had died and the second witness
already migrated in the US
o TC dismissed the case
o CA affirmed the dismissal
o HELD: DISMISSAL WAS NOT PROPER
o The principle requiring a testing of testimonial statements by cross-
examination has always been understood as requiring, not necessarily an
actual cross-examination, but merely an opportunity to exercise the right to
cross-examine if desired
o The defendants tarried for more than 1 year from the finality of the decision
of the appellate court remanding the case for further proceedings
o They dilly dallied
o Na-remand na pero hindi sila humihingi ng resumption of trial
o The task of recalling a witness for cross examination is, in law, imposed on
the party who wishes to exercise said right.
o Here, the defendants are said to have waived their right
o Sir: Maybe that was the tactic of the lawyer. Hintayin na lang natin mamatay
ang plaintiff bago tayo mag ask na ma resume ang trial
- Q: What is redirect?
- A: Section 7. Re-direct examination; its purpose and extent. — After the cross-
examination of the witness has been concluded, he may be re-examined by the party
calling him, to explain or supplement his answers given during the cross-examination.
Q: What is the purpose of redirect?
- A: to explain or supplement his answers given during the cross-examination. You clarify
in order to bolster his testimony
- On re-direct-examination, questions on matters not dealt with during the cross-
examination, may be allowed by the court in its discretion.
- Q: What is the scope of re-cross?
- A: Section 8. Re-cross-examination. — Upon the conclusion of the re-direct
examination, the adverse party may re-cross-examine the witness on matters stated in
his re-direct examination, and also on such other matters as may be allowed by the
court in its discretion
SEC 10
- Section 10. Leading and misleading questions. — A question which suggests to the
witness the answer which the examining party desires is a leading question. It is not
allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an adverse party
- Q: What is a leading question?
- A: When the question itself suggests to the witness the answer, which the examining
party desires
- Ex. of a leading question
o Usually, if the question is answerable by Yes or No
o “Your name is Juan dela Cruz, isn’t?”
o “Is it not correct hat during this date you were in that place?”
- Q: What are those instance where leading questions are allowed?
- A:
1. On cross examination;
- Note: Bawal lang ang leading kung ikaw ang proponent. Ung opponent ka sa cross, pwede ang
leading questions
2. On preliminary matters;
- It means that it is not yet the fact in issue
- You are just laying the premise. Pero wala ka pa doon.
- Ex. In examining a witness who saw the actual killing, you can ask: “At around 12mn you are in
this bar, correct?” Even if it is answerable by yes or no, it is not yet considered leading
- But if the question was: “Isnt you saw the accused stab the victim?” Ibang usapan nay un. That
is leading! You are leading the witness to hell.  You object.
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;
- Pwede mong I lead ang bata even in direct exam
4. Of an unwilling or hostile witness; or
5. 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
- Basta adverse party, pwede ang leading
- Q: What is a misleading question?
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 64
 - A: A misleading question is one which assumes as true a fact not yet testified to by the
witness, or contrary to that which he has previously stated. It is not allowed.
- It can either be of two kinds:
1. It assumes a fact not yet proven
- You can object on the ground that it is misleading or there is no basis (since it is not yet proven)
2. You state a fact which is not that which was proved
- Ex. The witness testified during direct exam that the color was white. But during cross, you
asked him: “When you saw the color black.” You object. That is misleading
- Eto ang tunay na misleading in all forms
- Sir: We now have the judicial affidavit rule. As a result, bawal na lang ang leading sa
redirect. Kasi sa cross at recross, pwede ang leading dun.
SEC 11
- Section 11. Impeachment of adverse party's witness. — A witness may be impeached
by the party against whom he was called, by contradictory evidence, by evidence that
his general reputation for truth, honestly, or integrity is bad, or by evidence that he has
made at other times statements inconsistent with his present, testimony, but not by
evidence of particular wrongful acts, except that it may be shown by the examination
of the witness, or the record of the judgment, that he has been convicted of an offense.
- Q: What is impeach of a witness?
- A: It simply an attack on the credibility of the witness
- Q: May a party impeach his own witness?
- A: GR: No, you cannot destroy the credibility of your witness. When you present your
witness in court that is a tacit declaration that he is credible. Therefore, why will you
destroy his credibility?
- Q: What are the modes/ways to impeach a witness?
- A: There are 3 ways:
1. by contradictory evidence,
2. by evidence that his general reputation for truth, honestly, or integrity is bad, or
3. by evidence that he has made at other times statements inconsistent with his
present, testimony
- Note: but not by evidence of particular wrongful acts, except that it may be shown by
the examination of the witness, or the record of the judgment, that he has been
convicted of an offense
- Generally, a witness may only be impeached by 3 ways
- Q: can you also impeach a witness by proof of prior conviction?
- A: Yes
- Although you cannot impeach a witness by evidence of particular wrongful acts, but
you can show by the examination of the witness, or the record of the judgment, that
he has been convicted of an offense
- Q: What are these offence?
- A: Ex. perjury, falsification. Anything that has a connection with his integrity. You show
that he is a liar
1. By contradictory evidence
- You can also impeach a witness by contradictory statements
o Such evidence may come from the same witness or from the other party
o Contradictory statements were made during cross
- You can also impeach him by showing his bias or hostile feelings towards the other
party.
o Ask: “Isnt you were always quarreling?”
o Therefore, you impose upon the court that the witness can never testify in
favor of the other because they are mortal enemies (state the reason. Ex.
you love the same person)
o You must show how angry the witness is towards your client
- You can also impeach the witness by showing the impossibility of his testimony
o This is also by contradictory evidence
o Remember, for a testimony to be admissible, the testimony must not only
proceed from a credible witness but the testimony itself must also be credible
(it must be believable). It must always be in accord with human
nature/experience
- You can also impeach the witness by showing acts or conduct inconsistent with his
testimony
o This is also by contradictory evidence
2. By evidence that his general reputation for truth, honestly, or integrity is bad,
- Q: How do you show the general reputation of the witness is bad?
- A: By showing the Common reputation of a person’s character in the community
o Ex. that fellow is a bad debtor, that fellow is a liar
o This is considered as bad character
o However, you cannot do this by doing a particular act only except when it is
a judgment of the court (public record)
- Re character: Rule 130
- GR: Character evidence is not admissible
- XPN:
1. In certain criminal cases
- Q: What are the rules?
- A:
 Presentation of Evidence of bad moral character by the plaintiff is not
allowed.
 However, the accused can present or prove his good moral character
which is pertinent to the crime charged
 Then, the prosecution may now prove his bad moral character during
rebuttal
 In other words, the prosecution cannot initially present evidence that
the defendant has bad character
o Reason: There is a presumption of good character in favor of
an accused
 The good or bad moral character of the offended party may be proved
if it tends to establish in any reasonable degree the probability or
improbability of the offense charged.
 Initially, you can present evidence of good or bad moral character of the
offended party
 In cases of seduction, you can prove that the plaintiff is no longer a
virgin
 In cases of self defense, you can prove the bad moral character of the
offended party by showing that he has tendency to become violent. You
can also present evidence of his reputation in the community that he is
a violent man
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 65
 2. In certain civil cases
 GR: Character is not admissible
 XPN: when the character itself is the issue in the case
3. Rule 132 Sec 14
 Section 14. Evidence of good character of witness. — Evidence of the
good character of a witness is not admissible until such character has
been impeached.
 Impeached means that the character or integrity of the witness is bad
 Q: Why evidence of the good character of the witness not admissible?
 A: Because that is already presumed. Waste of time na lang.
 Kung ikaw ang kalaban, tirahin mo na agad na liar siya.
3.By prior inconsistent statements
- GR: a party cannot impeach his own witness for the simple reason that when he
presents his witness, he assures everybody including the court that his witness is
credible (truthful man)
- XPN:
1. If he becomes a hostile witness
2. When he is an adverse party witness or an officer of a juridical entity which is the
adverse party
- Legal Basis: Section 12. Party may not impeach his own witness. — Except with
respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
o (d) Of an unwilling or hostile witness; or
o (e) Of a witness who is an adverse party or an officer, director, or managing
agent of a public or private corporation or of a partnership or association
which is an adverse party
- Q: When is a witness considered hostile or unwilling?
- A: only if so declared by the court upon adequate showing of:
1. his adverse interest,
2. unjustified reluctance to testify, or
3. his having misled the party into calling him to the witness stand.
o Pinresent mo tapos iba yung sinabi sa witness stand sa kinwento sayo
o Ipa declare mo na hostile na siya. Say that you were mislead
o Note: You can ask leading questions if he is already declared an hostile
witness
- The unwilling or hostile witness so declared, or the witness who is an adverse party,
may be impeached by the party presenting him in all respects as if he had been called
by the adverse party, except by evidence of his bad character.
- Remember, there are 3 modes of impeaching a witness.
1. by contradictory evidence,
2. by evidence that his general reputation for truth, honestly, or integrity
is bad, or
3. by evidence that he has made at other times statements inconsistent
with his present, testimony
- *If the witness is hostile, the mode that you can use is 1 and 3. You can never use 2.
- Reason: You cannot impeach him on the ground of bad character because that
tantamount to contradiction on your part. You are telling the court: “Believe him if he
testifies in my favor. But he is a liar when he does not testify according to what I like.”
- 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.
o This is the second instance when we strictly follow the American rule
o cross-examination must only be on the subject matter of his examination-in-
chief.
o Reason: In favor na nga sayo, wag mo ng dagdagan pa.
- Section 13. How witness impeached by evidence of inconsistent statements. — Before
a witness can be impeached by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be related to him, with
the circumstances of the times and places and the persons present, and he must be
asked whether he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any question is put
to him concerning them.
- Q: How are witnesses impeached based on prior inconsistent statements?
- A: Requirements:
1. The previous statements must be related to him, with the circumstances of the
times and places and the persons present, and
2. he must be asked whether he made such statements at that prior time, and
3. if answer in 2 is yes, he must be allowed to explain them.
4. If the statements be in writing they must be shown to the witness before any
question is put to him concerning them.
- *People v Resabal
o The accused was convicted of murder
o At the trial, a witness testified that the accused (armed with a revolver) went
to him and told him that he will kill Primo Ordiz
o Witness went with him
o Upon reaching the house of Ordiz, accused approached a window which is
less than a meter in height
o He opened the window and peeped through it. At that moment, the witness
left
o Then, while the witness is 15 brasas away from the house, he heard an
explosion
o The defense claims that the witness was not credible because of the
contradictions in his testimonies made during the prelim investigation in one
hand and his testimony during trial
o The witness’ declarations before the justice of the peace were presented
o HELD:
o Mere declarations before the justice of the peace would not suffice to destroy
the credibility of the witness
o the apparent contradiction which may be noted in his declarations before the
court of the justice of the peace, and before the court of first instance is not
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 66
 sufficient to discredit his testimony, for the simple reason that this witness
was not given ample opportunity, by a reading to him of his declarations
before the court of the justice of the peace to explain the discrepancies noted
by counsel for the accused.
o In this case, there was discrepancy. But the witness was not given the
opportunity to explain the discrepancies
o The mere presentation of Exhibit 1, without said declaration having been read
to the witness while he testified in the Court of First Instance, is no ground
for impeaching his testimony
o Essence of the case: Witness must be given the chance to explain the
contradiction. This is what is known as laying the predicate.
- Q: What is meant by the term laying the predicate?
- A: This is a prerequisite to the impeachment of a witness by prior inconsistent
statements. Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements must be
related to him, with the circumstances of the times and places and the persons present,
and he must be asked whether he made such statements, and if so, allowed to explain
them. If the statements be in writing they must be shown to the witness before any
question is put to him concerning them.
- Legal Basis: Sec 13. How witness impeached by evidence of inconsistent statements
- Contradictory evidence (1) and prior inconsistent statements are different (3).
- If it is under 3, you must confront him and ask why did he say that before
- Note: Evidence (testimony) is admissible if it is relevant and competent. After it is
admitted, you may impeach the witness. Such is an attack to the credibility of the
witness so that even if the testimony is admitted, the court wont believe him
- Q: What is the effect of impeachment of witness?
- A: It affects the credibility of the witness so that the court is now at liberty to disbelieve
him
- Appellate court usually sustain the findings of the TC re credibility of the witness
- TC is in the best position to decide on credibility because it is the court which was able
to observe the demeanor of the witness
- Q: Can you rehabilitate a witness after his credibility was destroyed?
- A: Yes.
- Wigmore: rehabilitation means restoring the credibility of the witness who has been
impeached
- Q: How?
- A:
1. If the witness has been impeached by contradictory statements, he can be
rehabilitated by making him explain the contradiction
- During redirect, restore it.
- You ask him to explain his statements
- Then, the other party will recross
2. If the witness has been impeached because of bad character, he can be
rehabilitated by evidence of good moral character
- Tawag ka din ng witness showing that mabait siya
- But the witness must have familiarity with the impeached witness
- You establish that they were close to each other
- This is Opinion rule
3. If the witness has been impeached by prior inconsistent statement, he can be
rehabilitated by showing prior consistent statements
- Q: What is the role of the judge at the trial?
- A: A judge who presides at the trial is not a mere referee. He must actively participate
therein by directing counsel to the facts in dispute and by asking clarificatory questions.
- But the judge should be cautious. They cannot act as lawyers for the other party. Baka
siya na yung nag ccross examine.
SEC 9
- Section 9. Recalling witness. — After the examination of a witness by both sides has
been concluded, the witness cannot be recalled without leave of the court. The court
will grant or withhold leave in its discretion, as the interests of justice may require.
- People v Rivera
o Accused was charged with arson
o Among the witnesses presented was a certain Lee, a room boy who testified
that accused ran out of the VIP room when the fire started
o The accused allegedly refuse to stop even after he told him to do so
o Lee once again gave his testimony on redirect and recross
o Before the prosecution rested its case, new counsel filed a motion to recall
Lee for further examination because there seems to be a lot of questions that
was supposed to be asked but was not propounded by the former lawyer
o TC ordered the recall of the witness
o However, efforts to cause his appearance was futile because he already
terminated his employment and has moved no where
o Counsel for the defendant moved to strike off the testimony of Lee on the
ground of lack of cross examination
TC stricken off his testimony
o HELD: TC WAS SRONG
o Doctrine: When you file a motion to recall a witness, it must not be based
on the grounds that are general. Rather, it must be specific so that the court
may determine if it can be allowed in the interest of justice
o Generalities cannot be the basis of recalling the witness
o The discretion to recall a witness may not be exercised in a vacuum, as it
were, entirely, isolated from a particular set of attendant circumstances.
o The discretion to recall a witness is not properly invoked or exercisable by an
applicant's mere general statement that there is a need to recall a witness "in
the interest of justice," or "in order to afford a party full opportunity to present
his case," or that, as here, "there seems to be many points and questions
that should have been asked" in the earlier interrogation. To regard
expressed generalities such as these as sufficient ground for recall of
witnesses would make the recall of witness no longer discretionary but
ministerial
JUDICIAL AFFIDAVIT RULE
Section 1. Scope. –
- (a) This Rule shall apply to all actions, proceedings, and incidents requiring the
reception of evidence before:
(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts,
the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small
claims cases under A.M. 08-8-7-SC;
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 67
 o Q: Does this apply to summary procedure?
o A: Yes, because summary procedure is used in MTCs
(2) The Regional Trial Courts and the Shari'a District Courts;
(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate
Courts;
(4) The investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippine (IBP); and
(5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the
provisions of this Rule.
o All rules of quasi judicial bodies should include the judicial affidavit rule
o This is incident to the power of the SC to disapprove their rules
o In other words, SC will disapprove it if they will not include the JAR
(b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers
shall be uniformly referred to here as the "court."
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies.
– (take note: wala ng direct)
- Q: When should you submit the affidavits of your witness?
- A:
- (a) The parties shall file with the court and serve on the adverse party, personally or by
licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents, the
following:
(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct
testimonies; and
(2) The parties' documentary or object evidence, if any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.
o Plantiff- use letters
o Defendant- use numbers
o Plaintiff in intervention – Exhibit A plaintiff intervenor
(b) Should a party or a witness desire to keep the original document or object evidence in his
possession, he may, after the same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful
copy or reproduction of that original. In addition, the party or witness shall bring the original
document or object evidence for comparison during the preliminary conference with the attached
copy, reproduction, or pictures, failing which the latter shall not be admitted.
o During pretrial, you usually want to keep the original.
o But you must compare the copy with the original to establish that it was a
faithful copy so you can keep the original
o Q: When do you do the comparison?
o A: During pretrial
This is without prejudice to the introduction of secondary evidence in place of the original when
allowed by existing rules.
o During direct, you must already establish the existence of your secondary
evidence
o Lay the basis why your witness cannot present the original (lost etc)
- Sir: there are many pending petitions questioning JAR. They contend that the purpose
of the rules pertaining to judgment on demurrer of evidence has been rendered useless
because of JAR
- No question re: burden of proof -> He who allege the affirmative has the burden of
proof
- Burden of evidence is shifted.
- Q: When do you present evidence?
- A: When the kalaban was able to establish a prima facie case. That is the only time that
burden of evidence is shifted to him
- Due to JAR, simultaneous na ang lahat
Section 3. Contents of judicial Affidavit. –
- A judicial affidavit shall be prepared in the language known to the witness and, if not in
English or Filipino, accompanied by a translation in English or Filipino, and shall contain
the following:
(a) The name, age, residence or business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts or supervises the examination of the
witness and the place where the examination is being held;
(c) A statement that the witness is answering the questions asked of him, fully conscious that he
does so under oath, and that he may face criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:
(1) Show the circumstances under which the witness acquired the facts upon which he testifies;
(2) Elicit from him those facts which are relevant to the issues that the case presents; and
(3) Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or an officer who is
authorized by law to administer the same.
Section 4. Sworn attestation of the lawyer. –
- (a) The judicial affidavit shall contain a sworn attestation at the end, executed by the
lawyer who conducted or supervised the examination of the witness, to the effect that:
(1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding
answers that the witness gave; and
(2) Neither he nor any other person then present or assisting him coached the witness regarding
the latter's answers.
(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment.
*Section 5. Subpoena. –
- Q: What do you do if you have a witness but refuse to have his judicial affidavit be
taken?
- A: If the government employee or official, or the requested witness, who is neither the
witness of the adverse party nor a hostile witness, unjustifiably declines to execute a
judicial affidavit or refuses without just cause to make the relevant books, documents,
or other things under his control available for copying, authentication, and eventual
production in court, the requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The
rules governing the issuance of a subpoena to the witness in this case shall be the same
as when taking his deposition except that the taking of a judicial affidavit shall be
understood to be ex parte.
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 68
 - Note: Taking of judicial affidavit is an ex parte proceeding unlike the taking of deposition
- Q:Why ex parte?
- A: Because there is an opportunity to cross examine there
Section 6. Offer of and objections to testimony in judicial affidavit. –
- There are 3 kinds of evidence:
1. Object
o You offer this at the end.
2. Documentary
o You offer this at the end
3. Testimonial
o This should be presented from the start
o “I am presenting this witness to prove…”
o You can already object there. Otherwise, there is waiver
- The party presenting the judicial affidavit of his witness in place of direct testimony shall
state the purpose of such testimony at the start of the presentation of the witness.
o Other lawyers already state purpose sa judicial affidavit pa lang
o But to be sure, repeat that during trial
o That it is the time when the other party will object. “Objection! DMS.”
- The adverse party may move to disqualify the witness or to strike out his affidavit or
any of the answers found in it on ground of inadmissibility.
o Competency does not only related to the person. It can also relate to his
answers
o If a particular portion is hearsay, you should object
- The court shall promptly rule on the motion and, if granted, shall cause the marking of
any excluded answer by placing it in brackets under the initials of an authorized court
personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule
132 of the Rules of Court.
o Q: Without JAR, when do you object?
o A: When the ground for objection becomes evident
o Q: What is tender of evidence?
o A: If you are excluding the witness entirely on the ground of privileged
communication, you say “Your honor, we wish to have a tender of evidence.”
It means that have I been allowed to present this witness, we would be able
to prove the following points. Enumerate and put it on record
o Such is important in cases where you will appeal later on
Section 7. Examination of the witness on his judicial affidavit. –
- The adverse party shall have the right to cross-examine the witness on his judicial
affidavit and on the exhibits attached to the same. The party who presents the witness
may also examine him as on re-direct. In every case, the court shall take active part in
examining the witness to determine his credibility as well as the truth of his testimony
and to elicit the answers that it needs for resolving the issues.
Section 8. Oral offer of and objections to exhibits. –
(a) Upon the termination of the testimony of his last witness, a party shall immediately make an
oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological
order, stating the purpose or purposes for which he offers the particular exhibit.
(b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his
objection, if any, to its admission, and the court shall immediately make its ruling respecting that
exhibit.
c) Since the documentary or object exhibits form part of the judicial affidavits that describe and
authenticate them, it is sufficient that such exhibits are simply cited by their markings during the
offers, the objections, and the rulings, dispensing with the description of each exhibit.
Section 9. Application of rule to criminal actions. –
(a) This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty does not exceed six years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved;
or
(3) With respect to the civil aspect of the actions, whatever the penalties involved are.
(b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days
before the pre-trial, serving copies if the same upon the accused. The complainant or public
prosecutor shall attach to the affidavits such documentary or object evidence as he may have,
marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object
evidence shall be admitted at the trial.
(c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit his judicial affidavit as well as those of his
witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on
the public and private prosecutor, including his documentary and object evidence previously
marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear before the court to testify.
o Civil case- simultaneous submission
o Criminal case- prosecution will submit first. After the defense receives a copy,
he has 10 days to submit
o Sir: How can the defense comply with 10 day period if the testimony of the
prosecution is not yet complete. Hindi pa na cross examine.
Section 10. Effect of non-compliance with the judicial Affidavit Rule. –
- A party who fails to submit the required judicial affidavits and exhibits on time shall be
deemed to have waived their submission.
- The court may, however, allow only once the late submission of the same
provided,
o the delay is for a valid reason,
o would not unduly prejudice the opposing party, and
o the defaulting party pays a fine of not less than P 1,000.00 nor more than
P5,000.00 at the discretion of the court.
- (b) The court shall not consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case as required. Counsel who fails to appear without valid
cause despite notice shall be deemed to have waived his client's right to confront by
cross-examination the witnesses there present.
- (c) The court shall not admit as evidence judicial affidavits that do not conform to the
content requirements of Section 3 and the attestation requirement of Section 4 above.
The court may, however, allow only once the subsequent submission of the compliant
replacement affidavits before the hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party and provided further, that public or
private counsel responsible for their preparation and submission pays a fine of not less
than P1,000.00 nor more than P 5,000.00, at the discretion of the court.
Section 11. Repeal or modification of inconsistent rules. –
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 69
 -The provisions of the Rules of Court and the rules of procedure governing investigating
officers and bodies authorized by the Supreme Court to receive evidence are repealed
or modified insofar as these are inconsistent with the provisions of this Rule.1âwphi1
- The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby
disapproved.
AUTHENTICATION AND PROOF OF DOCUMENTS
- In presentation of documentary evidence, the term documentary must be taken in its
generic sense
- Q: What is its generic sense?
- A: The term documentary must not be taken strictly within the meaning of documentary
evidence rule
- An evidence is documentary if the issue is the contents
- But here, it can be object evidence too. You presenting the document not necessarily
to prove its contents but also to prove its existence
- But, you must follow the same way of presenting it
- The law classifies document into two:
1. Public
2. Private
- Q: Why do the rules need to distinguish?
- A: Because if it is a public document, there is no need to authenticate it. If private
document, it needs to be authenticated before it can be admitted
- Q: What are considered public documents?
- A: Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and testaments;
o Q: Why do you go to notary public?
o A: To authenticate a private document
o Therefore, public documents need not be notarized. Authenticated na eh.
Makulit ka na lang.
o Q: Why are last wills and testaments excepted?
o A: Because the concept of due execution of a will is broader. Such is expressly
required by law
o Q: What is the issue in the probate of the will?
o A: due execution of the will
o Q: What are considered?
o A:
1. The will was executed in accordance with the strict formalities of the law
2. The testator was in sound and disposing mind,
3. The will of the testator was not vitiated. No force intimidation or
violence,
4. There was no undue pressure on the part of the beneficiary,
5. there was no fraud (testator was fully aware that when he signed the
document it was his last will and testament)
o Vano v Vda de Gonces
o Q: if the oppositor did not comply with formalities of the law, will that prevent
the oppositor in presenting proof that there was forgery even if not raised in
the pleadings?
o A: Yes
o Unlike in ordinary civil action, the parties are the ones who determine the
issues in a case but in the probate of the will, the law is the one which
determines the issues.
o Although belated presentation will weaken your case, you must explain your
reason for the delay
- (c) Public records, kept in the Philippines, of private documents required by law to the
entered therein.
o Q: What are the examples of these?
o A: Financial statements of a corporation should be submitted to SEC annually
- Note: If it is not in the enumeration, it is considered private document. Therefore, it
should be authenticated.
- Public documents are self-authenticated
SEC 20
- Q: How do you prove the due execution of a private document?
- A: Before any private document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
- (a) By anyone who saw the document executed or written; or
o Ex. He was present when the document was presented
- (b) By evidence of the genuineness of the signature or handwriting of the maker.
o In cases where no one saw it
o Q: How do you do this?
o A: relate to sec 22
- Any other private document need only be identified as that which it is claimed to be.
SEC 21
- GR: all private documents must be authenticated first before it be allowed to be
admitted in evidence
- XPN: when the private document is considered ancient
- Section 21. When evidence of authenticity of private document not
necessary. — Where a private document is more than thirty years old, is produced
from the custody in which it would naturally be found if genuine, and is unblemished
by any alterations or circumstances of suspicion, no other evidence of its authenticity
need be given.
- Q: What are the requirements before a document will be considered as ancient
document?
- A:
1. It is more than 30 years old
2. It must be produced from the custody in which it would naturally be found if
genuine,
3. It is unblemished by any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given.
- Bartolome v IAC
o RTC rendered a decision adjudicating the eastern portion of a lot to the heirs
of the decedent and the remaining portion to the heirs of Bartolome
o Decision was reversed
o It was ruled that the entire lot belongs to Sps Bartolome based on the
Document of Sale executed by Maria in favor of Sps Bartolome
o The son of Sps Bartolome allege that he first saw the document when he was
only 7 years old
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 70
 o It was entrusted to him in 1947
o More than 30 years has lapsed before the document was presented to the
court
o Q: When do you count the 30 years?
o A: At the time when it was presented in court
o HELD:
o IAC erred in admitting the document because it is already 30 years old and
was produced by the custodian
o The first two requirements are complied
o But the last requirement was not complied because last page is missing,
where the signature is found. Such affects the authenticity of the document
- Heirs of Lacsa v CA
o The action to recover possession of parcel of land and cancellation of title
was filed by the heirs
o Both were dismissed based on an extrajudicial document purporting to
o HELD: ANCIENT DOCUMENT RULE WAS CORRECTLY APPLIED
o All requirements are complied
o 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
o 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.
SEC 22
- Sec 22 has reference to Sec 20 (b): By evidence of the genuineness of the signature or
handwriting of the maker.
- Section 22. How genuineness of handwriting proved. — The handwriting of a person
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.
- Remember our topic on opinion rule.
- You are familiar with the signature, you make an opinion that you are familiar with the
handwriting because you were his secretary for 50 years
- It can also be done by comparison. But there are requisites to be complied
o The one that is compared should be admitted as the genuine signature. Then,
you compare that with the document in issue
o Usually the comparison is done by an expert in handwriting
SEC 23
- Q: How do you prove public documents?
- A:
- Section 23. Public documents as evidence. — 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
- They are hearsay but they are still prima facie evidence because they are public
documents
- There is the presumption of regularity of official function
- Remember our lesson on hearsay rule. If they are official acts, they are also prima facie
evidence. However, there are requirements.
o Entries must be within his personal knowledge
o In vehicular accident, police goes to the scene and make a sketh, measure
the skid marks and location of debris. Then, he signs it. That is a prima facie
evidence of the facts stated therein
o When a sheriff makes a return of service, such return is a prima facie
presumption of the facts stated therein
- In order for it to be considered as prima facie presumption, the facts upon which they
are presumed must be established
- If sheriff makes a return of service but did not state what efforts he made to serve it,
the presumption does not arise
Angpin v CA
- Q: Can you presume regularity?
- A: No, because the conditions for which the presumption may arise are not present
- The presumption of regularity in the performance of public functions finds no application
in the case at bar.
- Surely, there must be, at the very least, compliance with the procedure of law
applicable.
- Here, the process server did not file any proof of service and since substituted service
was resorted to, there should have been a report indicating that the person who
received the summons in Ang Ping’s behalf was one with whom petitioner had a relation
of confidence that would ensure that the latter will receive or be notified of the
summons issued in his name.
- Certainly, it was never intended that the presumption of regularity in the performance
of official duty will be applied even in cases where there is no showing of substantial
compliance with the requirements of the rules of procedure. This is all the more so in
the present case where the duty to be performed has a direct bearing on the acquisition
of jurisdiction of the trial court over the person of the defendant.
BPI v CA
- Sheriff’s return does not state the efforts he made to serve the summons
- Lawyer called the sheriff in the witness stand asking him of his efforts
- HELD: IT SUPPLIED THE DEFICIENCY
- In this case, the other party can cross examine the sheriff
Belen Angeles v Aleli Angeles
- Q: Is the mere presentation of birth certificate already establish filiation?
- A: no
- A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. He need not introduce evidence to prove that
fact.
- For, a presumption is prima facie proof of the fact presumed.
- However, it cannot be over-emphasized, that while a fact thus prima facie established
by legal presumption shall, unless overthrown, stand as proved, the presumption of
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 71
 legitimacy under Article 164 of the Family Code[ may be availed only upon convincing
proof of the factual basis therefor, i.e., that the childs parents were legally married and
that his/her conception or birth occurred during the subsistence of that marriage.
- Else, the presumption of law that a child is legitimate does not arise.
- Art. 172. The filiation of legitimate children is established by any of the following:
1. The record of birth appearing in the civil register or a final judgments; or
2. An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned. (voluntary recognition)
- In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. The open and continuous possession of the status of a legitimate child; or
2. Any other means allowed by the Rules of Court and special laws.
- Birth certificate cannot in itself establish filiation unless it is signed by the parent
concerned
- Here, respondent presented, in support of her claim of legitimacy, a copy of her Birth
Certificate dated November 23, 1939 issued by the Civil Registrar of the City of Manila
(Exh. E). In it, her birth was recorded as the legitimate child of Francisco Angeles and
Genoveva Mercado.
- And the word married is written in the certificate to indicate the union of Francisco and
Genoveva
- the Birth Certificate presented was not signed by Francisco against whom legitimate
filiation is asserted. Not even by Genoveva. It was signed by the attending physician,
one Rebecca De Guzman, who certified to having attended the birth of a child.
- Such certificate, albeit considered a public record of a private document is, under
Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to
its execution: the fact of birth of a child
- Jurisprudence teaches that a birth certificate, to be considered as validating proof of
paternity and as an instrument of recognition, must be signed by the father and mother
jointly, or by the mother alone if the father refuses.
- Dr. Arturo Tolentino, commenting on the probative value of the entries in a certificate
of birth, wrote:
xxx if the alleged father did not intervene in the making of the birth certificate, the putting of his
name by the mother or doctor or registrar is void; the signature of the alleged father is necessary.
- Note: Sec 23 -> While a public document is admissible without proof of its genuiness
and due execution, it is not a perfect document with respect to the truthfulness of the
statements stated therein. In such instance, parol evidence may be introduced to
establish its invalidity, intrinsic ambiguity and failure of the written agreement to
express the true intent and agreement of the parties thereto
- If you are a forensic doctor and you examined a cadaver, your autopsy report is prima
facie evidence of the facts stated therein
- But if you are a private doctor, there is no prima facie presumption
SEC 24
- Section 24. Proof of official record. — The record of public documents referred to in
paragraph (a) of Section 19 (The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country), when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the officer having
the legal custody of the record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the custody. If the office
in which the record is kept is in foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office.
- Ex. of official publication: Official Gazette (you can use it to prove a law). If you are
proving local law, no need to buy OG because courts take judicial notice of it
- Q: How do you prove official record?
- A:
1. by an official publication thereof or
2. by a copy attested by the officer having the legal custody of the record, or by his
deputy,
3. and accompanied, if the record is not kept in the Philippines, with a certificate that
such officer has the custody (this requirement is not always required. It is only
required if the document is not in the Philippines)
o If the office in which the record is kept is in foreign country, the
certificate may be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer
in the foreign service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office.
- There must be an attestation
- Q: What is attestation?
- A: Section 25. What attestation of copy must state. — Whenever a copy of a document
or record is attested for the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original, or a specific part thereof, as
the case may be. The attestation must be under the official seal of the attesting officer,
if there be any, or if he be the clerk of a court having a seal, under the seal of such
court.
- In other words, official record can be proved by attaching an attestation (if the
document is found in the Philippines). The attestation means that the custodian will
state that this is the true copy. However, if the official record is in a foreign country,
aside from the attestation required there must be a certification. Such certification must
state that the one who certified it is indeed the custodian of the foreign document and
it is issued by a consular office of the RP stationed in that foreign country, authenticated
by the seal of that foreign country
- Pacific Asia Overseas Shipping Corp v NLRC
o PASCORP filed a claim against Teodoro Rances for conduct unbecoming of
an officer
o Teodoro in turn filed a counterclaim seeking for the enforcement of Dubai
Judgement
o NLRC ruled in favor of PASCORP but it was silent re Teodoro’s counterclaim
o Thus, Teodoro filed a separate case against PASCORP
o POEA ruled in favor of Teodoro
o HELD:
o POEA has no authority to entertain cases involving enforcement of foreign
judgement. RTC dapat.
o Q: Why RTC?
o A: Because it is incapable of pecuniary estimation
o Moreover, the Dubai judgment was not properly proved
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 72
 o The Dubai decision purports to be the written act or record of an act of an
official body or tribunal of a foreign country, and therefore a public writing
under Section 20 (a) of Rule 132 of the Revised Rules of Court.
o Sections 25 and 26 of Rules 132 prescribe the manner of proving a public of
official record of a foreign country.
o In the instant case, respondent Rances failed to submit any attestation issued
by the proper Dubai official having legal custody of the original of the decision
of the Dubai Court that the copy presented by said respondent is a faithful
copy of the original decision, which attestation must furthermore be
authenticated by a Philippine Consular Officer having jurisdiction in Dubai.
o The transmittal letter, dated 23 September 1984, signed by "Mohd. Bin Saleh,
Honorary Consul for Philippines" does not comply with the requirements of
either the attestation under Section 26 nor the authentication envisaged by
Section 25.
- Zalamea v CA
o Zalameas (mother, father and daughter) obtained tickets from the Manila
office of TWA for a flight from MNL to LA
o Reservation was confirmed
o However, only the father were able to board. The mother and daughter were
bumped off
o They claim for damages based on breach of contract of carriage
o TC ruled in favor of them
o CA decreased the award of moral and exemplary damages because there was
no fraud or bad faith on the part of TWA
o Reason: Overbooking of flights is a common and accepted practice in US and
it is specifically allowed by US laws
o HELD: CA WAS WRONG
o there was fraud or bad faith on the part of respondent airline when it did not
allow petitioners to board their flight for Los Angeles in spite of confirmed
tickets cannot be disputed. The U.S. law or regulation allegedly authorizing
overbooking has never been proved.
o Foreign laws do not prove themselves nor can the courts take
judicial notice of them.
o Like any other fact, they must be alleged and proved.
o Written law may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his
deputy, and accompanied with a certificate that such officer has custody.
o The certificate may be made by a secretary of an 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.
o Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its
customer service agent, in her deposition dated January 27, 1986 that the
Code of Federal Regulations of the Civil Aeronautics Board allows
overbooking. Aside from said statement, no official publication of said code
was presented as evidence.
o Thus, respondent court's finding that overbooking is specifically allowed by
the US Code of Federal Regulations has no basis in fact.
o Lather is not the custodian. There was no attestation and certification
o Note: If foreign law is not alleged or proved, there is processual presumption
o Even if the claimed U.S. Code of Federal Regulations does exist, the same is
not applicable to the case at bar in accordance with the principle of lex loci
contractus which requires that the law of the place where the airline ticket
was issued should be applied by the court where the passengers are residents
and nationals of the forum and the ticket is issued in such State by the
defendant airline.
o Since the tickets were sold and issued in the Philippines, the applicable law
in this case would be Philippine law.
- Wild Valley Shipping v CA
o A ship (Phil Roxas) belonging to Phil. Pres. Lines Incorp passed through a
port in Venezuela and loaded iron ore
o Then, it left the port and navigated through Orinico River.
o Navigation was subject to mandatory pilotage due to the peculiarity of the
area.
o The capt was at the bridge while Vasquez does the mandatory pilotage
o The vessel was grounded
o One of the evidence presented was the foreign law re: the mandatory pilotage
in Orinico River
o The one who testified on the matter is the chief pilot
o What was presented was the photocopy of the 2 pertinent laws (as an official
publication)
o HELD: EVIDENCE WAS INSUFFICIENT
o It is not enough that the Gaceta Oficial, or a book published by the Ministerio
de Comunicaciones of Venezuela, was presented as evidence with Captain
Monzon attesting it.
o It is also required by Section 24 of Rule 132 of the Rules of Court that a
certificate that Captain Monzon, who attested the documents, is the officer
who had legal custody of those records 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 Venezuela, and
authenticated by the seal of his office accompanying the copy of the public
document.
o No such certificate could be found in the records of the case.
o With respect to proof of written laws, parol proof is objectionable, for the
written law itself is the best evidence.
o According to the weight of authority, when a foreign statute is involved, the
best evidence rule requires that it be proved by a duly authenticated copy of
the statute.
o Sir: remember the two requirements: attestation and certification if you are
proving foreign law
o In this case, there was only an attestation. No certification.
SEC 26
- Section 26. Irremovability of public record. — Any public record, an official copy of
which is admissible in evidence, must not be removed from the office in which it is kept,
except upon order of a court where the inspection of the record is essential to the just
determination of a pending case.
SEC 27
- Section 27. Public record of a private document. — An authorized public record of a
private document may be proved by the original record, or by a copy thereof, attested
CSNAVARRO | ESCOLIN LECTURE | EVIDENCE 73
 by the legal custodian of the record, with an appropriate certificate that such officer has
the custody.
- Q: How may an authorized public record or a private writing be proved?
- A:
1. By the original record
2. By copy attested by the legal keeper
3. Attestation and certification if the record is found in foreign country
SEC 28
- Section 28. Proof of lack of record. — A written statement signed by an officer having
the custody of an official record or by his deputy that after diligent search no record or
entry of a specified tenor is found to exist in the records of his office, accompanied by
a certificate as above provided, is admissible as evidence that the records of his office
contain no such record or entry.
- When you speak of public records, you can also prove its nonexistence by asking for a
certification that no such record in the office exist
SEC 29
- Section 29. How judicial record impeached. — Any judicial record may be impeached
by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion
between the parties, or (c) fraud in the party offering the record, in respect to the
proceedings.
- Q: Can you impeach judicial records?
- A: Yes, on the following grounds: (Read in relation to Rule 47)
1. want of jurisdiction in the court or judicial officer
2. collusion between the parties, or
3. fraud in the party offering the record, in respect to the proceedings.
SEC 30
- Section 30. Proof of notarial documents. — Every instrument duly acknowledged or
proved and certified as provided by law, may be presented in evidence without further
proof, the certificate of acknowledgment being prima facie evidence of the execution of
the instrument or document involved.
- Notarial document is in itself the proof of authentication that is why you don’t need to
authenticate it
SEC 31
- Section 31. Alteration in document, how to explain. — The party producing a
document as genuine which has been altered and appears to have been altered after
its execution, in a part material to the question in dispute, must account for the
alteration. He may show that the alteration was made by another, without his
concurrence, or was made with the consent of the parties affected by it, or was
otherwise properly or innocent made, or that the alteration did not change the meaning
or language of the instrument. If he fails to do that, the document shall not be
admissible in evidence.
- You must explain why there are alterations
- Q: How?
- A:
1. He may show that the alteration was made by another, without his concurrence,
or
2. was made with the consent of the parties affected by it, or
3. was otherwise properly or innocent made, or
4. that the alteration did not change the meaning or language of the instrument
- If he fails to do that, the document shall not be admissible in evidence.
- RULE: if you are presenting a document which contains alterations, you must account
for the fact why there are alterations using any of the aforementioned modes
SEC 33
- Section 33. Documentary evidence in an unofficial language. — Documents written in
an unofficial language shall not be admitted as evidence, unless accompanied with a
translation into English or Filipino. To avoid interruption of proceedings, parties or their
attorneys are directed to have such translation prepared before trial
- Pretrial pa lang, inaayos na yan
- If it is not in English or Filipino, it is not admissible.
- If it is in Kapampangan, ipa translate mo na.
Chua v CA
- This is a collection suit filed by State Financing Center Inc against AsiaPhil timber and
Chua et al
- The basis of the collection suit are documents attached to the complaint namely: term
loan agreement, PN, comprehensive surety agreement, demand letters, statement of
past due accounts
- Defendants were declared in default. Later, the court lifted the order insofar as Chua is
considered
- There were several postponements
- Plaintiff offered the aforementioned documents
- Chua opposed such offer on the ground that the documents were not properly identified
by any witness during the trial
- TC rendered judgment against the defendants except Chua
- CA held Chua liable
- Chua is claiming that while the documents were offered, they are not properly identified
(authenticated)
- HELD:
- Only private documents require proof of their execution and authenticity
before they can be received as evidence
- This may require the presentation and examination of witnesses to testify on this fact.
When there is no proof as to the authenticity of the writer's signature appearing in a
private document, such private document may be excluded
- Public documents may be presented without proof of its due execution
- In this case, the documents are notarized. Therefore, no further authentication is
required
- public or notarial documents, or those instruments duly acknowledged or proved and
certified as provided by law, 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. There is also no need for proof of execution and
authenticity with respect to documents the genuineness and due execution of which
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 are admitted by the adverse party. These admissions may be found in the pleadings of
the parties or in the case of an actionable document which may arise from the failure
of the adverse party to specifically deny under oath the genuineness and due execution
of the document in his pleading.
- Q: How do you account for the other documents like demand letters and statement of
past due accounts?
- A: petitioner Chua admitted the allegations in the complaint with respect to the
existence and due execution of the Term Loan Agreement and Comprehensive Surety
Agreement to which he is one of the signatories, while pleading certain affirmative
defences.
- Because of this judicial admission, the due execution of the Term Loan
Agreement and Comprehensive Surety Agreement are already admitted by
the petitioner and there is no more need for the respondent State Inc. to present
witnesses to testify on the genuineness of the documents.
- Further, records show that the aforementioned documents are all notarial instruments,
the due execution of which is already presumed and need not be proven.
- Sir: Loan agreements are actionable document. Not enough that you specifically deny
them. It must be under oath.
- Q: What evidence need not to be proved?
1. Presumptions
2. Judicial admissions
3. Those which the court can take judicial notice
- Since the abovementioned evidence need not be proved, there is also no need to
authenticate them
Bunag v CA
- Bautista filed an action for recovery of parcel of land claiming that he bought it from
Bunag under a Document of Sale
- But such was not signed by the vendor. It was merely thumb marked by him because
he was illiterate
- Brigida (sister of Bautista) testified that she saw the vendor affix his thumbmark to the
document
- Note: This is a private document
- Q: Is it enough that Brigida testifies that she saw the vendor affix his thumbmark?
- RTC: rejected the testimony
- CA reversed the RTC
- HELD:
- The authenticity of the document was not satisfactorily established
- Reason: the document is in English and the vendor is illiterate
- There is no showing that such document was read/explained/translated to him before
he affixed his thumbmark. There was no witness to prove otherwise
- When the document is thumb marked, there must be proof that it was first explained
to him
OFFER AND OBJECTION
SEC 34
- Section 34. Offer of evidence. — The court shall consider no evidence which has
not been formally offered. The purpose for which the evidence is offered must be
specified.
- RULE: No evidence which is not offered may be considered by the court. Only evidence
offered may be considered
- There is a distinction between marking and formal offer of evidence
- Q: When is formal offer of evidence is made?
- Go back to the 3 types of evidence:
1. Object
o After the presentation of a party's testimonial evidence.
2. Documentary
o After the presentation of a party's testimonial evidence.
3. Testimonial
o at the time the witness is called to testify.
SEC 35
- Section 35. When to make offer. — As regards the testimony of a witness, the offer
must be made at the time the witness is called to testify.
- Documentary and object evidence shall be offered after the presentation of a party's
testimonial evidence. Such offer shall be done orally unless allowed by the court to be
done in writing. (n)
o Usually, oral. But some courts allows written offer
- Direct exam is now supplemented by JAR. Instead of asking the witness in the witness
stand, the Q and A form is already prepared beforehand to shorten the proceedings.
So, pagdating sa court, cross na lang
- Under JAR, you must still first offer before you present the witness
- Pretrial
o One of the purpose of the prelim conference period is to present your
documentary evidence for marking
o “Now I am showing you this document to be marked as Exhibit A”
o You also enumerate who are your witnesses together their judicial affidavits.
Then, you state the purpose for presenting them
o One day witness rule: Kung ilang minutes yung sinabi mong time na ippresent
mo yung witness. Everything must be done in one day
o RULE: Documents and witnesses not identified/listed during pretrial cannot
be admitted in evidence unless in the interest of justice
 Unless for good cause shown
 Ex. Ngayon mo lang na diskubre
o Before offering the witness, you say “I am formally offering this witness for
the purpose of proving so and o”
o Dun pa lang, mag object ka na!
o After offering, you now proceed with the presentation of the witness
SEC 36
- Section 36. Objection. — Objection to evidence offered orally must be made
immediately after the offer is made.
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 - Objection to a question propounded in the course of the oral examination of a witness
shall be made as soon as the grounds therefor shall become reasonably apparent.
o Ex. If the direct exam is leading, you object: “Objection! Leading.” “Objection!
Hearsay.” “Objection! Irrelevant”
o Object immediately when it becomes apparent
o Q: What is conditional admissibility?
o A: You haven’t laid the basis yet but the court allows provisional admissibility
provided you will show the link later on.
- An offer of evidence in writing shall be objected to within three (3) days after notice of
the offer unless a different period is allowed by the court.
- In any case, the grounds for the objections must be specified.
o If the ground for offer is specified, likewise, the ground for the objection must
also be specified
- If there is offer, there is objection
- Q: What are your objections?
- A: when it is not admissible
- Q: When is it not admissible?
- A: When it is irrelevant and incompetent
- Q: When do you make the objection?
- A: Objection to evidence offered orally must be made immediately after the offer is
made. Ka-offer, object agad. State your ground (ex. DMS, Martial disqua etc)
SEC 37
- Section 37. When repetition of objection unnecessary. — When it becomes
reasonably apparent in the course of the examination of a witness that the question
being propounded are of the same class as those to which objection has been made,
whether such objection was sustained or overruled, it shall not be necessary to repeat
the objection, it being sufficient for the adverse party to record his continuing objection
to such class of questions
- Ex. You object on the ground of PER. But the other party argues that they are talking
about another matter which will not violate PER. The judge sustains the objection. Later
on, you notice that the line of questioning is indeed objectionable on the ground of PER.
Therefore, you can ask that your continuing objection may be put on record. You don’t
need to object on each question. Nakaka istorbo lang.
- RULE: there are only 2 rules for an evidence to be admissible (Relevance and
Competency). If you will not object, such will still be admissible despite the fact that it
is irrelevant and incompetent. However, it does not mean that when an evidence is
admitted it is already credible. Credibility is a different story ha. The court can still
disregard the aforementioned evidence on the ground that it is hearsay (even if you
failed to object)
SEC 38
- Section 38. Ruling. — The ruling of the court must be 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.
- GR: The reason for sustaining or overruling an objection need not be stated.
- XPN: 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
- Sometimes, the issue presented in court is really peculiar. Then the judge may ask the
parties to prepare a written position on the matter
SEC 39
- This should be read in relation to objections
- Section 39. Striking out answer. — Should a witness answer the question before
the adverse party had the opportunity to voice fully its objection to the same, and such
objection is found to be meritorious, the court shall sustain the objection and order the
answer given to be stricken off the record.
- On proper motion, the court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper.
SEC 40
- Section 40. Tender of excluded evidence. — If documents or things offered in evidence
are excluded by the court, the offeror may have the same attached to or made part of
the record. If the evidence excluded is oral, the offeror may state for the record the
name and other personal circumstances of the witness and the substance of the
proposed testimony
- Ex. you say that you are presenting this witness for the purpose of so and so. Then,
the other party objects because of a documentary evidence. The objection was
sustained. Then, you can say that “Your Honor, may I offer a tender of evidence. Had
this document been admitted, it would be able to prove this and that.” You put that on
record so that on appeal, the evidence may still be admitted if it is shown that the
objection was proper or not.
- In JAR, andun na sa record.
- Ex. The evidence is confession during CI without the assistance of counsel. You object
on the offer on the ground that the accused was not Mirandanized. If the court would
still admit it, atleast your objection is put on record.
- Q: What is the reason of offer of evidence?
- A: Under Sec 35 of 132, the court shall not consider any evidence that has not been
formally offered
- Q: What is the purpose of the offer?
- A: The evidence offered must be specified.
- Q: What is the counterpart of an offer?
- A: The other party must object as soon as the grounds therefore has been reasonably
apparent
- If you fail to object, such will be treated as waiver
- Evidence, although incompetent, if relevant and not objected must be admitted
- Repetition of objection to the same class of evidence is not necessary. You can interpose
a continuing objection
- The court must make a ruling thereon 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
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 - The right to object is a privilege of the party. If it is not exercised, it is seemed waived.
The court, cannot on its own motion, disregard on aground not raised by the parties
People v Marco
- Appellant was convicted of a violation of dangerous drugs act
- On appeal, he contends that the testimonies of certain witnesses presented by the
prosecution were not formally offered
- HELD:
- As regards the other mentioned prosecution witnesses, we agree with the appellant
that their testimonies were not formally offered at the time the said witnesses were
called to testify.
- However, the records reveal that the testimonies of the prosecution
witnesses were offered during the formal offer of documentary evidence by
the prosecuting Fiscal.
- The appellant did not object to such offer.
- In such a case we rule that the appellant is now estopped from questioning the inclusion
of the subject testimonies by the trial court in convicting him of the crime charged.
- In other words, the formal offer was made by the prosecuting fiscal together with the
formal offer of documentary evidence. Sinabay niya dun. (That is the old rule)
- Old rule: All evidence are only formally offered after all the witnesses have testified
- New Rule: Pagka present pa lang ng testimonial evidence, formal offer na
People v Java
- Java was convicted of robbery with homicide
- Cambaya and Valdez were presented to establish the commission of robbery
- Cambaya testified that Java took P20. Valdez was an after thought witness, who is not
initially listed
- Valdez’ testimony was not offered at the time he testified in court
- Java now contends that Valdez testimony cannot be considered because there was no
formal offer
- HELD:
- Indeed, Section 34, Rule 132 of the Revised Rules of Court requires that for evidence
to be considered, it should be formally offered and the purpose specified. This is
necessary because a judge has to rest his findings of fact and his judgment only upon
the evidence offered by the parties at the trial. 8
- Under the new procedure as spelled out in Section 35 of the said rule which became
effective on July 1, 1989, the offer of the testimony of a witness must be made at the
time the witness is called to testify.
- The previous practice was to offer the testimonial evidence at the end of the trial after
all the witnesses has testified. With the innovation, the court is put on notice whether
the witness to be presented is a material witness and should be heard, or a witness
who would be testifying on irrelevant matter or on facts already testified to by other
witnesses and should therefore, be stopped from testifying further
- Sir: this case explains why the rule was changed. The formal offer of testimonial
evidence is now done at the time when the witness is called to testify
- Purpose: So that the court is put on notice whether the witness to be presented is a
material witness. Baka nag aaksaya lang pala tayo ng oras.
- In the case at bar, we note that Pastor Valdez was not one of the witnesses originally
intended to be presented by the prosecution. He was merely called to the witness stand
at the latter part of the presentation of the prosecution's evidence.
- There was no mention why his testimony was being presented. However,
notwithstanding that his testimony was not formally offered, its presentation was not
objected to either.
- Section 36 of the aforementioned Rule requires that an objection in the course of the
oral examination of a witness should be made as soon as the grounds therefor shall
become reasonably apparent.
- Since no objection to the admissibility of evidence was made in the court
below, an objection raised for the first time on appeal will not be considered.
- Sir: I don’t think the ruling was logical. How can you object on something not formally
offered? Bat ako mag oobject eh hindi naman niya inoffer. Ano ang oobject-an ko,
nothing?! But this will be properly explained later on.
Catuira v CA
- Catuira was charged of 2 information for estafa for issuing 2 bouncing checks
- During the hearing, the prosecution’s evidence constitutes the testimony of the plaintiff
Maxima
- However, Maxima’s counsel failed to formally offer her testimonial evidence
- When the prosecution rested its case, the defense moved to dismiss by way of demurrer
on evidence on the ground that the testimony of complainant was inadmissible because
it was not properly offered
- TC denied the demurrer
- CA affirmed TC
- Defense argued that:
1. Testimony of Maxima should not be admitted because it is not properly offered
2. It was an error on the part of CA to declare her objection as not done at the proper
time since under Rule 132, objection to evidence offered orally must be made
immediately after the offer is made
- HELD: THERE WAS WAIVER
- while it is true that the prosecution failed to offer the questioned testimony when private
respondent was called to the witness stand, petitioner waived this procedural error by
failing to object at the appropriate time, i.e., when the ground for objection became
reasonably apparent the moment private respondent was called to testify without any
prior offer having been made by the proponent.
People v Yap
- Q: When will evidence be considered?
- A: Only if it is formally offered
- Therefore, if the evidence is not formally offered, you have nothing to object
- But the court explains this premise in this case
- Appellant was found guilty of violating the dangerous drugs act based on the testimony
of the PC officers who conducted the buy-bust operation
- Appellant now questions the admissibility of the testimony of the officers on the ground
that the same never offered when presented in evidence and the PC team did not obtain
a warrant when he was arrested
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 - HELD:
- In actual practice, there is a difference between presentation and introduction of
evidence on one hand and offer of evidence on the other
- Presentation of evidence consist of putting in as evidence the testimony of the witness
or the documents relevant to the issue
- On the other hand, offer of evidence means the statement made by counsel as to what
he expects to prove from the witness. This is what trial lawyers understand by the term
“offer of evidence”
- Therefore, the term offer of evidence is understood to include the presentation and
introduction of evidence
- What is essential in order for an offer of evidence to be valid therefore is that the
witness is called and asked appropriate questions
- Under the old rules, there is a distinction between offer of evidence and
presentation/intro of evidence
- However, technically, if we speak of offer of evidence -> that is when the trial lawyers
states what he expects to prove from the witness
- Under the present rule, you must make a formal offer and state the purpose. Formal
offer also include the presentation/intro of evidence
- *therefore, If the witness is already there testifying, that is already considered as formal
offer (although the counsel did not state what he expects to prove). At that moment,
the lawyer is already proving it in a detailed manner
- Sir: We can no longer say that, “How can we object if there is no formal offer?”. Maling
notion na yan. Under the present rule, yun na rin yun
- RULE: Presentation of evidence is also a formal offer
- Hindi ibig sabihin na nakalimutan mong mag formal offer, wala na. Mere presentation
of testimony is also considered as formal offer.
People v Franco
- Accused was charged of robbery with homicide
- TC convicted the accused on the basis of his extrajudicial confession
- The extrajudicial confession was never offered in evidence by the prosecution neither
was its contents recited in the appellant’s testimony
- HELD: TC SHOULD NOT HAVE CONSIDERED THE EXTAJUD CONFESSION
- Judgment of conviction was reversed
- It cannot be argued either that since the extra-judicial confession has been identified
and marked as Exhibit "N" by the prosecution in the course of the cross-examination of
the appellant, then it may now be validly considered by the trial court.
- Indeed, there is a significant distinction between identification of documentary evidence
and its formal offer.
- The former is done in the course of the trial and is accompanied by the marking of the
evidence as an exhibit, while the latter is done only when the party rests its case.
- Our settled rule incidentally is that the mere fact that a particular document
is identified and marked as an exhibit does not mean that it has thereby
already been offered as part of the evidence of a party.
- Sir: If you fail to offer, that is stupidity
Tabuena v CA
- Case under Judicial Notice
- Juan and Alfredo are friends. In 1926, they were in US.
- There was an agreement between Juan and Alfredo concerning the sale of a property.
When Alfredo returned in the Philippines, Juan’s mother conveyed the lot to Alfredo.
- Mother requested that she be allowed to stay on the property.
- Alfredo agreed provided, she must pay real property taxes which she promised to pay.
- Tabuena (brother of Juan) took possession of the property.
- A complaint was filed by Alfredo against Tabuena.
- Tabuena claims that the property was never sold to Alfredo.
- TC ruled in favor of Alfredo.
- Tabuena appealed claiming that TC motu proprio took cognizance of Exhibits A, B and
C which have been marked but was never formally submitted in evidence.
- Furthermore, TC took cognizance of the proceedings in another case concerning the
same parties but the subject matter is a different parcel of land
- HELD:
- If hindi formally offered, wala yan ha.
- GR: Evidence not formally offered cannot be given any evidentiary rule. The mere
fact that a particular document is marked as an exhibit does not mean it has
thereby already been offered as part of the evidence of a party.
- Rationale: The offer is necessary because it is the duty of a judge to rest his findings
of facts and his judgment only and strictly upon the evidence offered by the parties at
the trial.
- XPN: even if there be no formal offer of an exhibit, it may still be admitted against the
adverse party if:
1. it has been duly identified by testimony duly recorded
2. it has itself been incorporated in the records of the case.
- The mere fact that a particular document is marked as an exhibit does not
mean it has thereby already been offered as part of the evidence of a party.
They were not by such marking formally offered as exhibits.
- As we said in Interpacific Transit, Inc. v. Aviles, "At the trial on the merits, the party
may decide to formally offer (the exhibits) if it believes they will advance its cause, and
then again it may decide not to do so at all.
- In the latter event, such documents cannot be considered evidence, nor can they be
given any evidentiary value."
Philippine Bank of Communications v CA
- Chua signed a surety agreement in favor of PBC to secure the loan obtained by Fortune
Motors
- In another contract, another surety agreement was executed by Chua to secure another
loan of Company A from the same bank
- Later on, Chua executed a Deed of exchange transferring his house and lot in exchange
of shares in Jaleco
- After Fortune Motors and Company A defaulted, PBC filed 2 suits against Chua on the
basis of the surety agreement
- Later on, the bank learned that Chua executed a Deed of Exchange. Then it filed an
action to annul the Deed for being in fraud of creditors
- TC dismissed the case
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 - CA affirmed the dismissal. Ruling: Since the Deed was not formally offered as evidence,
the cause of action of the plaintiff is rendered untenable since there is no formal offer
- HELD: CA WAS WRONG
- This is a case where the Deed is considered an actionable document since it is the basis
of the claim
- However, in defendant’s answer, he never denied the authenticity and due execution
of such actionable document under oath
- Therefore, it is deemed admitted
- When it is deemed admitted, there is no need to formally offer it.
- Go back to the basic concept that judicial admissions, presumptions and those which
the court can take judicial notice need not be proved.
- In the case of AsiaBank Corp v Olsen: We ruled that documents attached to the
complaint are considered part thereof and may be considered as evidence even if it is
not formally offered or introduced.
- In the answer of the defendants, there was no denial under oath re: the authenticity of
this document
- See: Sec 8 of Rule 8 of ROC
- The effect of this is to relieve the plaintiff from the duty of expressly presenting the
document as evidence since they are already admitted
- The court shall consider the facts admitted by the parties
- Q: Assuming that it is a private document and it has been admitted, do you still need
to authenticate it?
- A: No. Because it is already admitted. No need to offer it too. You only present evidence
if a fact is controverted. That is the only time where there is a need to present evidence.
- When you say that there is a need to present evidence, it can only be considered if
there is a formal offer of evidence if documentary. If it is testimonial, it must be at the
time when the witness is presented
*Philippine American Gen Insurance Co. v Sweet Lines
- This is a marine insurance
- After the arrival in Manila, there was deficiency on the package
- There was 180 bags which were damaged
- PHILAMGEN paid the consignee
- Now, as the insurer, it is now subrogated with the rights of the plaintiff
- Therefore, it filed a case against Sweet Lines
- TC ruled against Sweet Lines and required them to pay
- On appeal, the judgment was reversed on the ground of prescription
- -PHILAMGEN contends that CA erred in reversing the ruling on the ground of
prescription because the bill of lading which contains a shorten period for filing an action
was never formally offered in evidence
- HELD: PHILAMGEN IS WRONG
- Because in an action based upon an insurance, the contract of carriage involved is called
a bill of lading
- Therefore, a bill of lading is an actionable document
- That is its very basis of his action against Sweet Lines
- As petitioners are suing upon SLI's contractual obligation under the contract of carriage
as contained in the bills of lading, such bills of lading can be categorized as actionable
documents which under the Rules must be properly pleaded either as causes of action
or defenses, 18 and the genuineness and due execution of which are deemed admitted
unless specifically denied under oath by the adverse party.
- Petitioners' failure to specifically deny the existence, much less the genuineness and
due execution, of the instruments in question amounts to an admission.
- Moreover, when the due execution and genuineness of an instrument are deemed
admitted because of the adverse party's failure to make a specific verified denial
thereof, the instrument need not be presented formally in evidence for it may
be considered an admitted fact
*Interpacific Transit Inc v Aviles
- Sps Aviles were charged of estafa.
- The information alleged that they are sub agents of Interpacific and they used the
money of the latter for their own use
- During the presentation of evidence, prosecution presented several photocopies of the
airwaybills for markings (Old rule to. Now, this is done during pretrial)
- Counsel for the defendants objected on the ground of BER
- The court allowed the presentation provided that the prosecution must later on present
the original
- However, the prosecution never presented the original and did not prove the fact of
lost
- Nevertheless, when the certified copies (photox pa rin) were formally offered, no
objection was interposed by the defendants
- Accused was acquitted upon finding that the relation between the parties is that of a
creditor-debtor.
- However, Interpacific questions the civil aspect seeking payment of the amount
involved.
- The appeal is now focused on the admissibility of the airway bills (photox) which were
not objected by the accused
- CA denied the admission of the airway bills for violating BER
- HELD: CA IS WRONG
- In assessing the evidence, the lower courts confined themselves to the best evidence
rule and the nature of the documents being presented, which they held did not come
under any of the exceptions to the rule.
- There is no question that the photocopies were secondary evidence and as such were
not admissible unless there was ample proof of the loss of the originals; and neither
were the other exceptions allowed by the Rules applicable.
- The trouble is that in rejecting these copies under Rule 130, Section 2, the respondent
court disregarded an equally important principle long observed in our trial courts
and amply supported by jurisprudence.
- This is the rule that objection to documentary evidence must be made at the
time it is formally offered as an exhibit and not before.
- Sir: BER applies but the Court notes that there was waiver even if it can be argued that
the other party objected it during marking of evidence (but not during trial itself)
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 - Objection to the documentary evidence must be made at the time it is formally offered,
not earlier.
- The identification of the document before it is marked as an exhibit does not
constitute the formal offer of the document as evidence for the party
presenting it.
- It is instructive at this point to make a distinction between identification of documentary
evidence and its formal offer as an exhibit.
- The first is done in the course of the trial and is accompanied by the marking of the
evidence as an exhibit. The second is done only when the party rests its case and not
before.
- The mere fact that a particular document is identified and marked as an exhibit does
not mean it will be or has been offered as part of the evidence of the party.
- The rule is that evidence not objected to is deemed admitted and may be validly
considered by the court in arriving at its judgment. This is true even if by its nature the
evidence is inadmissible and would have surely been rejected if it had been challenged
at the proper time.
- The party may decide to formally offer it if it believes this will advance its cause
- Sir: When you are objecting, you cannot object on something that is not yet formally
offered. Take note that this the rule in case of documentary evidence. The objection
made during the markings is not yet the proper time to make such objection. That is
premature.
- RULE: If testimonial -> you object at the time the witness testifies. If object and
documentary -> you object after
- In actual trial, if a party is being confronted with a photocopy, you can also object. But
not in the sense that you are rejecting it on the ground of BER. Rather, since the witness
is not being confronted with the original, the counsel of the other party might just be
misleading the witness
- On the matter of BER, you object after (not during the markings)
- During preliminary conference, the clerk of court will exert effort to achieve amicable
settlement between the parties. This is when the markings, submission of judicial
affidavits and listing of your witness take place.
RULE 133
- RULE 131 (Burden of proof): we said that burden of proof is the duty of the party to
establish the truth of a given proposition or issue by such quantum of evidence as the
law requires
- Another term for burden of proof is “risk for non persuasion”
SEC 1
- Q: What is the degree of proof required in a civil case?
- A: Preponderance of evidence
- Q: How about in criminal case?
- A: Proof beyond reasonable doubt
- Section 1. Preponderance of evidence, how determined. — In civil cases, the party
having burden of proof must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of evidence on the issues
involved lies, 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 there are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same may legitimately appear
upon the trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number
- Q: What do you mean preponderance?
- A: It means weight. Saan ang mas mabigat. It means that evidence adduced by one
side is superior than the other
SEC 2
- Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled
to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a degree of proof, excluding possibility of error,
produces absolute certainly. Moral certainly only is required, or that degree of proof
which produces conviction in an unprejudiced mind
SEC 3
- Section 3. Extrajudicial confession, not sufficient ground for conviction. — An
extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of CORPUS DELICTI.
- Q: What is corpus delicti?
- A: The actual happening of the crime
- You first prove na may namatay bago ka mag accused ng murder
SEC 4
- Q: when is circumstantial evidence sufficient to convict?
- A: Circumstantial evidence is sufficient for conviction if:
1. There is more than one circumstances;
2. The facts from which the inferences are derived are proven; and
3. The combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt
- Q: What is the theory of circumstantial evidence?
- A: It is that indicia that are separately of legal importance may by their cumulative
effect satisfy the legal requirement of proof beyond reasonable doubt
- Circumstantial evidence is less susceptible of fabrication than direct evidence
- When it constitutes an unbroken chain of rational circumstances corroborating one
another, it cannot be overcome by inconcrete and doubtful evidence submitted by the
other part
- Q: What is the evidence required in ? cases?
- A: Testimony of two witnesses to the same overt act or if there plea of guilt or
confession in open court
- Q: What is equiponderance of evidence?
- A: When a scale shall stand upon equipoise and there is nothing in the evidence which
may cause it to incline in favor of one against the other, the court shall find for the
defendant
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 - Q: Does the weakness of the defendant’s case favor the plaintiff?
- A: No. The plaintiff must always rely on the strength of its case (crim/civil). Based on
the principle of burden of proof.
- Q: Which has more weight? Positive or negative evidence?
- A: Positive is entitled to more weight (lalo na kapag mga alibi ang pinag uusapan)
- Q: Are the rules for the appreciation of evidence the same for civil and crim cases?
- A: Yes. The only difference is the degree of proof required for conviction
- Q: May a testimony of a lone witness be sufficient to prove the claim?
- A: Yes, provided that the witness is credible (apply to both crim and civil cases)
- Lack of corroboration only affects the credibility of the testimony (not the sufficiency)
- Q: Which has greater weight? Oral or documentary evidence?
- A: oral testimony may only prevail against documentary evidence if it is so convincing
- Testimonial evidence is easy to fabricate unlike documentary evidence
- Q: Is weakness of the defense in criminal case sufficient for conviction?
- A: No. In the absence of proof beyond reasonable doubt
SEC 5
- Section 5. Substantial evidence. — In cases filed before administrative or quasi-judicial
bodies, a fact may be deemed established if it is supported by substantial evidence, or
that amount of relevant evidence which a reasonable mind might accept as adequate
to justify a conclusion
- Q: What is substantial evidence?
- A: It is that amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion
- Q: Is the determination of substantial evidence a question of fact? Or a question of law?
- A: Go back to appeals.
- After MTC, you go to RTC either by mere notice or record on appeal
- The appeal there cannot be rejected by the appellate court
- But after the RTC decided on the appeal, you go further to the CA (mode of
appeal even changes)
- The appeal there is no longer a matter of right
- CA can only take cognizance of the case if there is prima facie evidence
showing that the lower court committed an error (Discretionary on the part
of CA)
- Reason: Pangalawang appeal mo na to.
- CA is given the appellate jurisdiction if there is a prima facie question of fact
SEC 6
respective parties, but the court may direct that the matter be heard wholly or partly
on oral testimony or depositions
- Kapag motion, pwede na ang affidavits. Pero hindi ang decision on the merits
- Ex. Preliminary attachment/ injunction -> pwede na ang affidavits
- But that does not preclude the court from asking oral testimony or depositions
INCONSISTENCIES/ CONTRADICTIONS IN THE TESTIMONY OF WITNESSES
- RULE: Such strengthens the probative value of their testimony. Such discrepancies are
considered as seal of authenticity.
- Judicial experience shown that honest witnesses do not coincide with the narration of
events swiftly occurring before them
- But if the contradiction pertains to material points, then the testimony becomes doubtful
- Q: How may conspiracy be proved?
- A: Conspiracy may be proved by:
1. Direct evidence (may nakakita talaga)
2. Inferentially (observing the conduct)
- No prior proof of conspiracy is required. It may be deduced from the very act of the
accused
- Q: What is the weight of an alibi?
- A: It is the weakest defense that may be set up in criminal case
- It may not prevail when the guilt of the accused was positively established
- Q: What is the weight of the finding of fact of the TC to the appellate court?
- A: TC findings are well neigh conclusive. Reason: It is in the better position to determine
the credibility of the witnesses
- When it comes to credibility and you are an appellate court, usually it will affirm the
findings of TC. Unless, there was a glaring mistake on the part of the TC

- Section 6. Power of the court to stop further evidence. — The court may stop the
introduction of further testimony 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. But this power should be exercised with caution.
SEC 7

- Section 7. Evidence on motion. — When a motion is based on facts not appearing of

record the court may hear the matter on affidavits or depositions presented by the

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