LAW ON EVIDENCE
JESS ESPEJO
June 17, 2016
INTRODUCTION
Law
In its general sense, law is defined as the science of moral laws
based on the rational nature of man, which governs his free activity
for the realization of his individual and social ends, and which by its
very nature is demandable and reciprocal.
In its specific sense, it is a rule of conduct, just, obligatory,
promulgated by legitimate authority, and of common observance
and benefit. (Sanchez Roman)
Branches of Law
1. Substantive Law – that branch of law that creates, defines,
and regulates rights and duties concerning life, liberty, or
property, the violation of which gives rise to a cause of
action.
2. Remedial, Procedural, or Adjective Law – that branch of
law that prescribes the methods of enforcing those rights
and obligations created by substantive law by providing a
procedural system for obtaining redress for the invasion of
rights and violations of duties, and by laying out rules as to
how suits are filed, tried, and decided upon by the courts.
(Bustos vs. Lucero)
Branches of Philippine Remedial Law
1. Civil Procedure (Rules 1 - 56 of Rules of Court) – defines
and regulates the remedies in private civil lawsuits.
2. Provisional Remedies and Special Civil Actions (Rules 57 -
71) – provides for remedies which the parties may resort
for the preservation or protection of their rights or
interest, and for no other purpose, during the pendency of
the principal action.
3. Special Proceedings (Rules 72 - 109) – proceedings which
aim to establish a status, a right, or a particular fact.
4. Criminal Procedure (Rules 110 - 127) – provides for the
methods prescribed by law for the apprehension and
prosecution of persons accused of any criminal offense
and for their punishment, in case of conviction.
5. Evidence (Rules of 128 – 134) – provides for the means, of
ascertaining in a judicial proceeding, a truth respecting a
matter of fact.
RULE 128 – GENERAL PROVISIONS
Rule 128, Section 1. Evidence defined. – Evidence is the means,
sanctioned by these Rules, of ascertaining in a judicial proceeding
the truth respecting a matter of fact.
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The term “evidence” is susceptible of no other definition than that
by which the law provides.
Evidence is the means
This means that evidence is a method, a manner by which you go
about something. What is this something? What is its purpose? This
is to ascertain in a judicial proceeding a truth respecting a matter of
fact.
Evidence is sanctioned by the Rules
The Rules of Court provides for the guidelines and principles that
one should remember when prosecuting a case in court.
Example: A creditor wants to collect by way of an action for specific
performance. But how does he prove it before the court? He must
prove his claim by presenting evidence. Without evidence, you
prove nothing, you win nothing.
Rules of Court, not the sole repository of law on evidence
Rules 127 – 133 of the Rules of Court deal with evidence. But the
Rules of Court is not the sole repository of rules that can be
considered evidentiary.
When you say evidentiary rule, it is a rule that you use or follow that
would limit your ability to prove or disprove something.
Examples of evidentiary rules that can be found somewhere else
1. Article 1403, paragraph 2 (Statute of Frauds, Civil Code) –
enumerates the agreements that are unenforceable by
action, unless the same, or some note or memorandum
thereof be in writing, and subscribed by the party charged
or his agent.
Evidence of the agreement cannot be received without the
writing. This is an example of an evidentiary requirement,
although found in substantive law.
2. Article 2199 (Actual Damages, Civil Code) – “Except as
provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation
is referred to as actual or compensatory damages.”
There are different types of damages under the law but
actual damages would require proof of pecuniary loss,
which is usually dispensed with in the form of receipts
(best evidence of actual damages).
3. Section 3 (2), Article 3 of the 1987 Constitution (Fruit of
the Poisonous Tree Doctrine) – “Any evidence obtained in
violation of this section (privacy of communication and
correspondence) or the preceding section (right against
unreasonable searches and seizures) shall be inadmissible
for any purpose in any proceeding.”
4. Article 114, paragraph 2 (Treason, Revised Penal Code) –
“No person shall be convicted of treason unless on the
testimony of two witnesses at least to the same overt act,
or on confession of the accused in open court.” (Two-
witness Rule)
Going back to the definition of evidence:
LAW ON EVIDENCE
Ascertaining in a judicial proceeding
The term “judicial proceeding” tells you that the law on evidence is
primarily applicable to courts and in judicial cases, not in
administrative or quasi-judicial cases.
Example: Before the Labor Arbiter, is there a requirement that you
need to present a witness? An object or documentary evidence?
There is none. This is dispensed with by filing of a position paper.
ANG TIBAY VS CIR (1940)
The Court of Industrial Relations is not narrowly constrained by
technical rules of procedure, and the Commonwealth Act No. 103
requires it to "act according to justice and equity and substantial
merits of the case, without regard to technicalities or legal forms
and shall not be bound by any technicalities or legal forms and shall
not be bound by any technical rules of legal evidence but may
inform its mind in such manner as it may deem just and equitable."
The truth respecting a matter of fact
There are two types of fact in Civil Procedure:
1. Ultimate Facts (Factum Probandum) – are principal, determinate
and constituted facts upon which the existence of the plaintiff’s
cause of action or defendant’s defense rests; factum probandum are
simply propositions; and
2. Evidentiary Facts (Factum Probans) – these are facts necessary
for the determination of the ultimate facts. As in the law of
pleadings, evidentiary facts are not supposed to be included.
How do they differ? Ultimate facts represent propositions to be
established and hence hypothetical whereas evidentiary facts would
constitute the material in evidencing the proposition and hence
existent. No ultimate fact will prove itself, evidentiary fact is
required.
Example: A debtor is liable to a creditor for P50,000. This is an
ultimate fact that can appear in a pleading. It is hypothetical
because it does not prove itself. An ultimate fact is something that
needs to be proved.
Now, what proves the fact of debt? A promissory note. Because a
promissory notes evidences that there is a debt, it is an evidentiary
fact, a factum probans.
Truth
Does the truth matter? In criminal, civil, or administrative case,
sometimes, truth does not matter. What matters is what you prove
or disprove.
Knowledge on Rules of Evidence is important because sometimes, it
would allow you, in a court of law, in a litigation, to dispense the
truth.
CLASSIFICATION OF EVIDENCE
AS TO TYPE
1. Object or Real Evidence – Objects as evidence are those
addressed to the senses of the court. When an object is
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relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court. (Rule 130, Section 1)
Whatever the court sees, smells, hears, touches, or tastes
is object evidence.
Example: This microphone can be used as a weapon to
strangle someone. This can be object evidence because it
is addressed to the senses of the court. It is the very thing
that is considered the evidence.
What about if your evidence in court refers to an
agreement or a letter between parties and such letter
contains certain contractual concessions? This is what you
call documentary evidence.
2. Documentary Evidence - Documents as evidence consists
of writings or any material containing letters, words,
numbers, figures, symbols or other modes of written
expressions offered as proof of their contents. (Rule 130,
Section 2)
Example: A contract denominated as a deed of sale. If you
present that in court, what is your evidence? Is that the
paper itself or is it what is written in the paper? Your
evidence is what is written because documentary evidence
must be offered as evidence of its contents. Not the
physical attributes of the paper.
3. Demonstrative Evidence - Evidence in the form of objects
such as maps, scale models, symbol, diagrams or objects
that has, by themselves, no probative value but is used to
illustrate and clarify a factual matter in issue or aid a
testimony. What is relevant is not the object itself but the
inference that can be drawn from such evidence. In other
words, demonstrative evidence is used to illustrate or to
explain something by way of a certain experimentation.
Note that demonstrative evidence is not specifically
mentioned in the Rules of Court. Nevertheless, its
presentation is not prohibited.
Example: A diagram of a place where a collision took place.
A diagram is useful when you want to prove the position
of the victim and the vehicle that bumped him at the time
of the collision.
Is the evidence the diagram? No. the evidence is the
understanding that the court derives from the
interpretation of your diagram.
In demonstrative evidence, the court uses the same five
senses in object evidence. But more importantly, the court
applies intelligence to make analysis, draw conclusions,
and inferences from the objects presented. What is
important in documentary evidence is not the object but
the information but the object creates.
Summary
If the evidence is the object itself, it is an object evidence.
If the evidence is what is written and that is the fact in
issue in the case, it is documentary evidence.
LAW ON EVIDENCE
If the evidence is in the form of an object or even in a
document but what is important is not what is written but
the understanding that the court derives from the
appreciation of the object or document, it is
demonstrative evidence.
4. Testimonial or Oral Evidence - oral or written assertion
offered in court as a proof of the truth of what is being
stated for as long the witness whose testimony is offered
can perceive, and perceiving, or can make known his
perception to others.
Examples:
A. Written testimonial evidence – affidavit of loss,
deposition
B. Verbal testimonial evidence- what the witness says in
an open court is an example of testimonial evidence.
Hierarchy of Evidence
PEOPLE VS LAVAPIE (2001)
Greater credence is given to physical evidence as evidence of the
highest order because it speaks more eloquently than a hundred
witnesses. This is because object evidence is self-evident.
GSIS vs CA
Testimonial evidence is easy of fabrication and there is very little
room for choice between testimonial evidence and documentary
evidence. Generally, therefore, documentary evidence prevails over
testimonial evidence.
Therefore, the hierarchy is:
1. Object (self-evident)
2. Documentary (at least it has been reduced into writing)
3. Testimonial (the most prone to fabrication)
Note: Demonstrative evidence is not part of the hierarchy since such
type of evidence is not specifically mentioned in the Rules of Court.
Atty Espejo: For me, testimonial evidence is the most important.
Going back to our example earlier where a microphone is used as a
weapon for strangulation, the object cannot testify for itself. You
cannot place it in a witness stand.
My point is, despite the testimonial evidence being the weakest in
our judicial system in terms of hierarchy, it is important because all
types of evidence must, in a sense, be sponsored by a witness.
AS TO WHETHER EVIDENCE AFFIRMS OR NEGATES
1. Positive evidence – when a witness affirms that a fact
occurred or did not occur (yes or no);
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Example (1): “At the time of the collision, was the
headlight of a motorcycle turned on?” Witness: “Yes”.
By answering yes, it affirms the fact that the headlight of
the motorcycle at the time of the collision is turned on.
Example (2): “At the time of the collision, was the
headlight of a motorcycle turned on?” Witness: “No”.
Even if the answer is no, counched in a negative term, this
does not mean that the evidence is negative. It is still a
positive evidence because it affirms that a fact did not
occur.
2. Negative evidence – when the witness avers that he did
not see or know the occurrence of a fact (did not know or
see). The witness cannot confirm nor deny.
Example (1): “At the time of the collision, was the
headlight of a motorcycle turned on?” Witness: “I do not
know.”
Example (2): Alibi means “elsewhere” (neither confirming
nor denying)
3. Pregnant Denial/ Negative Pregnant – It is a combination
of positive and negative evidence because by affirming a
fact, you are actually denying something else. You are
qualifying by your affirmation something that is part of the
question.
Example (1): “Did you meet the accused on January 1 and
January 10?” Witness: “I met the accused on January 1.”
This is negative pregnant because the witness only
affirmed that he met the accused on January 1. But he is
not saying anything whether he met the accused on
January 10. He is affirming the meeting on January 1, but
he is denying by not saying anything about January 10.
Example (2): “Have you ever smoked marijuana?” Accused:
“I have never smoked marijuana in school.”
This is negative pregnant because although he is saying
that he has never smoked marijuana in school, the
implication is he smokes marijuana elsewhere.
Between positive evidence and negative evidence, which one
prevails? Positive evidence.
PEOPLE VS MACALABA
We have time and again ruled that mere denial cannot prevail over
the positive testimony of a witness. A mere denial, just like alibi, is a
self-serving negative evidence which cannot be accorded greater
evidentiary weight than the declaration of credible witnesses who
testify on affirmative matters. As between a categorical testimony
LAW ON EVIDENCE
that rings of truth on one hand, and a bare denial on the other, the
former is generally held to prevail.
Basic postulate: Between alibi and positive identification of a
witness, positive identification of a witness prevails.
AS TO MATERIALITY
1. Material evidence – Evidence is material when it tends to
prove the fact in issue in a case.
How do you determine a fact in issue? By examining the
pleadings (when the issues are already joined).
An issue arises when the parties have conflicting versions
of the facts.
Example: Collection case. The creditor’s material evidence
is a promissory note which proves the indebtedness. As for
the debtor, his material evidence to prove that his debt
has already been paid is a receipt.
2. Immaterial evidence – Evidence is immaterial when it
does not tend to prove the fact in issue in a case.
Example: Collection case. Is the gun of the debtor material
in determining whether or not he has paid? Of course, not.
AS TO COMPETENCY OR ADMISSIBILITY
1. Competent evidence – Evidence is not excluded by law or
the Rules of Court.
2. Inadmissible evidence – Evidence is deemed inadmissible
because it is excluded by law or the Rules of Court.
Note: We do not use “incompetent” to describe
inadmissible evidence because it has a different context
under the law. Incompetency does not necessarily relate
to evidence.
Example: Fruit of a Poisonous Tree (Exclusionary Rule)
AS TO RELEVANCY
1. Relevant evidence – Evidence which has a tendency in
reason to establish a probability or improbability of the
fact in issue. Relevant evidence, therefore, is one which
tends to prove or disprove a material fact.
Example of Dean Inigo: There was a shooting of a person.
The circumstances of the shooting are quite peculiar in
that he was shot from a very long distance and right
between his eyes. During the trial of X, the accused, the
prosecutor presented evidence trying to prove that X was
a former Olympic gold medalist in shooting, a
sharpshooter.
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Is the fact that X is an Olympic Gold medalist in shooting
material to the fact in issue? In other words, does it
directly prove that X killed the victim?
Again, when is evidence material? When it tends to prove
the fact in issue.
In this case, it is not material.
Now, the next question is, is it relevant? Does the fact that
X is an Olympic Gold medalist in shooting tend to establish
the probability that he was the one who shot the victim? It
does. Therefore, while it is immaterial, it is relevant.
There is a big difference between materiality and
relevancy.
Material Evidence Relevant Evidence
Evidence has the tendency in
Evidence is offered to prove or reason to establish the probability
disprove a fact in issue. or the improbability of the fact in
issue.
May either be direct or
Direct proof
circumstantial
May require reasoning and
Self-evident
inference
Material evidence is ALWAYS Relevant evidence is not always
relevant. material.
June 22, 2016
REVIEW
Relevant evidence is evidence which has tendency in reason to
establish a probability or improbability of the fact in issue.
Remember, it is the fact in issue and not the issue. There is a big
difference between an issue and a fact in issue. Meaning, a fact that
has a bearing in the resolution of a case.
Irrelevant evidence, on the other hand, is evidence that is totally
unrelated to the fact in issue.
Evidence is material when it has the tendency to prove the facts in
issue in the case. It is directly related, directly material to the fact in
issue in the case.
Example: in a case for collection of a debt. What would be material
evidence to support the claim of the plaintiff here? Remember that
when it is a case for collection of a debt, the issue would more or
less be WON the defendant has an obligation to pay to the plaintiff.
What would be material there would be, say, a promissory note
because it evidences the obligation that is yet to be paid.
Immaterial evidence, on the other hand, is evidence which really
does not tend to prove the fact in issue. It is unrelated. In other
words, it is inadmissible for that reason. In a collection for a debt,
let’s say you present an evidence which is not relevant, not material
to the fact in issue.
LAW ON EVIDENCE
We also distinguished materiality and relevancy. When we talk of
materiality, evidence is material when it is offered to prove or
disprove a specific fact in issue - to say whether a fact in issue is true
or false. Whereas, relevancy talks about the tendency in reason to
establish the improbability or probability of the fact in issue.
Materiality, therefore, relates to whether a piece of evidence is a
direct proof of a fact. When you talk about relevancy, it can either
be directly or circumstantially relevant to the fact in issue.
What is circumstantially relevant evidence? It is in Rule 128, Section
4.
Rule 128, Section 4. Relevancy; collateral matters. – Evidence must
have such a relation to the fact in issue as to induce belief in its
existence or non-existence. Evidence on collateral matters shall not
be allowed, except when it tends in any reasonable degree to
establish the probability or improbability of the fact in issue.
When you talk about collateral matters, you are talking about
circumstantially relevant evidence.
As to materiality, remember that material evidence is self-evident.
In other words, when you look at a particular piece of evidence,
there is no need to draw inferences from the evidence. What you
see is what you get.
An example would be testimony directly identifying and implicating
the accused in a crime. You’re an eyewitness to the crime of rape.
That eyewitness account is material evidence. It is self-evident.
What you see is your evidence.
Whereas relevancy may sometimes require reasoning or inference.
It may not necessarily and directly prove the fact in issue. But it is
related to the fact in issue making the court accept it because it has
probative value.
An example would be, somebody was stabbed. But nobody saw the
perpetrator do the stabbing. But certain evidence was left at the
scene of the crime. A knife, for example, which the police
investigators assumed to be the murder weapon. The weapon
usedin the stabbing assuming na wala namatay. So if let’s say X has
a knife does it necessarily mean that he is the culprit because he
owns a knife? No. Not necessarily so. You have to allot more
inferences in order to put one and one together. Naa pay logical
process na kinahanglan.
Remember that material evidence is always relevant. Whereas
relevant evidence is not always material.
AS TO THE NEED TO INFER OR PRESUME
Direct Evidence Circumstantial Evidence
Direct evidence is proof that if Circumstantial evidence is
belief establishes the truth or evidence not bearing directly on
falsity of the fact in issue and the fact in dispute but on various
does not arise from a attendant circumstances from
presumption. which the judge might infer the
occurrence of a fact in dispute.
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Direct evidence. Prove the fact or point in issue as distinguished
from circumstantial proof. Direct evidence is proof that if belief
establishes the truth or falsity of the fact in issue and does not arise
from a presumption.
Example: assume that we’re in a court of law and you’re the
audience there. I have an eyewitness. One of you, the lawyer,
directly examined the witness. The question is, ‘Who killed the
victim?’ The answer of the witness is, ‘The accused.’ ‘Why do you
know that?’ ‘Because I saw him kill the victim.’ That is direct
evidence. Do you need to presume from it? No. The witness is
directly stating that it is the accused that killed the victim. If the
judge believes the testimony of the accused, then it already
establishes the truth that it is the accused that killed the victim.
Circumstantial evidence. It is evidence not bearing directly on the
fact in dispute but on various attendant circumstances from which
the judge might infer the occurrence of a fact in dispute. Let’s go
back to the example. There’s a witness in a crime of murder. And at
the witness stand, the prosecution asked the witness who killed the
victim. The witness answered, ‘It’s the accused.’ ‘Why do you know
that?’ The witness answered, ‘At the time of the shooting, I saw him
running away from the scene of the crime.’ ‘What else did you
observed, if any?’‘The accused held a gun and his shirt was
splattered with blood.’ With that testimony, without inferring
anything or analyzing his testimony, will that establish the guilt of
the accused? Will that point directly to the culpability of the
accused? That he was the one who shot the victim? The answer is
no. Did the witness say that he saw the accused shot the victim? No.
But the circumstances related by the witness tend to prove that the
accused has some xxx in time. Why would he run? Why was he
holding a gun? Why was there blood splatters on his shirt? So it
does not directly prove but if you put one and one together, you get
two.
In the case of People vs. Ramos, the SC defined direct and
circumstantial evidence.
People vs. Ramos (January 18, 1995)
Evidence is either direct or circumstantial. Direct evidence is that
evidece which proves a fact in issue directly without any reasoning
or inferences being drawn on the part of the factfinder.
Circumstantial evidence is that evidence which indirectly proves a
fact in issue. The factfinder must draw an inference or reason from
circumstantial evidence.
Under our Rules of Court, conviction based on circumstantial
evidence is sufficient if: (a) there is more than one circumstance; (b)
the facts from which the inferences are derived are proven; (c) the
combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
It ought to be noted that our rules "make no distinction between
direct evidence of a fact and evidence of circumstances from which
the existence of a fact may be inferred. No greater degree of
certainty is required when the evidence is circumstantial than when
LAW ON EVIDENCE
it is direct, for in either case, the trier of fact must be convinced
beyond a reasonable doubt of the guilt of the accused."
There can be conviction based on circumstantial evidence, even if
there is no direct evidence on the fact in issue, provided there is
more than one circumstance, facts from which the inferences are
derived are proven, and the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt.
It ought not to matter whether the evidence is direct or
circumstantial. A conviction can still be produced.
Case: X was murdered. Y, his neighbor and brother in law, was the
suspect. My client is the accused. X and Y had a public long standing
grudge. The public saw them having many altercations. Y was even
reputed to be a gun for hire in the community. However, when X
was killed, there were no eyewitnesses to the shooting. Y was
accused of the crime. The prosecution’s evidence consisted in
testimony offered to prove that the accused was at the vicinity when
the crime was committed. They were at their barangay. My client, Y,
allegedly was in the barangay were the victim was shot. Second,
there’s also testimony to the effect that a person wearing a helmet
with the accused’s same height, same built was seen fleeing on a
motorcycle away from the scene of the crime. There was also
testimony offered to prove the animosity, the altercations, the bad
blood between X and Y. What was my defense? Simple. Alibi. It
could not have been my client because at the time of the
commission of the offense, he was in an entirely different
municipality. He could not have been the one who shot him because
that municipality was 45 minutes away from the scene of the crime.
We presented witnesses placing the accused elsewhere than at the
scene of the crime. Naa sya diri sa among barrio kay pyesta man
gud to, nag inom inom mi ato, nagkanta kanta mig videoke. With
the facts I already told you, let’s analyze.
What’s the first piece of evidence? Testimony that the accused was
at the vicinity and that a person matching the accused’s description
was seen fleeing from the scene of the crime. What’s the purpose of
the prosecution in presenting evidence to that effect? That a person
of similar height and built was seen fleeing from the scene of the
crime on a motorcycle, when in fact nobody saw the face of that
person. The prosecution wanted to establish opportunity.
Opportunity, meaning, Y, if that person were Y, had the opportunity
to shoot, to commit the crime. What about the testimony that Y and
the victim had history of animosity? That they were really, really
mortal enemies despite the fact that they were brothers in law.
What’s the purpose? To establish motive. So you have motive and
opportunity, you now have probable cause.
Those two things, evidence with respect to the motive and to the
opportunity, are they direct evidence? No. Are they material to the
fact in issue? No. Do they directly prove the fact in issue? No. What’s
the fact in issue? WON Y killed the victim. Does that directly prove
the fact in issue? No. Nobody saw exactly that Y shot the victim. That
is not material, not direct evidence. But were those testimonies
offered by the prosecution to establish motive and opportunity,
were they admitted by the court? Yes. Despite the fact that if you
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look at it, not direct evidence, they are even immaterial to the fact in
issue. They may have been immaterial but they were still relevant.
The motive and the opportunity were collateral matters. They were
collateral matters or circumstantial evidence on the fact in issue.
Although they do not tend to prove the fact in issue directly, they
have a tendency in reason to establish the probability or
improbability of the fact in issue. And that made them admissible
evidence.
Did I win the case? Yes. What was my evidence? Alibi. I presented 3
witnesses. Nag inom, nag videoke, 45 minutes away from the scene
of the crime. That is an inherently weak defense. It’s a negative
evidence. Remember that negative evidence will always be
overthrown by positive or affirmative evidence. Did they have
affirmative evidence? No. Nobody saw my client shoot the victim. To
make the long story short, my client was acquitted, free into the
world, probably to kill again.
Not all the time na negative imong evidence, let’s say alibi, that it’s a
weak defense. Not necessarily. Dili na sya automatic na pildi na
dayon ka becausealibi imong evidence. Dili pud automatic na pildi na
pud ka kay circumstantial tanan imong evidence.
AS TO ORIGINALITY
Primary or Best Evidence Secondary Evidence
Evidence which the law Inferior or substitutionary
regards as effecting the evidence or evidence which itself
greatest certainty of the fact in indicates the existence of a more
issue original source of information
Primary or best evidence. You want to prove that you are entitled to
damages. What’s the best evidence? The original copy of your
receipts. Kung nahospital ka, present your medical bill. That’s the
best evidence of actual damages in the form of hospitalization bills
as evidence.
Secondary evidence. Example: a photocopy of a receipt. A mere
photocopy. It means that there’s an original.
Take note that in Rule 130, Section 3, we will be discussing the so
called Best Evidence Rule. The original document must be produced
subject to certain exceptions.
Take note that in a case, naay ginatawag na evidence in chief, the
main evidence. And you also have supporting evidence.
TYPES OF SUPPORTING EVIDENCE
Cumulative Evidence Corroborative Evidence
Additional evidence of the Additional evidence of a different
same kind and character as that kind and character tending to
already given and tends to prove the same point but
prove the same proposition different types of evidence
Cumulative evidence. In other words, you want to place the accused
in the scene of the crime and so you got 10 witnesses, all saying that
on this day and at this time, the accused was there. That’s
LAW ON EVIDENCE
cumulative evidence. Evidence of the same kind. Testimonial
evidence. They are trying to testify to the same basic facts.
Corroborative evidence. This is deemed necessary only when there
are reasons to suspect that the witness did not tell the truth or that
his observation had been xxx. Example: Stephen Julian was caught
shoplifting at NCCC Mall. What would probably be evidence that
would prove that? Object evidence could be CCTV footage.
Testimonial evidence would be eyewitness testimony na nangawat
sya didto ug lipstick kay gihatag sa uyab. They are different types of
evidence but they tend to prove the same point. That’s
corroborative evidence.
People vs. Ayupan (February 13, 2002)
It is well-settled that the testimony of a lone witness -- if found by
the trial court to be positive, categorical and credible -- is sufficient
to support a conviction. This is so, especially if the testimony bore
the earmarks of truth and sincerity and was delivered
spontaneously, naturally and in a straightforward manner.
Corroborative evidence is necessary only when there are reasons to
suspect that the witness bent the truth, or that his or her
observation was inaccurate. Evidence is assessed in terms of quality,
not quantity. It is to be weighed, not counted. Therefore, it is not
uncommon to reach a conclusion of guilt on the basis of the
testimony of a lone witness.
It does not matter how many pieces of evidence you produce. What
matters is that you’re able to introduce and present evidence in
court that the court actually can use.
Example: In a crime of rape, usually that happens in private. Nobody
is supposed to see because that would defeat the clandestine
purpose of what the person wants to do. Nobody usually sees that.
So most prosecutions of crime of rape is made by just presenting
one witness, main witness, the victim herself. And then later on, you
can present a medico legal officer to testify as to the biological
samples left in the body of the victim. Can you convict the accused
by just the testimony of one witness, the victim herself? Yes. If the
court believes the testimony of the victim, there’s no requirement as
to the number of witness you’re supposed to present. One could be
enough under certain circumstances.
AS TO CONTROVERSION
Prima Facie Rebutting Evidence Conclusive Evidence
Evidence
Evidence that is Given by a party in a Evidence which is
sufficient to case to explain, incontrovertible
establish a fact and repel, counteract or
if not rebutted, disprove facts given
becomes conclusive by evidence on the
of that fact other side
Prima facie evidence. Example: In bribery cases, the acceptance of
the gift is not per se illegal but it becomes prima facie evidence of
bribery. And what is the effect when there is that prima facie
evidence? It shifts the burden to the defendant to prove that the
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based on the lectures of ATTY. JESS ESPEJO
acceptance of the gift was innocent. That it was not in furtherance
of any bribery purposes.
Another is BP 22. The presumption or evidence of knowledge of
insufficient funds. Remember that you’re given a certain number of
days after notice of dishonor to make good of the check, to deposit
enough funds. Upon notice of dishonor, that will now give rise to the
prima facie evidence that you have knowledge of the insufficiency of
funds or something to that effect.
Rebutting evidence. This is more particularly applied to that
evidence given by the plaintiff to explain or repel the evidence given
by the defendant.
Example: in a collection case, the evidence of the plaintiff is a
promissory note. What is possible rebutting evidence? Receipt that
you have already paid it. Or you are in possession of the PN. That
gives rise to the presumption that the obligation has been paid.
Conclusive evidence. That is to say, either not open or not able to be
questioned as where it is said that a thing is conclusively proved. It
means that such result follows from the facts shown as the only one
that is possible.
Example: What are the different ages of criminal responsibility?
What age would exempt you from criminal responsibility? If you are
below 9 years old, that is the age of complete criminal
irresponsibility. Meaning, even if you’re 7 years old, you commit a
crime, you’re exempt and no questions asked. But if you are
between 9 and 15 years of age, you need to remember that the law
distinguishes. The law distinguishes whether the crime was
committed with or without discernment. Let’s say, you’re 10 years
old, like my daughter. She commits a crime. The law will therefore
determine whether or not the child acted with discernment in order
to exempt him or her from criminal responsibility. Why is it that
below 9 years, the law does not even ask WON there was
discernment? Because age, in that situation, is conclusive evidence
of lack of discernment. The law conclusively presumes that a child
below 9 years of age is incapable of discernment. *talks about his 6-
year old son*
In the case of Jarco Marketing vs. CA(1999), the SC said that a child
below 9 years of age is incapable of contributory negligence. That is
already conclusive evidence.
Jarco Marketing vs. CA (1999)
In our jurisdiction, a person under nine years of age is conclusively
presumed to have acted without discernment, and is, on that
account, exempt from criminal liability. The same presumption and a
like exemption from criminal liability obtains in a case of a person
over nine and under fifteen years of age, unless it is shown that he
has acted with discernment. Since negligence may be a felony and a
quasi-delict and required discernment as a condition of liability,
either criminal or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in
LAW ON EVIDENCE
the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child
under nine years of age must be conclusively presumed incapable of
contributory negligence as a matter of law.
AS TO THE TENOR OF TESTIMONY
Character/Reputation Evidence attesting to one’s
Evidence character and moral standing in the
community
Opinion Evidence Evidence of what the witness
thinks, believes, or infers in regard
to facts in dispute as distinguished
from personal knowledge or facts
themselves
Expert Evidence Consists in the opinion of a witness
of a matter requiring special
knowledge, skill, experience or
training which he is shown to
possess
Ordinary Evidence Consists in the testimony of a
witness who testifies to those facts
which he knows of his personal
knowledge which are derived from
his own perception
Character/reputation evidence. Generally, the character is regarded
as illegally irrelevant in determining a case. Let’s suppose A was
being accused of physical injuries. He allegedly assaulted B. And so A
for his defense, he wanted to present people who would attest that
he is not a troublesome individual, that he is peace loving. Is that
relevant to the fact in issue? Not really. It is irrelevant to the
question of WON he assaulted B. What about B? Can he present
evidence that A was really a troublemaker? Generally, no. Because it
is irrelevant in determining WON A assaulted B. Let’s assume a
different role. That the character or reputation of a person is
relevant in a court of law in a particular case. What will happen? All
cases will become simply popularity contests. Di na lang ta
magkaso.
Opinion evidence. Evidence of what the witness thinks, believes, or
infers in regard to facts in dispute as distinguished from personal
knowledge or facts themselves. Remember that the Rules on
Evidence, as a general rule, does not permit opinion evidence. For
example, there’s a witness called by the prosecution. Question was
“Do you think the accused killed the victim?” “I don’t think so.”
“Okay, witness is excused.” Prosecution calls another witness. “Do
you think the accused killed the victim?” “No, I don’t think so.”
That’s opinion. What you think, what you believe is actually
irrelevant in court. There’s only one opinion that matters in court as
a general rule and that is the opinion of the judge.
There is only one admissible opinion evidence in court. And that is
expert evidence.
Expert evidence. It consists in the opinion of a witness of a matter
requiring special knowledge, skill, experience or training which he is
shown to possess. This is under Rule 130, Section 49.
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Example: Let us suppose you are a patient. And then you go to the
hospital, you have been scheduled for appendectomy. It’s the
removal of your appendix kay basin mubuto na sa sulod.
Example, nag-ambak ambak ka paghuman nimo ug kaon. Na-
appendicitis ka. So you’re now scheduled in the hospital. *blah blah*
But when you came out, you had a vasectomy. What does that
prove? What case is that? In Torts and Damages, we call that
Medical Malpractice, Medical Negligence. The treatment was
supposed to be one for appendectomy but there was a deviation of
the standard of care and the usual standards of the medical
profession that you came out more injured than when you came in.
That’s medical negligence. How do you prove that? You need to
have expert opinion evidence in the form of another doctor
saying,“These are the standards of the medical profession and by
the facts of the case, it’s my opinion that the attending surgeon
there deviated from those standards and therefore, was medically
negligent.” That is expert opinion. That’s admissible in that situation.
Majority of evidence would not be character/reputation evidence,
opinion evidence, or expert evidence. It’s usually ordinary evidence.
Ordinary evidence. This consists in the testimony of a witness who
testifies to those facts which he knows of his personal knowledge
which are derived from his own perception. When you say
perception, it’s what the witness sees, hears, smells, tastes or
touches. It’s the use of the senses. Now what if your testimony –
because ordinary evidence is testimonial evidence – relates to
something which somebody else simply told you? Ingon in X na si Y
and nagpatay kay Z. That’s hearsay evidence or those evidence that
are not derived from the personal knowledge of the witness. That is
under Rule 130, Section 36.
AS TO THE SOURCE OF EVIDENCE
Intrinsic evidence Extrinsic evidence
Information necessary for the Evidence form a source outside
determination of an issue that is the subject document
gleamed from the provisions of
the document itself
Intrinsic evidence. It is information necessary for the determination
of an issue that is gleamed from the provisions of the document
itself. There’s an issue but the resolution of the issue can be derived
from the document itself.
Example (intrinsic ambiguity that can be cured by the document
itself): In a will, it says I bequeathed to my nephew John a car or a
white car. It turns out daghan syag nephew na John. John 1, John 2,
so on and so forth. Kinsa mukuha ana karon? Can you present
external evidence specifically saying that ang ginamean sa testator
is John 1 and not John 2? You can’t, generally. Because that would
now be extrinsic evidence, which is not allowed to cure the intrinsic
ambiguity.
Extrinsic evidence or evidence aliunde or parol evidence. Refers to
evidence form a source outside the subject document. As provided
under Rule 130, Section 9, “When the terms of an agreement have
LAW ON EVIDENCE
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.”
Example: A and B entered into a contract. Daghan kaayog
conditions, stipulations. So when they reduced their agreement into
writing, that is supposed to contain everything else and everything
not stated in writing is deemed waived. Can you say that the Ten
Commandment written in stone is actually eleven? I don’t think you
can say that. Ten gani, kay napulo man gyud na. Anything that you
claim is that eleventh or the twelfth commandment, that is already
parol evidence. You’re not allowed to add. Same thing with
contracts. When you reduced your contract into writing, you should
write all your stipulations. Anything not included, waived. What if
the other contracting party says, “Actually we agreed that the period
for payment is extended to two years. I’m not supposed to make any
payment until two years from now.” Would that be allowed? Can he
present testimony saying that the terms for payment is actually
extended two years more? He can’t, under the Parol Evidence Rule.
As a general rule, he can’t.
Now, word play ta. We already encountered two words that began
with “ali”. Alibi and Aliunde. Alibi means another place. Aliunde
means another source. Let’s relate this to Civil Procedure. When you
implead defendants in your complaint, you need to state all the
names of the defendants. But later on, pwede na nimo ishortcut.
Let’s say, you have six defendants. Maja vs. X, Y, Z, A, B, C. But you
can shortcut that. You can say, Maja vs. X, et. al. What does “al”
mean? It’s a general term to mean another person. *blah blah*
(Basically, “al” = another.)
Rule 128, Section 2. Scope. – The rules of evidence shall be the same
in all courts and in all trials and hearings, except as otherwise
provided by law or these rules.
The same in all courts
First the law says, “the same in all courts.” When you say “all
courts”, it means all subordinate courts. We’re talking about the
Municipal Trial Courts, Regional Trial Courts, and Court of Appeals.
But not the Supreme Court. Because the SC is not a trier of facts.
You don’t present evidence and witnesses before the SC. You merely
make arguments before the SC. Therefore, you cannot use the rules
on evidence before the SC.
All trials and hearings
What about “all trials and hearings”? The applicability of the rules of
evidence shall be the same whether it is a criminal case or civil case.
You’re prosecuting a case under civil procedure, apply the rules of
evidence. Or a case under criminal procedure, apply the rules of
evidence. So it binds everything together.
Except as otherwise provided by law or these rules
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based on the lectures of ATTY. JESS ESPEJO
There are some laws or rules that apply a different evidentiary
standard. An example would be under Section 24, Rules of Civil
Procedure.
BP 129, Section 24. Special Rules of Procedure. – Whenever a
Regional Trial Court takes cognizance of juvenile and domestic
relation cases and/or agrarian cases, the special rules of procedure
applicable under present laws to such cases shall continue to be
applied, unless subsequently amended by law or by rules of court
promulgated by the Supreme Court.
It may be a court type case but the Rules of Evidence applied is
modified.
For example, under regular rules, you may hear in court this
statement: “Objection, Your Honor, leading question.” A leading
question is one that suggests to the witness the answer which the
proponent wants to hear. How do you testify in court without
talking about Judicial Affidavit Rule? Testimony is one question,
answered by one fact. “What is your name?” You answer your name.
“How old are you?” You answer how old you are. That is not leading.
Who, what, when, where, how, and why. These are questions that
are designed to elicit specific facts. That’s the proper way of asking
questions in court. What about, “Your name is Maja, isn’t it?” Your
answer will be yes or no. “You’re 30 years old, aren’t you?” Yes or
no. “You’re pretty aren’t you?” Of course! These are questions
where, who’s actually testifying? It’s actually the proponent who’s
testifying. And all that he’s asking the witness to do is to affirm or
deny the question. That is a leading question and is not allowed in
court. “You killed the victim, didn’t you? Yes or no?” You are not
allowed to do that, except in cross-examination. The general rule is
leading questions are not allowed.
But in AM 004-07-SC, you are allowed to ask leading questions to a
child witness. Say, for example, a child was a victim of sexual
molestation. Would the child understand if you ask, in a lawyerly
manner, the term ‘penetration’? Would the child understand that?
Would the child even understand the term vagina or penis? They
would normally use the terms, unsa man, tintin and other
appellations that I will not repeat anymore (haha!). “What did he do
next?” The child does not even understand sometimes. Like, what’s
next? And so the proponent is allowed to ask questions like, “After
that, did he take off his pants?” So that is allowed because of
Section 2. The law provides that with respect to child witnesses, it is
subject to different rules.
Agrarian cases, also. Naay rules of procedure ang Department of
Agararian Reform and Adjudication. Also, the rules on summary
procedure where affidavits take the place of testimonies. Before
magpresent gyud kag witness but in the rulesof summary
procedure, you can pray to the court that the affidavit of the witness
be taken as his direct examination but subject to cross examination.
Another is the rules of procedure for small claims cases which is
heard by a small claims courts, which is exclusively a municipal trial
court. Do you present evidence in small claims cases? You don’t. You
don’t even use pleadings. What you do is you fill up certain forms,
submit it to the court and wait for it to be heard. Ingani kapaspas.
LAW ON EVIDENCE
You don’t make testimonies anymore. Then we have the judicial
affidavit rule. What happens in the JAR? The usual way of examining
a witness is different already. The rules of evidence on that regard
do not apply anymore. Because direct testimony is supposed to be in
the form of a judicial affidavit. So lahi-lahi na karon ang rules of
evidence.
Rule 128, Section 3. Admissibility of evidence. – Evidence is
admissible when it is relevant to the issue and is not excluded by the
law or these rules.
We’re talking about very important requirements here: (1) relevant
to the issue, which deals with the term relevancy, and (2) not
excluded by the law or these rules, which refers to competency of
evidence.
TWO REQUISITES FOR ADMISSIBILITY OF EVIDENCE
1. Relevancy. It is defined under Section 4.
2. Competency. Not excluded by the law or these rules.
Rule 128, Section 4. Relevancy; collateral matters. – Evidence must
have such a relation to the fact in issue as to induce belief in its
existence or non-existence.
Is it relevant? Does it advance inquiry into the fact in issue? If it
does, you have already solved the question of relevancy.
Let’s harken back to Dean Iñigo, who always mentions about the
axioms propounded by Wigmore. He is a well-known authority and
commentator in American law and jurisprudence. For him, there are
two axioms.
1. Axiom of Relevancy. Those facts with rational probative
value are admissible.
2. Axiom of Competency. All facts having a rational probative
value are admissible unless prohibited by some specific
rule. In our law, this is “not excluded by the law or these
rules.”
But if you really look at it, the two axioms put together make up our
Section 3.
1. AXIOM OF RELEVANCY. Probative value means the tendency of
evidence to make a fact of consequence more or less probable than
it would be without evidence.
Example: Somebody was shot right in between the eyes from a very
far distance. X is being prosecuted for it. Prosecution presents
evidence, testimony tending to prove that X was an Olympic
medalist in long distance shooting. Is that material? No. It does not
directly prove the fact in issue as WON the accused shot the victim.
But is it relevant? Does it advance the inquiry? Does it make the fact
in issue more or less probable? If the answer is in the affirmative, it
becomes relevant and therefore admissible in a court.
Remember that whatever the case you’re prosecuting, in order to
win it, what do you need to prove? In the ultimate analysis, what do
you need to prove? Your factum probandum or ultimate fact. In a
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civil case for collection, the ultimate fact is the debtor is indebted to
the creditor. The debtor owes the creditor. And in order to prove
your ultimate fact, you need to supply facti probans or evidentiary
facts. How would you know that your evidentiary facts tend to
establish the probability or improbability of your factum
probandum? Common sense. To determine whether something is
relevant to the fact in issue, that’s common sense.
Example: Let’s assume that this is a crime scene. Somebody was
killed. Let us also suppose that this sign pen was the murder
weapon. Gidunggab, patay! Nobody saw anybody do the stabbing.
Your evidence is that a knife (sign pen siguro) was left at the crime
scene. There’s a finger print on the ballpen. And that fingerprint
happened to belong to a person na itago nato sa pangalan na
Matteo. His fingerprints were found therefore, Matteo killed the
victim. Correct? Is that logical reasoning correct?
Okay, to make it easier, let’s just say that this is a knife. A knife was
found at the scene of the crime. The knife had fingerprints and the
fingerprints were those of Matteo. Therefore, Matteo killed the
victim. Is that correct? No, there is something wrong there. What
does it prove? It proves that the fingerprints of Matteo were found
on the knife. It doesn’t prove anything. Is is material? No. Is it
relevant? Yes, it advances the inquiry. Because if the suspect is
Matteo and the fingerprints found on the knife were not Matteo’s,
then maybe we can eliminate him from suspicion anymore and it no
longer advances the inquiry on Matteo. But because it advances the
inquiry, it is relevant. Now, what do you need to do in order to
ascertain beyond reasonable doubt that the fingerprints were really
from Matteo? Maybe go to the NBI. Maybe ask for fingerprint
analysis. So you’re now talking about an expert witness. Then the
expert witness will testify as to his qualifications, that he has
knowledge about fingerprinting and he will testify also that there
will be a match with the fingerprints found on the knife and the
fingerprints of Matteo. Because an expert witness already proved
that the fingerprints were Matteo’s, therefore, Matteo killed the
victim. Correct? No, there’s something missing. But is it relevant?
Yes. So do you even know if it was the knife that was used for killing
the victim? So you need to know what is the cause of death. If it is
the stabbing, how do you prove that? You bring the cadaver in court
and then you show it? No. You ask a medico-legal expert to testify
that that is the cause of death and by his examination, it was the
knife that pierced the body of the victim. Therefore, Matteo killed
the victim? Dili lang gihapon. So we know for sure that the knife was
found at the scene of the crime, that in all probability that was the
knife that was used to stab the victim and that knife, the stabbing,
was also the cause of the death. And the knife belonged to Matteo
because his fingerprints were found on the knife. Leading to an
assumption that he might be the one who used the knife to stab
somebody.
What you’re actually doing here is just saying to the court what is
plausible and what is implausible. If the evidence that you’re trying
to present actually makes a matter of fact more plausible, it is
relevant. And when it is relevant, it will be admitted by the court. So
because it was admitted, you automatically win your case? No.
Because admissibility is different from credibility of the evidence.
LAW ON EVIDENCE
When you talk about credibility, you’re talking about the
believability of evidence. Mutuo ba ang huwes sa imohang gipresent
na evidence? Kung mutuo, daug ka. Kung dili mutuo, pildi ka. What’s
your recourse? Go to the chamber of the judge, bring some money,
and I did not finish my sentence.
Relevancy, again, would be determined by logic of common sense. It
will determine WON you’re entitled to present evidence to advance
the inquiry.
2. AXIOM OF COMPETENCY. All facts having a rational probative
value are admissible unless prohibited by some specific rule. In
Philippine law, if it is not excluded by the law or the rules, it is
admissible.
Examples: 1987 Constitution, Bill of Rights.
1. Right of the people to be secure in their persons, papers,
houses, effects, etc. against unreasonable searches and
seizure
2. Privacy of communication and correspondence
3. Fruit of the poisonous tree. If evidence was illegally
obtained, it cannot be presented in court.
In Civil Procedure, as well. Diba, denials have to specific? What’s the
effect of a general denial? It is treated as an admission. How many
pleadings are allowed by the rules? There are only 7. Most of the
time, only 3 are used by practitioners – complaint, answer, reply. Is
it mandatory for a party to file a complaint? Of course. It’s the filing
of the complaint that sets the wheels of justice in motion. Without
it, a court is passive. Is it mandatory for a defendant to file an
answer? Of course. Because if he does not, he can be declared in
default. What about the filing of a reply, is it mandatory? No. In fact,
it is optional. Even if you do not file a reply, the rule is that all
matters that are found in the answer are deemed to be
automatically controverted without the necessity of filing a reply.
That’s the GR.
What’s the exception? When is it mandatory to file a reply? An
exception is when the answer alleges an actionable document.
Remember that an actionable document must be denied under
oath. Otherwise, you are deemed to have admitted the genuineness
and due execution of the actionable document. Now, suppose
nagfile sya ug answer and nag-attach sya ug receipt. That’s an
actionable document. It is the basis of a party’s cause of action or
defense. You do not deny that under oath because you were unable
to file a reply. Later on, you want to present testimony to the effect
na katong iyahang resibo is forged. Can you? No. Because you will
be presenting evidence that is contrary to your admission. Your
admission is related to the genuineness and due execution of the
receipt for not filing a reply. That is a rule of exclusion. Your
evidence would have been competent and admissible in court. But
by reason of the effects of Civil Procedure, you cannot present that
type of evidence anymore.
In Evidence, the most prominent rule on exclusion is hearsay.
Giingon ni A man gud na si X ang nipatay kay Y. Objection, Your
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Honor, hearsay. That is excluded. Because evidence that is not based
on the personal knowledge of the witness is inadmissible.
In special laws, there is RA 4200. It is an act to prohibit and penalize
wiretapping and other related violations of the privacy of
communication and for other purposes. So if evidence is a result of
wiretapping, it is inadmissible. What are the exceptions to this law?
1. The conversation is not private. In the case of Navarro vs.
CA (August 26, 1999), even if it is wiretapped, if the
exchange that is recorded is actually intended to be public
and not private, its tape recording is not prohibited. Let’s
say in a rally during election, Duterte badmouthed Leila De
Lima. Giingnan niya si De Lima, “Tambok ka! Tambok!”
Somebody recorded that. And then De Lima filed a case for
libel, even if it’s true (haha!). Can Duterte object that it is
violative of the Anti-Wiretapping Law? No. That’s intended
not to be private but public. That’s an exception.
2. Also in RA 9372 (Human Security Act). In Section 7
thereof, if you are suspected of terrorism, police
authorities are actually allowed to wiretap you. The only
requirement of the law is to procure an ex-parte written
order from the court. Ex-parte means without the
participation or knowledge of the subject of the legal
proceeding. Like, for example, ex-parte presentation of
evidence as a result of default. The party declared in
default will no longer participate. He cannot object, cannot
present his own evidence to rebut the other’s evidence. So
under the Human Security Act, if you’re suspected of
terrorism, that’s what happens. You can be wiretapped
and that would be admissible. To my mind, that’s not fair.
Why? Because it would lead to profiling. Kana bitawng, if a
certain person fits a particular person, if he looks like
Osama Bin Laden, he’s already a terrorist. So you can
wiretap him. They can inquire into his bank accounts.
That’s wrong.
I need you to read these cases for next meeting.
 People vs. Eugenio (1 Sep 2010)
 People vs. Macatinag (19 Jan 2009)
 People vs. Almorfe (29 Mar 2010)
These are cases regarding the chain of custody requirement. The
purpose of this is to prevent planting of evidence. 90% of people
who are prosecuted for violation of RA 9165 claim that they have
been framed up. That is the response of the law – Section 21, chain
of custody requirement.
DIFFERENT TYPES OF ADMISSIBILITY
Multiple When a fact is offered for one purpose, it is
Admissibility admissible insofar as it satisfies all rules
applicable to it when offered for that
purpose
Conditional When evidence is admitted only in
Admissibility dependence upon some other facts
Curative A party has a right to introduce inadmissible
Admissibility evidence in his behalf where the court has
admitted the same kind of evidence
adduced by the adverse party
LAW ON EVIDENCE
Multiple admissibility of evidence. This means that when a fact is
offered for one purpose, it is admissible insofar as it satisfies all rules
applicable to it when offered for that purpose. Its failure to satisfy
some other rule which would be applicable for it offered for another
purpose does not exclude it. It simply means that an evidence
admissible for one purpose can also be admissible for another
purpose.
Example: birth certificate. What does it attest to? When you were
born. But does it also prove who your parents are? Yes. So that’s
multiple admissibility. Another is a document. Can a document be
offered to prove its contents? Yes. But can you also offer a
document to prove its appearance, its physical condition? Yes. In
that situation, it’s not offered as documentary evidence but as
object evidence. Because you are talking of what you can see from
the document. This has been asked in the Bar twice. Foremost of
which is in 2005. The question was: May a private document be
offered and admitted in evidence both as documentary and as
object evidence? Explain. The answer is yes. Again, if it offered as
proof of its contents, then it’s documentary. But if it is offered as
something else other than the contents of the document, such as
the physical condition, appearance of the document, then it’s
considered an object evidence.
Conditional admissibility of evidence. This means that evidence is
admitted only in dependence upon some other facts. It is received of
the expressed assurance of counsel when objection is manifested
that the other facts would be duly presented at a suitable
opportunity before the case is closed. So counsel here is saying that
although his question is objectionable at this time, he will connect
with some other facts which will make it admissible at the later time.
Example: Counsel asks a question that is so out of this world, “How
old are you?” And then we’re talking here about an accident case.
Nakabangga kuno sya and he’s a witness. It seems that it is
irrelevant. “How long have you been driving?” The answer is, “I’m
already 30 years old and I’ve been driving for the last 12 years.” The
judge now says, “What the hell are you talking about? You are not
talking about the facts of the case, that’s the driving experience.
Immaterial and irrelevant.” Counsel will say, “No, Your Honor. Allow
us to show the relevance of this line of questioning later on.” Then
the Judge allows. The counsel will ask the witness, “Mr. Witness, let
me show you a copy of your birth certificate.” Sa iyang birth
certificate, he’s not really 30 years old. This was the habit before. A
lot of people want to drive early and so they falsify their records so
they can obtain a license as early as when they’re already in high
school. What is counsel trying to prove here? That his license is
actually illegally obtained. And you can make a case that that is
negligence per se. You’re driving with a license that is not reflective
of the xxx. There’s a presumption in torts and damages to that
effect. If you’re violating traffic regulations, such as the obtaining of
a valid license, you are presumed to be prima facie negligent at the
time of the accident. So that is what counsel is trying to prove but at
the beginning, it may not have been relevant and material to the
fact in issue.
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Curative admissibility of evidence. This means that a party has a
right to introduce inadmissible evidence in his behalf where the
court has admitted the same kind of evidence adduced by the
adverse party. So the adverse party was allowed to present
inadmissible evidence and so you, to prevent manifest injustice, can
also present the same incompetent evidence.
Example: In a case I had before. It was subject to the rules of
summary procedure. And you need to remember that in the rules of
summary procedure, if you were not able to submit that affidavit,
you cannot testify. That witness cannot testify. If you’re not able to
present your document during the pre-trial conference, you cannot
present it later on. But I just took over the case. And I found out that
there are pieces of evidence that I needed to present to make my
case more convincing but they were not previously marked and
identified during pre-trial. Supposed to be not included and
presented in court. That’s the rule of exclusion. But I persuaded the
judge and was able to present it. What was I talking about? I’m
talking about murag infringement bitaw. You’re selling substances,
dili banned, chemicals that you’re claiming to be your own when it
fact it was my client’s. How do you prove that? I showed my canister
and compared it to the canisters of those that the defendant is
selling. So gipakita nako na sa court. So that the court can
appreciate that these are similar in composition. There’s unfair
competition in this case. The judge allowed it even if I was not able
to have it pre-marked during pre-trial. What would be the better
thing to do for the judge? To also allow the adverse party to present
similar inadmissible evidence to prevent manifest injustice. So the
court allowed the adverse party to present evidence that was not
previously marked during pre-trial. That’s curative admissibility.
July 8, 2016
Laws that would affect the admissibility (relevancy and
competency) of evidence
1. RA 4200 (Anti Wire Tapping Law) - renders evidence that would
normally be admissible as inadmissible. It is grounded upon privacy
of persons protected under the constitution.
Any exceptions to non-admissibility of wire-tapped conversation?
a) When there is consent by two parties.
SALCEDO CASE: Involves declaration of nullity of marriage.
The husband instructed military operatives to wiretap conversation
of his wife. The issue here is WON the wiretap conversation may be
used as evidence to declare the marriage a nullity. SC declared that
the wiretap was not admissible.
b) It is not private.
Even without consent is not covered by the anti-wiretapping law
because there is no reservation of expectation of my privacy.
Example, I shouted that I will kill Mateo... you can use that against
me because I did not reserve an expectation to privacy.
LAW ON EVIDENCE
2. Section 21 of RA 9165 (Comprehensive Dangerous Drugs Act) –
talks about the custody requirement and confiscation of seized
surrendered dangerous drugs, etc.
Section 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. – The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered, for
proper disposition in the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof;
(2) Within twenty-four (24) hours upon
confiscation/seizure of dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or
laboratory equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and
quantitative examination;
(3) A certification of the forensic laboratory examination
results, which shall be done under oath by the forensic
laboratory examiner, shall be issued within twenty-four
(24) hours after the receipt of the subject item/s: Provided,
That when the volume of the dangerous drugs, plant
sources of dangerous drugs, and controlled precursors and
essential chemicals does not allow the completion of
testing within the time frame, a partial laboratory
examination report shall be provisionally issued stating
therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided, however,
That a final certification shall be issued on the completed
forensic laboratory examination on the same within the
next twenty-four (24) hours;
(4) After the filing of the criminal case, the Court shall,
within seventy-two (72) hours, conduct an ocular
inspection of the confiscated, seized and/or surrendered
dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals, including
the instruments/paraphernalia and/or laboratory
equipment, and through the PDEA shall within twenty-four
(24) hours thereafter proceed with the destruction or
burning of the same, in the presence of the accused or the
person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a
representative from the media and the DOJ, civil society
groups and any elected public official. The Board shall
draw up the guidelines on the manner of proper
disposition and destruction of such item/s which shall be
borne by the offender: Provided, That those item/s of
lawful commerce, as determined by the Board, shall be
donated, used or recycled for legitimate purposes:
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Provided, further, That a representative sample, duly
weighed and recorded is retained;
(5) The Board shall then issue a sworn certification as to
the fact of destruction or burning of the subject item/s
which, together with the representative sample/s in the
custody of the PDEA, shall be submitted to the court
having jurisdiction over the case. In all instances, the
representative sample/s shall be kept to a minimum
quantity as determined by the Board;
(6) The alleged offender or his/her representative or
counsel shall be allowed to personally observe all of the
above proceedings and his/her presence shall not
constitute an admission of guilt. In case the said offender
or accused refuses or fails to appoint a representative
after due notice in writing to the accused or his/her
counsel within seventy-two (72) hours before the actual
burning or destruction of the evidence in question, the
Secretary of Justice shall appoint a member of the public
attorney's office to represent the former;
(7) After the promulgation and judgment in the criminal
case wherein the representative sample/s was presented
as evidence in court, the trial prosecutor shall inform the
Board of the final termination of the case and, in turn,
shall request the court for leave to turn over the said
representative sample/s to the PDEA for proper
disposition and destruction within twenty-four (24) hours
from receipt of the same; and
(8) Transitory Provision: a) Within twenty-four (24) hours
from the effectivity of this Act, dangerous drugs defined
herein which are presently in possession of law
enforcement agencies shall, with leave of court, be burned
or destroyed, in the presence of representatives of the
Court, DOJ, Department of Health (DOH) and the
accused/and or his/her counsel, and, b) Pending the
organization of the PDEA, the custody, disposition, and
burning or destruction of seized/surrendered dangerous
drugs provided under this Section shall be implemented by
the DOH.
So imagine a situation where there is a buy bust operation. There’s
a poseur-buyer who goes to the drug pusher and then proposes to
buy. So dakpon tong pusher. What will happen to the drugs? There
was a big problem before because of that constant defense that
people accused in drug cases, evidence has been planted. So under
Sec 21, it gives you the chain of custody requirement with respect to
seized dangerous drugs and other paraphernalia.
So according to Sec 21, there is a requirement that immediately
after seizure and confiscation, the apprehending team should
physically inventory and photograph the same in the presence of the
accused, the persons from whom such items were confiscated or
his/her representative or counsel, a representative from the media,
the DOJ and any elected public official who shall be required to sign
the copy of the inventory and be given the copy thereof.
There’s a lot of people who need to be involved in transferring
custody of these drugs. So it’s very difficult to comply with it
sometimes. Say for example you go to a place where there’s no
available elected public official or no member of the media, so you
cannot comply with it. So it becomes a problem. And then within
LAW ON EVIDENCE
24 hours, the drugs shall be submitted to the PDEA Forensics
Laboratory for quantitative and qualitative examination. After that,
a certification of the examination results shall be issued within 24
hours after the receipt of the subject items.
Remember that when there is forensic laboratory examination of
dangerous drugs, you need to make a qualitative examination of the
substance to determine what type of substance is it, if it is really a
prohibited drug. Quantity is required because remember according
to RA 9165, the quantity of the drugs seized from the suspect would
have an effect on the penalty to be imposed upon the accused.
And then after the filing of the criminal case, the court shall within
72 hours conduct an ocular inspection of the confiscated seized or
surrendered dangerous drugs, etc. and thru the PDEA within 24
hours thereafter shall proceed with the destruction or burning of the
dangerous drugs. So that’s the chain of custody requirement.
Again what’s the reason for the chain of custody requirement: To
ensure the integrity of the evidence. To ensure nga walay planting
of evidence.
Remember, the seized dangerous drugs shall not be kept. They
must be destroyed under Sec 21.
If you fail to comply with any of the links of chain of custody,
would that produce the effect of inadmissibility? Would the drugs
be inadmissible in evidence?
PP VS EUGENIO (Sept 1, 2010) – SC said that noncompliance with
Sec 21 RA 9165 is NOT FATAL as long as there are justifiable grounds
therefore, as long as the integrity and the evidentiary value of the
confiscated items are properly preserved by the investigating team.
What is important is the preservation of the integrity and
evidentiary value of the seized items as the same would determine
the innocence or guilt of the accused.
PP VS MACATINAG (Jan 19, 2009) – SC could not find any provision
in law that would bring about the non-admissibility of the
confiscated drugs due to noncompliance with Sec 21 RA 9165. But
SC cautioned that when there is a noncompliance of Sec 21, while it
may not affect the admissibility of evidence, it may however affect
the weight or evidentiary probative value of the evidence. So the
weight that must be given by the court on the evidence is
dependent on the circumstances obtaining in each case. Hence, it
does not affect admissibility but the believability of evidence.
PP VS ALMORFE (March 29, 2010) – After a buy bust operation,
drugs in the possession of the accused were seized. However, the
drugs were not physically inventoried and photographed in the
presence of the accused. And because of that evidence, the accused
was later on convicted.
RULING: While a perfect chain of custody is almost always
impossible to achieve, an unbroken chain becomes indispensable
and essential in the prosecution of drug cases owing to its
susceptibility tampering, contamination and even in substitution and
change. Hence, every link must be accounted for. In fine, the
prosecution failed to account for every link of the chain starting
from its turnover by the accused to the investigator, and from the
investigator to the chemist as for the presumption of regularity in
the performance of official duty relied upon by the court, the same
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based on the lectures of ATTY. JESS ESPEJO
cannot by itself overcome the presumption of innocence or
constitute guilt beyond reasonable doubt. And by that, the accused
was acquitted.
Take note of the requirement imposed by the SC in Alnorfe. If you
failed to follow the chain of custody requirement under Sec 21, it’s
NOT FATAL for as long as you are able to explain or account for the
different links in the chain of custody. You have to afford a
reasonable explanation why you were not able to follow the
requirement of inventory, photograph, etc. Failure to account
renders the regularity presumption enjoyed by public officers
nugatory.
So there is really no conflict among the three cases mentioned.
Though noncompliance is not fatal, you still have to explain or
account for every link in the chain of custody. So with that, we are
done with Rule 128.
Rule 129 provides for instances where proof can be dispensed with.
RULE 129 – WHAT NEED NOT BE PROVED
Section 1. Judicial notice, when mandatory. — A court shall take
judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations,
the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the official acts
of legislative, executive and judicial departments of the Philippines,
the laws of nature, the measure of time, and the geographical
divisions. (1a)
Section 2. Judicial notice, when discretionary. — A court may take
judicial notice of matters which are of public knowledge, or are
capable to unquestionable demonstration, or ought to be known to
judges because of their judicial functions. (1a)
Section 3. Judicial notice, when hearing necessary. — During the
trial, the court, on its own initiative, or on request of a party, may
announce its intention to take judicial notice of any matter and
allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court,
on its own initiative or on request of a party, may take judicial notice
of any matter and allow the parties to be heard thereon if such
matter is decisive of a material issue in the case. (n)
Section 4. Judicial admissions. — An admission, verbal or written,
made by the party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that
no such admission was made. (2a)
Presumption
What is the effect of presumption of innocence in the constitution?
That the accused is presumed innocent until the contrary is proven.
As far as the accused is concerned, he does not have to present any
proof. He has to rely on the ability or inability of the prosecution to
present proof that would rebut the presumption of evidence. If the
prosecution fails to prove that, the accused is acquitted.
LAW ON EVIDENCE
Types of Presumption
1. Conclusive presumption – one which the law no longer allows to
be rebutted.
Example: A child below 9 years of age is conclusively presumed to be
incapable of discernment.
REPUBLIC VS LUZON STEVEDORING – there’s a tugboat and a
bridge, nagbangga! Whose fault? The bridge is stationary, it does
not move. So under the facts and circumstances, it must be the
tugboat that hit the bridge.
Doctrine enunciated in the said case: Presumption of Res Ipsa
Loquitor (the thing speaks for itself). It applies when it is so
improbable that the damage would not have arisen if it were not for
the intervention of a particular person. The defendant usually has
the full control of the instrumentality that caused the damage.
Another instance of Res Ipsa Loquitor is when you go to the hospital
for an appendectomy but you came out with a vasectomy. Who has
control of the instrumentality that causes damage? The doctor, of
course. It could not have been you. It gives rise to the presumption
that the defendant (doctor) must be negligent.
Remember, whoever alleges must be the one to present proof. If
you are the prosecution, you have the burden of proving the
accused’s guilt beyond reasonable doubt.
If you are the plaintiff, you have the burden of proving the elements
of your cause of action otherwise you render your cause of action to
the remedy of demurrer to evidence. A demurrer to evidence is
another way of saying a motion to dismiss. It’s just that the motion
to dismiss is filed in the middle of the case after the plaintiff has
presented his evidence in chief. So you fail to discharge the burden
and therefore when the presumption applies, you don’t have the
burden of proving anything yet. Applying the presumption of Res
Ipso Loquitor, the defendant is presumed to be negligent. The
plaintiff has nothing to prove yet. So the burden of proving
evidence is shifted to the defendant to prove that he is not
negligent.
So compared to the matters within the realm of judicial notice and
those subject to judicial admissions, what presumptions do will be to
postpone the need of presenting evidence. But eventually you
might have to still present evidence. But if the other party failed to
discharge his burden, you (the person upon whom the presumption
is established) will not have to present evidence because the former
failed to discharge the burden.
2. Disputable presumption
Judicial Admission
With respect to judicial admissions, when a fact is already admitted
by a party in court, you don’t have to prove it. When you make an
admission, the effect is you are not allowed to contradict your
admission anymore.
Judicial Notice
REPUBLIC VS SANDIGANBAYAN (Dec 16, 2011) – Judicial notice is
the cognizance of certain facts that judges may properly take and act
on without proof because these facts are already known to them.
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Put differently, it is the assumption by a court of a fact without need
of further traditional evidentiary support. The principle is based on
convenience and expediency in securing and introducing evidence
on matters which are not ordinarily capable of dispute and are not
bona fide disputed.
The foundation for judicial notice may be traced to the civil and
canon law maxim, manifesta (or notoria) non indigent probatione
(manifest things require no proof). The taking of judicial notice
means that the court will dispense with the traditional form of
presentation of evidence. In so doing, the court assumes that the
matter is so notorious that it would not be disputed.
Rationale for Judicial Notice
1. Expediency
2. Convenience
The taking of the judicial notice is a matter of expediency and
convenience for it fulfills the purpose that the evidence intended to
achieve and in its sense, it is the equivalent of proof.
PP VS ORULLETA? – SC said it would be superfluous, inconvenient
and expensive to both parties in the court to require proof in the
ordinary way of facts which are already known.
Examples:
Case is for murder. Accused pushed the victim from the
th
30 floor of the building. Then the judge asked: when the
A pushed B, did B fall? Of course, yes! The judge is
supposed to take judicial notice of the law of nature
including gravity. Sometimes it will lead to absurd results
if we will not require judges to take judicial notice.
A Filipino married to an American. The judge refused to
take judicial notice of America coz he has not seen it. So
the judge has to conduct ocular inspection of America. It
will result to absurdity as he is supposed to take judicial
notice of the existence and territorial extent of states.
Rule 129. Section 1. Judicial notice, when mandatory. — A court
shall take judicial notice, without the introduction of evidence, of
the existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations,
the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the official acts
of legislative, executive and judicial departments of the Philippines,
the laws of nature, the measure of time, and the geographical
divisions. (1a)
Matters mentioned in Sec 1 are those of public common knowledge
that’s why judges are expected to know them or take judicial notice
of them.
PAGDILAO VS RABANILLO
REQUISITES OF JUDICIAL NOTICE
(1) The matter must be one of common and general knowledge;
(2) It must be well and authoritatively settled and not doubtful or
uncertain; and
LAW ON EVIDENCE
(3) It must be known to be within the limits of jurisdiction of the
court.
The power of taking judicial notice is to be exercised by courts with
caution. Care must be taken that the requisite notoriety exists and
every reasonable doubt on the subject should be promptly resolved
in the negative.
As to the first requisite, the SC said in the case of SALUDO VS
AMERICAN EXPRESS INTL (2006), concept of facts of common
knowledge in the context of judicial notice has been explained as
those facts that are so commonly known in the community as to
make it unprofitable to require proof, and so certainly known to as
to make it indisputable among reasonable men.
Keyword is unprofitable to require proof. You gain nothing from
requiring evidence of certain facts which are within the realm of
public knowledge, and therefore within the realm of judicial notice.
Types of Judicial Notice:
1. Mandatory – Sec 1
2. Discretionary – Sec 2
3. When hearing necessary – Sec 3
MANDATORY JUDICIAL NOTICE
1. The existence and territorial extent of states, their political
history, forms of government and symbols of nationality
For example, America. We know that there is a USA that exists. As
to territorial extent, where is America located?
So as to existence and territorial extent of states, their political
history, forms of government and symbols of nationality, for
purposes of convenience and expediency, judges should not be
ignorant about these matters. They are expected to know and take
judicial notice of them.
2. Law of Nations
Under Article 2 Sec 2 of 1987 Constitution, the Philippines
renounces war as an instrument of national policy and adopts the
general accepted principles of international law as part of the law of
the land, etc..
How do we adopt principles of international law as part of the law
of the land? Under Public International Law:
a) Doctrine of Transformation – treaties are converted into
municipal law by implementing a similar statute.
In the aftermath of the 9/11 attack, we have our own laws for the
Anti Terrorism Act and Crimes against International Humanitarian
Act. We transform that into domestic law.
Another mode of transformation is when 2/3 of the Senate concurs.
b) Doctrine of Incorporation – such as in the incorporation clause in
Sec 2 Article 2 of the 1987 Constitution.
How do we determine that particular principle is treated as a
generally accepted principle of international law? Naa ba nay
standard? Like rape, is it universally good or bad? Is Genocide
generally accepted in the realm of international law?
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According to international law authors, 2 standards are as follows:
a) Wide-spread state practice which means that the states
universally abhor an act like rape
b) Opinio Juris which means you follow this act because you believe
it is right; that is the psychological aspect of international law
Take note that the term Law of Nations does not mean a law of a
particular nation. I don’t care about the laws in China. It may or
may not benefit me but I don’t care. I don’t know about it. Courts
are not allowed to take judicial notice of the laws of a particular
country. Therefore, existence of foreign law per se is not within the
realm of mandatory judicial notice. Foreign laws actually present
a question of fact. As a general rule, they may not be taken judicial
notice of and have to be pleaded and proven as any matter of fact.
How do you prove foreign law?
1. Written foreign law – Rule 132 sec 24 & 25, easier to prove than
unwritten foreign law
2. Unwritten foreign law – Rule 130
Principles governing foreign law
A foreign law may be admitted without proof if it is subject to a
judicial admission (Sec 4, Rule 129). If the other party admits that a
certain law exists, then there is that admission. But admission as to
the existence of a foreign law would not mean admission as to its
applicability to the case. It is for the judge to determine whether
such foreign law is applicable or not. And in the absence of
evidence, foreign law is presumed to be the same with that of the
Philippine law (Processual Presumption).
CONDON VS COMELEC (2012) - Here, the Maja is the winning vice
mayoralty candidate of Caba, La Union. A petition for Quo Warranto
was filed against her stating that she as a dual citizen, under RA
9225, must execute a sworn renunciation of her Australian
citizenship. So the petitioner answered when she execute a
renunciation of her Australian citizenship in Australia, she is deemed
to have renounced her foreign citizenship. And she wanted the
court to take judicial notice of the laws of Australia, which says that
renunciation of her citizen under the laws of Australia is binding to
the whole world. She also contended that her mere act of running
for public office is a clear abandonment of her foreign citizenship.
According to the Supreme Court, we do not take judicial notice of a
foreign law such as the Australian Citizenship Act. It must be
pleaded and proven as a matter of fact. A sworn renunciation of
foreign citizenship is still required under RA 9225.
3. Official acts of the legislative, executive and judicial
departments of the Philippines
With respect to statutes, all judges are presumed to know the law as
to whether the law has been amended, repealed or reinstated.
However, not all legislative acts are laws. For example in the case
of:
CHAVEZ VS PUBLIC ESTATE AUTHORITY (Nov. 11, 2003), a Senate
investigation report is deemed covered by mandatory judicial notice
because that is an official act of the legislative department.
Congressional debates and other records that predicated the
LAW ON EVIDENCE
passage of the law are considered to be official acts of the legislative
department and therefore within the realm of mandatory judicial
notice.
There are executive acts that are considered as laws. Executive
orders and presidential decrees have the full force of law when they
take authority from the legislative power directly granted to the
executive or made pursuant to the valid legislative delegation
granted to the president. Example is the Family Code (EO 292).
PASEO VS LOPEZ (Aug 19, 1993) – SC discussed the matter whether
the presidential issuance can be considered a law. SC said that to
form part of the law of the land, a decree order or letter of
instruction must be issued by the President in the exercise of his
extraordinary power of legislation as contemplated in Section 6 of
the 1976 Amendments of the Constitution. Not all decree order or
letters of instruction by the President become part of the law of the
land.
SANAGA VS CA (April 17, 2001) – there are some official acts that
can be considered within the realm of mandatory judicial notice.
The action of an administrative agency in granting, denying or even
suspending or revoking a license of franchise or certificate of public
convenience is administrative or quasi-judicial. Decisions of the
office of the president are official acts and those acts exercising
quasi-judicial power by the executive department are within the
realm of mandatory judicial notice which courts are mandatorily task
to take judicial notice under Sec 1 of Rule 129. Judicial notice must
be taken of the organization of the executive department, its
principal officers, elected or appointed such as its president.
REPUBLIC VS SOUTH SIDE HOMEOWNERS ASSOC, INC. (Sept 2006)
– WON a land that is under a military reservation can be subject to
an application for titling? In order for a parcel of land to be part of
the alienable land of public domain, there has to be a declaration
that the same is alienable and disposable. That’s the only time that
you can apply for titling under PD 1529. However, SC said that
application for titling (PD 1529), or the presidential decree providing
for lands covered under military reservation is a matter cognizable
by the court pursuant to Sec 1 Rule 129. Hence the same is within
the realm of mandatory judicial notice.
ASIAN TERMINALS VS MALAYAN INSURANCE (2011)
(Judicial notice does not apply)
Finally, petitioner implores us to take judicial notice of Section 7.01,
Article VII of the Management Contract for cargo handling services it
entered with the PPA, which limits petitioner’s liability to P5,000.00
per package.
Unfortunately for the petitioner, it cannot avail of judicial notice.
Sections 1 and 2 of Rule 129 of the Rules of Court provide that:
SECTION 1. Judicial notice, when mandatory. — A court shall take
judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations,
the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the official acts
of the legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and the
geographical divisions.
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SEC. 2. Judicial notice, when discretionary. — A court may take
judicial notice of matters which are of public knowledge, or are
capable of unquestionable demonstration or ought to be known to
judges because of their judicial functions.
The Management Contract entered into by petitioner and the PPA is
clearly not among the matters which the courts can take judicial
notice of. It cannot be considered an official act of the executive
department. The PPA, which was created by virtue of Presidential
Decree No. 857, as amended, is a government-owned and controlled
corporation in charge of administering the ports in the country.
Obviously, the PPA was only performing a proprietary function when
it entered into a Management Contract with petitioner. As such,
judicial notice cannot be applied.
Power of Clemency
The president has the power to pardon. He can commute
sentences. He can suspend executions.
Assume that a convict was later on pardoned. While he was
pardoned, a policeman saw him and the police had knowledge that
the said guy was a convict. So he’s going to arrest him and bring him
to court for evasion of sentence. Our courts are obliged to take
judicial notice of the fact that the said convict was already pardoned
so that he would not be prosecuted anymore.
But not all exercises of the president’s power of executive clemency
are subject to mandatory judicial notice. Take note pardon is
granted by the chief executive and as such it is a private act which
must be pleaded in court by the person being pardoned because the
court takes no judicial notice thereof.
However, amnesty by proclamation of the chief executive with the
concurrence of congress is a public act of which the courts should
take judicial notice.
Amnesty Pardon
Subject to mandatory judicial NOT subject to mandatory
notice judicial notice
Need not be pleaded Must be pleaded
Official Acts of the Judicial Department
These refer mostly to decisions and cases. An example would be the
Rules of Court. Courts should take judicial notice of the decisions
rendered by the SC.
Why take judicial notice of acts of judicial dept?
Article 8 of the CC: Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal system of the
Philippines.
Can a court take judicial notice of a decision of CA? Or is it limited
only to what the SC is saying?
Decisions of lower courts are not given judicial notice. In
prosecuting a case for trial, generally, courts are not authorized to
take judicial notice of the contents of the records of other cases
even when such cases are pending in the same court and
notwithstanding that both cases may have been tried or are pending
in the same judge. But this however admits certain exceptions. So
LAW ON EVIDENCE
there could be permissible judicial notice of records of lower courts.
As a matter of convenience to all the parties,
GR: A court cannot take judicial notice of records or decisions of a
lower court unless the case is decided by the SC.
From 2015 TSN:
What else? Issuances by the Supreme Court such as Rules on
Electronic Evidence issued by the Supreme Court or Rules on the
procedure of environmental cases issued by the Supreme Court.
Courts must take judicial notice of these matters. The decisions that
pertain to mandatory judicial notice are only decisions of the
Supreme Court. How do you prove a decision of the Court of
Appeals or the lower courts? You have to give the court a copy, if
they do not have a copy yet of the record or order of the lower
court.
Ok, Question 1: Can the court take judicial notice of matters pending
in another case? Question 2: Can a court be allowed to take judicial
notice of records in different courts for a purpose of a particular
case? Can the judge say, “You don’t need to present evidence on
that fact; that is already established in a case that I tried a year ago
and I will take judicial notice that the owner of the gun is X.” Can the
court do that?
GR: the court cannot take judicial notice of the decisions of the
coordinate courts not even the decision or the facts of a similar case
tried by the same court. Even if the judge has personal knowledge,
the court does not have personal knowledge thus the court cannot
take judicial notice. It emphasizes the difference of a court and a
judge. Diba sa Civil Procedure, you learned the difference of a court
and a judge. So whatever is within the personal knowledge of the
judge, being an officer of the court, does not equate to judicial
notice.
REPUBLIC VS CA (August 18, 1997), the Supreme Court said: A court
will take judicial notice of its own acts and records in the same case,
of facts established in prior proceedings in the same case, of the
authenticity of its own records of another case between the same
parties, of the files of related cases in the same court, and of public
records on file in the same court.
However, there is a qualification provided for by an earlier case:
OCCIDENTAL LAND TRANSPO VS CA (1993): That there should be
an absence of objection, meaning both parties agree, as a matter of
convenience between two parties to treat the records of another
case as read into the records.
Those are the two requisites you need to remember:
1. absence of objection and
2. consent of the parties.
Ordinances
Ordinances are not included in the enumeration of matters covered
by mandatory judicial notice under Sec 1 Rule 129 of Rules of Court.
SJS VS ATIENZA (2008)
The Rule On Judicial Admissions Is Not Applicable Against
Respondent .
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The oil companies assert that respondent judicially admitted that
Ordinance No. 8027 was repealed by Ordinance No. 8119 in civil
case no. 03-106379 (where Petron assailed the constitutionality of
Ordinance No. 8027) when the parties in their joint motion to
withdraw complaint and counterclaim stated that "the issue ...has
been rendered moot and academic by virtue of the passage of
[Ordinance No. 8119]." They contend that such admission worked as
an estoppel against the respondent.
Respondent countered that this stipulation simply meant that
Petron was recognizing the validity and legality of Ordinance No.
8027 and that it had conceded the issue of said ordinance’s
constitutionality, opting instead to question the validity of
Ordinance No. 8119. The oil companies deny this and further argue
that respondent, in his answer in civil case no. 06-115334 (where
Chevron and Shell are asking for the nullification of Ordinance No.
8119), expressly stated that Ordinance No. 8119 replaced Ordinance
No. 8027:
... Under Ordinance No. 8027, businesses whose uses are not in
accord with the reclassification were given six months to cease
[their] operation. Ordinance No. 8119, which in effect, replaced
Ordinance [No.] 8027, merely took note of the time frame provided
for in Ordinance No. 8119.... Ordinance No. 8119 thus provided for
an even longer term, that is[,] seven years;
Rule 129, Section 4 of the Rules of Court provides:
Section 4. Judicial admissions. ― An admission, verbal or written,
made by a party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such
admission was made.
While it is true that a party making a judicial admission cannot
subsequently take a position contrary to or inconsistent with what
was pleaded, the aforestated rule is not applicable here. Respondent
made the statements regarding the ordinances in civil case nos. 03-
106379 and 06-115334 which are not "the same" as this case before
us. To constitute a judicial admission, the admission must be made
in the same case in which it is offered.
Hence, respondent is not estopped from claiming that Ordinance
No. 8119 did not supersede Ordinance No. 8027. On the contrary, it
is the oil companies which should be considered estopped. They rely
on the argument that Ordinance No. 8119 superseded Ordinance
No. 8027 but, at the same time, also impugn its (8119’s) validity. We
frown on the adoption of inconsistent positions and distrust any
attempt at clever positioning under one or the other on the basis of
what appears advantageous at the moment. Parties cannot take
vacillating or contrary positions regarding the validity of a statute or
ordinance. Nonetheless, we will look into the merits of the
argument of implied repeal.
When an ordinance is subject to judicial notice:
1. MTC: it is required to take judicial notice of the ordinances of
the municipality or city where it sits.
RTC: must take judicial notice of ordinances only when required to
do so by the statute.
2. In the case of appeal before them, they should also take judicial
notice.
LAW ON EVIDENCE
3. When an ordinance is capable of unquestionable demonstration.
But even when there is a statute requiring a court to take judicial
notice of ordinances, a court is not required to take judicial notice of
ordinances to which it does not have access. The party asking the
court to take judicial notice of the ordinances is obligated to supply
the court with the plain text of the rules which the party desires to
be followed or applied for the court to take judicial notice of the said
ordinances.
Take note that the intent of the statute requiring the court to take
judicial notice of a local ordinance is to remove any discretion that
the court might have in determining WON to take judicial notice of
an ordinance. The statute does not direct the court to act on its own
in obtaining evidence for record and the party must make the
ordinance available to the court for it to take notice of. So the party
must procure a copy of an ordinance from the Sangguniang
Panglusod and present the same to the court.
4. Laws of Nature
The most celebrated use of the laws of nature in judicial notice is in
a very old case in 1800s involving Abraham Lincoln. There is a brawl
during one night and there is an eyewitness from afar of the
assailant from a distance of 150 feet. You have to remember that
during this time there were still no light posts or wide spread used of
electricity. The crime was committed at 11 pm. Therefore, because
of the poor visibility it makes the identification of the assailant from
afar questionable.
One witness said that he was able to see the assailant because of
the light of the moon. What Abraham Lincoln did was take a farmer’
almanac ( a farmer’s almanac will tell you what would be the
position of the moon at night) and prove that the moon has already
set at 3 minutes before midnight and therefore visibility of the
assailant would have been impossible. So the court took judicial
notice that a setting moon will not cause illumination and that
caused the accused’s acquittal.
PEOPLE VS MENESES (1998)
It was established that a crime took place in the wee hours in the
morning before the crack of dawn at around 3 am. The court can
take judicial notice of the laws of nature such as in this case that
around 3 in the morning during the Christmas season, it is still quite
dark and that daylight comes late during this time of the year.
GABRIEL VS CA (2004)
The testimony of the star witness was like this: “I stepped out to see
what was going on. And then I heard the sound of two vehicles
colliding with one another….and then I saw the vehicles colliding
with one another.” In other words, the sound came before the
actual collision. What is correct? The sound occurs immediately after
the collision. The Supreme Court said that we have to take judicial
notice of the laws of nature. If true, the Supreme Court said: “If true,
this would rate as one of the greatest scientific revelations of all
time. But since courts are obliged to take judicial notice of the laws
of nature, this Court prefers to side with prudence.” So the Supreme
Court can be sarcastic at times.
5. Geographical Divisions
CHONGBIAN OLIVA VS REPUBLIC (2007)
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When a court takes judicial notice that a city is a highly urbanized
city, every barangay in the city would therefore be highly urbanized
as well.
Rule 129. Section 2. Judicial notice, when discretionary . – A court
may take judicial notice of matters which are of public knowledge,
or are capable of unquestionable demonstration, or ought to be
known to judges because of their judicial functions.
It is discretionary because it depends solely on the judgment of the
court unless the matter falls within Sec 1, no party can compel the
judge to take judicial notice of the same. Judicial notice under Sec 2
cannot be compelled by Mandamus.
MAGDALO PARA SA PAGBABAGO VS COMELEC (2012)
FACTS: Magdalo filed an application for a Party-list registration with
comelec for the May 10, 2010 national and local elections. Comelec
denied the application. Comelec also took judicial notice of the fact
that Magdalo was the one responsible for the Oakwood Mutiny.
Magdalo contended that Comelec could not take judicial notice of
those facts, that comelec committed grave abuse of discretion in
denying their registration since it based not on reliable records of
facts but on mere speculations.
ISSUE: WON the Comelec can take judicial notice of the fact that
Magdalo was responsible for the Oakwood Mutiny
RULING: YES. Under the Rules of Court, judicial notice may be
taken of matters that are of "public knowledge, or are capable of
unquestionable demonstration." Further, Executive Order No. 292,
otherwise known as the Revised Administrative Code, specifically
empowers administrative agencies to admit and give probative value
to evidence commonly acceptable by reasonably prudent men, and
to take notice of judicially cognizable facts. Thus, in Saludo v.
American Express, this Court explained as follows:
The concept of "facts of common knowledge" in the context of
judicial notice has been explained as those facts that are "so
commonly known in the community as to make it unprofitable to
require proof, and so certainly known x x x as to make it indisputable
among reasonable men."
This Court has, in a string of cases, already taken judicial notice of
the factual circumstances surrounding the Oakwood standoff. The
incident involved over 300 heavily armed military officers and
enlisted men – led by the founding members of MAGDALO – who
surreptitiously took over Oakwood in the wee hours of 27 July 2003.
They disarmed the security guards and planted explosive devices
around the building and within its vicinity. They aired their
grievances against the administration of former President Gloria
Macapagal-Arroyo (former President Arroyo), withdrew their
support from the government, and called for her resignation, as well
as that of her cabinet members and of the top officials of the
Philippine National Police (PNP) and the Armed Forces of the
Philippines (AFP). After the ensuing negotiations for these military
agents to lay down their weapons, defuse the explosives and return
to the barracks, the debacle came to a close at 11:00 p.m. on the
same day. That the Oakwood incident was widely known and
extensively covered by the media made it a proper subject of judicial
notice.
LAW ON EVIDENCE
Thus, the COMELEC did not commit grave abuse of discretion when
it treated these facts as public knowledge, and took cognizance
thereof without requiring the introduction and reception of
evidence thereon. In the present case, the Oakwood incident was
one that was attended with violence which warranted comelec’s
denial of Magdalo’s registration.
However, in view of the subsequent amnesty granted in favor of the
members of MAGDALO, the events that transpired during the
Oakwood incident can no longer be interpreted as acts of violence in
the context of the disqualifications from party registration.
So it’s proper also for the comelec to take judicial notice of the fact
that Magdalo were granted amnesty by PNoy for their acts in the
past. It would no longer be considered as a disqualification for
party-list registration.
STATE PROSECUTORS VS. MURO (1994)
FACTS: On August 13, 1992, respondent judge issued an Order
dismissing eleven (11) cases:
 Respondent Judge issued his Order solely on the basis of
newspaper reports (August 11, 1992 issues of the Philippine Daily
Inquirer and the Daily Globe) concerning the announcement on
August 10, 1992 by the President of the Philippines of the lifting by
the government of all foreign exchange restrictions and the arrival at
such decision by the Monetary Board as per statement of Central
Bank Governor Jose Cuisia
ISSUE: W/N the Judge was correct in taking judicial notice of the
supposed lifting of foreign exchange controls which appeared in
a newspaper.
RULING: NO
 The doctrine of judicial notice rests on the wisdom and discretion
of the courts. The power to take judicial notice is to be exercised by
courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubt on the subject should be
promptly resolved in the negative.
Generally speaking, matters of judicial notice have three material
requisites:
(1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or
uncertain; and
(3) it must be known to be within the limits of the jurisdiction of
the court. The provincial guide in determining what facts may be
assumed to be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety.
To say that a court will take judicial notice of a fact is merely
another way of saying that the usual form of evidence will be
dispensed with if knowledge of the fact can be otherwise acquired.
This is because the court assumes that the matter is so notorious
that it will not be disputed. But judicial notice is not judicial
knowledge. The mere personal knowledge of the judge is not the
judicial knowledge of the court, and he is not authorized to make
his individual knowledge of a fact, not generally or professionally
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known, the basis of his action. Judicial cognizance is taken only of
those matters which are "commonly" known.
 Things of "common knowledge," of which courts take judicial
notice, may be matters coming to the knowledge of men generally in
the course of the ordinary experiences of life, or they may be
matters which are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration. Thus, facts
which are universally known, and which may be found in
encyclopedias, dictionaries or other publications, are judicially
noticed, provided they are of such universal notoriety and so
generally understood that they may be regarded as forming part of
the common knowledge of every person.
 Respondent judge, in the guise of exercising discretion and onthe
basis of a mere newspaper account which is sometimes even
referred to as hearsay evidence twice removed, took judicial notice
of the supposed lifting o foreign exchange controls, a matter which
was not and cannot be considered of common knowledge or of
general notoriety. Worse, he took cognizance of an administrative
regulation which was not yet in force when the order of dismissal
was issued. Jurisprudence dictates that judicial notice cannot be
taken of a statute before it becomes effective. The reason is simple.
A law which is not yet in force and hence, still inexistent, cannot be
of common knowledge capable of ready and unquestionable
demonstration, which is one of the requirements before a court
can take judicial notice of a fact.
Rule 129. Section 3. Judicial notice, when hearing necessary.
During the trial, the court, on its own initiative, or on request of a
party, may announce its intention to take judicial notice of any
matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court,
on its own initiative or on request of a party, may take judicial notice
of any matter and allow the parties to be heard thereon if such
matter is decisive of a material issue in the case.
What is Judicial Notice?
It is when the court accepts a fact as true without requiring proof.
Whether it’s mandatory or discretionary, the court accepts a fact as
true without requiring proof.
When we talk about judicial notice, it’s actually repugnant to
reception of evidence. Is it not a fact that judicial notice by its very
nature dispenses with evidence and therefore dispenses with a
hearing? Section 3 is contrary to the essence of judicial notice.
In Sec 3, judicial notice is taken only after the parties have been
heard on the issue of WON the court has to take judicial notice. So
the parties will have the opportunity to ask the judge WON to take
judicial notice of a particular fact or matter. The parties may be
required to present evidence.
Judicial Notice on Age / Appearance
Example: Your knowledge about your birthday is totally hearsay.
You were just told by your parents that you were born on that day
based on your birth certificate. Later on mo na nabasa imong birth
cert. You don’t really have personal knowledge regarding your birth,
making your birthday a mere hearsay.
LAW ON EVIDENCE
Let’s say your age is relevant to the fact in issue in the case. The
best evidence to determine your age is your birth certificate. What
if wala kay birth certificate? Can the judge take judicial notice by just
looking at you and estimate your age based on your physical
appearance? NO because judicial notice is repugnant to the
concept of autoptic proference.
Autoptic Proference
It means self observation. When the court conducts autoptic
proference, it actually uses its senses. When the court is using its
senses, it’s actually applying Rule 130 Sec 1 – Objects as Evidence.
This is the appreciation of physical objects.
The court can never take judicial notice of age by using autoptic
proference. No matter how accurate your estimation is of a
person’s age by just looking at his physical appearance, it can never
be accurate.
When a trier of facts observes the appearance of a person to
ascertain his/her age, it’s not taking judicial notice of such fact,
rather it is conducting an examination of an evidence, the evidence
being the appearance of the person.
Why would age be relevant sometimes in cases?
In case of statutory rape, when the victim is below 12 years old, the
consent of the latter as to the consummation of the crime of rape is
immaterial for the prosecution of the accused.
In making of wills, the testator must be at least 18 years of age.
In marriage, the contracting parties must be at least 18 years of age.
LAND BANK OF THE PHILIPPINES VS. WYCOCO (2004)
FACTS:
 Feliciano F. Wycoco is the registered owner of a 94.1690
hectare unirrigated and untenanted rice land
 In line withthe Comprehensive Agrarian Reform Program (CARP)
of the government, Wycoco voluntarily offered to sell the land to
the Department of Agrarian Reform (DAR) for P14.9 million
 In arriving at the valuation of Wycoco’s land, the trial court took
judicial notice of the alleged prevailing market value of agricultural
lands in Licab, Nueva Ecija without apprising the parties of its
intention to take judicial notice thereof.
ISSUE: W/N the market value should have been taken judicial
notice of without the requirement of hearing.
RULING: NO.
Inasmuch as the valuation of the property of Wycoco is the very
issue in the case at bar, the trial court should have allowed the
parties to present evidence thereon instead of practically assuming a
valuation without basis.
While market value may be one of the bases of determining just
compensation, the same cannot be arbitrarily arrived at without
considering the factors to be appreciated in arriving at the fair
market value of the property e.g ., the cost of acquisition, the
current value of like properties, its size, shape, location, as well as
the tax declarations thereon. Since these factors were not
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considered, a remand of the case for determination of just
compensation is necessary.
The power to take judicial notice is to be exercised by courts with
caution especially where the case involves a vast tract of land. Care
must be taken that the requisite notoriety exists; and every
reasonable doubt on the subject should be promptly resolved in the
negative. To say that a court will take judicial notice of a fact is
merely another way of saying that the usual form of evidence will be
dispensed with if knowledge of the fact can be otherwise acquired.
This is because the court assumes that the matter is so notorious
that it will not be disputed. But judicial notice is not judicial
knowledge. The mere personal knowledge of the judge is not the
judicial knowledge of the court, and he is not authorized to make his
individual knowledge of a fact, not generally or professionally
known, the basis of his action.
Let’s go back to judicial notice on age. Minority, in criminal cases,
can be an exempting circumstance. In the crime of rape, age can be
considered as a qualifying circumstance. In qualified rape, the victim
is under 18 and the accused is a relative or the victim is under 7 yrs
of age. Or age can be an element of the crime itself such as in
Statutory Rape.
If you are a court of law, would you be justified in taking judicial
notice of the age of a person (witness, victim, or accused) if he has
no birth certificate or other evidence of his age? (Pp vs Villarama
2003)
PP VS VILLARAMA 2003
Court decisions on rape of minors, in order to justify the imposition
of death penalty, there must be independent evidence showing the
age of the victim.
What independent evidence must be presented? What will be the
guidelines in appreciating age, either as an element of the crime or
as a qualifying circumstance? (Pp vs Pruna)
PEOPLE VS. PRUNA 2002
FACTS:
 On 27 January 1995, an information*2+ for rape was filedagainst
accused-appellant Manuel Pruna y Ramirez or Erman Pruna y
Ramirez
 Jacqueline,Lizette’s mother, declared that at the time of the
alleged rape, LIZETTE was 3 years old, but at the time Jacqueline
testified on 17 October 1995, LIZETTE was 4 years old. LIZETTEs last
birthday was on 19 April 1995
 Pruna was convicted
ISSUE: W/N it was sufficiently established that Lizette was 3 years
old at the time of the commission of the crime.
RULING: NO.
A persons age is best proved by the birth certificate. But is the
presentation of the victims birth certificate a sine qua non
requirement to prove her age for the appreciation of minority either
as an element of the crime or as a qualifying circumstance? Recent
jurisprudence has conflicting pronouncements.
LAW ON EVIDENCE
Guidelines in appreciating age, either as an element of the crime
or as a qualifying circumstance:
1. The best evidence to prove the age of the offended party is an
original or certified true copy of the certificate of live birth of such
party.
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records which
show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victims mother or a member
of the family either by affinity or consanguinity who is qualified to
testify on matters respecting pedigree such as the exact age or date
of birth of the offended party pursuant to Section 40, Rule 130 (an
exception to the Hearsay Rule. Hearsay is not based on personal
knowledge) of the Rules on Evidence shall be sufficient under the
following circumstances:
a. If the victim is alleged to be below 3 years of age and what is
sought to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is
sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is
sought to be proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or
the testimony of the victim’s mother or relatives concerning the
victims age, the complainant’s testimony will suffice provided that it
is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the
offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against him.
 The trial court hs ould always make a categorical finding as to the
age of the victim.
 In the present case, no birth certificate or any similarauthentic
document, such as a baptismal certificate of LIZETTE, was presented
to prove her age.
 LIZETTE testified on 20 November 1996, or almost two years after
the incident, that she was 5 yearsold. However, when the defense
counsel asked her how old she was on 3 January 1995, or at the time
of the rape, she replied that she was 5 years old. Upon further
question as to the date she was born, she could not answer.
 For PRUNA to be convicted of rape in its qualified formand meted
the supreme penalty of death, it must be established with certainty
that LIZETTE was below 7 years old at the time of the commission of
the crime. It must be stressed that the severity of the death penalty,
especially its irreversible and final nature once carried out, makes
the decision-making process in capital offenses aptly subject to the
most exacting rules of procedure and evidence.
 In view ofthe uncertainty of LIZETTEs exact age, corroborative
evidence such as her birth certificate, baptismal certificate or any
other authentic document should be introduced in evidence in order
that the qualifying circumstance of below seven (7) years old is
appreciated against the appellant. The lack of objection on the part
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of the defense as to her age did not excuse theprosecution from
discharging its burden. That the defense invoked LIZETTEs tender
age for purposes of questioning her competency to testify is not
necessarily an admission that she was below 7 years of age when
PRUNA raped her on 3 January 1995. Such being the case, PRUNA
cannot be convicted of qualified rape, and hence the death penalty
cannot be imposed on him.
July 13, 2016
Before we leave judicial notice and proceed with judicial admissions,
let me just point out certain things that you need to remember. Let’s
go back to Rule 129, Section 1 – Judicial notice when mandatory.
Section 1. Judicial notice, when mandatory. — A court shall take
judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations,
the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the official acts
of legislative, executive and judicial departments of the Philippines,
the laws of nature, the measure of time, and the geographical
divisions. (1a)
Make sure you know what are the subects of mandatory judicial
notice. Remember when judicial notice is mandatory under Section
1, the courts will have no discretion whatsoever as to WON to take
judicial notice of a particular fact. And when a court refuses to take
judicial notice of matters, which are subject of mandatory judicial
notice under Section 1, that would be tantamount to gross
ignorance of the law. So you can always question the court for
excercising discretion when no discretion exists. That could be
subject to appellate review if a court does not take judicial notice of
a matter subject of mandatory judicial notice.
There’s nothing much about Section 1 in remembering specifically
what case or what particular object of mandatory judicial notice
would be construed in a particular way except with respect to laws.
LAWS
With respect to laws remember that laws could either be domestic
or international laws. With respect to domestic law, laws are
supposed to be official acts of the legislative department which
means it is subject of mandatory judicial notice.
With respect to international law, remember that what is subject to
mandatory judicial notice would be those generally accepted
principles of international law only. When we talk about particular
international law meaning the law of a particular law like Germany
or Australia as in the case we discussed, you have to prove that as a
fact. The rules of court could provide you with the process by which
you are able to prove international law or a law of a particular
nation as opposed to generally accepted principles of international
law.
LAW ON EVIDENCE
Take note right now, the arbitration court ruled in favor of the
Philippines! Boo China! The hell with you China! But it’s a matter of
WON we may be able to enforce it. But that decision of the
international tribunal would be used as a jump off point for
diplomatic solutions as to our problem here in the South China Sea
or the way we call it the West Philippine Sea. You know what as far
as I am concerned, the claim of China is anchored to the certain
extent to the fact that it is called the South China Sea.
Going back, what about ordinances? Remember when a court is
required to take judicial notice of a particular ordinance.
OFFICIAL ACTS OF JUDICIAL DEPT of the PH
Take note that when we talk about official acts of the judicial
department of the Philippines, we are talking about the acts of the
judiciary (the Supreme Court primarily) that would have force and
effect of laws. And what would that be?
1. Judicial decisions pursuant to Art. 8 of the Civil Code.
Judicial decisions which interpret the laws of the land,
form part of the legal system of the Philippines.
2. Supreme Court issuances which governs pleading, practice
and procedure before the courts. So when a particular
matter falls whithin what I told you about then that would
be subject to mandatory judicial notice. Take note that a
court generally will not be allowed to take judicial notice
of a matter, which is in contrversy, or a matter that has
been litigated or is in litigation. So the court cannot
therefore take judicial notice of the records of the court.
Unsa lang man ang gina take notice? DECISIONS of the SC
with respect to the jurisprudence of the land. But the
decisions of CA, not necessarily.
You do not take judicial notice of a subordinate or co-
equal court’s decisions. But take note what are the
instances where taking judicial notice of the records of a
court in a particular case is permissible. I gave you 2 cases
there - ESPANOL and the case of OCCIDENTAL LAND
TRANSPORT. Please remember those cases, it will tell you
what would be permissible judicial notice of records of a
case. Remember that there should be no objections of the
other party. That’s a very important requisite and it must
be read into the records of the case.
Now, we go to SECTION 2 – JUDICIAL NOTICE, WHEN
DISCRETIONARY.
Take note that no matter how you look at Section 2, the
requirement simply is that the court shall exercise the power to take
discretionary judicial notice sparingly. It has to be very careful to
ensure that the requisite NOTORIETY exists. It must be one of
common or public knowledge that it would be unprofitable to
require it.
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Section 2. Judicial notice, when discretionary. — A court may take
judicial notice of matters which are of public knowledge, or are
capable to unquestionable demonstration, or ought to be known to
judges because of their judicial functions. (1a)
Then you have SECTION 3.
Section 3. Judicial notice, when hearing necessary. — During the
trial, the court, on its own initiative, or on request of a party, may
announce its intention to take judicial notice of any matter and
allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court,
on its own initiative or on request of a party, may take judicial notice
of any matter and allow the parties to be heard thereon if such
matter is decisive of a material issue in the case. (n)
The case there I assigned is the LANDBANK VS WYCOCO (Jan. 14
2004).
ISSUE: WON a court can take judicial notice of a supposed prevailing
market value of a lot.
RULING: So according to the SC here (applying section 3) when you
talk about market value of a land that is something that should
require evidence. It should be something that should be heard by
the court. Remember in an expropriation case, the parties are of
course required to prove WON the taking is proper and at the same
time the amount of just compensation – WON is it proper. You have
to prove consequential benefits and damages. We learned that from
political law. In that situation the parties are entitled to be heard
thereon. The court cannot simply take judicial notice of a supposed
prevailing market value without asking the parties. It brings me to
the conclusion that under Section 3 and reading from the case, that
it is really repugnant.
The concept of judicial notice is actually repugnant to what section 3
obtains. Because Section 3 tells you that judicial notice may be taken
at the initiative of the court or upon request of the party and then
allow the party to be heard thereon. When you hear parties,
remember that the requirement of hearing would entail
argumentation and presentation of evidence. In that situation, the
court actually exercises its power to receive evidence. And when you
receive evidence you are no longer taking judicial notice. So as far as
I am concerned, Section 3 is aberrant. It’s not supposed to be judicial
notice, regardless of how it originates.
Because in Section 3, it might originate from the court in which case,
the court will announce its intention to take judicial notice of a
particular fact and then of course allow the parties to be heard later
on.
LAW ON EVIDENCE
JUDICIAL NOTICE VS AUTOPTIC PROFERENCE
How do you contrast judicial notice with autoptic proference? When
you talk of autoptic we are talking here about the presentation of
object evidence so you are bringing something so that the court may
observe. It comes from the word auto and optic – self perception of
the court. It is related to the term autopsy. Spy or to observe. So
repugnant gyud na xa because the court when it looks at a person’s
appearance to determine for example the age of the victim or the
witness or accused regardless of the whether the purpose is
jurisdictional or evidentiary, it is no longer taking judicial notice but
receiving evidence through the process of of autoptic proference.
Do you remember tha case of PRUNA? What are the guidelines for
you to prove the age of the victim in a rape case. Precisely because
in rape cases under the expanded rape law which transformed rape
from a crime against chastity to a crime against persons, their age
sometimes becomes an aggravating circumstance or a qualifying
circumstance. The very element of the crime itself such as statutory
rape where the age of the victim is an element of a crime. So in
those kinds of situations, what can and what can’t be proved if this
is your evidence. Remember the best evidence to be presented is
the birth certificate and baptismal certificate or other authentic
records showing the age of the accused. In the absence of those,
that’s the time that you can resort to testimony, or substitutionary
or secondary evidence. Now what will you present? Testimony of
the mother or may be the testimony of the victim herself. I have
already proven to you that that is unreliable.
When a person testifies as to his age with the knowledge that he or
she was born on a particular date, that’s actually not personal
knowledge. Because you as a baby, do not have the ability to
observe your birth and you cannot remember exactly when you
were born. So everything you know about your age or birthday is
actually hearsay. Therefore, kinihanglan mog independent
testimony, or evidence to prove your age.
Remember katong variances. You want to prove that the child is this
age but you only succeeded in proving that he is at a different age.
When the child herself would testify as to her age, remember that
that would only be admissible in the absence of the objection of the
accused. If there’s an objection you cannot do it anymore.
SECTION 4 – JUDICIAL ADMISSIONS
Section 4. Judicial admissions. — An admission, verbal or written,
made by the party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that
no such admission was made. (2a)
This will not be the first time that you will be hearing the word
admission and its special signification in the law of evidence.
Admissions can either be of two kinds.
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1. Judicial admission - made by the party in the course of the
proceeding in the same case where the admission has
been offered to prove something or it can be
2. Extrajudicial admission – which we will talk in rule 130. Not
in 129.
But take note that when we talk about a judicial admission, a
layman’s understanding simply is that it is made in the course of a
proceeding in a case. But Section 4 tells you that it has to be in the
same case. So let us suppose you made an admission in case A
pending before Branch 16 and then it is now being used as evidence
against you in Branch 15 in a different case. Remember that when
you make an admission in a different court and a different case, that
is not considered a judicial admission but an EXTRAJUDICIAL
admission. That’s one rule that we need to remember at the onset
of our discussion of judicial admission.
Judicial admission or an admission in judicio is a deliberate, clear,
unequivocal statement by a party about a concrete fact within the
party’s knowledge. It must be deliberate first because an admission
will not bind the party making it if it was made by mistake. If he
never really intended to make an admission therefore, it is not
deliberate and therefore its not considered an admission. It must be
clear and unequivocal and must not admit of two or more
interpretations.
It can also be defined as a formal concession in the pleadings or
stipulations by the party or counsel that is binding on the party
making them, although a judicial admission is not itself evidence. It
has the effect of withdrawing a fact. Let’s focus on that second
definition.
A formal concession – when you say concession it means that you
are surrendering, you concede! You are no longer controverting a
fact. When the party says naa kay utang and then you say “yes naa
koy utang” that’s an admission. You concede already. It can be
proved a concession through the pleadings where for example the
party in its answer admits to particular allegations in the complaint
of the plaintiff. Or it can be stipulations. When do you usually make
stipulations of facts?
Remember in your CIVPRO, Rule 18 relating to pre trial. One of the
mandatory objects of pre trial would be stipulation of facts and
evidence. So parties can actually concede during pre trial. And when
a party makes an admission, that fact is already withdrawn from
contention. There’s no more issue regarding that fact. That’s a very
important effect of making a judicial admission.
When you are making a judicial admission, you are no longer
allowed later on to controvert it pr to present evidence that is
contrary to the admission that you’ve made. You admit for example
in the pleadings that a party has the legal capacity and personality to
sue. Meaning he has the power to file the case against you. And
then later on during trial you make representations, saying that he is
not actually allowed to sue that he has no legal capacity to sue. That
will not be done anymore. All the other party has to point out is the
LAW ON EVIDENCE
fact that there has been prior judicial admission to a different effect.
So pag abot sa ing.ana dili naka pwede mupresent ug evidence
contrary to the admission that you previously made.
Remember the latin maxim here is CONFESSIO FACTA IN JUDICIO
OMNI MAJOR EST which means confession made in a trial is
stronger than all proof. Mas bug.at siya compared to any proof that
you might be able to present because you have already admitted it.
Now let’s go back to Political law a little bit. Remember that there is
a right to remain silent, do you recall that? The Miranda Warning!
Now, why is it that the Constitution itself that you an accused would
have that right to remain silent? Because anything you say can be
used against you in a court room. That always reminds me what
Dean Inigo says, regardless of where he says it (Civ Pro, Evidence) he
keeps on saying LESS TALK, LESS MISTAKE and therefore NO TALK,
NO MISTAKE.
What is the reason there? Why is it na you always say to your client
to remain silent. Because when he says something, that can be
construed as an admission. And when he is deemed to have already
made an admission specifically a judicial admission you cannot
present proof to counteract the effects of your admission. So please
remember that.
In the case of SPS BINARAO vs PLUS BUILDERS June 16, 2006 – The
SC had the occasion to lay down or enumerate, what are the sources
of judicial admission. According to the SC, a party may make
admissions:
a. in the pleadings
b. during the trial – verbal or written manifestations
c. other stages of the judicial proceeding
The most common there would be letter b, where we envision a
counsel who is skilled in the art of cross examination, being able to
make a party make an admission. I pride myself in my ability to cross
examine and sometimes I really do witnesses lying in court but it
doesn’t happen everyday. Why? Because any good lawyer before he
presents a witness for direct examination and cross examination by
the adverse party, should be able to tell the client immediately or
witnesses that you should watch out for this. This could be asked. So
as counsel, you need to be able to anticipate possible cross
examination questions. Remember that during direct examination, it
is supposed to be a question to be answered by specific acts so it
must not be leading in nature. When you say question answered by
a specific act, it must not be answerable by a yes or no. So who
where what how why, etc.
You do not ask a question that will not fit that formula. But during
cross examination, all the witness has to answer is yes or no. If you
are skilled at cross examination, you don’t actually make witnesses
answer questions na kanang who what when where why etc. You do
it only when the witness has no choice. It is like in debates, you start
a series of yes or no questions and then eventually you trap the
opponent that you are interpolating to revealing a particular fact to
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be contrary to what he previously stated. That’s how you do it also
in court.
It is very ideal that the counsel may be able to catch a party making
an admission or telling an outright lie. Even the best of them will not
be able to do that everytime. And every lawyer prepares his witness
ahead of time. In my case, I even go to the extent of asking a
different lawyer, to hear the supposed direct examination of my
witness in my own office and that other lawyer i.e. Yangyang Espejo
will cross examine my witness and my wife also does the same thing.
Her witness testifies in front of me and I will cross examine. So that’s
how we prepare our witnesses. So that pag abot sa panahon that he
is already being cross examined by the other party’s counsel he will
not be surprised anymore. Especially if I’m the one cross examining.
I don’t know why but I think people get scared when I cross
examine.
(Tells stories about him being a judge in a beauty contest na wa
katubag sa follow up question ang contestant.)
The ability to coerce or to compel a party to make an admission, that
is of course contrary to the cause that he is espousing… meaning it
should be an admission against his interest. Because if he makes an
admission that serves his interest, that’s considered as self serving
admission which will not do your case any good if you are cross
examined. So it is really difficult to obtain judicial admissions.
That’s the most common source of judicial admission but you will
learn when you become lawyers and you have ample knowledge of
CIVPRO that there are a lot of sources diay that you can take
advantage of. That lawyers seem to be unaware.
So let us look at the instances when admissions can be made for
example during hearings. So it can be admissions made by a party in
the course of the trial either by verbal or written stipulations or in
other stages of a judicial proceeding as in the pre trial case.
Admissions obtained through depositions, written interrogatories or
requests for admission are also considered judicial admissions.
Now, here’s this case that I have just read – ADOLFO vs ADOLFO
March 18, 2015. In addition to taking note of judicial admissions,
please take note as well about the distinctions between judgment
on the pleadings and summary judgment. Sometimes parties get
confused between these distinctions. So remember that by way of
review and apply that to the concept of judicial admissions.
When you make admissions, what does that mean especially in the
pleadings? It means that you are not tendering an issue or you are
posing no genuine issue to be tried – which necessitates either
judgment on the pleadings or summary judgment. Kung example
imo answer puro admission sa mga stipulations or allegations in the
complaint, what will happen? That will now be ripe for judgment on
the pleadings because there is not genuine issues to be tried or they
can be shallow issues. Take note of that because it is no longer my
responsibility to review CIVPRO. Just read the case – ADOLFO.
LAW ON EVIDENCE
ADMISSIONS CAN BE MADE IN BOTH INITIATORY AND RESPONSIVE
PLEADINGS. Example – in a complaint defendant Geronimo
contracted a loan with the plaintiff Sara. While defendant had paid
the first 5 installments, all the succeeding installments remain
unpaid. Ning bayad na kalima si Geronimo, ang uban wala pa. In an
answer for example “defendant admits the allegations contained in
paragraphs 1 and 2 of the complaint in as much as they merely
allege the personal circumstances and capacities of the parties.
st
Now the 1 one appears in a complaint so what’s the admission
being made by the plaintiff there? That the defendant made
payments. It is just that there are other installments that the
defendant has not yet paid. Therefore that would now be the basis
of the cause of action for specific performance para mabayran iyang
utang. So the plaintiff made an admission that will now limit the
issues to be tried. Because of instead of the entire loan being
unpaid, the plaintiff is now limiting voluntarily by way of an
admission the amounts that were yet to be paid. So later on the
plaintiff cannot present evidence saying that “actually mas daghan
pa diay sa uban installments ang wala pa nia nabayran”.
What about in the 2nd one? In an answer defendant admits the
allegations contained in paragpraphs 1 and 2 of the complaint in as
much as they merely allege the personal circumstances and
capacities of the parties. That is the way I usually answer or to allege
in an answer, responses to the recitations to the personal
circumstances of the parties.
For example, what usually appears in par. 1 of a complaint – “the
plaintiff Sara G. of legal age, Filipino, single, resident of Metro
Manila PH etc. For purposes of this complaint she may be served
with summons and other orders of the Honorable Court in blah2.”
So, are you gonna contest that? Or you simply make an admission?
Now if you say that you admit the personal circumstances, you no
longer refute the name, marital status, nationality of plaintiff. You
cannot contradict that later on.
Another example which is my favorite – RULE 8 Section 8.
Section 8. How to contest such documents. — When an action or
defense is founded upon a written instrument, copied in or attached
to the corresponding pleading as provided in the preceding section,
the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath specifically
denies them, and sets forth what he claims to be the facts, but the
requirement of an oath does not apply when the adverse party does
not appear to be a party to the instrument or when compliance with
an order for an inspection of the original instrument is refused. (8a)
It talks about actionable document. What is it? It’s a document upon
which the plaintiff’s cause of action and defendant’s defense is
founded upon. So when an action or defense is founded upon an
instrument attached to the corresponding pleading, as provided in
the preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party,
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under oath specifically denies them and sets forth what it claims to
be the facts but the requirement of an oath does not apply when the
adverse party does not appear to be a party to the instrument or
when compliance with an order for inspection is refused. Focus only
on the first part because that’s where the meat of the provision lies.
So when is a document actionable in a sense that it is the foundation
of your complaint? Give me an example – in case there is a debt the
actionable document or foundation or basis for your complaint for
specific performance – Promissory Note. That’s your actionable
document.
And remember under Rule 8 Sec. 7 – you are supposed to be told
how you are supposed to allege, how do you plead and actionable
document. Its either you copy verbatim and make it part of your
pleading or you attach it and incorporate it in your pleading and you
make reference. That’s the manner by which you make an allegation
of an actionable document.
In an answer therefore, if the answer alleges that “no, nakabayad
nako” despite the presence of the PN, how do you deny for example
if you are contesting na lang the existence and due execution of the
PN. In effect you are saying na wala koy utang, how will you do it?
According to Rule 8 Section 8, you have to do it under oath. Which is
satisfied by the requirement that you verified your answer. Not all
pleadings need to be verified. But in this situation, the answer is
required to be verified because you have to deny it under oath.
That’s the requirement of verification. It is an affidavit under oath:
1. That you have caused the preparation of the answer
2. That you have read the contents of the answer
3. That the allegations thereon are true and correct based on your
personal knowledge or authentic records.
Diba mao man na? Can you recall that from CIVPRO? I hope you do.
That’s very important. There are cases saying that a defect in
verification would also lead to the defect in the requirement that
the denial should be under oath. Which leads to the effect that you
are deemed to have admitted the genuineness and due execution of
the actionable document.
Now, you file an answer and if the PN is the best evidence to prove
the existence of the debt, what would be the best evidence to prove
that you have made payments already… full payment of the debt –
it’s a receipt! Because it really says that you have already paid
everything. If the utang in the PN is 1M then you have a receipt
making reference to the utang for 1 M that means you are fully paid
and may lead to the dismissal of the action because the claims set
forth in the plaintiff’s pleading has been paid and is extinguished –
under RULE 16.
But now, plaintiff is stating that the receipt that you have attached
to the answer is authentic. I think that is a forged receipt because I
do not remember ever issuing a receipt when you paid anything to
LAW ON EVIDENCE
me. Im not even admitting that you paid anything to me. So now, in
the case of:
CASENT REALTY VS PHILBANKING CORP (Sept 14, 2007) – take note
of what the SC said, “since the respondent failed to file a reply, in
effect respondent admitted the genuineness and due execution of
the said documents. This judicial admission should have been
considered by the appellate court in resolving the demurrer to
evidence. This is pursuant to RULE 129 Section 4 of the Rules of
Court.”
So that’s supposed to be a judicial admission. Now, the SC is saying
you did not file a reply. In other words, the admission relates to the
due execution and genuineness of an actionable document attached
or referred to in an answer. How do we reconcile that with the fact
that a reply is actually optional? Diba the filing of a reply is optional?
It is not mandatory. In fact, look at
Section 10 on Pleadings – “a reply is a pleading the function of which
is to deny or allege facts in denial of avoidance of new matters
alleged by way of defense in the answer and thereby join or make
issue as to such matters if the party does not file such reply, all the
new matters alleged in the answer are deemed controverted.”
So there is that effect of automatic controversion. Regardless of
whether you file that reply, there is an effect. All new matters
alleged in the answer are deemed controverted. So why is it that the
SC here, in effect punished the respondent for failing to file a reply,
when in fact a reply is an optional pleading, not mandatory. What is
a mandatory pleading? A complaint for example is a mandatory
pleading. Without the filing of the complaint, the court acquired no
jurisdiction over the subject matter, issues of the case, res, person.
What about an answer? Is it a mandatory pleading? YES! Because
failure to file an answer can cause the court to render judgment
against you in default – Under Rule 9. So you failed to file an answer,
it might lead to different scenarios:
1. the court may proceed to render judgment by default and
grant the plaintiff what he is praying for in his complaint
2. it may choose to receive evidence which may be delegated
to the clerk of court.
Remember when the court proceed to render judgment, the court is
not allowed to award matters which are different from that prayed
for by the plaintiff and it cannot award unliquidated damages. Those
are the basic limitations on a default judgment.
A reply? Is it mandatory? Very clearly from SECTION 10 it is not. But
Casent Realty case says in effect, because the plaintiff failed to file a
reply, it becomes mandatory. But you need to remember that IT IS
MANDATORY ONLY WHEN AN ACTIONABLE DOCUMENT IS
ALLEGED IN AN ANSWER.
Rule 8 Sec. 8 specifically applies to actions or defenses founded
upon a written instrument and provides the manner of denying it. It
is more controlling than Rule 6 Section 10 which merely provides for
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the effect for failure to file a reply. THUS, WHERE THE DEFENSE AND
THE ANSWER IS BASED ON AN ACTIONABLE DOCUMENT, A REPLY
SPECIFICALLY DENYING IT UNDER OATH MUST BE MADE,
OTHERWISE THE GENUINESS AND DUE EXECUTION OF THE
DOCUMENT WILL BE DEEMED ADMITTED.
Let’s try to tie that up with Civ Pro. WHILE THE FILING OF A REPLY IS
OPTIONAL, IT BECOMES MANDATORY WHE THE ANSWER ALLEGES
AN ACTIONABLE DOCUMENT. In which case, a reply must be filed
and must be denied under oath and therefore the reply must be a
verified reply. That’s a very important effect. If you do not file a
reply, automatic admission rather than automatic controversion. –
(CASENT vs PHILBANKING 2007)
Rule 8 Section 11 - Allegations not specifically denied deemed
admitted. — Material averment in the complaint, other than those
as to the amount of unliquidated damages, shall be deemed
admitted when not specifically denied. Allegations of usury in a
complaint to recover usurious interest are deemed admitted if not
denied under oath. (1a, R9)
So you divide the provision into two. The first one what’s the judicial
admission that’s present in the first sentence. If you fail to properly
deny to specifically deny an averment in a complaint, that is already
deemed admitted. So if you make a general denial, that would not
suffice. A general denial has the effect of an admission. So unsaon
diay pag deny? You have to specifically deny it, how do you make a
specific denial? BY TELLING THE COURT YOUR VERSION OF THE
STORY.
If the version of the plaintiff is this, you have to refute that version
by saying what accordingly transpired. Mao na siya and manner of
specific denial. So that’s also very important because if it has the
effect of being deemed admitted when not specifically denied, all
you have to do is to look at the answer and see which areas he did
not make a specific denial. If that is a general denial, that’s a point
for you.
That fact is already withdrawn from contention you, don’t have to
prove it. If he tries to prove something contrary to his general
admission by reason of a general denial it has the effect of an
admission – you can object now! It is contrary to the admission. He
should not be allowed to present evidence under RULE 129 SEC 4.
See how important this is? Sometimes CivPro and Evidence go hand
in hand. It is very important that you know the rules when they
intercept in a particular case.
2nd sentence of Rule 8 Sec. 11 – what will be deemed admitted? That
the contract is usurious. Simple is that. But right now usury
technically speaking does not exist as it was suspended by Central
Bank Circulars. The rule right now with respect to interests is that
the parties are free to stipulate – whatever terms and conditions
which they deem proper provided they are not contrary to law,
morals, good customs, public order, public policy. Isn’t usurious
interest contrary to morals, and public policy? It may not be contrary
to law but it sometimes is contrary to morals.
Technically speaking usury does not exist and the parties may
stipulate as to the amount or interest that they want to charge in a
contract in a loan or forebearance. Ginaingon sa SC na they will not
hesitate to strike it down if:
LAW ON EVIDENCE
1. It leads to the hemorrhaging of the assets of the debtor;
2. When it is shocking to the morals or unconscionable.
Those are the times when the SC strikes down usurious interest.
When you answer bar exams or your exam questions, you use the
language of the law or the SC because sometimes they will disagree
with me saying that its better to answer on my own words. The legal
profession is supposed to be an exact profession. Kelangan exact
atong definitions. Kung dili tinamad ka dili ka kapasag bar!
Pasensiya.
Rule 10 Section 8 - Section 8.Effect of amended pleadings. — An
amended pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be received in
evidence against the pleader, and claims or defenses alleged therein
not incorporated in the amended pleading shall be deemed waived.
(n)
So there is a complaint and then an answer. Now, let’s go back to
what you recall under Rule 10 and that is Amendments of Pleadings.
Remember that amendments can either be a matter of right or
judicial discretion. When is it a matter of right?
There are two instances:
1. Formal Amendment – meaning naa lang kay ichange. Mali
ang spelling, ichange nimo.
2. Substantial amendment before responsive pleading has
been served – So wala pa naka-file ug answer. You count
the 15 day period within which the defendant should file
an answer from date of receipt of summons together with
the copy of the complaint. Wala pa siya naka file, can you
amend the pleading as a matter of right? Yes. You can.
Now, what if you are changing your pleading. You are changing
practically all of your allegations. Yes you can still do it provided it
will not affect your obligation to pay the required docket fees. If you
pay a particular docket fee for a particular cause of action, the court
acquires jurisdiction over that cause of action. But what if ang
payment nimo will not cover the cause of action as amended. So the
court will not acquire jurisdiction there. In that situation, can you
still do it? Even if the defendant is about to file an answer and
complains that gi change man niya! Pwede ba nimo ichange or
iamend imong pleading as a matter of right? Yes you can.
And remember, the requirement is responsive pleading.
Let’s say for example you filed an action before the RTC and your
complaint states that it is an action for unlawful detainer or forcible
entry. Pwede dili? No! Because that is exclusively lodged in the
jurisdiction of the MTC. And so when the defendant receives a copy
of your complaint, the defendant is thinking “haha! Nagbinugo ka!”
So he now prepares a motion to dismiss because the court has no
jurisdiction over the subject matter of his claim. The RTC cannot
entertain actions for FE. So he files a motion to dismiss.
On July 13 niya gifile ang amended complaint. And the plaintiff said
“OMG, what was I thinking? May nalang I remember my professor
Atty. Espejo when he said you can never file a case for FE before the
RTC. And I also remember my professor telling me that there are
certain actions relating to real property that would fall under the
jurisdiction of the RTC depending on the assessed value of the
property. So depende 20,000 – 50,000. Tama ba? Let’s assume that’s
3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.
based on the lectures of ATTY. JESS ESPEJO
correct. It happens that the value of the property for FE is more than
20,000 outside MM. So let’s say the value of the property is 1M. So
now, gichange niya ang allegations sa complaint making it an action
for recovery of possession. So you know amend it because you have
not yet received the motion to dismiss. So it is now with the
jurisdiction of the RTC.
On July 14 a day after you filed an amended complaint, ning file ang
defendant ug motion to dismiss. What happens to the motion to
dismiss? Because the ground for dismissal does not exist anymore.
The defendant is saying that’s unfair. He is saying you are not
allowed to do that! Is the defendant correct? Of course no!!!
Amendment here is a matter of right.
Let us change it a little bit. The motion to dismiss was filed on July
13. So the plaintiff, after receiving a copy of the motion to dismiss,
the plaintiff files an amended answer to this effect that instead of it
being a FE case, it becomes a recovery of possession case. Now, the
defendant complains… “HAHA! I got you finally!” As in he really said
HAHA!
Why, ngano man? Why according to the defendant he got him?
Because he filed it after I filed my motion to dismiss and according
to the law, it is only an amendment as a matter of right if its filed
before a responsive pleading has been served. So would that change
now? Or is amendment still a matter of right? I’ll ask you this
question – IS A MOTION TO DISMISS A RESPONSIVE PLEADING?
NO!!! There are only 7 pleadings allowed:
1. Complaint
2. Answer
3. Reply
4. Counterclaim
5. Cross-claim
6. 3rd party complaint
7. Pleadings in intervention
A motion to dismiss is not a pleading. So when you file a motion to
dismiss, it does not affect the ability of the plaintiff to file an
amended complaint as a matter of right. So that is why the law
cautions you. If you are a defendant the law cautions you. Instead of
filing a motion to dismiss, you are supposed to file an answer and
plead your grounds for a motion to dismiss as an affirmative defense
in your answer. Because in that situation if you file an answer with
affirmative defense, unsay effect? - No longer a matter of right ang
pagfile ug amendment.
No longer amend his complaint as a matter of right. Will it affect his
ability to cause the dismissal of the case immediately? NO! You need
to remember under Rule 16, when you file an answer with
affirmative defense which ought to have been grounds for a motion
to dismiss, the court may order a preliminary hearing to be had
thereon as if a motion to dismiss have been filed.
So you have a complaint, it is responded to by an answer. Then an
answer is supposed to be responded by a reply (which is optional
and inc certain cases, mandatory). Let us supposed in your answer,
you made judicial admissions. “The defendant admits the admission
in paragraph 7 of the complaint”. So that has the effect of a judicial
admission. But later on you realized, “OMG, I made a mistake.
Anyway, wala pay reply, under the Rules I still have the ability to
amend my answer as a matter of right.” And so he does. He amends
the answer as a matter of right. What happens now to the judicial
LAW ON EVIDENCE
admissions contained in the answer? Rule 10 Section 8: An
amended pleading supersedes the pleading that it amends.
So technically speaking, the pleading no longer exists. It is as if it was
never filed. That’s the general rule. But the exception is, admission
in superseded pleadings may be received in evidence against the
pleader. So naa pay effect. So the answer which made a judicial
admission of paragraph 7, can you still use it against the pleader or
defendant? YES! But Rule 10 Sec. 8 says, it is no longer considered a
judicial admission. It becomes an EXTRA JUDICIAL ADMISSION.
What is the difference now between a judicial and an extra judicial
admission?
JUDICIAL ADMISSION – no need to prove it because he is precisely
the one making an admission.
EXTRA JUDICIAL ADMISSION – in order for it to be received as
evidence, it must be pleaded and proven. So you plead it in
pleadings and then prove it later on, present evidence.
Remember these are very basic principles relating to admissions.
Admissions made in superseded pleadings cease to be judicial
admissions, they are considered extra judicial admissions. So in
order to be utilized as extra judicial admission, they must be
formerly offered as evidence after pleading it then prove it.
VERBAL OR WRITTEN ADMISSIONS
Admissions during trial can either be VERBAL or WRITTEN.
A verbal judicial admission can take the form of a manifestation or
testimony in court.
So if I were you if you get into trouble, somebody files a case against
you, do not get a lawyer who is very talkative in court. I am talkative
in class but not in court. Less talk, less mistakes. No talk, no
mistakes.
A written judicial admission can be in motions, written
manifestations, briefs, memoranda, affidavits, submission in answer
to a request for admission.
ADMISSIONS IN OTHER STAGES OF THE CASE
Instances:
1. Pre-trial where admissions and stipulations of facts are
mandatory subjects of pre trial
2. Availment of discovery procedures before trial, or pending
appeal such as:
 Depositions
 Request for admission
 Physical or Mental examination of
persons (modes of discovery)
Let’s go to Pre Trial – Rule 18 of The Rules of Court.
There is supposed to be a portion during Pre Trial where you have to
list down your supposed stipulation of facts. Why? Because if the
other party admits it during Pre Trial or also during his pre trial brief
then there’s no need to prove that in court.
Well-settled is the rule that judicial admissions are conclusive on the
party making it. When you say conclusive what does it mean?
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based on the lectures of ATTY. JESS ESPEJO
IN SANTIAGO VS DELOS SANTOS 61 SCRA 146 – An admission
cannot be controverted by the party making such admission and are
conclusive as to him and that all proofs submitted by him contrary
thereto or inconsistent therewith shall be ignored whether objection
is interposed.
So even in the absence of an objection, you cannot present any
proof contrary to your judicial admission. Dili jud na dapat maka
lusot. It is one of those instances under the law on evidence where
objection is unnecessary.
Another instance would be in the matter of a hearsay testimony or
hearsay evidence – because even if makalusot siya and it is admitted
by the court because of lack of admission, it does not mean that the
court would give it evidentiary weight. Hearsay evidence whether
objected to or not has no evidentiary value. We will go to that when
we reach Rule 130 Sec. 36 and its exceptions.
It must be made in the same case. If you make it in another case,
that cannot be considered a judicial admission in the context of
RULE 129 Section 4.
REPUBLIC GLASS vs QUA 2004
“To constitute a judicial admission, it must be made in the same case
in which it is offered. If made in another case or court, the fact of
such admission must be proved as in the case of any other fact.
Although, if made in a judicial proceeding, it is entitled to be
_____(?).”
Nothing much about this case.
If made in the same case – JUDICIAL ADMISSION, if not the same
case – EXTRA JUDICIAL ADMISSION. Therefore, it has to be pleaded
and proved as in the case of any other fact. Although if it is made in
any other judicial proceeding must believable siya compared to one
that is made outside of the court.
Exceptions: The admission may be contradicted only by showing
that it was made through palpable mistake or that no such
admission was made.
So you made an admission and now it is taken against you. You still
have a recourse. That is – hide behind the exceptions.
“MADE THROUGH PALPABLE MISTAKE”
What do you mean by mistake? Sayop, mali! We all know what
mistake means but what is palpable lahi na siya sa papabol. It’s a
mistake that is obvious to both sides. So it is clear to the plaintiff and
clear to the defendant that clearly no admission was intended by the
party making the admission. So obvious to both sides.
“NO SUCH ADMISSION WAS MADE”
So you are actually saying, I never did it. I never said anything to
that effect and therefore I did not make such admission.
Under your Rules of Evidence, prior to recent amendments, this is
the only exception to the rule that judicial admission binds the party.
Isa lang ni siya ka exception but now they added the “no such
admission was made”.
Take note of this case:
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

ATLAS CONSOLIDATED MINING VS CIR Nov 17, 1999. Im not going Try to contrast the case of FULE vs CA with the case of KING vs
to discuss that anymore. PEOPLE Dec. 2, 1999.

NO SUCH ADMISSION WAS MADE – they had not been made at all or
the admission was taken out of context or not in the sense in which
the admission was made to appear. You know what, lawyers you see
one thing, they add another thing = automatic pildi naka in this
mind of his.
ATILLO III VS CA JAN 23, 1997 – for instance if a party invokes an
admission of an adverse party but cites the admission out of
context, then the one making the admission may show that he made
no show admission or that the admission was taken out of context.
This may be interpreted to mean not in the sense in which the
admission is made to appear that is the reason for the codifier
“such”.
SILOT VS DELA ROSA FEB 4, 2008 – Admission made by counsel is
binding upon the clients. So again kung lawyer ka, do not be so
careless in making such admissions.
FULE VS CA - Pre-Trial is mandatory also in mandatory in criminal
cases. So in this case what happened here was of course, stipulation
of facts. Then what if the accuse admits or stipulates as to the
existence of certain facts and the effect of that would be for him to
make a confession or an admission of his guilt in the criminal case.
Can he be convicted based on confessions or admission? Of course,
you can. In fact, a mere extrajudicial admission together with the
corpus delicti would be sufficient to warrant a conviction.
So here, after Pre-Trial, of course you have a Pre Trial order or pre
trial agreement between the accused and the prosecution. But the
problem is wala gipirmahan sa accused and counsel ang pre trial
agreement. So if you make your confession remember there are
very important formal requirements of a confession especially in a
criminal case and during pre trial, you have to sign not only the
accused but also the counsel. So what’s the effect in this case na
walay pirma. The prosecution did not present evidence anymore.
Kay nag confess naman so naghulat na lang ug conviction. During
appeal, the CA reversed it on the ground that, again, there is failure
to sign the pre trial agreement by counsel and accused. According to
the SC, pag wala, that becomes inadmissible in evidence. So in
effect the stipulation of facts that you made will not be binding
anymore.
KING vs PEOPLE – In an appeal from a conviction for BP 22, the
accused contends that the pieces of documentary evidence
presented by the prosecution during pre trial are inadmissible
because she did not sign the pre trial agreement. So what is Betty
King trying to say since wala ko nag prima edi libre nako. So ang
contention niya is she should be acquitted as there is no reason for
conviction because those pieces of evidence during pre-trial could
not be taken against her on the ground that they were inadmissible
for her failure to sign the pre trial agreement. She is using the FULE
Doctrine to reverse her own conviction for BP 22.
The SC said… “True, a pre trial agreement not signed by the party is
inadmissible. However, the conviction of King in this case was not
based on the agreement but on the documents submitted during
the trial all of which were admitted without any objection from her
counsel. Tanga ang lawyer, wala ni object.
During the hearing on September 17, 1993, the prosecution offered
as evidence the dishonored checks, the return check tickets
addressed to private complainant, the notice from complainant
addressed to petitioner that the checks had been dishonored, and
the postmaster's letter that the notice had been returned to sender.
Petitioner's counsel did not object to their admissibility.
It is clear that the prosecution evidence consisted of documents
offered and admitted during the trial. In view of this, the CA
correctly ruled that Fule v. Court of Appeals would not apply to the
present controversy. In that case, a hearing was conducted during
which the prosecution presented three exhibits. However, Fule's
conviction was "based solely on the stipulation of facts made during
rile pre-trial on August 8, 1985, which was not signed by the
petitioner, nor by his counsel." Because the stipulation was
inadmissible in evidence under Section 4 of Rule 118, the Court held
that there was no proof of his guilt.
In the present case, petitioner's conviction was based on the
evidence presented during trial, and not on the stipulations made
during the pretrial. Hence, petitioner's admissions during the trial
are governed not by the Fuleruling or by Section 4 of Rule 118, but
by Section 4 of Rule 129.

This is the FULE DOCTRINE. Kung dili signed, not admissible as
evidence.
What the prosecution should have done upon discovery that the
accused did not sign, was to submit the evidence to establish the
elements of the crime instead of relying solely on the supposed
admission of the accused in the stipulation of facts. So now klaro na
na siya sa RULE 118 Sec. 2
So mao na siya ang contention. On the one hand, we have Fule on
the other hand we have King. So make sure that you know the facts
of FULE and you also know how it is different from the facts of KING.
Kung naay pangutana sa bar about unsigned pre trial agreement, it
could either be FULE or KING.

RULE 118, Section 2.Pre-trial agreement. — All agreements or

admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel,
otherwise, they cannot be used against the accused. The
agreements covering the matters referred to in section 1 of this Rule
shall be approved by the court. (Sec. 4, cir. 38-98)

It is now there, the requirement in the case of FULE was now

reduced into a clear provision of law.

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LAW ON EVIDENCE
July 15, 2016
We are at the pint of the semester that we really have to deal with
Evidence Proper Already. If you are going to look at the entire law of
evidence, you will find out that two rules are of prime significance.
First, Rule 130 on the Rules of admissibility, where you will be told
what can and what cannot be admitted into evidence and Rule 132,
which will tell you how to present evidence. Offers, objections and
other rules that you need to remember.
So we begin now with Rule 130 and for tonight’s lesson, we will only
be dealing with object evidence. I will limit it object evidence
because we cannot proceed to documentary evidence on the reason
that I need to discuss with you DNA evidence.
Lets us proceed to the Rules of Admissibility. Recall that when we
introduced evidence to this class. We classify them into three. We
have object evidence, documentary evidence and of course we have
testimonial evidence.
RULE 130 – RULES OF ADMISSIBILITY OF DOCUMENTS
1. Object Evidence
Rule 130, Section 1. Object as evidence. – Objects as evidence are
those addressed to the senses of the court. When an object is
relevant to the fact in issue, it may be exhibited to, examined, or
viewed by the court.
These are evidence that is addressed to the senses of the court.
They are viewed and examined by the court because they are
relevant to the fact in issue in the case. (Rule 130, Section1)
They are also tangible evidence meaning it is something that you can
easily perceive. You do not have to imagine it, you see it, you hear it,
and you smell it, etcetera. Directly involve in the matters of the case
as a matter of fact which tends to prove, relate to appearance,
existence, condition, and other matters related to the physical
existence of an object.
In the appreciation of the object evidence, the court of course the
senses of sight, hearing, taste, and smell. And it is also called real
evidence because of what it has to do with the thing, the res. And it
is the thing or object that is addressed to the senses of the court.
2. Documentary Evidence
Rule 130, Section 2. Documentary evidence – Documents as
evidence consist of writings or any material containing letters,
words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents. (n)
As you have memorized, 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. (Rule 130, Section 2)
For documentary evidence, what is important is not the physical
document itself like this class card. This is not what is important
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based on the lectures of ATTY. JESS ESPEJO
green siya, rectangular in shape, so what does the class card
contain? It is the content of the document itself that is relevant.
In a way, in the appreciation of the documentary evidence, the court
rather than the mere use of the object evidence actually uses
intelligence. When you talk about the content of the document you
have to construe it sometimes, you have to understand it; you have
to determine the respective rights and obligations of a party,
depending on what is written in the document. So in addition to the
five senses, the court if any uses intelligence. If any lang, kung nay
intelligence ang court. 
3. Testimonial Evidence
Are oral or Written assertions offered in a court as a proof of what is
stated for as long as the witness whose testimony was offered,
perceived and in perceiving can make known its perception to
others.
Requirements of a Testimonial Evidence
First, the capacity of perception; you must be able to perceive, you
must be able to observe.
Second, is the capacity of recollection; mahinumduman nimu imung
na perceive, it is an object, document, and
Third, the capacity of communication; you are able to make known
your perception to others. Those are the three capacities required in
testimonial evidence.
Let us review a little bit of which among the three types of evidence
would be most preferred by the courts. Remember the case of:
PEOPLE VS LAVAPIE
The Supreme Court actually said that greater credence is to be given
to physical evidence or real evidence as the evidence of a highest
order because it speaks more eloquently than a hundred witnesses.
So on top of the hierarchy is the object evidence. It is the type of
evidence that we will be discussing tonight. And in the case of:
GSIS vs. Court of Appeals
The Supreme Court also distinguishes between testimonial evidence
and documentary evidence. Generally, documentary evidence
prevails over testimonial evidence.
Atty JZE: But we also pointed out that actually there is a little room
for choice between the two types of evidence. Meaning in the
greater scheme of things, both of them are actually unreliable. So
object evidence lang gyud ang evidence of the highest order.
Then between oral and written testimony, open court declarations
takes precedence over written affidavits in the hierarchy of
evidence. Unlike written statements, there is flexibility on the part
of the questioner to adapt his questions to illicit out the answers in
order to ferret out the truth. So mas okay ang open court
declarations. We will learn later on the requirement that a
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

testimony must actually be made in the open court because it gives Actual Illustrative
the other party to cross examine and determine the truth or Demonstrative evidence tends
falsehood of a statement made by the witness. So we get that to show that the object fairly
hierarchy already. represents or illustrates what it
alleges.
But informally, there is a 4th class of evidence recognized by the
th It tends to prove that the
rules. So what do we call that 4 class? Atty JZE: Parehas kadtong akong
evidence is used in other example ganiha. What did I want
likelihood, making it material to show? The position where the
4. Demonstrative Evidence
evidence. bumping took place, where the
vehicle was coming from and
It is evidence in the form of an object like maps diagrams, or models where my client was actually
that have, in themselves, no probative value but are used to
from. It is a representation an
illustrate and clarify the matter in issue. Demonstrative evidence, as
illustration on what is or what
evidence, not really prohibited though not specifically mentioned in
was alleged to have happened.
the Rules of Court. It is an evidence in itself. It is an aid in testimony.

In appreciating demonstrative evidence, the court use the same five

So let us now go to Section 1, objects as evidence:
senses, but more importantly applies intelligence as well to draw
conclusions or inferences in the object presented. Thus, for
demonstrative evidence what is more important is not then object, Section 1. Object as evidence. — Objects as evidence are those
not the map, not the diagram, not the model, but the information addressed to the senses of the court. When an object is relevant to
that the objects create. the fact in issue, it may be exhibited to, examined or viewed by the
court. (1a)
In my practice, I had the occasion to apply demonstrative evidence
by reason of necessity. Why? Remember when I told you that few We have also noted previously that when we talk about object
years back have like the dumbest witness I ever had. It is true evidence or real evidence, we are actually referring as well to what
because when he was bumped by a motorcycle. Gipangutana siya we call as AUTOPTIC PROFERENCE.
kung unsa siya kalayo nalagpot he said 50 METERS. If remember it
correctly. So the counsel for the defense, the PAO lawyer here even
BALINGIT VS. COMELEC, FEBRUARY 9, 2007
made a very crafty examination. So he asked, kung tinuod gyud na
nalagpot ka ug 50 metros nganung buhi pa ka? So what type of
question is that? That is actually very sarcastic. Autoptic proference, in legal parlance, simply means a tribunal's self-
perception, or autopsy, of the thing itself.
So what did I do? I made a demonstrative evidence in the form of a
diagram. To show clearly kung asa siya nabangaan when the So if we look at the etymology of the word itself it means “seen with
motorcycle bumped and kung asa siya nalagpot. So what we were your own eyes.” Auto means self and optic pertaining to the eyes.
trying to prove there is that the accused was really negligent in the So belonging to or connected with personal observation. That is the
operation of his vehicle as it that has caused him to bump somebody relation to the word autopsy. It actually means the same thing.
who was in the position on the road where he should not have been
bumped. So ingato akong gibuhat. Demonstrative evidence. So when applied to a Philippine Court, AUTOPTIC PROFERENCE is
the act of the tribunal or a majestry in exercising its senses to
Now will that demonstrative evidence constitute evidence by itself? determine the probative value of a particular object.
The answer is no because that was merely a visual aid, to aid the
witness in the progress of his necessity. So simple as that. The CALDE VS. COURT OF APPEALS ,JUNE 27, 1994.
diagram is not the evidence itself but the information that can be
culled from the presentation of the diagram and what the witness
In the making of a notarial will, there is a requirement that the
says in court. So does the court exercise intelligence? It exercised
witnesses must sigh in the presence of one another. All the attesting
intelligence. Unsay nasabtan sa korte based on the testimony and
witnesses in the making of the notarial will must sign in the presence
what was presented by the diagram.
of the testator and in the presence of one another. That is a very
important requirement.
So how do we differentiate now real evidence from demonstrative
evidence?
In this case, two witnesses testified that only one pen was used in
the signing of the will. Only a black pen was used. However, the
Real Evidence Demonstrative Evidence court noted that there were actually two colors that were used in
Real Evidence consists of the actual will and in the codicil attached to the will, black and blue
intangible objects that played an pen. So naa karuy doubt as to whether the will followed the formal
Demonstrative Evidence is
actual rule in the matter that requirements under the law on succession.
tangible evidence that merely
gave rise to the case in litigation.
illustrates the matter of
So it really has a part, it is really
importance in the litigation. So According to the Supreme Court:
very integral to the fact in issue
to the case.

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LAW ON EVIDENCE
A review of the facts and circumstances, however, fails to convince
us that the testamentary documents in question were subscribed
and attested by the instrumental witnesses during a single occasion.
The signatures of some attesting witnesses in decedent’s will and its
codicil were written in blue ink, while the others were in black. This
discrepancy was not explained by petitioner. Nobody of his six (6)
witnesses testified that two pens were used by the signatories on
the two documents. In fact, two (2) of petitioner’s witnesses even
testified that only one (1) ballpen was used in signing the two
testamentary documents. The will and the codicil.
That a person is of small height or is of dark complexion (is this guy
talking about me?); as to such matters, the perception by the
tribunal that the person is small or large, or that he has a dark or
light complexion, is a mode of acquiring belief which is independent
of inference from either testimonial or circumstantial evidence. It is
the tribunal’s self-perception, or autopsy, of the thing itself. From
the point of view of the litigant party furnishing this source of belief,
it may be termed Autoptic Proference.
So in the case of Calde, it actually paved the way for autoptic
proference over positive testimony. There was a testimony that
they signed in the presence of one another. But, by reason of
autoptic proference, by the initiative of the court itself, they
invalidated the will for the reason that there might have been non-
compliance with the requirements of article 805 of the Civil Code.
So, in black and white — or more accurately, in black and blue —
that more than one pen was used by the signatories thereto. Thus, it
was neither erroneous nor baseless for respondent court to
disbelieve petitioner’s claim that both testamentary documents in
question were subscribed to in accordance with the provisions of
Art. 805 of the Civil Code.
Interesting na kaso. That is the importance of autoptic proference.
That is the importance of object evidence.
Again. How many witnesses were they able to produce? 6 witnesses.
All attesting to the fact that they sign in the presence of one
another. I don’t know why nganu niabot ug six witnesses na turo ra
man ang kinihanglan. All of them were saying that we signed in the
presence of one another. But since autoptic proference speaks more
eloquently than a hundred witnesses, it is autoptic proference that
prevails. REMEMBER THIS CASE.
Take note that autoptic preference is not limited to the view of the
object. Dili lang kay magtan aw ka. It extends to visual, auditory,
tactile, gustatory, and olfactory. Simply, it is sight, hear, taste,
touch, and smell.
Now there is this CLASSIFICATION OF OBJECT EVIDENCE. We need
to take note of what they are. According to our noble author Moran,
1.) Those object evidence which consist in the exhibition or
production of the evidence inside the court room.
Examples:
- Objects of the crime; kadtong gikawat then na
retrieve so gipresent sa court to be identified
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based on the lectures of ATTY. JESS ESPEJO
- Or means to perpetrate the crimes; like keys kanang
false keys for example in a crime of trespass.
- Or a murder weapon by itself; A gun, a knife and so
on and so forth. So you bring it before the court room
and have the court inspect it.
2.) That which consist in the inspection of the object outside
the court room.
Examples:
- Ocular inspection in a boundary dispute. So muadto
ang court didto with the interpreter and with the
clerk of court usahay pa gyud just to see the
muniments of the property.
- Ocular inspection of a crime scene. You cannot order
the other party by way of a subpoena to bring with
you a parcel of land in dispute. You cannot do that
because it is incapable of being brought inside the
court room.
- An ocular inspection of the court without the
presence of the parties or without due notice to
both of them is not valid because when you conduct
an ocular inspection it is technically speaking part of
the trial. Instead of bringing objects into the court
room, the court is brought outside to examine the
object.
3.) That which consist in experimentation
- Experimentation in evidence is that which requires
the manipulation of the physical objects within or
outside a courtroom to determine a fact in issue. So
remember ha, experimentation can both be done
inside or outside the courtroom.
a.) Examination inside the courtroom:
- The accused, a frail and short individual, is charged of
murdering Mateo by repeatedly bashing his head
with a hammer. The defense asked the accused to
raise the hammer and demonstrate to the court the
impossibility of him using the hammer as a murder
weapon. And the accused may also ask the court to
hold the hammer and say “Bug-at ba, Judge?” Or
ipagunit nimu sa prosecution. “Bug-at ba?”
Can the accused physically lift that in order to use it
as a murder weapon? That is the experimentation.
You manipulate an object inside a court room.
- Blood sampling like what happened in the case of
PEOPLE VS. YATAR inside the courtroom in the
presence of the counsel. It can be considered as an
experimentation.
b.) What about experimentation outside the courtroom?
- In the crime scene. In order to view or appreciate
what happened. You can conduct a re-enactment.
That is allowed. Re-enactment is said to be
LAW ON EVIDENCE
demonstrative evidence. You can do that outside of
the court room. In the crime scene.
Now here is an example of evidence which consist in
experimentation,” IF THE GLOVES DON’T FIT, YOU MUST
ACQUIT.”
Are you familiar with this guy? (Sir shows the picture of O.J
Simpson). He is a quintessential football player and an
occasional actor. He gained a lot of fame due to different
movies re-enacting what has transpired in the case of:
PEOPLE VS. O.J SIMPSON
OJ Simpson married Nicole Brown who is according to gossip is
a very promiscuous individual,  Eventually, they say he is a
wife beater. They were estranged from one another.
Nicole began dating another man in the name of Rod Goldman.
When both Nicole and Rod went home to the old conjugal
dwelling of O.J and Nicole, someone attacked them via knife
and killed them.
The evidence found was blood splatters scattered all over the
scene of the crime. After the police learned of the incident,
they went to the house of O.J to supposedly inform him of what
has happened to his wife. When they were at the house of O.J,
there were traces of blood all. A bloody glove similar to what he
is wearing then was found in the premises. The police retrieved
it and packed it to be used as evidence.
O.J had the Dream Team of the best defense criminal lawyers in
the U.S including the Atty. Kardashian, the father of Kim
Kardashian and her other slutty siblings  . It was said to be
the trial of the century.
In the course of the trial, the prosecution proposed that O.J will
have to try the glove, which is experimentation. If maigo, it will
engender a belief in the mind of the jury that he was wearing
the gloves which was probably used during the commission of
the offense. If it fits, it will leave a lasting impression on the
jury. Hence,
But unfortunately the gloves did not fit. The gloves cannot even
be closed.
So by reason of experimentation, what was the lasting
impression that remained in the minds of the jury? That it does
not fit. So, the lawyer of O.J pleaded to the jury the very the
famous mantra which says:
“It does not fit, so, If the gloves don’t fit, you must acquit”
By reason thereof he was acquitted by the jury - by reason of
the blunder by the prosecution in engaging in autoptic
proference by experimentation.
But later on, he was found out civilly liable for the wrongful
death, awarding the families of the victims millions of dollars.
The quantum of proof required is simply preponderance of
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based on the lectures of ATTY. JESS ESPEJO
evidence, not proof beyond reasonable doubt. There goes the
life and crime of ORIENTAL JAMES SIMPSON.
One thing you need to remember when you become lawyers,
never present in court anything that would later on bring in
unexpected consequences. If you don’t know what is going to
happen never present it. Never ask a question that you never
know the answer to yet. 
Now, WHAT ARE THE REQUISITES FOR THE ADMISSIBILITY OF
OBJECT EVIDENCE? We go back to the basics here.
1.) It must be relevant to the fact in issue to the case
2.) It must be authenticated.
3.) It must not be hearsay
4.) Not privileged or not otherwise excluded by the law
or the rules.
5.) It must meet any additional requirements set by the
law.
Requisite (1) - RELEVANCY
Evidence must have such a relation to the fact in issue as to induce
belief in its existence or non-existence. That is basic relevancy. In the
case of:
PEOPLE VS. RULLEPA, MARCH 5, 2003
A person's appearance, where relevant, is admissible as object
evidence, the same being addressed to the senses of the court.
QUESTION: Since we are talking here of relevancy, the probability or
improbability of the fact in issue, when do you consider a fact in
issue?
The answer is simply when THERE IS A DISAGREEMENT of the
parties which makes in an issue.
Let us try to broaden our understanding a little bit. So what would
be the fact in issue for prosecution for violation of R.A 9165 after a
buy-bust operation? (Called a student)
That the SALE OF DRUGS HAS BEEN CONSUMMATED. The
prosecution would want to approve it and the accused denies it.
Now remember that the requirement if relevancy answers the
question of whether or not particular evidence is related to the fact
in issue to a case. What do you think would be a good relevant
evidence in the violation of R.A 9165?
The DRUG ITSELF AND THE MARKED MONEY. It is because it proves
that there is a sale. So you have to remember the requisites of a
valid sale. (Consent, subject matter, and the price certain in money).
PEOPLE VS. DE LOS REYES (1994)
The admissibility of the marked money in evidence is governed by
Section 1, Rule 130 of the 1989 Rules on Evidence, which provides
that when an object is relevant to the fact in issue, it may be
LAW ON EVIDENCE
exhibited to, examined or viewed by the court. The marked money,
being the consideration paid for the shabu, was relevant to the fact
in issue — the sale of shabu.
According to Wigmore, OBJECT EVIDENCE LIKE ANY OTHER
EVIDENCE MUST PASS THE TEST OF ADMISSIBILITY OR RELEVANCE
AND COMPETENCY. Thus, if an object is excluded by the law or the
rules such as the fruit of the poisonous tree doctrine, the object is
not admissible.
Likewise, autoptic proference must also be relevant, and it is
relevant only when it makes a fact of consequence, more or less
probable, in the absence of autoptic proference. Object evidence in
itself does not establish factum probandum because there is no
factum probandum solely by autoptic evidence.
What do I mean that there is no factum probandum? Example nay
nabilin na kutsilyo. What does it prove by itself? Wala, kutsilyo lang
siya. But you have to relate it to other factum probans like
evidentiary facts or by circumstantial evidence. Kay kinsa na siya?
Asa gikan ang kutsilyo? Asa gigamit ang kutsilyo? Until finally you
can come up with a factum probandum that it was the accused that
used the knife to kill the victim. See? There is no factum probandum
that can be proved solely by object evidence. Daghan pa ka ug
kinahanglan.
Object evidence must, therefore, be supported by other
propositions and in the ultimate analysis it must be proven that it
has a logical relationship with the fact in issue. Remember that.
Requisite (2) - AUTHENTICATION
Authentication only means that the genuineness of the object must
be proven. It requires that the admission of an object must be
preceded by evidence sufficient to support a finding that the object
in question is what it purport or claims it to be.
It is quite mouthful to read and understand. So let us simplify
everything. So when you authenticate something, what in essence
you are trying to do? You are trying to prove to the satisfaction of
the court that the object is what it purports to be. What it is offered
for.
So if it is a knife used in an unlawful killing, you are going to
authenticate it by trying to prove that it was used in the killing, that
it was the very murder weapon. That is authentication. What else
do you need to do? You have to prove it by evidence sufficient to
support the finding that the object is what it claims or purport to be.
That will be a little bit tricky. We are going to explain that later on
kung unsa na.
I invite you to look at your Rules of Court and try to find a provision
in the rules of evidence relating to authentication of objects.
If you look documentary evidence, there are rules there as to the
authentication and proof of documents. But for object evidence,
actually the rules are not quite clear.
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By the way, why do we need to authenticate something?
a.) To prevent the introduction of an object different form
the one being testified about.
o An exchange of evidence. Something innocent
becoming incriminatory.
b.) To ensure that there has been no significant changes in
the objects original condition.
o Example: in an ocular inspection, the court goes
to the area to determine that there has been an
encroachment in the property of the other. That
is boundary dispute. But inig abot diay sa area
kay wala nay encroachment.
o I have like a weird case before, in the hinterlands
of Davao del Sur. It is a boundary dispute as to
who own the mango tree. A crime of theft was
charged against the employee of the owner of
the adjacent land. So you need to determine
who owns the mango tree. Settled ang case in
the end. So in that situation, what if pag-abot
didto there has been changes in the condition of
manga? Diba?
So what I am going to tell you now is something that you need to
remember. WHAT IS THE PROCESS OF AUTHENTICATING OBJECT
EVIDENCE?
1.) Produce proof of the identity of the object.
- How do you prove that? By the testimony of the witness as
to objects that are readily identifiable by sight, provided
there is a basis for identification by the witness. This may
either be markings, place of the witness in the object such
as his initials, his pictures in the digital cameras, or by
peculiar characteristic of the objects. For example, by
certain physical features which sets it apart from others
from the same kind or class by which is readily identified
like a hole in a sweater caused by burning or a knife na
nabali ang gunitanan.
When there are peculiar characteristics or when there are markings,
all you have to do is to readily identify the object. Because you know
the peculiar characteristic and you also know of the marking, you
are the one who placed the marking.
2.) Proof of the integrity of the object.
- It is where you now have the need to look at the chain of
custody in the event the object is passed on to different
persons.
An example of that is Section 21 of R.A 9165. Daghan kayo
requirements but these requirements are intended to ensure a
proper chain of custody in the handling of the dangerous drugs. We
will deal to that later on. But in the onset, let me just tell you that
the process of authentication in Republic Act 9165 actually happens
outside of the courtroom because eventually, it is no longer brought
inside the courtroom kay diba there is that requirement na dapat i-
LAW ON EVIDENCE
destroy, or sunogon. So all that you have will be the measurements,
the photographs of the dangerous drugs. .
Let us try to simplify that; you need to account for every step that
took place or every chain or link in the chain of custody for retrieval
for presentation of evidence. All the links must be accounted for and
that would now be proof of the identity of the object evidence.
When the object passed into the possession of the stranger, or
somebody who had no right to hold the object, there is doubt as to
the integrity, and worse the identity of the object, because now you
can tamper with the object evidence. For example: a sachet of drugs
came into the possession of a stranger who changed it with a VETSIN
or TAWAS.
Proof of integrity also by proving the proper preservation of the
object which consists of showing that the object was kept in a
secured place as to make contamination or alteration difficult and it
has not been brought out until its presentation in the court.
Example: In O.J Simpson case, the blood samples, stains seen in the
scene of the crime. What he police investigator or the forensic team
did when they get to the scene of the crime was to photograph and
retrieve samples for later analysis sa kung kay kinsang dugo ang
nakita. The prosecution is trying to prove that the blood seen in the
scene of the crime belongs to O.J Simpson. Why do they need to do
that? Because it places him at the scene of the crime contrary to
what he was saying that he was not there. An alibi. So why would his
blood be there where in fact he was not the victim? So possible na
nagsukol ang victims and caused him to lose some blood.
But the defense was able to prove the fact na pagkakuha sa blood,
gibutang sa iyang bulsa, niuli ug balay, natulog, naligo unya gisulod
balik ang jacket, balik sa laboratory. Kadto pa niya gipa analyze. So
the integrity of the evidence can be suspected in that situation. It
was not kept in a secured place to prevent contamination or
alteration. So that is proof of integrity.
What you need to do is prove the identity and integrity of the
object for authentication of object evidence.
Now take note that for specific objects, naa tay mga specific process
of authentication:
A.) Photographs, pictures, maps, diagrams- (Example- illegal
structures constructed in the land of Atty. Espejo’s client.
Photographs were presented to prove it. )
o Authenticity is the act of proving the accuracy of
the things, persons, or places in the photograph
which may be through the testimony of the
photographer or anyone familiar with the
person, places, or things shown therein.
Who can authenticate a photograph?
General Rule: The one who took the photograph, the photographer.
Exception: Anyone who is familiar with the persons, places, or things
shown can testify if it is already impossible for the photographer to
authenticate.
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SISON VS. PEOPLE, NOVEMBER 16, 1995.
In a prosecution for murder, the prosecution presented photographs
showing the accused mauling the victim. Gikuhaan ug picture. Unya
kadtong picture nato mao na to ilang gibuhat na ebidensya to prove
that they are the ones who mauled the victim.
The person who took the photographs was not presented as a
witness. Instead, the prosecution presented the companions of the
victim who testified that they are the ones in the photographs.
The defense objected the admissibility of the photographs because
the person who took the photographs was not presented as the
witness.
Would that contention be tenable?
No. The general rule in this jurisdiction is that photographs, when
presented in evidence, must be identified by the photographer as to
its production and testified as to the circumstances under which
they were produced. The value of this kind of evidence lies in its
being a correct representation or reproduction of the original, and
its admissibility is determined by its accuracy in portraying the scene
at the time of the crime.
The photographer, however, is not the only witness who can identify
the pictures he has taken. The correctness of the photograph as a
faithful representation of the object portrayed can be proved prima
facie, either by the testimony of the person who made it or by other
competent witnesses, after which the court can admit it subject to
impeachment as to its accuracy.
Here the photographs are admissible as the correctness thereof is
testified thereto by the companions of the victim. So nakita nila na
uy ako ni, akoa na kauban kanang naa sa picture. So according to the
Supreme Court, that is enough authentication, no need to present
the photographer.
B.) Tape Recording
TORRALBA VS. PEOPLE
The accused here is charged with libel. Presented as evidence is a
tape recording of the radio broadcast made by the daughter of the
complainant. Meaning, habang ginabroadcast, giingnan sa
complainant iyang adopted daughter to record it.
The daughter was not presented as a witness. Only the complainant
who, in open court, testified that he was not familiar with the
process of the recording. When he was asked what was the process
of recording, he said that he does not know.
So is the tape recording properly admitted?
According to the Supreme Court, the person who actually took the
recording must be presented in order to lay the foundation for the
admission of the tape recording.
LAW ON EVIDENCE
In our jurisdiction, it is a rudimentary rule of evidence that before a
tape recording is admissible in evidence and given probative value,
the following requisites must first be established, to wit:
1) a showing that the recording device was capable of taking
testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the
recording;
(4) a showing that changes, additions, or deletions have not been
made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made
without any kind of inducement
C.) Videos
- It is a lot easier than authenticating tape recording. You
just have to authenticate it just like authenticating
photographs. Mubalik lang ta sa doctrine sa Sison vs.
People. It can be the videographer, who will be presented
or anyone competent, according to the Supreme Court.
Any other witness who can testify as to its exactness and
accuracy.
For purposes of authentication, object evidence can be of three
classes:
a.) Unique Objects or those who have readily identifiable
marks.
o Example: A car with a plate number: MGA239, or
a 45-caliber pistol with serial number 14344. So
these are identifiable marks. It sets them apart
from all others of the same class. It has been
segregated already.
b.) Objects made unique. By nature they are not unique
but they can be made unique.
o An example is a bolo knife made as a killing
knife which could be identified by a witness
testimony. Nganu man nay nag-identify?
Because it is made unique. It is no longer a bolo
but it is already that bolo.
c.) Non-unique objects - There is no way that they can
have identifying marks and cannot likewise be
marked. Perfect example is footprints left at the
crime scene which was also a piece of evidence in the
O.J Simpson case. Naay shoe print didto. They were
trying to prove na ang shoe print nga to kay Simpson
but it was already disregarded.
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Now chain of custody is important when you are trying to
authenticate. But in trying to prove chain of custody, what you are
actually trying to do is to present circumstantial evidence or
evidence on collateral matters. They do not bear directly on the
object but it relates on the circumstances in handling the object. So
mao na ang chain of custody. It is necessary to raise the chain of
custody when the object evidence is not unique as it is not readily
identifiable or was not made under the trial identified or cannot be
made identifiable.
Example: blood, it came from the crime scene. Oil, drugs in powder
form, fiber, grains of sand, and other similar objects. So how do we
mark them? We can mark them without actually trying to destroy
the integrity of the object. So ang importantly dira is you should be
able to prove the chain of the custody.
Now take note that chain of custody is important because it
prevents tampering or exchange of evidence. Remember, because
they are non-unique objects, they belong to a class that can be easily
replaced by something else.
The purpose again is to guarantee the integrity of the evidence and
to prevent the introduction of evidence which is not authentic.
But when the exhibit is positively identified because it is capable of
positive identification, the chain of custody of the object evidence is
no longer significant. Nganu? Kay identified na man. Most especially
kung identified in court.
So now it will be part of the records of the court, so there is no
longer a need to explain the chain of custody in certain situations.
Requisite (3) - MUST NOT BE HEARSAY
The witness who testified about the object must have personal
knowledge of it. For example ang imung gidala sa courtroom as your
evidence would be a can of sardines. Whose can of sardines is that?
Does it belong to the witness? Kung wala silay relasyun, well that is
hearsay. He/she must have the personal knowledge over the can of
sardines.
Requisite (4) - MUST NOT BE PRIVILEGED OR NOT OTHERWISE
EXCLUDED BY THE LAW OR THE RULES
It means that the object must pass the axiom of competency.
For example, wiretap recording proposed to be played in court. Dili
pwede because that is not a competent evidence. So kung ing ana
imung evidence, it is excluded by the law and the rules, it cannot be
presented as evidence.
Now, according to Edmund Locard’s Evidentiary Exchange Principle,
when you go to the crime scene, you leave traces behind. So if you
are the attacker, you leave something with you behind like hair, skin
samples and sometimes blood samples. In a crime of rape and
where there is seminal discharge, you leave your seed, magbilin
gyud ka ug biological sample. So how do you now determine
whether the biological sample is really that of the accused? So the
means where the agent of the State may resort to is to get a sample
from you. To compare it with what was left in the crime scene.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

So the question is would the blood samples taken from the accused PEOPLE VS. WILLIAM, JUNE 15, 1992
violate his right to remain silent and his right against self-
incrimination where, you cannot be compelled to be a witness Would object evidence would still be admissible on the premise that
against yourself? Would it be incriminating, if you will supply that it is beyond the commerce of man?
last link to get the verdict?
Let us go back to Sales again, diba there is this requirement, that the
THE ANSWER OF COURSE IS IT WILL NOT VIOLATE THE RIGHT. The subject matter in the contract of sale should be licit. So, what is a
carnal of the right is not all compulsion but against testimonial sample of a subject matter that is illicit? Of course narcotics under
compulsion. The right against self-incrimination is simply the legal R.A 9165, human body it cannot be sold, dynamites, explosives, rare
process of extracting from the lips of the accused an admission of wild birds, rare mammals, wild plants,
guilt. It does not apply when the evidence sought to be admitted is
not incrimination but as part of object evidence.
In this case, what he wanted to be excluded as object evidence is
marijuana. He contends that it is inadmissible as it is beyond the
The Supreme Court here confirms that when a biological sample is commerce of man.
taken from you, it is object evidence. Therefore, there cannot be any
incrimination. Hence, a person may be compelled to submit to finger
How did the Supreme Court Rule? Quoting with approval the
printing, photographing, paraffin, blood and DNA as there is no
Solicitor General. According to Supreme Court: P.L Pataka lang ka.
testimonial compulsion. This case of People vs. Yatar actually paved
the way for the use of DNA evidence in the Philippines.
The probative value of the evidence is not affected by the fact that it
is beyond the commerce of man. Appellants raised the strange
In the U.S and in other countries, dugay na nila ginagamit ang DNA,
argument that it does not have the probative value, because the
even during the time of O.J SImson. 1990’s ni na kaso. They were
subject thereof, marijuana, is beyond the commerce of man. This is
using DNA profiling already and DNA tests to determine the
untenable.
probability and improbability of guilt.

In People vs. Yatar, the Supreme Court actually mentioned it. DNA is
part of object evidence. Therefore, there cannot be any violation of
the right against self-incrimination.
After the case of People vs. Yatar, the Supreme Court already came
out with the Rule on DNA evidence. In an attempt to exclude the
evidence, the appellant here contends that the blood samples taken
from him as well as the DNA testing conducted is in violation of his
right to remain silent and his right against self-incrimination. But
that contention is untenable. Pwede ka ma compel. That’s what the
case is saying.
When you say right against self-incrimination, what acts does it
cover? It covers all acts that would incriminate the accused but it
excludes acts which are purely mechanical or purely physical.
Ingani akong pangutana, if you are the accused, then the judge will
say. “How did you rape the victim? You simulate raping the victim
there.” Can you do that? Can that be considered as incrimination?
For example, a hand writing. Can a person be compelled to produce
a sample of his handwriting to determine his liability as the author
of a certain document? So ang issue didto kay kadtong pagpasulat
sa imuha, is it a testimonial compulsion or is it a purely mechanical
act?
PEOPLE VS. ADULAY, SEPTEMBER 6, 2008
The "objective" test in scrutinizing buy-bust operations. In People v.
Doria, we said:
We therefore stress that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be
clearly and adequately shown. This must start from the initial
contact between the poseur-buyer and the pusher, the offer to
purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject
of the sale. The manner by which the initial contact was made,
whether or not through an informant, the offer to purchase the
drug, the payment of the "buy-bust" money, and the delivery of the
illegal drug, whether to the informant alone or the police officer,
must be the subject of strict scrutiny by courts to insure that law-
abiding citizens are not unlawfully induced to commit an offense.
Atty JZE: If you look at it, it is like the Supreme Court is trying to
establish the elements of a sale. There is an offer; there is
acceptance of the price, until consummated by the transfer of the
illegal drugs. Imporatante nimu ipakita ng consideration, the drug
money and the drugs itself.

No. Writing is not a merely a mechanical act. It is produced through

PEOPLE VS. BRECINIO, MARCH 17, 2004
the use of an intellect. It involves the application of your intellect.
When you are using intellect it is not anymore a purely mechanical
act. Mateo is charged for the murder of Gerald. After trial, Mateo was
found guilty as charged. On appeal, Mateo argued that the trial
court should have acquitted him as the lower court has not proved
If the accused, however, testifies in his own behalf and denies
his guilt beyond reasonable doubt. He argues that the paraffin test
ownership, he may be compelled to produce a sample. In that
conducted on him two days after he was arrested yielded a negative
situation, it is better for the accused not to testify, not to take the
result. Hence, he could not have shot Gerald.
witness stand altogether.

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LAW ON EVIDENCE
Is Mateo Correct? No.
Likewise, while the paraffin test was negative, such fact alone did
not ipso facto prove that the appellant was innocent. Time and
again, we have held that a negative paraffin result is not conclusive
proof that a person has not fired a gun.
Stated otherwise, it is possible to fire a gun and yet be negative for
nitrates, as when the culprit is wearing gloves or he washes his
hands afterwards. Since appellant submitted himself for paraffin
testing only two days after the shooting, it was likely he had already
washed his hands thoroughly, thus removing all traces of nitrates
therefrom.
Atty JZE: Kanang result sa paraffin test unsa man na? That is
experimentation. The fact that you are subjected to paraffin test and
result ingun ana is an object evidence by experimentation.
Remember that case.
Requisite (5) - OBJECT EVIDENCE MUST MEET OTHER
REQUIREMENTS BY LAW
Section 21 of Republic Act 9165. CHAIN OF CUSTODY REQUIREMENT
IN DRUGS CUSTODY CASES.
But, why is it seen as an additional requirement under the law?
Under ordinary chain of custody, it does not require photographing,
the presence of a barangay official, or presence of the members of
the media. Walay ingun ana. It is just in drugs cases. That is a specific
requirement in dangerous drugs cases.
REVIEW: FIVE REQUIREMENTS FOR THE ADMISSIBILITY OF OBJECT
EVIDENCE
1.) Relevant;
2.) Must be authenticated;
3.) Must not be hearsay;
4.) Must not be privileged or excluded by law or
evidence;
5.) Must meet additional requirements set forth by the
law;
LOPEZ VS PEOPLE (2008)
As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every
link in the chain, from the moment the item was picked up to the
time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that
there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the
same.
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based on the lectures of ATTY. JESS ESPEJO
Let us review our concepts a little bit here. Specifically with respect
to object and admissibility of the evidence:
1.) Take note that Object evidence is the evidence of the
highest order as it speaks a little more eloquently
than a hundred of witnesses.
2.) Remember also that no object evidence must be
admitted unless it is identified by a competent
witness. All evidence that must be presented must be
sponsored evidence. There has to be a witness
testifying in court otherwise the same cannot be
settled in court.
When can the presentation of evidence be dispensed with and
replaced by mere testimony or documents?
a. If its exhibition is contrary to public morals or decency.
b. To require being viewed in court or in ocular inspection would
result in delays, inconvenience, or unnecessary expenses which is
not in proportion to the evidentiary value of such object.
c. Such object evidence would be confusing or misleading as when
the purpose is to prove the former condition of the object and there
is no preliminary showing that there has been no substantial change
in the said condition; which is applicable to ocular inspections; or
d. The testimonial or documentary evidence already presented
clearly portrays the object in question as to render the view thereof
unnecessary.
e. Where the existence of the object is not very the fact in issue but
is merely a collateral fact, or is merely used as reference.
Examples:
1. When a witness testifies that the accused was drinking a bottle of
gin. When he threatened to shoot the witness, it is not necessary to
produce the bottle.
2. The witness claims that the accused threw a stone at his car, the
presentation of the stone is not anymore necessary.
3. Where the article cannot be recovered or outside the coercive
jurisdiction of the court.
PEOPLE VS TAGUBA 342 SCRA 199.
In cases involving the illegal possession of firearms, the prosecution
has the burden of proving (a) the existence of the subject firearm,
and (b) the fact that the accused does not have corresponding
permit to possess.
As to the first requisite the evidence can be best established by the
presentation of the firearm but there is no requirement that the
actual firearm itself must be presented in court. It is not fatal if the
prosecution did not present the firearms itself. Its existence can be
established by a testimony.
LAW ON EVIDENCE
Where the articles however are not common or not familiar to
ordinary persons, and cannot be identified by sight, they must be
presented in court.
Other limitations:
 The admission of the object evidence is subject to the
demands of decency and propriety, unless the admission is
extremely necessary.
Examples:
Exhibition of the private parts in sex cases. Alangan muingun si
judge the court is interested on how you commit it. Diba? 
Presentation of the corpse or disembodied body parts.
Re-enactment of violent/ offensive acts. (Halimbawa, Mateo
raped Maja. His defense that he did not rape Maja is because
he is incapable of an having an erection. He maintains that rape
for him is an impossible crime due to the fact that his manhood
is an ineffectual means to commit the crime. So can the judge
say na ”Show me that it is really ineffectual”? The judge cannot
do that. The judge cannot ask Mateo to experiment on himself.
 Objects which are offensive to man’s sensibilities or
repulsive objects should not be presented anymore. Waste
matters like human excreta, corpses of dead animals, or
killing of an animal to prove that the substance is poison.
You can just have a chemical analysis of it. Have a chemist
testify for it. No need for experimentation.
While obscene or indecent objects are no longer needed to be
presented in court, there may be instances where they may be
permissible to be exhibited.
 If a view of the object is necessary in the interest of
justice, such object may still be exhibited. But the court
may exclude the public from such view. The view may not
be refused if the indecent or immoral objects constitute
the very basis of the criminal or civil action (e.g obscene
pictures or exhibits).
It happened to me. I was a collaborating counsel in a case I handled
in Cebu. The guy was cheating on his wife. Case for concubinage was
actually filed against him since there was no anti-VAW-C law at that
time yet. The ground was there was sexual intercourse with a
woman not his wife under scandalous circumstances. The only
proof that we presented was the sex-tape in VHS. So how do you
attach that to the complaint? Of course you need to replay, get
screen shots out of it. That is what you attach. But that will not really
prove whether carnal knowledge was indeed under scandalous
circumstances. So I was the one who presented the evidence, and
the evidence was the video tape.
So there was a question, “Your Honor, is there a need to present the
evidence in court considering that it contains an obscene and
indecent show? “ But the court said, IN THE INTEREST OF JUSTICE,
WE WILL WATCH THE VIDEO TAPE. So all the lawyers, together with
the judge, went to his chamber. We watched the videotape to
determine whether or not it is scandalous. 
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We are done with object evidence. Let us know a little bit about
documentary evidence.
Section 2. Documentary evidence. — 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. (n)
Distinction between object evidence and documentary evidence.
*Atty. Espejo called Ms. Glorybelle Resurreccion and gave her a
stone
Atty. Espejo: Does it smell good?
Glorybelle: It does not smell anything.
Atty. Espejo: Meaning it is clean. Can you please describe to
me the stone’s physical attributes?
Glorybelle: Black, roundish, smooth, and the weight is 30ish
grams. 
Atty. Espejo: So by its physical attributes, it is always an
object. So it cannot be a document. Right? Now
turn over the stone. Read what is written there.
Glorybelle: “Pay to B or his order, P 50,000, signed A”
Atty. Espejo: So if you are trying to propose this for an
admission in court and you want to prove what it
looks like, how much it weighs (30ish grams), it is
an object.
But despite it being an object, being a stone, if
there is something written on it, it makes it a
documentary evidence. So do not look at
documentary evidence from the point of view of
material, whether it is papyric or non-papyric in
nature. Even if it is not in a paper, it can still be
considered as a document.
I will give you an example which happened in
Germany. When a man is about to die in an
accident, at his body he wrote using the blood
flowing from him “ALL TO WIFE”. So meaning he
is giving all his property to his wife. That can be
perceived as a document.
Atty. Espejo: I have here another object. A crumpled paper.
What are its attributes? Of course it is rough,
10ish grams, but because it is paper, it is possible
na pwede siyang sulatan. Let us try to open and
see what is written in the crumpled paper. I
think there is a story on it and it is addressed to
me.
“DEAREST ATTY. ESPEJO:
LAW ON EVIDENCE
I PROMISE TO PAY YOU MY DEBT AMOUNTING TO P100, 000. I
PROMISE ALSO TO LOVE YOU FOREVER.
XXXX”
Atty. Espejo: So what does it say? If it is crumpled, does it
prove anything else? No. What about the
contents? It proves na naa siyay utang kay Atty.
Espejo.
Conclusion: Despite the fact that it is papyric in nature, it does not
have to be documentary evidence. Perfect example there is money.
Is the serial number of the money relevant to the fact in issue? No.
Therefore, money, generally, is an object.
QUESTION: IS THERE AN INSTANCE WHERE A DOCUMENT CAN BE
TREATED AS AN OBJECT? OR OBJECT TREATED AS A DOCUMENT?
Yes. So if a document is presented to present its physical
characteristics, regardless of what it is, it is object evidence. But, if it
is used to prove anything written upon it, it is documentary
evidence. What matters therefore is the INTENT. What do you
intend to do, that’s what it is.
So the writing or material must prove its contents in order for it to
qualify as documentary evidence. Note that for the evidence itself to
be considered as documentary, it is not dependent on the material
for writing. For this reason, a non-papyric material may be
considered documentary evidence.
BAR QUESTION (1994)
At the trial of A for the violation of Dangerous Drugs Act, the
prosecution offered in evidence a photocopy of the marked
P100bills used in the buy-bust operation. A objects the presentation
of the photocopy on the ground that the Best Evidence Rule
prohibits the introduction of the secondary evidence in lieu of the
original.
Can the photocopy be admissible as evidence?
It boils down now on whether it is documentary or an object
evidence. If it is documentary evidence, the Best Evidence Rule
applies. If it is not, no need to apply the Best Evidence Rule.
The answer is the photocopy is object evidence. It is not
documentary evidence because it is not offered as proof of its
contents. Being object evidence, Best Evidence Rule does not apply.
BAR QUESTION (2005)
Q: May a private document be offered, and admitted in evidence
both as documentary evidence and object evidence?
Suggested Answer: Yes. A private document can be admitted both
as documentary evidence and object evidence. A document can also
be considered as an object for purposes of the case. Objects as
evidence are those addressed to the senses of the court. (Section 1,
Rule 130)
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Documents as evidence consist of writing or any material containing
letters, words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents. (Section 2, Rule 130)
Hence, a private document may be presented as object evidence in
order to establish certain physical characteristics that are visible on
the paper and writings that comprise the document.
July 22, 2016
Atty. Espejo: Read all of the decided cases after the effectivity of the
DNA Evidence Rule up to the latest case of Poe-LLamanzares vs.
COMELEC. But take particular attention only to the Separate Opinion
of Chief Justice Sereno. The main opinion of the Court did not
mention DNA evidence but only the Separate Opinions of Sereno,
Carpio and Jardeleza.
DNA EVIDENCE
What is DNA?
“DNA” means deoxyribonucleic acid, which is the chain of molecules
found in every nucleated cell of the body. The totality of an
individual’s DNA is unique for the individual, except identical twins
“DNA Evidence” constitutes the totality of the DNA profiles, results
and other genetic information directly generated from DNA testing
of biological samples.
Interesting Facts:
1. 97% of our DNA is considered JUNK DNA, or components
with no known biological functions
2. Chimpanzees are 96% to 98% similar to humans,
depending on how it is calculated.
3. Cats have 90% of homologous genes with humans, 82%
with dogs, 80% with cows, 79% with chimpanzees, 69%
with rats and 67% with mice.
4. Cows are 80% genetically similar to humans.
5. 75% of mouse genes have equivalents in humans, 90% of
the mouse genome could be lined up with a region on the
human genome, 99% of mouse genes turn out to have
analogues with humans
6. The fruit fly (Drosophila) shares 60% of its DNA with
humans. About 60% of the chicken genes correspond to a
similar human gene.
How similar is the DNA of one person with another?
 Genome-wide variation form one being to another can be
up to 0.5% (99.5% similarity)
Q: Given this similarity, how accurate can DNA evidence be in
identifying a possible perpetrator and excluding others?
A:Pretty accurate. The set of chromosomes in a cell makes up
its genome; the human genome has approximately 3 billion
base pairs of DNA arranged into 46 chromosomes. According to
the FBI, the chance of misidentification is 1 in a billion. No two
persons have identical DNA except with respect to identical
twins
Edmund Locard (1877-1966)
Dr.Locard was a pioneer in forensic science who became known as
the Sherlock Holmes of France. He formulated the basic principle of
LAW ON EVIDENCE
forensic science: “Every contact leaves a trace.” This became known
as the Locard’s exchange principle.
Locard’s Exchange Principle:
"Wherever he steps, whatever he touches, whatever he leaves, even
without consciousness, will serve as a silent witness against him. Not
only his fingerprints or his footprints, but his hair, the fibers from his
clothes, the glass he breaks, the tool mark he leaves, the paint he
scratches, the blood or semen he deposits or collects. All of these
and more, bear mute witness against him. This is evidence that does
not forget. It is not confused by the excitement of the moment. It is
not absent because human witnesses are. It is factual evidence.
Physical evidence cannot be wrong, it cannot perjure itself, it cannot
be wholly absent. Only human failure to find it, study and
understand it can diminish its value."
Atty. Espejo: What Locard is saying is that DNA, biological samples,
[or] all other object evidence that might be found in the crime scene,
that is the best evidence. That is the best witness because that type
of witness will not lie.
Purposes of DNA Evidence
 Identification (unidentified corpses in airplane crashes,
decomposed murder victims, for example)
 Determination of parentage and pedigree (paternity and
maternity testing)
 Criminal Investigation (inclusion and elimination of suspect
by the police in building a case)
Criminal Prosecution, in which DNA could be used to convict
perpetrators of crime as well as to exonerate innocent individuals.
This makes DNA evidence either:
 Inculpatory
 Exculpatory
DNA IN THE COURSE OF HISTORY
DNA for Identification: Josef Mengele a.k.a. The Angel of Death, a
Nazi Officer during WWII.
Mengele, a psychopath, was a notorious member of the team of
doctors responsible for the selection of victims to be killed in the gas
chambers and for performing deadly human experiments on
prisoners.
His experiments:
 Twin boy toddlers were sewn together so Mengele could
investigate how Siamese twins behaved.
 In another case, one twin was infected with TB then both
were killed so Mengele could observe the different
pathology.
 Twin girls were forced to have sex with a pair of male
twins and, if they got pregnant, kill them and remove the
embryos for study.
So, Germany fell, Mengele fled and eluded capture.Decades into the
manhunt for Mengele, there were alleged sightings of him as late as
1985
In 1969, a man named Wolfgang Gerhard drowned in Brazil and was
buried there. Blood specimens from Mengele’s wife and son were
used to reconstitute Mengele’s DNA pattern. In 1992, the remains of
Gerhard were confirmed to be those of Mengele.
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Determination of Parentage and Pedigree: The Russian Imperial
Romanov Family
After the Bolshevik Revolution in Russia, deposed Tsar Nicholas II,
his wife and five children were executed by the Bolshevik Troops
upon orders of Lenin on July 17, 1918.
They were all buried in unmarked graves for fear of desecration.
Rumors persisted, however, that the youngest daughter, Anastasia
had survived and escaped Russia. Survival of a member of the Royal
family could have been used as a rallying point by anti-Bolshevik
groups to depose the new communist regime.
Then, in 1920, a woman named Anna Anderson surfaced in Germany
claiming to be “lost” Romanov heiress, Anastasia.
In 1991, the bones of the Romanov family were discovered and
verified through DNA matching with a relative, Prince Philip,
husband of Queen Elizabeth II.
By that time, Ann Anderson was already dead. A sample of
Anderson’s tissue, part of her intestine removed during her
operation in 1979, had been stored at Martha Jefferson Hospital,
Charlottesville, Virginia. Anderson’s mitochondrial DNA was
extracted from the sample and compared with that of the Romanovs
and their relatives.
It did not match that of the Duke of Edinburgh or that of the bones,
confirming that Anderson was not related to the Romanovs.
DNA in Criminal Prosecution
Between 1983 and 1986, two 15-year old girls were separately
raped and murdered. The modus operandi of the crimes were
similar. Semen samples obtained from the bodiesreavealed that
there was only one assailant.
The main suspect was Richard Buckland, a 17-year-old youth with
learning difficulties, who revealed knowledge of one of the girls’
body, and admitted the crime under questioning, but denied the
first murder.
Having no solid lead on the crimes, investigators turned to Sir Alec
Jeffreys. Jeffreys is a British geneticist, and the man credited for
developing techniques for DNA fingerprinting and DNA profiling
which are now used worldwide in forensic science to assist police
detective work and to resolve paternity and immigration disputes.
Jeffreys compared semen samples from both murders against a
blood sample from Buckland which conclusively proved that both
girls were killed by the same man, but not Buckland. Buckland
became the first suspect in the world to be exonerated by the use of
DNA evidence.
The police then undertook an investigation in which 5,000 local men
were asked to volunteer blood or saliva samples. This took six
months, and no matches were found.
Then, in 1987, the police discovered that one man, Colin Pitchfork
had paid his co-worker to give a DNA sample while posing as him.
After collecting a DNA sample from Pitchfork, the authorities were
able to make a positive match with the semen samples.
LAW ON EVIDENCE
He was sentenced to life imprisonment and concurrent terms for
rape and murder. Thus, as early as 1984, the use of DNA as evidence
in cases had been accepted internationally.
What about the Philippines?
First mention: PEOPLE vs. TEEHANKEE, JR. (GR Nos. 111206-08,
Oct. 6, 1995)
The appellant was convicted of murder on the testimony of three
eyewitness, the Supreme Court stated as an obiter dictum that
“while eyewitness identification is significant, it is not as accurate
and authoritative as the scientific forms of identification evidence
such as the fingerprint or DNA testing”.
Atty. Espejo: As early as 1995, the Supreme Court was aware that
DNA testing is an emerging prosecutorial and investigative tool in
other countries.
PE LIM vs. CA (GR No. 112229, Mar. 18, 1997)
DNA, being a relatively new science, it has not as yet been
accorded official recognition by our courts. Paternity will still have
to be resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father.
Commentary: Relatively new? This paternity case held against a
putative father on the basis of love letters which were taken as
admissions against him. The SC was hesitant to give recognition to
DNA testing to provide evidence in the resolution of a case.
ANDAL vs. PEOPLE (GR No. 138268, May 26, 1999)
There are three gang rapists here. After being convicted of rape
and sentenced to the death penalty, the accused asked for DNA
testing as a means to reverse their conviction. If the testing
proved negative, they propose that they should be acquitted.
Held: The issue of DNA tests as a more accurate and authoritative
means of identification than eye-witness identification need not
be belabored. The accused were all properly and duly identified by
the prosecutions principal witness. OlimpioCorales, a brother in
law of accused Jurry and Ricardo Andal. DNA testing proposed by
petitioners to have an objective and scientific basis of
identification of semen samples to compare with those taken from
the vagina of the victim are thus unnecessary or are forgotten
evidence too late to consider now.
Atty. Espejo: The SC here placed and imprimatur on eye-witness
identification rather than scientific means of ascertaining identity.
PEOPLE vs. PENASO (GR No. 121980, Feb. 23, 2000)
In November 1989, Penaso allegedly raped his daughter’s
classmate. The victim became pregnant and gave birth on July 16,
1990 or eight months later.
After being convicted and on appeal to the Supreme Court,
Penaso asked for DNA Testing to determine if he was really the
father of the child. If the result came out negative, he proposes
that he should be acquitted.
Held: Pregnancy is not an element of rape. The issue of "DNA
tests" as a more accurate and authoritative means of
identification than eye-witness identification need not be
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belabored. The accused was properly and duly identified by the
prosecutions principal witness.
Atty. Espejo: In this case, it was stated by the victim in the
information that by reason of the rape, she got pregnant. It is an
important factual allegation that if refuted by the accused, would
put reasonable doubt in the case. SC reiterated its ruling in Andal
case.
PEOPLE vs. FAUSTINO (GR No. 129220, September 6, 2000)
Decided a few months after Penaso. This is a case for robbery with
homicide.
In an obiter, the SC revisited Teehankee stated that: “An
eyewitness identification, which authors not infrequently would
describe to be ‘inherently suspect,’ is not as accurate and
authoritative as the scientific forms of identification evidence like
by fingerprint or by DNA testing.”
TIJING vs. CA (GR No. 125901, March 8, 2001)
The Supreme Court opened the possibility of admitting DNA as
evidence of parentage. The Court issued a writ of habeas corpus
against respondent who abducted petitioner’s youngest son.
Testimonial and documentary evidence and physical resemblance
were used to establish parentage.
However, the SC noted: “Parentage will still be resolved using
conventional methods unless we adopt the modern and scientific
ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat (STR)
analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and
the other from the father. The DNA from the mother, the alleged
father and child are analyzed to establish parentage.
Of course, being a novel scientific technique, the use of DNA test
as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress.
Though it is not necessary in this case to resort to DNA testing, in
future it would be useful to all concerned in the prompt resolution
of parentage and identity issues.”
Note: In the Philippines, it was only in 2002 where the SC used DNA
evidence in convicting the accused beyond reasonable doubt in the
case of:
PEOPLE vs. VALLEJO (GR No. 144656, May 9, 2002)
(This is the first case that the SC convicted the accused on the basis
of DNA Evidence. After this case was decided, the SC kept on
asking for DNA evidence on related cases. This case also paved
way to the new Rule on DNA Evidence. This is a very important
case.)
Vallejo was charged with raping and murdering a 9-year-old child.
The victim’s DNA samples from the bloodstained clothes of the
LAW ON EVIDENCE
accused were admitted in evidence. Also, the DNA profile from
the vaginal swabs taken from the rape victim matched the
accused’s DNA profile. The high Court affirmed the accused’s
conviction of rape with homicide and sentenced him to death.
Held: DNA is an organic substance found in a person’s cells which
contains his or her genetic code. Except for identical twins, each
person’s DNA profile is distinct and unique.
When a crime is committed, material is collected from the scene
of the crime or from the victim’s body for the suspects DNA. This
is the evidence sample. The evidence sample is then matched with
the reference sample taken from the suspect and the victim.
The purpose of DNA testing is to ascertain whether an association
exists between the evidence sample and the reference sample.
The samples collected are subjected to various chemical
processes to establish their profile.
The DNA test may yield THREE possible results (Possible Bar
Question):
1) EXCLUSION. The samples are different and therefore
must have originated from different sources. This conclusion is
absolute and requires no further analysis or discussion;
2) INCONCLUSIVE. It is not possible to be sure, based on the
results of the test, whether the samples have similar DNA types.
This might occur for a variety of reasons including degradation,
contamination, or failure of some aspect of the protocol. Various
parts of the analysis might then be repeated with the same or a
different sample, to obtain a more conclusive result; or
3) INCLUSION. The samples are similar, and could have
originated from the same source. In such a case, the samples are
found to be similar, the analyst proceeds to determine the
statistical significance of the similarity.
Atty. Espejo: If it is a result of exclusion, you do nothing further. If
inconclusive, it calls for additional testing. If inclusion, for example,
the semen taken from the scene matches that of the sample given
by the accused, does not mean automatic conviction. It has to go
through further analysis. The possible margin of error should be
[accounted to?].
In assessing the probative value of DNA evidence, therefore,
courts should consider, among others things, the following data:
1. How the samples were collected;
2. How they were handled;
3. The possibility of contamination of the samples;
4. The procedure followed in analyzing the samples,
whether the proper standards and procedures were
followed in conducting the tests; and
5. The qualification of the analyst who conducted the tests.
WHEREFORE, in view of all the foregoing considerations, the
decision of the Regional Trial Court, Branch 88, Cavite City, finding
accused-appellant Gerrico Vallejo y Samartino alias Puke GUILTY
beyond reasonable doubt of the crime of Rape with Homicide and
sentencing him to the supreme penalty of DEATH and directing
him to indemnify the heirs of the victim in the amount
of P100,000.00 as civil indemnity and P50,000.00 as moral
damages, is hereby AFFIRMED.
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Changing Tide: After a period of hesitation, the SC was beginning
to as for DNA evidence.
PEOPLE vs. JANSON (GR No. 125938, April 4, 2003)
This case involves a complex crime of rape with homicide.
The SC acquitted the accused charged with rape for lack of
evidence because “doubts persisted in our mind as to who were
the real malefactors. Yes, a complex offense had been perpetrated
but who were the perpetrators? How we wish we had DNA or
other scientific evidence to still our doubts!”
PEOPLE vs. JANSON (GR No. 125938, April 4, 2003)
This case involves a complex crime of rape with homicide.
The SC acquitted the accused charged with rape for lack of
evidence because “doubts persisted in our mind as to who were
the real malefactors. Yes, a complex offense had been perpetrated
but who were the perpetrators? How we wish we had DNA or
other scientific evidence to still our doubts!”
PEOPLE vs. MOJELLO (GR No. 145566, Mar. 9, 2004)
The cause of death as cardio-respiratory arrest due to
asphyxiation and physical injuries; she was strangled to death and
left on the seashore as manifested by the frothing in her lungs. No
physical, scientific or DNA evidence was presented to pinpoint
appellant as the person who killed the victim. Thus, appellant
cannot be convicted of rape with homicide considering the
insufficiency of evidence which thereby created a reasonable
doubt as to his guilt for the said special complex crime.
Appellant should instead be held liable only for the crime of
statutory rape, the victim LenlenRayco being then eleven years
old.
PEOPLE vs. YATAR (GR No. 150224, May 19, 2004)
(Bar Question)
Yatar was convicted of the crime of Rape with Homicide. Testing
showed that the DNA of the sperm specimen from the vagina of
the victim was identical the semen to be that of appellant’s gene
type.
Held: In Daubert v. Merrell Dow, it was ruled that pertinent
evidence based on scientifically valid principles could be used as
long as it was relevant and reliable. Judges, under Daubert, were
allowed greater discretion over which testimony they would allow
at trial, including the introduction of new kinds of scientific
techniques. DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly
to a fact in issue as to induce belief in its existence or non-
existence. Applying the Daubert test to the case at bar, the DNA
evidence obtained through polymerase chain reaction (PCR)
testing and utilizing short tandem repeat (STR) analysis, and which
was appreciated by the court a quo is relevant and reliable since it
is reasonably based on scientifically valid principles of human
genetics and molecular biology.
Arguments of the Accused to exclude DNA Evidence in Pp. vs.
Yatar:
LAW ON EVIDENCE
Argument #1: In an attempt to exclude the DNA evidence, the
appellant contends that the blood sample taken from him as well
as the DNA tests were conducted in violation of his right to remain
silent as well as his right against self-incrimination under Secs. 12
and 17 of Art. III of the Constitution.
Held: This contention is untenable. The kernel of the right is not
against all compulsion, but against testimonial compulsion. The
right against self- incrimination is simply against the legal process
of extracting from the lips of the accused an admission of guilt. It
does not apply where the evidence sought to be excluded is not
an incrimination but is part of object evidence.
We ruled in People v. Ronderothat although accused-appellant
insisted that hair samples were forcibly taken from him and
submitted to the National Bureau of Investigation for forensic
examination, the hair samples may be admitted in evidence
against him, for what is proscribed is the use of testimonial
compulsion or any evidence communicative in nature acquired
from the accused under duress.
Hence, a person may be compelled to submit to fingerprinting,
photographing, paraffin, blood and DNA, as there is no testimonial
compulsion involved.
Argument #2: Appellant further argues that the DNA tests
conducted by the prosecution against him are unconstitutional on
the ground that resort thereto is tantamount to the application of
an ex-post facto law.
Held:This argument is specious. No ex-post facto law is involved in
the case at bar. The science of DNA typing involves the
admissibility, relevance and reliability of the evidence obtained
under the Rules of Court. Whereas an ex-post facto law refers
primarily to a question of law, DNA profiling requires a factual
determination of the probative weight of the evidence presented.
Note:
1. DNA Testing in court involves a scientific procedure.
Testimony tending to interpret the results of such
scientific procedure would be rendered by experts.
Atty. Espejo: Recall that DNA evidence is an object
evidence. For example, semen has been obtained in
the crime scene. How does the court appreciate that
as evidence? It has to be analysed first, then link it to
other facts to come up with a conclusion. There has
to be testimony of somebody who knows how to
conduct the tests and to interpret the results. A
layman, then, cannot testify. It has to be an expert.
2. In American jurisprudence, there are tests to determine
admissibility of scientific/expert evidence.
TESTS (Bar Question):
1. The Frye Test (Frye vs. United States, 293 F. 1013, 1014 [D.
C. Cir. 1923])
2. The Daubert Test (Daubert vs. Merrell Dow
Pharmaceuticals, 509 U.S. 579 S.Ct. 2786 [1993]) as later
on expanded in Kumho Tire vs. Carmichael, 526 U.S. 137,
119 S.Ct. 1167 (1999)
Atty. Espejo: *I’m not familiar with the Frye case+. In the case of
Daubert, Merrell Dow Pharmaceuticals is being sued for the
medicine they are selling, which caused birth defects. To determine if
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[there is indeed a flaw], you have to test the medicine, analyse the
effect and come up with a causal connection between the two. So,
this involves scientific procedures and expert testimony.
FRYE TEST
Scientific evidence is admissible if it was based on a scientific
technique generally accepted as reliable in the scientific community.
Expert testimony was admitted simply by virtue of the expert’s
credentials, experience, skill and reputation. Any deficiencies or
flaws in the expert’s conclusions would be exposed through cross-
examination.
Atty. Espejo: The expert’s testimony will be admitted by the court.
For the opponent of the expert testimony, he may impeach such
testimony by getting another witness. That witness my testify
something that is contrary to the testimony of the expert.
Applying this rule, Frye court refused to admit testimony based on
an early lie detector (polygraph) test reasoning that lie detector
testing had not gained general scientific acceptance or recognition
at that time.
The standard therefore in Frye is simply general acceptance.
If a procedure is not generally accepted, evidence obtained using
this procedure would be inadmissible.
In a way, this is echoed in:
PE LIM vs. CA (GR No. 112229, Mar. 18, 1997)
DNA, being a relatively new science, it has not as yet been
accorded official recognition by our courts. Paternity will still have
to be resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father.
DAUBERT TEST
The US Supreme Court expanded the “general acceptance test” and
said that trial judges have the role of “gatekeeper” to ensure “that
any and all scientific testimony or evidence admitted is not only
relevant, but reliable.”
The Court stated that the trial judge should determine whether the
reasoning and methodology is “scientifically valid” and whether
“that reasoning properly can be applied to the facts in issue.”
Atty. Espejo: In American court, the trial judge has to ensure that the
evidence presented to the jury is relevant and reliable. In here, no
more simple test of general acceptance. You have to scrutinize the
methodology employed in obtaining evidence.
Four Daubert Factors:
(1) whether a theory or technique can, or has been, tested;
(2) whether it has been subjected to peer review and
publication;
(3) in respect to a particular technique, the known or potential
rate of error and the existence or maintenance of standards
controlling the technique’s operation; and
(4) whether the theory or technique enjoys general
acceptance within a relevant scientific community.
Atty. Espejo: Take note of the four Daubert Factors. SC of the
Philippines lifted the language from Daubert and made it our own
standards here. Prior to DNA Evidence Rule, Frye and Daubert were
merely controlling [principles]. By reading the DNA Evidence Rule, it
LAW ON EVIDENCE
can be ascertained that the Philippines follows the Daubert Test and
not the Frye Test.
Daubert Test: The standard therefore is simply relevancy and
reliability.
Kumho expanded the application of the Daubert test not only to
cover scientific knowledge but also technological or technical
knowledge.
Note:
But obviously, neither the Frye standard nor the Daubert-Kumho
standard is controlling in the Philippines. At best, American
jurisprudence merely has a persuasive effect on our decisions.
Here [in the Philippines], evidence is admissible when it is relevant
to the fact in issue and is not otherwise excluded by the law or the
Rules.
However, it bears to mention that Yatar seems to approve Daubert.
Take note however, that Daubert was applied to determine the
weight, not the admissibility, of evidence.
CABATANIA vs. CA (GR No. 124814, Oct. 21, 2004)
Florencia Regodos was employed as the household help of Camelo
Cabatania. It was while working there as a maid that, on January
2, 1982, Camelo brought her to Bacolod City where they checked
in at the Visayan Motel and had sexual intercourse. Camelo
promised to support her if she got pregnant. Florencia claimed she
discovered she was carrying Camelo’s child 27 days after their
sexual encounter. The child was born in September 1982 or eight
months later.
Florencia, on behalf of her son, filed petition for recognition and
support. The trial court ruled that:
“In view of the evidence presented by the plaintiff, the
Court finds the evidence of the plaintiff to be
meritorious; defendant admitted having a sexual
intercourse with the plaintiff’s mother,
FlorenciaRegodos, but denied paternity to the child. The
child was presented before the Court, and if the Court is
to decide this case, based on the personal appearance of
the child, then there can never be a doubt that the
plaintiff-minor is the child of the defendant.”
Held: In this age of genetic profiling and deoxyribonucleic acid
(DNA) analysis, the extremely subjective test of physical
resemblance or similarity of features will not suffice as evidence
to prove paternity and filiation before the courts of law.
Private respondent’s petition for recognition and support is
dismissed.
IN RE: DE VILLA (GR No. 158802, Nov. 17, 2004)
The Supreme Court already convicted De Villa by final judgment of
raping his niece Aileen. The judgment made reference to the fact
that it was the act of rape that got the niece pregnant and for here
to consequently bear a child. Since it was never alleged that Aileen
gave birth to a full-term nine-month old baby, the SC gave
credence to the prosecution’s contention that she prematurely
gave birth to an eight-month old baby by normal delivery.
While serving sentence, De Villa sought the conduct of a blood
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type test and DNA test in order to determine the paternity of the
child allegedly conceived as a result of the rape. Denied by the SC,
De Villa had the DNA test conducted independently.
The result: He is not the father of Aileen’s child. De Villa then filed
a petition for habeas corpus and asked for new trial on the ground
of newly discovered evidence.
Held: Petitioner invokes the remedy of the petition for a writ
of habeas corpus to seek a re-examination of the records, without
asserting any legal grounds therefor. For all intents and purposes,
petitioner seeks a reevaluation of the evidentiary basis for his
conviction. We are being asked to reexamine the weight and
sufficiency of the evidence in this case, not on its own, but in light
of the new DNA evidence that the petitioner seeks to present to
this Court. This relief is outside the scope of a habeas
corpus petition. [Note: Writ of habeas corpus is granted usually
when there is a deprivation of a constitutional right.] The petition
for habeas corpus must, therefore, fail.
The issue of paternity is not central to the issue of petitioner’s
guilt or innocence. The rape of the victim is an entirely different
question, separate and distinct from the question of the father of
her child. The fact of the victim’s pregnancy and resultant
childbirth are irrelevant in determining whether or not she was
raped. Pregnancy is not an essential element of the crime of rape.
Whether the child which the victim bore was fathered by the
purported rapist, or by some unknown individual, is of no moment
in determining an individual’s guilt.
Therefore, the DNA evidence has failed to conclusively prove to
this Court that Reynaldo de Villa should be discharged. Although
petitioner claims that conviction was based solely on a finding of
paternity of the child Leahlyn, this is not the case. Our conviction
was based on the clear and convincing testimonial evidence of the
victim, which, given credence by the trial court, was affirmed on
appeal.
HERRERA vs. ALBA (GR No. 148220, June 15, 2005)
Petitioner raises the issue of whether a DNA test is a valid
probative tool in this jurisdiction to determine filiation. Petitioner
asks for the conditions under which DNA technology may be
integrated into our judicial system and the prerequisites for the
admissibility of DNA test results in a paternity suit.
Petitioner further submits that the appellate court gravely abused
its discretion when it authorized the trial court to embark on a
new procedure to determine filiation despite the absence of
legislation to ensure its reliability and integrity, want of official
recognition as made clear in Pe Lim vs. Court of Appeals and the
presence of technical and legal constraints in respect of its
implementation. Petitioner maintains that the proposed DNA
paternity testing violates his right against self-incrimination.
Atty. Espejo: In this case, the court ordered Herrera to submit
himself to DNA examination. It has already been decided in People
vs. Yatar that this is not a violation of the right to self-
incrimination.
Held: Despite our relatively liberal rules on admissibility, trial
courts should be cautious in giving credence to DNA analysis as
evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence,
LAW ON EVIDENCE
therefore, courts should consider, among other things,
the following data: how the samples were collected,
how they were handled, the possibility of contamination
of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures
were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.
DNA analysis that excludes the putative father from paternity
should be conclusive proof of non-paternity. If the value of W is
less than 99.9%, the results of the DNA analysis should be
considered as corroborative evidence. If the value of W is 99.9%
or higher, then there is refutable presumption of paternity. This
refutable presumption of paternity should be subjected to the
Vallejo standards.
Section 17, Article 3 of the 1987 Constitution provides that no
person shall be compelled to be a witness against himself.
Petitioner asserts that obtaining samples from him for DNA testing
violates his right against self-incrimination. Petitioner ignores our
earlier pronouncements that the privilege is applicable only to
testimonial evidence.
It is not enough to state that the child’s DNA profile matches that
of the putative father. A complete match between the DNA profile
of the child and the DNA profile of the putative father does not
necessarily establish paternity. For this reason, trial courts should
require at least 99.9% as a minimum value of the Probability of
Paternity (W) prior to a paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a putative father
compared to the probability of a random match of two unrelated
individuals. An appropriate reference population database, such
as the Philippine population database, is required to compute for
W. Due to the probabilistic nature of paternity inclusions, W will
never equal to 100%. However, the accuracy of W estimates is
higher when the putative father, mother and child are subjected
to DNA analysis compared to those conducted between the
putative father and child alone.
AGUSTIN vs. CA (GR No. 162571, June, 15, 2005)
Petitioner contends that compulsory DNA testing to determine
paternity violates his right to privacy and right against self-
incrimination as guaranteed under the 1987 Constitution.
Held: Compulsory DNA testing was allowed by the Supreme Court
in a paternity case.
Petitioner’s invocation of his right to privacy fails to persuade us.
In Ople v. Torres, where we struck down the proposed national
computerized identification system embodied in Administrative
Order No. 308, we said:
In no uncertain terms, we also underscore that the right
to privacy does not bar all incursions into individual
privacy. The right is not intended to stifle scientific and
technological advancements that enhance public service
and the common good... Intrusions into the right must
be accompanied by proper safeguards that enhance
public service and the common good.
Historically, it has mostly been in the areas of legality of searches
and seizures, and the infringement of privacy of
communication where the constitutional right to privacy has been
critically at issue. Petitioner’s case involves neither. His hollow
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invocation of his constitutional rights elicits no sympathy here for
the simple reason that they are not in any way being violated. If,
in a criminal case, an accused whose very life is at stake can be
compelled to submit to DNA testing, we see no reason why, in this
civil case, petitioner herein who does not face such dire
consequences cannot be ordered to do the same.
Atty. Espejo: For compulsory DNA testing in criminal cases, your
basis would be People vs. Yatar. For compulsory DNA testing in
paternity cases, it would be Agustin vs. CA and Herrera vs. Alba. If
ever asked in the Bar, you would at least be able to cite the proper
jurisprudence.
PEOPLE vs. MACAPAL (GR No. 155335, July 14, 2005)
Accused allegedly raped a 23-year old mental retardate named
Ligaya. She got pregnant and bore a child. He was convicted.
Accused argues that he was deprived of his right to fully defend
himself in light of the trial court’s denial of his ‘MOTION FOR DNA
TEST’ wherein he raised as main issue whether he fathered the
victim’s child.
Held: The identity of the father of a rape victim's child is non-issue
in a charge for rape, the impregnation of the victim not being an
element of the offense.
More importantly, it should be pointed out that these
consolidated cases are criminal cases for rape, not civil actions for
paternity or filiation. The identity of the father of the victim's child
is a non-issue. Even her pregnancy is beside the point. What
matters is the occurrence of the sexual assault committed by
appellant on the person of thevictim on four separate occasions.
Appellant's act of committing, along with his parents, in the
Agreement forged with the victim while the case was on
preliminary investigation before the Prosecutor's Office 'to
shoulder one-half (1/2) of the expenses to be incurred by [the
victim] . . . in connection with the delivery of her child is the coup
de grace that dissipates any nagging doubts on his guilt.
PEOPLE vs. RAYLES (GR No. 169874, July 27, 2007)
(last decided case of the SC prior the effectivity of DNA Evidence
Rule)
Accused-appellant would have this Court credit him for having
insisted that a DNA test be conducted on AAs daughter. He claims
that had he raped the victim and fathered her child, he would not
have the nerve to challenge the result of a DNA test, as such
procedure would definitely reveal whether he is the father or not.
Held: Pregnancy and the subsequent birth of her child are not
elements of the crime of rape. Moreover, non-paternity of the
appellant, if that be the case, will not necessarily negate the crime
of rape as positively proved and established by AAs credible
testimony. There may or may not be conception after the
commission of the crime of rape because the offense may be
consummated even without full penetration or even complete
ejaculation on the part of the assailant. We have time and again
stressed that among the most important consideration in a rape
case is the credible testimony of the victim. We have repeatedly
LAW ON EVIDENCE
held that when a woman says she had been raped, her declaration
alone is all that is necessary to show that she had indeed been
raped and her sole testimony is sufficient if it satisfies the exacting
standard of credibility needed to convict the accused.
A.M. No. 06-11-5-SC (Oct. 2, 2007)
 The Rule on DNA Evidence, which took effect on Oct. 15,
2007
 Promulgated by SC after 12 years of cases involving DNA
Evidence
July 27, 2016
PETITION TO TAKE THE BAR EXAMINATIONS BY JULIUS CESAR
(June 25, 2002)
Julius Cesar actually passed the 1999 Bar Examinations but was not
allowed to take the lawyer’s oath in view of the letter complaint by
a certain Tuesday Castro charging him with immorality and grave
misconduct. Castro alleged that she and petitioner were former
lovers; that she bore him a son named Michael Angelo Castro on
May 5, 1999.
The issue before the Supreme Court is whether petitioner
possesses the good moral character required to be admitted to the
Philippine Bar. Complainant presented evidence tending to show
that petitioner does not possess such character since he refused to
give financial support to a child he has legally acknowledged to be
his own.
Petitioner claims otherwise. Aside from the fact that he was merely
forced into acknowledging paternity of Michael, he wanted to
remove first his reasonable doubts regarding the child’s paternity
through DNA Testing.
Julius promised to abide with the result of the DNA test and to give
financial support as religiously as before, even more, if Michael
was proved to be his son.
Tuesday, however, refused to undergo DNA testing. (Sir: What I
want you to focus on in this case is what would be the implication
if you do not undergo DNA testing when doubt would possibly be
resolved by means of DNA testing yet you fail to undertake or
refuse to undertake?)
We take judicial notice of the fact that DNA typing is fast becoming
an important procedure not only in the field of medical science but
in criminal law and paternity disputes as well.
Considering the foregoing and the fact that petitioner promised to
abide by the result of the DNA test as well as to shoulder the
expenses therefore, we find petitioner’s proposal for a DNA testing
to be quite reasonable and complainant’s aversion to the test
surprising. If her claim that petitioner fathered her child is really
true, she has no reason to fear the result of the test for it would be
another evidence on her favor. Moreover this case should be
decided on a strong foundation of truth and justice rather than on
blind adherence to prima facie rules.
Finding the proposal of petitioner for DNA testing at his expense to
be fair and reasonable, unless the test is conducted and the results
thereof submitted to this Court within forty-five (45) days from
notice thereof, the Court will be constrained to grant the petition of
JULIUS R. CESAR to be allowed to take his oath as a lawyer and to
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be admitted to the Philippine Bar.
All’s well that ends well. CESAR, JULIUS, R.; Tagbilaran City; February
26, 2003; Roll No. 47694. Assistant Provincial Prosecutor – Bohol
After 12 years of cases involving DNA evidence, the Supreme Court
promulgated A.M. No. 06-11-5-SC (2 October 2007), or the RULE ON
DNA EVIDENCE, which took effect on October 15, 2007.
RULE ON DNA EVIDENCE (RODE) - A.M. No. 06-11-5-SC
SECTION 1. Scope – This Rule shall apply whenever DNA evidence,
as defined in Section 3 hereof, is offered, used, or proposed to be
offered or used as evidence in all criminal and civil action as well
as special proceedings.
Examples:
- Unlawful killings (Murder, Homicide, Parricide, Infanticide)
- Rape
- Kidnapping (ex. Tijing vs. Court of Appeals, G.R. No. 125901)
- Adultery – DNA testing can be a viable tool when it comes to
prosecution for crimes of Adultery
Adultery is committed by any married woman who shall have
sexual intercourse with a man not her husband and by the man
who has carnal knowledge of her knowing her to be married, even
if the marriage is subsequently declared void. (Article 333, RPC).
Suppose that the wife became pregnant. DNA evidence can
therefore be presented to prove that the child is not the husband’s
and as proof of sexual intercourse.
VILLAFLOR vs. SUMMERS (1920)
FACTS: Villaflor was charged with the crime of adultery. The trial
judge ordered her to subject herself to a physical examination to
see whether or not she was pregnant and thus determine the
crime of adultery being charged to her. Petitioner refused such
physical examination, interposing the argument that such
examination was a violation of right against self-incrimination. She
was found in contempt of court and was ordered to be committed
to Bilibid Prison until she would permit the medical examination
acquired by the court. (Sir: So what the Court wants here is to have
blood testing. To determine if you are really pregnant or even a
simple pregnancy test.)
ISSUE: Whether the compelling of a woman to permit her body to
be examined by physicians to determine if she is pregnant violates
her right not be compelled to be a witness against herself.
HELD: NO. The constitutional guaranty, that no person shall be
compelled in any criminal case to be a witness against himself, is
limited to a prohibition against compulsory testimonial self-
incrimination. An ocular inspection of the body of the accused is
permissible. (Sir: although they are using the term ocular
inspection here, it is in quite general terms. Because right now
when you are talking about ocular inspection, you are talking
LAW ON EVIDENCE
about the examination of objects outside of the subject)
Remember that, in Agustin: DNA testing and its results, as per our
ruling in Yatar, are now similarly acceptable, and they do not include
a determination; it’s excluded from the realm of self-incrimination
because that’s merely object evidence. So what the SC did in Agustin
and Yatar are actually only to expand what happened in the case of
Villaflor. But now, specifically seeing that in testing it’s mere object
evidence; it’s autoptic preference that is not covered by the realm of
self-incrimination; such as several kinds of object evidence taken
from the person of the accused. These include photographs, hair,
and other bodily substances. We have declared as constitutional
several procedures performed on the accused such as pregnancy
tests for women accused of adultery XXX.
In Jimenez v. Caizares, we even authorized the examination of a
woman’s genitalia, in an action for annulment filed by her husband,
to verify his claim that she was impotent, her orifice being too small
for his penis. Some of these procedures were, to be sure, rather
invasive and involuntary, but all of them were constitutionally
sound. DNA testing and its results, per our ruling in Yatar, are now
similarly acceptable. (AGUSTIN VS. CA. G.R. No. 162571, 15 June
2005)
CROSS-REFERENCE (Presumption of Legitimacy)
Children born or conceived of the wife during the marriage are
presumed legitimate. This presumption of legitimacy is based on the
provisions of Articles 164, 166, 167, 170, and 171 of the Family
Code.
Sir: Everything that you can do; every presumption that you can
accord to a minor child should be given preference. The law will not
disturb the legitimate status of the child. That presumption of
legitimacy is based on the provisions of the Family Code.
Art. 164. Children conceived or born during the marriage of the
parents are legitimate.
Children conceived as a result of artificial insemination of the wife
with the sperm of the husband or that of a donor or both are
likewise legitimate children of the husband and his wife, provided,
that both of them authorized or ratified such insemination in a
written instrument executed and signed by them before the birth
of the child. The instrument shall be recorded in the civil registry
together with the birth certificate of the child. (55a, 258a)
Art. 166. Legitimacy of a child may be impugned only on the
following grounds:
XXX
(2) That it is proved that for biological or other scientific reasons,
the child could not have been that of the husband, except in the
instance provided in the second paragraph of Article 164 (artificial
insemination); XXX
Art. 167. The child shall be considered legitimate although the
mother may have declared against its legitimacy or may have been
sentenced as an adulteress. (256a)
Art. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its
recording in the civil register, if the husband or, in a proper case,
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any of his heirs, should reside in the city or municipality where the
birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was
recorded, the period shall be two years if they should reside in the
Philippines; and three years if abroad. If the birth of the child has
been concealed from or was unknown to the husband or his heirs,
the period shall be counted from the discovery or knowledge of
the birth of the child or of the fact of registration of said birth,
whichever is earlier. (263a)
Art. 171. The heirs of the husband may impugn the filiation of the
child within the period prescribed in the preceding article only in
the following cases:
(1) If the husband should died before the expiration of the
period fixed for bringing his action;
(2) If he should die after the filing of the complaint without
having desisted therefrom; or
(3) If the child was born after the death of the husband.
* The mother might have declared against the illegitimacy of the
child. Even if the mother had myths na dili na siya anak sa iyang
bana, there is still a presumption of legitimacy.
NOTES
 The presumption of legitimacy of children born during a
valid marriage is DISPUTABLE.
 The finding of adultery does not, by itself, rebut the
presumption of legitimacy.
 DNA Evidence can therefore be presented to prove that
“for biological or other scientific reasons, the child could
not have been that of the husband”.
IN CIVIL ACTIONS
The Rule on DNA Evidence actually does not distinguish between
ordinary and special civil actions. It is therefore possible to apply the
rule to special civil actions.
A perfect example is an action for support. Entitlement to support is
dependent on family relationship. DNA testing can be done to
determine that family relationship or pedigree.
IN SPECIAL PROCEEDINGS
XXX
(c) A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. (Rule 1, Sec. 3c)
Examples: Paternity suits (see Herrera vs. Alba)
Sir: Therefore, if you want to establish paternity or filiation in a suit,
that is trying to establish a status or a fact; the fact that you are a
daughter or a son of a particular putative father.
And also, HABEAS CORPUS CASES UNDER RULE 102
LAW ON EVIDENCE
Habeas Corpus may be resorted to in cases where “the rightful
custody of any person is withheld from the person entitled thereto.”
The writ is the proper legal remedy to enable parents to regain the
custody of a minor child. (Salvana vs. Gaela, 55 Phil 680)
Example: Tijing case – The Court here did not resort to DNA testing
RODE Sec. 2. Application of other Rules on Evidence. – In all
matters not specifically covered by this Rule, the Rules of Court
and other pertinent provisions of law on evidence shall apply.
Let us appreciate first what are the Characteristics of DNA Evidence
so that we can connect that to particular rules that would be taken
from the Rules of Court to apply suppletorily. Remember that it’s
object evidence; therefore, evidence of the highest order. But
remember that object evidence do not testify by themselves. Object
evidence must be sponsored by testimony of a competent and
reliable witness. So remember also that when you obtain the results
of DNA testing, it is not self-explanatory. In which case you would
need an expert witness to testify as to the results of the DNA testing.
Ex. NBI, UP expert, etc.
Remember that expert testimony is opinion. While a particular
expert testifies on particular results, he is stating an opinion. But
opinion as a general rule under the Rules on Evidence is actually not
admissible; their opinion does not matter. What matters are the
facts derived from personal knowledge. But by way of exception,
opinion of an expert witness is admissible.
CHARACTERISTICS OF DNA EVIDENCE
 It is OBJECT or PHYSICAL EVIDENCE, and therefore
evidence of the highest order.
 However, it is one that can only be appreciated through
the aid of expert testimony (which is, for all intents and
purposes, mere opinion evidence).
 Object evidence does not lie but the expert, who
processes it and testifies about it, may. Object evidence by
itself is reliable but the manner of collecting, processing
and preserving it may be prone to error.
 Thus, based on Section 2, we apply the Rules of Court
(Evidence) suppletorily to cases covered by the Rule on
DNA Evidence.
Example:
Section 49 of Rule 130. Opinion of expert witness. – The opinion of
a witness on a matter requiring special knowledge, skill, experience
or training which he has shown to possess, may be received in
evidence.
EXPERT WITNESS
If the opponent admits that the witness is an expert, he can
immediately proceed with this testimony and give his opinion. But, if
the opponent does not admit to the qualifications of the witness as
an expert, before he may testify, he must first be qualified; he must
undergo a process which we call:
“QUALIFYING A WITNESS” – This means the act of proving that the
witness is an expert. This is done by making him to testify, through
preliminary questions, as to his training, education and expertise.
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Sir: Do you recall cases under the law which absolutely requires
expert testimony? Psychological incapacity – Republic vs. Molina.
Remember that there should be testimony; findings by a
psychologist or clinical psychiatrist to determine really whether or
not there is psychological incapacity to comply with the essential
marital obligations of marriage.
If you are going to call for DNA testing, the presentation of the
expert witness in effect becomes mandatory. There has to be a
witness expert on the field of DNA Science to testify as to the results
and the methodology used in obtaining such results.
RODE Sec. 3. Definition of Terms. – For purposes of this Rule, the
following terms shall be defined as follows:
“Biological sample” means any organic material originating from
a person’s body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva and other
body fluids, tissues, hairs and bones;
“DNA” means deoxyribonucleic acid, which is the chain of
molecules found in every nucleated cell of the body. The totality of
an individual’s DNA is unique for the individual, except identical
twins;
“DNA evidence” constitutes the totality of the DNA profiles,
results and other genetic information directly generated from DNA
testing of biological samples;
“DNA profile” means genetic information derived from DNA
testing of a biological sample obtained from a person, which
biological sample is clearly identifiable as originating from that
person;
“DNA testing” means verified and credible scientific methods
which include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the
purpose of determining, with reasonable certainty, whether or not
the DNA obtained from two or more distinct biological samples
originates from the same person (direct identification) or if the
biological samples originate from related persons (kinship
analysis); and
“Probability of Parentage” means the numerical estimate for
the likelihood of parentage of a putative parent compared with the
probability of a random match of two unrelated individuals in a
given population.
Sec. 4. Application for DNA Testing Order. – The appropriate court
may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a
DNA testing. Such order shall issue after due hearing and notice to
the parties upon a showing of the following:
a) A biological sample exists that is relevant to the case;
b) The biological sample:
(i) was not previously subjected to the type of DNA
testing now requested; or
(ii) was previously subjected to DNA testing, but the
results may require confirmation for good reasons;
LAW ON EVIDENCE
c) The DNA testing uses a scientifically valid technique;
d) The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case;
and
e) The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy of integrity of the
DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior
court order, at the behest of any party, including law enforcement
agencies, before a suit or proceeding is commenced.
In reference to the initial paragraph of Sec. 4 - Take note that DNA
testing may be ordered by the Court on its own initiative or it may
be upon the application of any person (anybody who has a legal
interest in the matter in litigation).
Ex. In a criminal case, application by the accused for DNA testing for
exonerating evidence or by the prosecution for identification; to
determine w/n the accused is the one who committed the crime.
Sir: To my mind, if you resort to DNA testing prior to a suit or
proceeding against your opponents, ambid-ambid (akin) na siya sa
deposition. Remember that depositions may be taken pending
action or when a case is already pending and can even be before
action or pending appeal.
Sec. 5. DNA Testing Order. – If the court finds that the
requirements in Section 4 hereof have been complied with, the
court shall –
a) Order, where appropriate, that biological samples be taken
from any person or crime scene evidence;
We have no problem with crime scene evidence, but what I want to
point out is the fact that: Can the Court compel the taking of
biological samples of the accused upon the latter’s objection? Is it
not a coercion? Remember that in the previous cases that we have
discussed the constitutionality and the validity of compulsory DNA
testing have been upheld. So there is no question anymore that the
Court can order you to give biological samples.
b) Impose reasonable conditions on DNA testing designed to
protect the integrity of the biological sample, the testing process
and the reliability of the test results, including the condition that
the DNA test results shall be simultaneously disclosed to parties
involved in the case; and
This is more or less applicable in paternity suits because that is
usually when the parties would require simultaneous disclosure of
the DNA test results. Dili pwede na unahon nimo sa plaintiff ug ulahi
sa respondent in paternity testing.
c) If the biological sample taken is of such an amount that
prevents the conduct of confirmatory testing by the other or the
adverse party and where additional biological samples of the same
kind can no longer be obtained, issue an order requiring all parties
to the case or proceedings to witness the DNA testing to be
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conducted.
When would that usually happen? When would there be a scarcity
of DNA samples? Say for example in a crime of rape; patay na. And
then the only way that you could test for DNA is from the vaginal
swabs from the rape kit. That is the only remaining DNA na relevant.
So, that is possible. Rape with homicide na siya; when you can no
longer order an additional examination of the body of the victim.
An order granting the DNA testing shall be immediately executory
and shall not be appealable. Any petition for certiorari initiated
therefrom shall not, in any way, stay the implementation thereof,
unless a higher court issues an injunctive order. The grant of DNA
testing application shall not be construed as an automatic
admission into evidence of any component of the DNA evidence
that may be obtained as a result thereof.
IMMEDIATELY EXECUTORY, NOT APPEALABLE
Take note that the issuance of a DNA Testing order is merely
interlocutory. For this reason, the remedy of appeal is not allowed.
Remember that in your Civil Procedure, what would distinguish a
matter that is appealable and is not appealable? The nature of the
order. If the nature of the order is merely interlocutory, your
remedy is not appeal because there is something yet to be done by
the Court. So what is your remedy?
REMEDY: Petition for Certiorari (Rule 65) which falls within the
concurrent jurisdiction of the Regional Trial Court, Court of Appeals
and the Supreme Court subject to the principle of hierarchy of
courts.
EFFECT: The filing of the petition for certiorari shall not, in any way,
stay the implementation thereof, unless a higher court issues an
injunctive order.
So, if you are the defendant for example, and you do not like the
order that DNA testing will be initiated by the Court, you can file a
petition for certiorari but you have to include a prayer for injunction.
TRO is possible or a preliminary prohibitory injunction to enjoin the
taking of the DNA test. Otherwise, it will not stay the order.
ADMISSIBILITY: The grant of DNA testing appslication shall not be
construed as an automatic admission into evidence of any
component of the DNA evidence that may be obtained as a result
thereof.
So the Court already orders DNA testing and of course, it will yield
results. But every component thereof, including the DNA profiles of
the DNA samples, they are not automatically admitted into
evidence.
Reasons:
1. DNA evidence, as any other type of evidence, must pass
the basic tests of relevancy and competency; (So if it is
excluded by the law or the Rules, the DNA that was taken
should not be admitted.)
2. DNA evidence must still be formally offered in order for
the court to consider it; (The Court will not receive any
evidence that is not formally offered.) and
3. A witness must still testify as to the result of the test.
LAW ON EVIDENCE
OBSERVATIONS
 It is submitted that a DNA Testing Order is akin to allowing
the conduct of modes of discovery.
 Note that, in modes of discovery, the results are not
automatically admitted into evidence, as a general rule. They
have to be formally offered to be admitted. In the case of a
deposition, the deponent must still testify in court, subject to
certain exceptions.
 Under modes of discovery, we have Rule 28 (Physical and
Mental Examination of Persons). The Court may actually
order that you submit to a physical examination by the
doctor to determine injury, or mental examination. Ex. In a
proceeding for the probate of a will, and then you are still
alive and you want it probated immediately. Pwede man na
diba? To have the probate of a will even when you are still
alive. That is allowed. But the opponent would oppose
probate on the ground that the testator, the maker of the
will, is not of sound mind. So the Court may actually order
compliance with Rule 28 to determine whether you are really
of sound mind.
Section 4. Waiver of privilege. – By requesting and obtaining a
report of the examination so ordered or by taking the deposition of
the examiner, the party examined waives any privilege he may
have in that action or any other involving the same controversy,
regarding the testimony of every other person who has examined
or may thereafter examine him in respect of the same mental or
physical examination.
WHAT IS THIS PRIVILEGE?
Rule 130, Section 24. – Disqualification by reason of privileged
communication. The following persons cannot testify as to matters
learned in confidence in the following cases:
xxx
c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient
in a professional capacity, which information was necessary to
enable him to act in that capacity, and which would blacken the
reputation of the patient;
Other privileged communication: attorney-client privileged
communication rule, marital privileged rule and (c above) physician-
patient privileged communication rule
Hypothetical case: JZE, married to Maja, had an affair with Bangs.
Bangs got pregnant and delivered a baby but JZE is not sure about
the paternity of the child. So he privately went to a doctor, Dr.
Hayden, to have a DNA test in secret. It turns out that he is the
father of the child.
Ordinarily, Dr. Hayden cannot be compelled to divulge the results of
the DNA Test as he is covered by Physician-Patient privilege. The
result also tends to blacken the reputation of the patient, JZE.
However, suppose that the DNA Test was made in a civil case filed
by Bangs against JZE. Bangs applied for and was issued a DNA
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Testing Order. The question there would be, unsay effect niya?
What’s the difference between physical and mental examination of
persons and DNA testing under Section 4?
Had the DNA Test been conducted under Rule 28, the same rule sets
forth the conditions for waiver of privilege. We have no problem
there. There’s waiver of privilege.
However, under the Rule on DNA evidence, there is no mention
about waiver and physician-patient privilege. In fact, in several
cases, the SC has ruled that a person can be compelled to undergo
DNA testing without violating the right against self-incrimination.
You can be compelled to undergo DNA testing
Conclusion: The Physician-Patient privilege does not apply in court-
ordered DNA Testing.
Sec. 6 is quite controversial: the law provides for it, the law allows it,
and yet nobody is successful in claiming it.
RODE Sec. 6. Post-conviction DNA Testing. – Post-conviction DNA
testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory
judgment provided that
a) a biological sample exists,
b) such sample is relevant to the case, and
c) the testing would probably result in the reversal or
modification of the judgment of conviction.
So you have been convicted already of final judgment. Maybe your
case is pending appeal before the Supreme Court, and the case is
let’s say for rape and there’s DNA sample that’s available from the
victim and you. Or it could be paternity testing because the
allegation could be that you fathered the child because of the rape.
So if there is a dissimilarity between the DNA profiles, meaning it’s
an exclusion result, you are not the father of the baby conceived
because of the rape. Would it be logical to assume that you should
be acquitted?
Remember these cases:
 ANDAL vs. PEOPLE – G.R. No. 138268, 26 May 1999
 PEOPLE vs. PENASO – G.R. No. 121980, 23 Feb 2000
 IN RE: DE VILLA – G.R. No. 158802, 17 Nov 2004
 PEOPLE vs. MACAPAL – G.R. No. 155335, 14 Jul7 2005
 PEOPLE vs. RAYLES – G.R. No. 169874, 27 July 2007
In all these cases, the SC either denied requests for post-conviction
DNA testing or pleas for acquittal based on DNA testing results (See
In Re: De Villa) because pregnancy is not an element of rape. In
other cases, presence of semen is not an element or rape. It will
always be overcome by eyewitness testimony; by positive
identification that you are the rapist.
What the SC favored were the testimonies positively identifying the
several accused as rapists. Will this now change because of the new
Rule?
LAW ON EVIDENCE
SURVEY OF CASES: RAPE and DNA (Post-conviction DNA testing)
PEOPLE vs. UMANITO (2007)
*first case where the SC applied the new Rule on DNA testing after
the Rule took effect last October 15
FACTS:
 The SC through Justice Dante O. Tinga remanded the case
against Umanito to the RTC for reception of evidence in
appropriate hearings, ruled that “the determination of whether
the appellant is the father of the rape victim’s child [born from
the alleged rape], which may be accomplished through DNA
testing, is material to the fair and correct adjudication of the
instant appeal. Under Section 4 of the Rule on DNA Evidence,
the courts are authorized, after due hearing and notice, motu
propio to order a DNA testing.”
 He is already convicted. His appeal is now with the SC. Case
was remanded by the SC- obtain DNA; but did not say that if
results were negative he would be acquitted
 99.9999% Match
 Given that the results of the Court-ordered DNA testing
conforms with the conclusions of the lower courts, and that no
cause is presented for us to deviate from the penalties imposed
below, the Court sees no reason to deny Umanito’s Motion to
Withdraw Appeal.
(Take note of the procedure followed by the RTC like how the
samples will be taken, how they will be kept, how will they be
marked and then how will they be tested. And also what would
consist in the testimony later on.)
PEOPLE vs. MAGLENTE (2008)
 Complainant alleges that Maglente, her biological father,
had subjected her to sexual abuse as early as 1997, when she
was still nine (9) years old, until 13 July 2002, when she reached
14 years of age. As a result of her father’s molestation, she
became pregnant and delivered a baby boy on 1 October 2002,
which she gave up for adoption. On cross-examination, private
complainant testified that she was willing to have her baby
undergo DNA testing but the baby’s whereabouts were
unknown to her.
HELD: Even if the DNA test were conducted and it established that
appellant had not fathered the child, it would still be inconclusive to
prove that appellant was not guilty of having raped private
complainant. He cannot obtain an acquittal based on the
circumstances of private complainant’s pregnancy. Impregnation is
not an element of rape. Even proof that the child was fathered by
another man does not show that the appellant is not guilty. For the
conviction of an accused, the pregnancy of the victim is not
required to be proved, since it is sufficient that the prosecution
establish beyond reasonable doubt, as it had in this case, that the
accused had forced sexual relations with the victim.
REMEDY IF RESULTS ARE FAVORABLE – Apply Section 10
RODE Sec. 10. Post-conviction DNA Testing – Remedy if the
Results Are Favorable to the Convict. – The convict or the
prosecution may file a petition for a writ of habeas corpus in the
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court of origin if the results of the post-conviction DNA testing are
favorable to the convict. In the case the court, after due hearing
finds the petition to be meritorious, it shall reverse or modify the
judgment of conviction and order the release of the convict, unless
continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or the
Supreme Court, or with any member of said courts, which may
conduct a hearing thereon or remand the petition to the court of
origin and issue the appropriate orders.
Results favorable to convict = remedy is to file a petition for Habeas
corpus
Take note that this was the remedy applied for by the convict in IN
RE: DE VILLA. Let’s revisit it.
IN RE: DE VILLA (2004)
Reynaldo de Villa was sentenced to death for raping his 12-year-
old niece, Aileen Mendoza who had subsequently given birth to a
baby girl. De Villa had always maintained his innocence, but no
paternity test had been carried out to establish whether or not he
was the father of the child. Because de Villa was in prison, Cora de
Ungria, head of the DNA Analysis Laboratory of UP, could not
obtain a DNA sample from de Villa directly. She enlisted the help of
the prison priest. He visited de Villa carrying a sterile blade and a
blood collection vial hidden in his robes.
De Ungria still needed a sample from the child he had allegedly
fathered, then aged 10. De Villa’s grandson, a schoolmate of
Mendoza’s daughter, was coached to organize a spitting
competition in the playground. He collected the girl’s spit in a cup,
and de Ungria used it to generate a DNA profile.
The results confirmed that de Villa was not the girl’s father, but the
SC refused to consider the new evidence and so he remained on
death row. Anent the remedy of habeas corpus, the Supreme
Court said that:
Petitioner invokes the remedy of the petition for a writ of habeas
corpus to seek a re-examination of the records, without asserting
any legal grounds therefore. For all intents and purposes, petitioner
seeks a reevaluation of the evidentiary basis for his conviction. We
are being asked to reexamine the weight and sufficiency of the
evidence in this case, not on its own, but in light of the new DNA
evidence that the petitioner seeks to present to this Court. This
relief is outside the scope of a habeas corpus petition, which applies
only in case of denial of a constitutional right. The petition for
habeas corpus, therefore, fails. (What the SC was saying in a
nutshell was dili ka pwede magpa-acquit sa habeas corpus case
based on DNA evidence. But it is already different in Sec. 10. Very
clear na ang remedy is habeas corpus.)
Review of a judgment of conviction is allowed in a habeas corpus
petition only I very specific instances, such as when, as a
consequence of judicial proceeding, (a) there has been a
deprivation of a constitutional right resulting in the restraint of a
person; (b) the court had no jurisdiction to impose the sentence; or
(c) an excessive penalty has been imposed, as such sentence is void
as to such excess.
In this instance, petitioner invokes the writ of habeas corpus to
assail a final judgment of conviction, without, however, providing a
LAW ON EVIDENCE
legal ground on which to anchor his petition. In fine, petitioner
alleges neither the deprivation of a constitutional right, the
absence of jurisdiction of the court imposing the sentence, or that
an excessive penalty has been imposed upon him. (SC: habeas
corpus not a viable remedy if you are trying to present newly
discovered evidence or DNA evidence after conviction)
Q: Has De Villa now been abrogated by Section 10?
A: Not really. It is logical to suppose that, in De Villa, had the
petitioner been more precise in his invocation of the remedy, a
different result might have ensued. Which brings to the fore the
ability of a lawyer to craft a pleading. They wanted habeas corpus to
overturn the conviction pero you were not able to plead the
properly the basis for the grant of the habeas corpus petition.
Take note of the following pronouncement in De Villa:
“First, the denial of a constitutional right has not been alleged by
petitioner. As such, this Court is hard-pressed to find legal basis on
which to anchor the grant of a writ of habeas corpus.” (So what if he
alleged in that case that his constitutional right has been violated?
What constitutional right? Basic. Right to due process. Any general
invocation will do.)
“In fine, we find that petitioner invokes the remedy of the petition for
a writ of habeas corpus to seek a re-examination of the record of
People v. de Villa, without asserting any legal grounds therefore.”
(So had the convict here allege with more particularity the legal
ground supposed to be could have been acquitted by way of the
habeas corpus case.)
However, take note that:
 First, Section 10 can now be a viable legal basis for Habeas
Corpus by direct provision of the Rule.
 Second, this portion of the SC’s decision is deemed
abrogated already:
o We are being asked to reexamine the weight and
sufficiency of the evidence in this case, not on its own,
but in the light of the new DNA evidence that the
petitioner seeks to present to this Court. This relief is
outside the scope of a habeas corpus petition. (What
relief? To reexamine the weight and sufficiency of the
evidence.) The petition for habeas corpus must,
therefore, fail. (By way of Section 10, habeas corpus
can do this already)
Observations
 The Supreme Court’s decision not to grant the motion to
reopen the case of De Villa was based on the principle that
pregnancy (and also presence of seminal discharge) is not
an element of rape. The Supreme Court has consistently
upheld this ever since the Rule on DNA Evidence was
promulgated. (All you need is positive eyewitness testimony
that there was penetration)
See Maglente, Hipona, Cabigquez and Lucero
 However, paternity (for the negation thereof) should be
used as evidence to exonerate the accused or convict in a
rape case if it is warranted by the factual milieu of the
case. Depende sa facts of the case. It should not be a
blanket ruling that you only limit rape to penetration.
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For example:
 In De Villa, the judgment made reference to the fact that it
was the act of rape that got the niece pregnant and for her
to consequently bear a child.
 The request for paternity testing was also consistent with
the defense presented at trial. The appellant’s testimony
of his incapacity for sexual intercourse due to his advanced
age was supported by his wife’s testimony. There were
also no allegations of multiple perpetrators or of
promiscuous behavior of the victim. More importantly,
records show that the trial court based its decision entirely
on the birth of the child. (And now that he was able to
prove that the child was not his, and by implication he is
trying to allege that it could not have been him who raped
or had intercourse with the victim, the SC did not want to
receive any further evidence.)
 In Penaso, the criminal complaint alleged that: “as a result
of his devilish act, it caused me to have an unwanted
pregnancy of an unwanted child.” (So that’s the allegation.
If that’s what you allege, that is what you prove in trial.
And then later on post-DNA testing would show na dili diay
siya ang papa atong baby. Shouldn’t that call for a reversal
of the conviction under post-DNA conviction testing? The
SC seems to be very myopic in the sense that all it sees are
the elements of rape. It should consider the factual milieu
of the case.)
PEOPLE vs. BASALLO (2013)
Consideration of the factual milieu of the case seems to be
supported by the SC in Basallo. Here, the SC mentioned that:
For a man who vehemently asserts his innocence, it mystifies the
mind that the appellant would not exhaust all available avenues to
prove his innocence especially DNA testing that would conclusively
prove that he is not the father of ABC’s so who is alleged to be the
fruit of his crime. (That is conclusive proof which ought to be
sufficient to overturn the conviction. However, no conviction has
been overturned yet through post-conviction DNA testing.)
Aftermath of DE VILLA
 Cora de Ungria marshaled international pressure and
eventually, in February 2005, President Gloria Macapagal-
Arroyo granted him a pardon. His complete case records,
including the DNA test results, were sent to the Board of
Pardons and Parole that recommended clemency to the
President.
 De Villa was 67 years old at the time of the alleged rape. Thus,
when he was released on pardon, he was already 78 years old.
 In June 2006, due to the increasing amount of information
available on the problems of the criminal justice system and
the implementation of the death penalty in the Philippines,
the President signed Republic Act No. 9346, once again
abolishing the death penalty in the Philippines.
RODE Sec. 7. Assessment of probative value of DNA evidence. – In
assessing the probative value of the DNA evidence presented, the
court shall consider the following:
A. The chain of custody, including how the biological
LAW ON EVIDENCE
samples were collected, how they were handled, and the
possibility of contamination of the samples;
B. The DNA testing methodology, including the procedure
followed in analyzing the samples, the advantages and
disadvantages of the procedure, and
C. compliance with the scientifically valid standards in
conducting the tests;
D. The forensic DNA laboratory, including accreditation by
any reputable standards-setting institution and the
qualification of the analyst who conducted the tests. If
the laboratory is not accredited, the relevant experience
of the laboratory in forensic casework and credibility
shall be properly established; and
E. The reliability of the testing result, as hereinafter
provided.
Note that this provision is lifted almost entirely from the SC’s initial
pronouncement in Vallejo, to wit:
In assessing the probative value of DNA evidence, therefore, courts
should consider, among other things, the following data:
 How the samples were collected
 How they were handled,
 the possibility of contamination of the samples
 the procedure followed in analyzing the samples,
 whether the proper standards and procedures were
followed in conducting the tests, and
 the qualification of the analyst who conducted the tests
RODE Sec. 8. Reliability of DNA Testing Methodology. – In
evaluating whether the DNA testing methodology is reliable, the
court shall consider the following:
A. The falsifiability of the principles or methods used, that
is, whether the theory or technique can be and has been
tested;
B. The subjection to peer review and publication of the
principles or methods;
C. The general acceptance of principles or methods by the
relevant scientific community;
D. The existence and maintenance of standards and
controls to ensure the correctness of data generated;
E. The existence of an appropriate reference population
database; and
F. The general degree of confidence attributed to
mathematical calculations used in comparing DNA
profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles.
If you examine Section 8, you’ll find that it mirrors and expands the
Daubert Test first alluded to by the SC in People vs. Yatar.
FOUR DAUBERT FACTORS
1. whether a theory or technique can be and has been
tested;
2. whether it has been subjected to peer review and
publication;
3. in respect to a particular technique, the known or
potential rate of error and the existence or maintenance
of standards controlling the technique’s operation; and
4. whether the theory or technique enjoys general
acceptance within a relevant scientific community.
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The Philippines actually follows the Daubert Test by incorporation.
RODE Sec. 9. on DNA Testing Results. – In evaluating the results of
DNA testing, the court shall consider the following:
A. the evaluation of the weight of matching DNA evidence or
the relevance of mismatching DNA evidence;
Take note that the SC uses the term “weight” for matching DNA
evidence, and “relevance” for mismatching DNA evidence.
B. The results of the DNA testing in the light of the totality
of the other evidence presented in the case; and that
C. DNA results that exclude the putative parent form
paternity shall be conclusive proof on non-paternity. If
the value of the Probability of Paternity is less than
99.9%, the results of the DNA testing shall be considered
as corroborative evidence, if the value of the Probability
of Paternity is 99.9% or higher there shall be a disputable
presumption of paternity.
Weight of Matching DNA Evidence
Weight means reliability and probative value of evidence.
In layman’s parlance, when you talk about weight or probative
value, you are talking about the believability of the evidence. So,
believable ba ang matching DNA evidence? That’s what the court
should consider.
Thus, if the DNA samples match, the court is tasked to determine
whether the DNA testing result is reliable and what evidentiary
value it will assign to it (i.e. whether the evidence is to be believed
or not).
Relevance of mismatching DNA evidence
Relevancy, as you know, means that evidence must have such a
relation to the fact in issue as to induce belief in its existence or non-
existence.
Thus, under this factor, the court should consider whether or not
the fact that the DNA profiles do not match bears a relation to the
fact in issue in the case.
So, when it’s mismatching, determine the relevance. If it’s matching,
determine the weight.
Take note that in US jurisprudence where our own laws were based,
naay very important distinction between weight and relevancy. Ang
ilahang judicial system is run not only by a judge but also by a jury.
Now, whose function is it to determine the weight to be given to the
evidence presented; the believability? The jury. Who determines the
relevancy? The judge.
In the Philippines, both the weight and relevancy is considered by
the same person which makes our judicial system flawed.
In the US jurisdiction, a judge is merely to be a gate keeper: Unsa
ang akong palusuton sa jury? The jury will make the decision. The
jury will determine the believability of evidence; what it will believe
and what it will not believe.
LAW ON EVIDENCE
In the Philippines it is totally different. The judge will determine
whether he will admit it or not. When he admits it, in all probability,
he will be believing it as well.
Example: If the semen found at the vagina of the victim does not
match the DNA profile of the accused-rapist, would it be relevant to
the issue of whether or not the accused raped the victim or not?
(Unsa may nahitabo dinhi? Mismatch diba?)
PEOPLE vs. CABIGCUEZ, G.R. No. 185708, (September 29, 2010)
Neither a positive DNA match of the semen nor the presence of
spermatozoa is essential in finding that rape was committed. The
important consideration in rape cases is not the emission of semen
but the penetration of the female genitalia by the male organ. (It is
not relevant according to the SC. So how would you overturn the
conviction kung dili siya relevant diay?)
Results of DNA testing in the light of the totality of the other
evidence:
A positive DNA match is unnecessary when the totality of the
evidence presented before the court points to no other possible
conclusion, i.e., appellant rape the private offended party. A positive
DNA match may strengthen the evidence for the prosecution, but an
inconclusive DNA test result may not be sufficient to exculpate the
accused, particularly when there is sufficient evidence proving his
guilt. (PEOPLE versus CABIGCUEZ) (So diha gikan ang factor na
totality of evidence)
Take note that DNA, by considering the totality of evidence, can be
merely circumstantial evidence for the prosecution such as when
there is no eyewitness tending to prove that the accused raped the
victim, for example. You have no eyewitness so you have to resort to
circumstantial evidence.
Rule 133, Section 4. Circumstantial evidence, when sufficient.
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven;
and
(c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
PEOPLE vs. YAU (2014)
In a kidnapping for ransom case, the captor wore red mask which
was retrieved as evidence of the case. A test conducted by the US
Federal Bureau of Investigation reveals that the DNA found I the
mask used by private complainant’s captor matched that of
appellant Petrus Yau. (Modus operandi ng Sps. Yau to bring their
victim unconscious sa taxi. And then as the captive, you wouldn’t
know what happened to you. You would just wake up in a very
dark place and surrounded by people with masks.)The prosecution
presented several other pieces of circumstantial evidence. Take
note that there was no direct evidence identifying Yau as the
captor as the victim never saw Yau’s face.
The Court agrees with the findings of the RTC and CA that the
foregoing pieces of circumstantial evidence (including the DNA test
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conducted upon the saliva sample of Petrus Yau and the residual
DNA found on the mask he wore), when analyzed and taken
together, definitely lead to no other conclusion than that Petrus
was the author of the kidnapping for ransom. When viewed as a
whole the prosecution’s evidence effectively established his guilt
beyond reasonable doubt. (That’s the totality of evidence)
(From C above) DNA results that exclude the putative parent form
paternity shall be conclusive proof on non-paternity. If the value of
the Probability of Paternity is less than 99.9%, the results of the
DNA testing shall be considered as corroborative evidence, if the
value of the Probability of Paternity is 99.9% or higher there shall
be a disputable presumption of paternity.
DNA results that exclude the putative parent form paternity shall be
conclusive proof of non-paternity. Excluded ka na, eh. So there’s a
mismatch. Your DNA profile does not match the DNA profile of the
putative parent. So clearly, you are excluded. If the value of the
probability of paternity is less than 99.9%, the results of the DNA
testing shall be considered as corroborative evidence. Which means
there should be other types of evidence presented tending to
establish paternity. But if the value of the probability of paternity is
99.9% or higher (i.e. 99.91%), there shall be no dispute on the issue
of paternity. It is only disputable. It is still susceptible of contrary
proof.
Table of Probabilities of Paternity
VALUE USE OF DNA TESTING RESULT
Less than 99.9% As corroborative evidence (in
addition to traditional proof of
(99.8999999+ and below) filiation)
99.9% or higher As disputable presumption of
paternity
NOTE : Section 9 (c) is taken from the pronouncement of the SC in
Herrera vs. Alba, G.R. No. 148220, June 15, 2005, where the Court
ruled: A complete match between the DNA profile of the child and
the DNA profile of the putative father does not necessarily establish
paternity. For this reason, trial courts should require at least 99.9%
as a minimum value of Probability of Paternity (W) prior to a
paternity inclusion. W is a numerical estimate for the likelihood of
paternity of a putative father compared to the probability of a
random match of two unrelated individuals. X X X
DNA analysis that excludes the putative father from paternity should
be conclusive proof of non-paternity. (This is letter A). If the value of
W is less than 99.9% the results of the DNA analysis should be
considered as corroborative evidence.(This is letter B) If the value of
W is 99.9% or higher, then there is refutable presumption of
paternity. (This is similar to disputable, so letter C).
Now, how do you prove filiation? This is answered by the case of
AGUILAR vs. SIASAT (2015)
On means of proving filiation
The filiation of illegitimate children, like legitimate children is
LAW ON EVIDENCE
established by:
(1) the record of birth appearing in the civil register or a final
judgment; 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 thereof, 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.
(Sir: To my mind, this now includes DNA testing.)
The due recognition of an illegitimate child in a record of birth, a
will, a statement before a court of record, or in any authentic
writing is, in itself, a consummated act of acknowledgment of the
child, and no further court action is required. X X X Where, instead,
a claim for recognition is predicated on other evidence merely
tending to prove paternity, i.e., outside of a record of birth, a will, a
statement before a court of record or an authentic writing, judicial
action within the applicable statute of limitations is essential in
order to establish the child’s acknowledgment.
LUCAS vs. LUCAS (2011)
(Also a DNA testing case)
There are four significant procedural aspects of a traditional
paternity action which the parties have to face; 1) a prima facie
case, 2) affirmative defenses, 3) presumption of legitimacy, and 4)
physical resemblance between the putative father and the child.
Sir: To my mind, this is less reliable. When you talk about physical
resemblance it’s very unreliable compared to DNA evidence or DNA
testing results.
ESTATE OF ONG vs. DIAZ (2007)
A complaint for compulsory recognition with prayer for support
pending litigation was filed by minor Joanne Diaz, represented by
her mother and guardian, Jinky, against Rogelio G. Ong, before the
RTC of Tarlac City.
Jinky and Rogelio got acquainted in November 1993 in Tarlac City.
This developed into friendship and later blossomed into love. At
this time, however, Jinky was already married to a Japanese
national.
From January 1994 to September 1998, Jinky and Rogelio
cohabited and lived together. From this live-in relationship, Joanne
Rodjin Diaz was conceived and born on 25 February 1998. In
September 1998, Rogelio abandoned Joanne and Jinky, and
stopped supporting the child, alleging that he is not the father of
the child. While the case was pending, Rogelio died.
The burden of proving paternity is on the person who alleges that
the putative father is the biological father of the child. There are
four significant procedural aspects of a traditional paternity action
which parties have to face: a prima facie case, affirmative
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defenses, presumption of legitimacy, and physical resemblance
between the putative father and child.
A child born to a husband and wife during a valid marriage is
presumed legitimate. As a guaranty in favor of the child and to
protect his status of legitimacy, Article 167 for the Family Code
provides: Article 167. The children shall be considered legitimate
although the mother may have declared against its legitimacy or
may have been sentenced as an adulteress.
With the advancement in the field of genetics, and the availability
of new technology, it can now be determined with reasonable
certainty whether Rogelio is the biological father of the minor,
through DNA testing.
Can DNA testing still be made considering that Rogelio is already
dead?
 The death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist
appropriate biological samples of his DNA.
 The term biological sample means any organic material
originating from a person’s body, even if found in
inanimate objects, that is susceptible to DNA testing. This
includes blood, saliva, and other body fluids, tissues, hairs
and bones.
 Thus, even if Rogelio already died, any of the biological
samples as enumerated above as may be available, may be
used for DNA testing. In this case, petitioner has not shown
the impossibility of obtaining an appropriate biological
sample that can be utilized for the conduct of DNA testing.
And even the death of Rogelio cannot bar the conduct of
DNA testing.
Sir: To my mind, this case is actually a recognition that the
Philippines has already the technological capacity to conduct DNA
testing even if the putative father is already dead. And then
compare that to the previous cases where the SC was quite hesitant
in even hinting on DNA testing.
PEOPLE vs. UMANITO
Citing Tecson vs. Commission on Elections, this Court held:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA testing,
which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent
could be resorted to.
LUCAS vs. LUCAS (2011)
In a petition to establish illegitimate filiation, the SC was
confronted with the question:
Is a prima facie showing of reasonable probability of paternity
necessary before a court can issue a DNA testing order?
(What’s a prima facie case? You prove preliminarily that there is a
probability of parentage. How do you do that? So prior to asking
for a DNA testing order, you present witnesses tending to show the
traditional proof of filiation. Nga ning-aknowledge niya na anak
siya niya; nagsign siya ug birth certificate, etc.)
LAW ON EVIDENCE
(Note that Section 4 of the Rule on DNA Evidence does not mention
prima facie case as a requirement.)
HELD: In some states, to warrant the issuance of DNA testing order,
there must be a show cause hearing wherein the applicant must
first present sufficient evidence to establish a prima facie case or a
reasonable possibility of paternity or good cause for the holding of
the test.
The same condition precedent should be applied in our jurisdiction
to protect the putative father from mere harassment suits. Thus,
during the hearing on the motion for DNA testing, the petitioner
must present prima facie evidence or establish a reasonable
possibility of paternity. (The SC is adding this as a requirement
despite its absence in Sec.4)
Notwithstanding these, it should be stressed that the issuance of a
DNA testing order remains discretionary upon the court. The court
may, for example, consider whether there is absolute necessity for
the DNA testing. If there is already preponderance of evidence to
establish paternity and the DNA test result would only be
corroborative, the court may, in its discretion, disallow a DNA
testing.
Sec. 11. Confidentiality. – DNA profiles and all results or other
information obtained from DNA testing shall be confidential.
Except upon order of the court, a DNA profile and all results or
other information obtained from DNA testing shall only be
released to any of the following, under such terms and conditions
as may be set forth by the court:
A. Persons from whom the sample was taken;
B. Lawyers representing parties in the case or action where
the DNA evidence is offered and presented or sought to
be offered and presented;
C. Lawyers of private complainants in a criminal action;
D. Duly authorized law enforcement agencies; and
E. Other persons as determined by the court.
Whoever discloses, utilizes or publishes in any form any
information concerning a DNA profile without the proper court
order shall be liable for indirect contempt of the court wherein
such DNA evidence was offered, presented or sought to be offered
and presented.
Where the person from whom the biological sample was taken
files a written verified request to the court that allowed the DNA
testing for the disclosure of the DNA profile of the person and all
results or other information obtained from the DNA testing, the
same may be disclosed to the persons named in the written
verified request.
Sec. 12. Preservation of DNA Evidence. The trial court shall
preserve the DNA evidence in its totality, including all biological
samples, DNA profiles and results or other genetic information
obtained from DNA testing. For this purpose, the court may order
the appropriate government agency to preserve the DNA evidence
as follows: (so for biological samples, dapat properly stored;
preserved in freezers)
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In criminal cases:
i. for not less than the period of time that any person is
under trial for an offense; or
ii. in case the accused is serving sentence, until such time as
the accused has served his sentence;
(NOTE: See Lejano vs. People – the DNA was not preserved)
In all other cases, until such time as the decision in the case where
the DNA evidence was introduced has become final and executory.
The court may allow the physical destruction of a biological sample
before the expiration of the periods set forth above, provided that:
a. A court order to that effect has been secured; or
b. The person from whom the DNA sample was obtained
has consented in writing to the disposal of the DNA
evidence.
Sir: To my mind, letter B is flawed because it talks about the person
from whom the DNA sample was obtained. Let’s say in a case of
rape na nabuntis ang babae and gave birth to a child. Kinsa kaha ang
kuhaan ug biological sample? The alleged rapist and the child that
was born allegedly out of the rape. Now this child may actually
consent in writing to have the DNA evidence disposed of. Pwede
diba? And then gipa-sibat sa mama. And the samples are now lost.
How can you now have confirmatory DNA testing?
To my mind, the better phraseology would be “the accused” can
actually consent in writing to the disposal of the DNA evidence;
limited to the accused. Penal laws and even procedural laws are
construed in favor of the accused rather than the prosecution. It’s
the accused who stands to be benefited by this. He is the one who
can apply for post-conviction DNA testing.
Sec. 13. Applicability to Pending Cases. Except as provided in
Section 6 and 10 hereof, this Rule shall apply to cases pending at
the time of its effectivity. (So, it retroacts)
Sec. 14. Effectivity. This Rule shall take effect on October 15, 2007,
following publication in a newspaper of general circulation.
SURVEY OF CASES on DNA and Right to Acquittal
PEOPLE vs. PASCUAL (2009)
In a rape with homicide case, forensic chemist testified that based
on DNA testing, she could not determine if a woman was raped or
not. She further declared that in this case, it was possible that the
stained vaginal smear prevented a complete and good result for
the DNA profiling. Upon being questioned by the court, the forensic
chemist confirmed that DNA testing on the subject specimens was
inconclusive and that the result was not good, as the specimens
submitted, i.e., the stained vaginal smear and the dirty white
panty, had already undergone serological analysis. (So, blood test.
It was already previously tested. And so the results were
inconclusive. It actually did not yield a positive match with the DNA
of the accused. Now, should that entitle the accused to an
acquittal?)
Here, while the DNA analysis of the victim’s vaginal smear showed
no complete profile of the accused-appellant, the same is not
LAW ON EVIDENCE
conclusive considering that said specimen was already stained or
contaminated which, according to the forensic chemist, Aida
Villoria-Magsipoc, deters a complete and good result for DNA
profiling. She explained in her testimony that generally, with the
vaginal smear, they could see if there is a male profile in the smear.
However in this case, when they received the vaginal smear on the
stained slide, the same had already undergone serological analysis.
Hence, according to the chemist, the DNA testing conducted on the
specimen subject of this case was inconclusive.40 In light of this
flawed procedure, we hold that the result of the DNA examination
does not entitle accused-appellant to an acquittal.
PEOPLE versus HIPONA (2010)
Appellant argues that he should only be held liable for robbery and
not the complex crime of Rape with Homicide (and Robbery). He
cites the testimony of prosecution witness Aida Vilora-Magsipoc,
DNA expert of the National Bureau of Investigation, that she found
the vaginal smears taken from AAA to be negative of appellant’s
DNA.
Appellant’s argument fails. The presence of spermatozoa is not
essential in finding that rape was committed, the important
consideration being not the emission of semen but the penetration
of the female genitalia by the male organ. As underlined above, the
post-mortem examination of AAA’s body revealed fresh hymenal
lacerations which are consistent with findings of rape. (Isn’t it that
the Rule on DNA evidence provides that if it is a finding that if it
does not match, it has an effect of exclusion. You don’t need to
belabor that. However, the Court still would not acquit accused
here. It remains to apply the rule that in rape cases, it is enough
that there was penetration. Of course it’s true. But in a similar case
here of People vs. Ponga, the victim’s already dead. Who identified
the accused? Eyewitness. Remember that as a general rule, rapes
are unwitnessed.)
PEOPLE vs. CABIGCUEZ (2010)
 Appellant cannot seek acquittal on the basis of the negative
result of the DNA test on the specimen conducted by the NBI.
 Notably, neither a positive DNA match of the semen nor the
presence of spermatozoa is essential in finding that rape was
committed. The important consideration in rape cases is not the
emission of semen but the penetration of the female genitalia by
the male organ. (Pabalik-balik lang ang SC. Wala nay bili ang
DNA testing.)
PEOPLE vs. LUCERO (2011)
The DNA test is not essential, while there exists other evidence
pinning down accused-appellant as the perpetrator. Indeed, if he
honestly thought that the DNA test could have proved his
innocence, he could have asked for the conduct of said test during
his trial instead of belatedly raising it on appeal, and attempting to
dictate upon the prosecution what course of actions it should have
undertaken. (While you want to avail of DNA testing, do it
immediately before the trial court pa lang. What you need to do is
to have DNA testing done at the trial court stage pa lang daan
because you can use that as your reasonable doubt. You have
learned from the previous cases that post-DNA testing does not do
you anything. The SC is not a trier of facts.)
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VIZCONDE MASSACRE
The Vizconde murder case, colloquially known as the Vizconde
massacre, was the multiple homicide of member of the Vizconde
family on 30 June 1991 at their residence in BF Homes, Parañaque.
 Estrellita, 49, had suffered thirteen (13) stab wounds;
Carmela, 18, had suffered seventeen (17) stab wounds and
had been raped before she was killed; and Jennifer, 6, had
nineteen (19) stab wounds.
 Lauro Vizconde, Estrellita’s husband, and the father of
Carmela and Jennifer, was in the United States on business
when the murders took place.
LEJANO vs. PEOPLE (2010)
Four years after the massacre, in 1995, the NBI announced that it
had solved the crime. It presented star-witness Jessica M. Alfaro,
one of its informers, who claimed that she witnessed the crime.
(Saludo kaayo si Judge Tolentino sa iya. Her testimony was
believed.) She pointed to the accused Hubert Jeffrey P. Webb,
Antonio tony Boy Lejano, Artemio Dong Ventura, Michael A.
Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging
Rodriguez, and Joey Filart as the culprits. She also tagged accused
police officer, Gerardo Biong, as an accessory after the fact. Relying
primarily on Alfaro’s testimony, on August 10, 1995, the public
prosecutors filed an information for rape with homicide against
Webb, et.al.
On January 4, 2000, after four (4) years of arduous hearings, the
trial court rendered judgment, finding all the accused guilty as
charged and imposing on Webb, Lejano, Gatchalian, Fernandez,
Estrada, and Rodriguez the penalty of reclusion perpetua and on
Biong, an indeterminate prison term of 11 years, 4 months, and 1
day to 12 years.
On appeal, the CA affirmed the trial courts decision. On motion for
reconsideration by the accused, the CA’s Special Division of 5
members voted 3 against 2 to deny the motion.
During the appeal to the SC, the Court issued a Resolution granting
the request of Webb to submit for DNA analysis the semen
specimen taken from Carmela’s cadaver, which specimen was
believed to be still under the safekeeping of the NBI. The Court
granted the request pursuant to Section 4 of the Rule on DNA
Evidence.
Unfortunately, on April 27, 2010 the NBI informed the Court that it
no longer has custody of the specimen, the same having been
turned over to the trial court. The trial record shows, however,
that the specimen was not among the object evidence that the
prosecution offered in evidence in the case.
The outcome prompted accused Webb to file an urgent motion to
acquit on the ground that the government’s failure to preserve
such vital evidence has resulted in the denial of his right to due
process.
ISSUE: Accused Webb’s motion to acquit present a threshold issue:
whether or not the Court should acquit him outright, given the
government’s failure to produce the semen specimen that the NBI
found on Carmela’s cadaver, thus depriving him of evidence that
would prove his innocence.
LAW ON EVIDENCE
Webb claims, citing Brady v. Maryland, that he is entitled to
outright acquittal on the ground of violation of his right to due
process given the State’s failure to produce on order of the Court
either by negligence or willful suppression the semen specimen
taken from Carmela.
HELD: The medical evidence clearly established that Carmela was
raped and, consistent with this, semen specimen was found in her.
It is true that Alfaro identified Webb in her testimony as Carmela’s
rapist and killer but serious questions had been raised about her
credibility. At the very least, there exists a possibility that Alfaro
had lied. On the other hand, the semen specimen taken from
Carmela cannot possibly lie. It cannot be coached or allured by a
promise of reward or financial support. If, on examination, the DNA
of the subject specimen does not belong to Webb, then he did not
rape Carmela. It is that simple. Thus, the Court would have bgeen
able to determine that Alfaro committed perjury in saying that he
did.
Still, Webb is not entitled to acquittal for the failure of the State to
produce the semen specimen, for one thing the ruling in Brady v.
Maryland that he cites has long been overtaken by the decision in
Arizona v. Youngblood, where the U.S, Supreme Court held that
due process does not require the State to preserve the semen
specimen although it might be useful to the accused unless the
latter is able to show bad faith on the part of the prosecution or the
police.
For, another, when Webb raised the DNA issue, the rule governing
DNA evidence did not yet exist, the country did not yet have the
technology for conducting the test, and no Philippine precedent
had as yet recognized its admissibility as evidence. Consequently,
the idea of keeping the specimen secure even after the trial court
rejected the motion for DNA testing did not come up. Indeed,
neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webb’s application for
DNA testing, he allowed the proceeding to move on when he had
on at least 2 occasions gone up to the CA or the SC to challenge
alleged arbitrary actions taken against him and the other accused.
They raised the DNA issue before the CA but merely as an error
committed by the trial court in rendering its decision in the case.
None of the accused filed a motion with the appeals court to have
the DNA test done pending adjudication of their appeal. This, even
when the SC had in the meantime passed the rules allowing such
test. Considering the accused’s lack of interest in having such test
done, the State cannot be deemed put on reasonable notice that it
would be required to produce the semen specimen at some future
time.
BRADY vs. MARYLAND (1963)
Maryland prosecuted Brady and a companion, Boblit, for murder.
Brady admitted being involved in the murder, but claimed Boblit
had done the actual killing. The prosecution had withheld a written
statement by Boblit confessing that he had committed the act of
killing by himself. The Maryland Court of Appeals had affirmed the
conviction and remanded the case for retrial only on the question
of punishment.
US SC HELD: Withholding exculpatory evidence violates due
process where the evidence is material either to guilt or
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punishment the court determined that, under Maryland state law,
the withheld evidence could not have exculpated the defendant
but was material to the level of punishment he would be given.
NOTE: Right now, the governing rule is Section 12 which mandates
preservation of DNA evidence in criminal cases for not less than the
period of time that any person is under trial for an offense or, in
case the accused is serving sentence, until such time as the accused
has served his sentence.
Webb’s main defense is ALIBI
He was able to present very credible evidence that he was at the US
at the time of the incident.
POSTULATE TO REMEMBER: Alibi, being a negative evidence, is an
inherently weak defense. It is always discredited by positive eye
witness identification.
Correlation: In Andal, etc., the SC always ruled that eyewitness
identification cannot overrule DNA evidence tending to prove that
the DNA samples did not match. (It’s a stubborn recitation of
something without reference to the facts. And my contention is you
have to look at the factual milieu of the case before you apply that
very stringent doctrine: that penetration is the only element of
rape.)
LEJANO vs. PEOPLE (2010)
To be acceptable, the positive identification must meet at least two
criteria:
First, the positive identification of the offender must come from a
credible witness. She is credible who can be trusted to tell the truth,
usually based on past experiences with her. Her word has, to one
who knows her, its weight in gold.
Second, the witness’ story of what she personally saw must be
believable, not inherently contrived. A witness who testifies about
something she never saw runs into inconsistencies and makes
bewildering claims.
Here, as already fully discussed, Alfaro and her testimony fail to
meet the above criteria.
Aftermath: Vizconde filed a Motion for Reconsideration of the Webb
acquittal. But this was denied by the SC because of double jeopardy.
He died on Feb.13 after suffering a series of heart attacks. He got his
wish to be buried next to spouse Estrellita and children Carmela and
Jennifer at Manial Memorial Park in Parañaque City. He died without
obtaining any measure of justice or peace of mind after the brutal
slaying of his family.
Webb was already 42 years old when he was released. He ran for
councilor for the City of Parañaque last May 2016. Vandolph won.
After the SC doctrinally immortalized her lies, Alfaro fled to Canada.
In March 2011, the Webb family filed a criminal case against her for
false testimony.
Fatetur facinus qui judicium fugit. He who flees from prosecution
confesses his guilt.
LAW ON EVIDENCE
August 3, 2016
RULE 130 – RULES OF ADMISSIBILITY OF DOCUMENTS
 Best Evidence Rule
 Original of a Document
 Procedure in Presentation of Secondary Proof
 Parol Evidence Rule
 Rule and Exceptions
 Statute of Frauds
 Compared with Parol Evidence Rule
Q: What is a document?
RULE 130, Section 2. Documentary evidence – Documents as
evidence consist of writings or any material containing letters,
words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents. (n)
I want to discuss Section 4 first before we proceed to discuss Section
3 because while Section 3 already talks about the Best Evidence Rule
and tells you a little bit about the original of a document, it does so
without first determining what an original document is. So to my
mind the key to understanding Section 3 would be a prior
knowledge of Section 4. So mag-start ta sa Section 4.
Section 4. Original of document.
(a) The original of the document is one the contents of
which are the subject of inquiry.
(b) When a document is in two or more copies executed
at or about the same time with identical contents, all
such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of
business, one being copied from another at or near
the time of the transaction, all the entries are
likewise equally regarded as originals. (3a)
Q: What is the original of a document?
 Layman would understand the word “original” as “first” or
“earliest” or as an adjective.
 Being law students, we know that the term “original” has a
different meaning. In layman’s understanding when you say
“original”, it’s an adjective. But we use the term “original” as a
noun.
 The term “original” under Rule 130 is used as a noun. Conversely,
in evidence, an original need not be the first or the earliest. The
minimum requirement is that it must be one the contents of
which is the subject of the inquiry.
Q: Why do you call it an “original”?
Quite simple because it is that source of evidence that from which a
secondary evidence is copied or is sourced. Take note that there is
no such thing as an original of an object.
 Section 3 and 4 (Rule 130) apply only to documents and not
objects.
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 For documents, when there is an original, there are rules for
substitution that would apply (See Sections 4 to 8, Rule 130).
 For objects, a proponent cannot present a copy of a gun or rock.
He must present the gun or rock itself. There is no substitutionary
evidence. But for documents, there are allowable instances where
you can present a mere copy of an original.
x x x (a) The original of the document is one the contents of which
are the subject of inquiry. x x x
 Do not view originality in terms of time of creation.Kung kanus-a
ba na, unsay nauna? Copy A or Copy B?
 Rather, you ought to determine the subject of inquiry in order for
you to determine which is the original.
SPOUSES ALFARO VS. CA (2007)
HELD: Original does not mean the first paper written, in contrast
to a copy or transcript made later. The original depends upon the
issue to be proved. It is immaterial whether that document was
written before or after another, was copied from another, or was
itself used to copy from, as long as its contents are the subject of
inquiry.
That is what the SC is saying, tan-awon nato ang subject of inquiry.
Dean Iñigo’s Example:
 Libel Cases
 Under Article 353 of the Revised Penal Code of the Philippines,
libel is defined as a public and malicious imputation of a crime,
or of a vice or defect, real or imaginary, or any act, omission,
condition, status or circumstance tending to discredit or cause
the dishonor or contempt of a natural or juridical person, or to
blacken the memory of one who is dead. Thus, the elements
of libel are: (a) imputation of a discreditable act or condition to
another; (b) publication of the imputation; (c) identity of the
person defamed; and, (d) existence of malice. (DAEZ VS. CA,
GR No. 47971, October 31 1990)
Gi-underline nako ang letter (b) “publication of the imputation”
because without the element of publicity, there is no crime. It has
to be published in the sense.
Article 355. Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same. The author or
editor of a book or pamphlet, or the editor or business
manager of a daily newspaper, magazine or serial publication,
shall be responsible for the defamations contained therein to
the same extent as if he were the author thereof.
Q: How is a news article published?
A reporter types a story, with or without a source, and submits the
same to his editor. The editor, after presumably doing some editing,
then publishes the story in the newspaper.
Question: In a prosecution for libel, which is considered the original?
The story as typed by the writer or the story as published in the
newspaper?
LAW ON EVIDENCE
You have to really look at it. In a crime of libel, what would be the
subject of inquiry?
According to Dean Iñigo, it depends. If the subject of inquiry is who
wrote the article, the original would be the story as prepared or
typed by the author. But if the issue to be established is whether
the published story is libelous or not the original is the story which
appeared in print.
You can just imagine pinaka-original sa tanan-tanan. How many
newspapers are in circulation that can be considered as the original
of the document in libel considering that the libelous article
becomes the subject of inquiry.
American Jurisprudence
 In a suit against the telegraph company for failure to transmit a
message, the original is the message submitted to the company
for transmission (Jones on Evidence, § 210 citing Conyers vs. Postal
Cable Co. 92 Ga. 619, 19 S.E. 253 Am. St. Rep. 100). If the suit is for
damages by the sender against the telegraph company because of
delay in transmission, the original would be the message as
received by the recipient (Jones on Evidence, §210 citing Collins vs.
Western Union, 145 Ala. 41241 So. 160, 8 ann. Cas. 268).
 But if the subject of inquiry is the inaccuracy of transmission of the
telegram, the originals would be both telegrams as sent and
received (Regalado, Vol. II, pp. 722-723, 2008 ed.)
It is not that difficult to determine kung unsa ang original if you
know the subject of inquiry.
xxx (b) When a document is in two or more copies executed at or
about the same time, with identical contents, all such copies are
equally regard as originals. x x x
 This is also known as the DUPLICATE ORIGINAL RULE.
Although there is no ruling of the SC specifically telling us that kini
na paragraph is called the Duplicate Original Rule. Manila Hotel(??)
would tell you that.
 Any such copy may be introduced in evidence without accounting
for the non-production of the other copies if naa kay duplicate or
triplicate, multiplicate original.
Examples:
 If a data entry clerk makes an entry of a transaction which is
repeated several times for the files of each department of the
Company, each document where the entry was made is an original
as long as the entries are made at or near the time of the
transaction and in the regular course of business.
 When a lawyer writes a pleading in two or more copies which are
executed at the same time, with identical contents, each
document is an original.
Try to recall how lawyers did it or imagine how lawyers did it in the
19kupong-kupongs compared to how we do it right now. . . Carbon
copy, typewriter, just very difficult. Because it was very impractical
to just type one pleading and after doing that you again type
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another pleading with the same contents, it would take you forever
to do that, okay lang na naay carbon copies. All of those carbon
copies are equally regarded as originals.
 Writings with identical contents made by printing,
mimeographing, lithography and other similar methods executed
at the same time are considered originals. Thus, each newspaper
sold in the newsstand is an original in itself.
Notarial Acts
2004 Rules on Notarial Practice
Rule VI, Sec. 2. Entries in the Notarial Register. – XXX
d) When the instrument or document is a contract, the notary
public shall keep an original copy thereof as part of his records
and enter in said records a brief description of the substance
thereof and shall give to each entry a consecutive number,
beginning with number one in each calendar year. He shall also
retain a duplicate original copy for the Clerk of Court.
So let’s say there is a contract dispute regarding the provisions in a
contract to sell. Remember that under the Rules on Notarial
Practice, what’s the minimum number of copies that should be
retained by a Notary Public who of course presides over the
notarization of the contract? Under letter (d) he has to keep an
original copy as part of his records. And there should be a duplicate
original copy for the Clerk of Court. Minimum of two.
But that is not what happens in practice because if you’re going to a
lawyer to have a contract drafted, of course at least two parties to a
contract. So each party to a contract would also deserve and require
a copy. So in addition to the two required by the Notarial Rules, for
every party who is available, you have to give a copy as well. In all
probability that would also be an original copy. So executed at or
about the same time with identical contents.
BPI VS. SMP (2009)
FACTS: MP undertook to supply polysterene products to
Clothespack in the amount of $118,500. As payment, Clothespack
issued postdated checks. The Sales Executive of SMP executed a
provisional receipt in triplicate with a notation “Materials belong
to SMP Inc. until your checks clear.” The checks bounced. In the
meantime, in a case filed by Far East Bank against Clothespack for
collection of a sum of money and Clothespack was subjected to a
writ of preliminary attachment, which included the polysterene
products sold to it by SMP. FEB secured a favorable judgment
which became final and executor which led to the execution
against Clothespak’s properties inclusive of the goods earlier
attached.
SMP filed an Affidavit of Third Party Claim over the polysterene
products. It anchors its claim of ownership over the goods by
virtue of the provisional receipt and presented it during trial. FEB
objected on the ground that SMP only presented the triplicate
copy without presenting the original.
HELD: The receipt presented by SMP is deemed as an original,
considering that the triplicate copy of the provisional receipt was
LAW ON EVIDENCE
executed at the same time as the other copies of the same receipt
involving the same transaction.
So no need to present the other copies, that is an original in itself.
Very simple case but it illustrates two important principles, one in
evidence and one in sales.
CAPITAL SHOES VS. TRAVELER KIDS (2014)
HELD: When carbon sheet are inserted between two or more
sheets of writing paper so that the writing of a contract upon
the outside sheet, including the signature of the party to be
charged thereby, produces a facsimile upon the sheets beneath,
such signature being thus reproduced by the same stroke of pen
which made the surface or exposed impression, all of the sheets
so written on are regarded as duplicate originals and either of
them may be introduced in evidence as such without accounting
for the nonproduction of the others.
So that’s what you need to remember, kung duplicate, triplicate
originals, multiplicate originals, only present one that would suffice.
No need to account for the other copies. That’s all that you need to
present.
 Where a seller usually prepared two (2) copies of invoices for a
particular transaction, giving once copy to a client and retaining
the other copy, Section 4(b) of Rule 130 is applicable.
American Jurisprudence
 Where a document is executed in duplicate or multiplicate form,
each one of the parts is primary evidence of the contents of the
document, and the other need not be produced. In such a case,
each is deemed an original. If several copies of a document are
made at the same time by inserting on each page a carbon paper
but only one of them is signed, the signed copy is the original and
the others are only copies.
That’s an important principle to remember especially so that it came
out in the bar examinations in 1997.
BAR QUESTION (1997)
 When JZE loaned a sum of money to Bangs, JZE typed a single copy
of the promissory note, which they both signed. JZE made two
photocopies of the promissory note, giving one copy to Bangs and
retaining the other copy, JZE entrusted the typewritten copy to his
counsel for safekeeping. The copy with JZE’s counsel was
destroyed when the law office was burned by Maja.
(a) In an action to collect the promissory note, which is
deemed to be the “original” copy? Among the copies that
existed, would it be the one kept by counsel? Would it be
the one that were mere photocopies?
(b) Can the photocopies in the hands of the parties be
considered “duplicate” originals?
Suggested Answers
(a) The original is the one typed and signed by both parties and
which was lost when the office of the counsel of JZE was
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burned. It is the one the contents of which is the subject of
inquiry.
(b) The photocopies are not duplicate originals. They cannot
be deemed as having been made at the same time with the
original because they were not signed unlike the original.
But what if this is what you do, you make one copy and then you
have it photocopied. Isa ra gyud imong gi-type, nagpa-photocopy
ka. Gipirmahan kadtong originally na gi-type nimo, gipirmahan pud
ang duha ka photocopy. Which one will be the original?
All of them will become original. So that’s the principle that you
need to remember. Originality therefore is not about form. Kung
unsa ba ang original, kung unsa ang photocopy. It depends now on
which of the documents have been authenticated by the signatures
of the parties. So if everything is signed, regardless of whether or
not photocopy lang tong uban na mga copies, well they’re all
originals because everything has been signed. That’s what we need
to remember.
x x x (c) When an entry is repeated in the regular course of
business, one being copied from another at or near the time of
the transaction, all the entries are likewise equally regarded as
originals. x x x
To be considered originals under this provision, certain
requirements must be complied with:
(a) there must be entries made and repeated in the regular
course of business;
(b) the entries must be made at or near the time of the
transaction.
Can you think what entries in any business that you know would be
regularly repeated, one copy from another at or near the time of the
transaction. Gisulat nimo, gikopya na pud nimo sa lain, all of those
entries are equally regarded as originals.
Example in Accounting: Difference between a journal and a ledger.
Everything that you do, supposed to be, it has an entry in that
document called a Journal. You write an entry to Journal but that is
the same entry that you’re going to transfer to a Ledger. So that’s
the meaning here of an entry repeated in the regular course of
business, one being copied from another, at or near the time of the
transaction, all entries are likewise equally regarded as the originals.
Example in Nursing: Let’s say the subject of inquiry is what the
doctor prescribed to a patient who died because he was allergic to
the medication, you have three originals. (1) The instructions of the
doctor (2) the medication tickets and (3) the patient’s record. So
repeated in the regular course of business, one being copied from
another, at or near the time of the transaction.
RAMOS VS. CA (1991)
FACTS: Ramos, the bank manager, and several were prosecuted
for Estafa, their modus operandi was that the depositors would
issue worthless checks and Ramos would allow the encashment
of the same or the drawing against uncleared check deposits
(DAUD).
LAW ON EVIDENCE
Evidence presented by the prosecution included audit
worksheets, bank ledgers and Xerox copies of the dishonored
checks and check return slip.
Ramos objected on the ground that these documents were not
originals.
HELD: Entries in the account ledgers of the depositors which are
on file on the bank may be regarded as originals. When an entry
is repeated in the regular course of business, one being copied
from another at or near the time of the transaction, all the
entries are likewise equally regarded as originals.
BEST EVIDENCE RULE
Section 3.Original document must be produced; exceptions –
When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document
itself, except in the following cases
(a) When the original has been lost or destroyed, or
cannot be produced in court, without bad faith on the
part of the offeror;
Take note that in the 1994 Bar examinations, a weird question was
asked. Why is the best evidence rule considered as a misnomer?
mali na pagkatawag.
Best Evidence Rule: A Misnomer (1994 Bar)
The term “Best Evidence” has been a source of misconception. It has
often been misunderstood and given a meaning it does not deserve.
Despite the word “best”, the rule does not proclaim itself as the
highest and most reliable evidence in the hierarchy of evidence. The
term “best” has nothing to do with the degree of its probative value
in relation to other types of evidence. It is not intended to mean the
“most superior” evidence. More accurately, it is the “original
document” rule, or the “primary evidence” rule.
Q: Why do we need to present the original? Why can we not present
mere duplicate copies?
RATIONALE: The underlying purpose of the best evidence rule is the
prevention of fraud or mistake in the proof of the contents of a
writing. This Rule is adopted for the prevention of fraud and is
declared to be essential to the pure administration of justice.
(Moran, Vol. 5, p. 12) If a party is in possession of such evidence and
withholds it, the presumption naturally arises that the better
evidence is withheld for fraudulent purposes. (Francisco, Rules of
Court, Vol. VII, Part I, pp. 121, 122)
LEE VS. PEOPLE (2004)
HELD: Before the onset of liberal rules of discovery, and modern
techniques of electronic copying, the best evidence rule was
designed to guard against incomplete or fraudulent proof and
the introduction of altered copies. But the modern justification
for the rule has expanded from the prevention of fraud to a
recognition that writings occupy a central position in the law.
The importance of the precise terms of writings in the world of
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legal relations, the fallibility of the human memory as reliable
evidence of the terms, and the hazards of inaccurate or
incomplete duplicates are the concerns addressed by the best
evidence rule.
Take note of the case LEE VS. PEOPLE (2004), it’s a very important
case.
Q: When is BER APPLICABLE?
 It’s only applicable when the subject of inquiry must be the
contents of a document.
 The rule applies only when the purpose is to establish the terms of
a writing. When the evidence introduced concerns some external
fact about a writing like its existence, execution or delivery
without reference to its terms, the rule cannot be invoked.
Q: When would it be INAPPLICABLE?
 We have that from the case of LEE VS. PEOPLE (2004)lang
gihapon.The BER does not apply to:
1. Proof of facts collateral to the issues such as the nature,
appearance or condition of physical objects; or
2. Evidence relating to a matter which does not come from
the foundation of the cause of action or defense; or
3. When a party uses a document to prove the existence of
an independent fact, as to which the writing is merely
collated or incidental.
1. Proof of facts collateral to the issues such as the nature,
appearance or condition of physical objects; or
To simplify everything, the BER simply does not apply to object
evidence. It’s as simple as that, kanang no. 1. Why am I emphasizing
that? It’s been asked in the bar exam as well in 1994.
BAR QUESTION (1994)
At the trial of Ace for violation of the Dangerous Drugs Act, the
prosecution offers in evidence a photocopy of the marked P100.00
bills in the “buy-bust” operation. Ace objects to the introduction of
the photocopy on the ground that the Best Evidence Rule prohibits
the introduction of secondary evidence in lieu of the original.
(a) Is the photocopy object or documentary evidence?
(b) Is the photocopy admissible in evidence?
How do you argue that it’s object or documentary evidence. You go
by definition, that’s the best thing to do it. But you need to
remember is what would be the subject of inquiry? If the subject of
inquiry would be the contents of a document, then you’re talking
about documentary evidence. But in a buy-bust operation, ang
marked money, are you so concerned what is written in the marked
money? Simply marked money is an object addressed to the senses
of the court. Of course, marked money here is an object. We’re not
talking about terms of a writing.
Answers:
(a) The photocopy is object evidence. It is not documentary
evidence because it is not offered as proof of its contents.
LAW ON EVIDENCE
(b) Yes, the photocopy is admissible in evidence because the
best evidence rule does not apply to object or real
evidence.
Q: What is the COLLATERAL FACTS RULE?
 A document or writing which is merely “collateral” to the issue
involved in the case on trial need not be proved. Where the
purpose of presenting a document is not to prove its contents, but
merely to give coherence to, or to make intelligible the testimony
of a witness regarding a fact contemporaneous to the writing, the
original of the document need not be presented.
The subject of inquiry therefore does not relate to what is stated in
the document, in the writing. What is the subject of inquiry?
Something extraneous to the writing which a witness may use to
refer to these extraneous facts.
Relate this with:
Rule 128, Section 4.Relevancy; collateral matters – Evidence
must have such a relation to the fact in issue as to induce belief
in its existence or non-existence. Evidence on collateral matters
shall not be allowed, except when it tends in any reasonable
degree to establish the probability or improbability of the fact in
issue.
It may not be the fact in issue but it has relevance because it tends
to establish the probability or improbability of the fact in issue. It’s a
collateral matter, it’s circumstantial to the fact in issue. It’s not
direct proof but it is relevant nonetheless.
Case Study: Poison Poisoning Poison
 Facts: Gerald was prosecuted for murdering Matteo. The
prosecution alleged that he poisoned Matteo’s drink while they
were dining at the restaurant on October 31, 2015, discussing how
they are going further to corrupt the virtues of otherwise innocent
ladies. Gerald denies being at the said restaurant on the said date
and thus, he could not have been the one who poisoned Matteo.
 The prosecution presented as a witness Piolo who brought a
photocopy of a credit card imprint with Gerald’s name and
signature on it. The photocopy also contains the date and time
when the credit card was allegedly swiped.
 Gerald questioned the admissibility of the photocopy because it
was not original and is therefore violative of the Best Evidence
Rule.
Resolution:
Q: What is the fact in issue here?
 Whether or not Gerald killed Matteo.
Q: Under Rule 128, Section 4, does the photocopy have such a
relation to the fact in issue as to induce belief in its existence or non-
existence?
 No. The receipt does not directly prove whether Gerald killed
Matteo.
Q: But is it collaterally relevant?
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 Yes. The photocopy of the credit card imprint reasonably tends to
establish the probability or improbability of the fact in issue. The
credit card imprint places Gerald at the scene of the crime which is
contrary to his alibi. If he was at the scene of the crime, it would
not be improbable for him to have the opportunity to poison
Matteo.
Q: How do we now apply that to the Collateral Facts Rule?
 The photocopy of the credit card imprint is merely “collateral” to
the issue involved in the case. It need not be proved. The purpose
of presenting it is not to prove its contents, but merely to give
coherence to, or to make intelligible the testimony of Piolo
regarding a fact contemporaneous to the writing, i.e., that Gerald
was at the restaurant at the time of the alleged poisoning. Thus,
the original of the imprint need not be presented.
Q: If you apply strictly the BER, would Piolo be able to use the
photocopy of the credit card imprint or receipt?
 No, it’s not original. You present the original mismo.
Q: But is the fact in issue here the contents of the credit card print
out?
 No, it’s not the fact in issue in the case but it can still be used in
the case, it being a mere collateral fact under the Collateral Facts
Rule. That’s also the way to explain kung unsa tong nakabutang na
“collateral” in the case of LEE VS. PEOPLE (2004).
2. Evidence relating to a matter which does not come from
the foundation of the cause of action or defense; or
3. When a party uses a document to prove the existence of an
independent fact, as to which the writing is merely collated or
incidental.
It’s a document but is it really the foundation of your cause of action
or your defense? No, it can be presented despite the fact that it’s
not original.
Like a party uses a document to prove the existence of an
independent fact, a contemporaneous fact, a collateral fact, as to
which the writing is merely collated or incidental, the BER does not
apply.
Q: When is the document merely collaterally in issue?
 When the documents is involved in the inquiry but the document
is only collaterally in issue, the best evidence rule does not apply.
A document is collaterally in issue when the purpose of
introducing the document is not to establish its terms but to show
facts that have no reference to its contents like its existence,
condition, execution or delivery.
Is the BER applicable to deficiency assessment of taxes? Or would
photocopies be okay to determine whether or not naa ba kay
deficiency taxes? NO.
CIR VS. HANTEX TRADING (2005)
HELD: The best evidence obtainable under Section 16 of the
1977 NIRC, as amended, does not include mere photocopies of
LAW ON EVIDENCE
records/documents. The petitioner, in making a preliminary and
final tax deficiency assessment against a taxpayer, cannot anchor
the said assessment on mere machine copies of
records/documents. Indeed, in United States vs. Davey, the U.S.
nd
Court of Appeals (2 Circuit) ruled that where the accuracy of a
taxpayer’s return is being checked, the government is entitled to
use the original records rather than be forced to accept
purported copies which present the risk of error or tampering.
In order to determine kung naa bay deficiency taxes na dapat
bayaran ang usa ka taxpayer, there has to be original records
presented. The BIR should rely on original records than be forced to
accept purported copies which present the risk of errors or
tampering. So medyo strict ta gamay when we talk about the tax
collection efforts of the government.
Take note because this is a rule of admissibility, it can be waived.
Q: How can it be waived?
 The best evidence rule may be waived if not raised in the trial or
for failure of the other party to object.
 All rules of admissibility can be waived. So if you do not know the
rule to apply in order for you to properly object, you therefore
waive it.
HEIRS OF DELA CRUZ VS. CA (1998)
HELD: If the party against whom the secondary evidence is
offered does not object thereto when the same is offered in
evidence, the secondary evidence becomes primary evidence, its
probative value must still meet the various tests by which its
reliability is to be determined. Its admissibility should not be
confused with its probative value.
You fail to object to the introduction of a photocopy but the court
still does not believe the contents of the photocopy and would have
wanted the original to be presented. So it’s the court’s call, the court
will determine whether this evidence is believable or not. It totally
disregarded (?) or it might even put its entire decision on that
secondary evidence. As we will see later on in the case of ESTRADA
VS. DESIERTO (2001), we’ll discuss that later on.
The law requires that you have to present the original, that’s the
general rule. But it’s not available, you cannot find it anymore, you
don’t know where it is. Does it mean the end of the world for you if
you are the party litigant? Of course no.
Q: But the original is unavailable?
 The proponent or party must present the original document and
not a mere copy thereof. So long as the original is available, no
other evidence can be substituted for the original.
Q: What should be done if the original cannot be presented? When
will the exceptions apply?
 The party must find a legal justification for the failure to present
the original and then present secondary evidence. That’s the only
time that you can present a mere copy.
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So for purposes of simplicity and easier understanding, allow me to
restate the BER.
Restatement of BER
 The original of a document must be presented unless the
proponent can justify its unavailability in the manner provided in
the Rules. If the proponent can justify, copy can be presented.
 THE PROPONENT HAS TO LAY DOWN THE BASIS FOR THE
ADMISSION OF THE COPY IN LIEU OF THE ORIGINAL.
Q: So what would be the justifications for the unavailability of the
original that would allow you to present secondary or
substitutionary evidence?
Allowed Justifications:
 When the original has been lost or destroyed, or cannot be
produce in court, without bad faith on the part of the offeror.
 When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
product it after reasonable notice;
 When the original consists of numerous accounts or other
documents, which cannot be examine in court without great loss
of time and the fact sought to be established from them is only the
general result of the whole; and
 When the original is a public record in the custody of a public
officer or is recorded in a public office.
We go to the exceptions one by one.
x x x (a) When the original has been lost or destroyed, or cannot be
produce in court, without bad faith on the part of the offeror. x x x
Loss, Destruction and Unavailability
Does the Rules of Court define loss? It does not. And so we have (?)
to the only definition of loss that we know and that is from Article
1189 of the Civil Code. And you will see that it applies also to
remedial law.
Define Loss
 It is understood that the thing is lost when it perishes, or goes out
of commerce, or disappears in such a way that its existence is
unknown or it cannot be recovered. (Article 1189, Civil Code)
That’s the only definition of loss under the law and that is also the
way we should define under the rules. Wala may lain.
What about destruction?
 Destruction means the obliteration of a document such as by
tearing, shredding or burning. It can also include acts of alteration
that would render the contents of a document unintelligible for
the purpose it is offered in evidence.
This definition I got from Succession. So there’s an original of a
document, that’s the only original that you have, the rest of them
you have photocopies.
 Unavailability may be PHYSICAL or LEGAL.
LAW ON EVIDENCE
1) Physical unavailability may refer to cases where the
original consists of inscription on immovable objects or
monuments and even gravestones.
Di ba I explained to you already, remember that bato with a
negotiable instrument in it? It doesn’t matter what the material is. It
could be engraved in stone or written on human skin that would be
considered a document provided the subject of inquiry would be
contents of a document. If it is offered as proof of its contents then
it’s a document. So what if what you want to present would be an
inscription on a building? You cannot bring it in court so you need to
resort to secondary evidence. What type of secondary evidence?
You may (?) or take a picture. Even if it is a photograph, the subject
of inquiry would be the contents of the photograph, that’s a
documentary evidence.
2) Legal unavailability may refer to instances where the
document is beyond the territorial or coercive jurisdiction
of the court.
Kung beyond siya, dili ma-subpoena sa court. The court cannot
enforce without its territorial jurisdiction an obligation on a party to
produce the original of a document. You cannot compel it, wala tay
mahimo, so it is legally unavailable to a party.
ONG CHING PO VS. CA (1994)
HELD: Secondary evidence is admissible when the original
document were actually lost or destroyed. But prior to the
introduction of such secondary evidence, the proponent must
establish the former existence of the document. The correct
order of proof is as follows:
1. EXISTENCE;
2. EXECUTION;
3. LOSS;
4. CONTENTS.
 This order may be changed if necessary in the discretion of the
court (De Vera vs. Aguilar, 218 SCRA 602 [1993])
 This is the process of LAYING THE BASIS.
Remember that. I don’t know why I keep on asking this in my
examinations, ONG CHING PO VS. CA (1994), almost every year I do,
and yet students still find it hard to remember these four words, (1)
Existence (2) Execution (3) Loss (4) Contents.
Q: How do you now lay the basis for the introduction of secondary
or substitutionary evidence?
(1) You prove the existence of the document, that it is not a
product of fiction. It really exists.
(2) That it was executed by the parties charged with that
document.
(3) That it is lost, destroyed or otherwise unavailable.
(4) You now present what should be the contents of that
original document by presenting secondary or
substitutionary evidence.
Later on we will distinguish between Laying the Basis, Laying the
Foundation, Laying the Predicate. There are three “laying” things in
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evidence. I keep on asking that in my examinations, I still don’t know
why you don’t get it.
When you are able to lay the basis that’s the time that you apply
Section 5.
Section 5. When original document is unavailable.- When the
original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its existence and the
cause of its unavailability without bad faith on his part, may prove
its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the order
stated.
That’s the secondary evidence that is allowed. So nawala imong
original, but you are able to lay the basis to present secondary
evidence.
Q: What’s your secondary evidence?
1. A copy of the original. It could be a photocopy.
2. A recital of its contents in some authentic document.
Q: What’s an example of an authentic document that would recite
the contents of the supposed original? How do you plead actionable
documents?
It’s either you attach it or you copy the contents of the actionable
document in your pleading. You plead it. So that’s an example.
3. By the testimony of witnesses.
That’s the third type of secondary evidence. And so a witness will
testify that as far as his memory goes, the contents of the
document.
So mao na ang tulo ka secondary evidence in loss, destruction and
unavailability of the original document.
CITIBANK VS. TEODORO (2003)
HELD: Production of secondary evidence requires compliance
with the following:
1) The offeror must prove the execution or existence of the
original;
2) The offeror must show the cause of its unavailability; and
3) The offeror must show that the unavailability was without
bad faith on his part.
So wala siyay sala sa pagkawala sa original. Wala niya gitaguan ang
original. That would show that there is no bad faith on his part.
DELA CRUZ VS. CA (1998)
HELD: It is a well-settled principle that before secondary evidence
can be presented, all duplicated and/or counterpart must be
accounted for, and no excuse for the non-production of the
original document itself can be regarded as established until all
its parts are unavailable.
It’s very important as well. Remember this because somehow you
forget about it.
LAW ON EVIDENCE
Example: There’s a contract of sale prepared in quadruplicate. One
with the notary public, one with the Clerk of Court, one each for the
buyer and seller. You file a case to enforce the provisions of the
contract of sale, let’s say you are the seller, wala pa ka nabayran. So
your contract of sale is actually an actionable document. Problem is
you lost your copy. So what are you going to do? Do you
immediately present secondary evidence? No, you have to account
for the other originals. Find out what happened to the copy kept by
the Clerk of Court, kept by the lawyer and kept by the buyer.
Account for them first before you’re able to present secondary
evidence. That’s the only time because the court may dispense with
the presentation of secondary evidence if it can subpoena the copies
that are found elsewhere. No need to present secondary evidence.
That’s the important lesson in the case of DELA CRUZ VS. CA (1998).
Remember that please, again that’s one thing that you seem to
forget at the end of the semester.
xxx (b) When the original is in the custody or under the control of
the party against whom the evidence is offered, and the latter fails
to product it after reasonable notice; xxx
Original is in the custody or control of the adverse party
 The mere fact that the original document is in the custody or
under the control of the adverse party does not ipso facto
authorize the introduction of secondary evidence to prove its
contents. Although if you’re the plaintiff and the document is in
the possession of the defendant, you would find that the
defendant would be reluctant to supply you with documents so
that you can sue him.
 The part who seeks to present secondary evidence must lay the
foundation for its introduction, subject to the following
REQUISITES:
1. That the original exists;
2. That said document is under the custody or control of the
adverse party;
3. That the proponent of secondary evidence has given the
adverse party reasonable notice to produce the original
document; and
Q: What’s an example of reasonable notice?
You send him a letter requesting for a copy of the document.
4. That the adverse party failed to produce the original
document despite the reasonable notice.
Each exception naa na siyay separate na provision what to do in
order to present secondary evidence.
So for the second exception, apply Section 6. After compliance,
apply Section 6.
Section 6. When original document is in adverse party’s custody
or control. XXX If after such notice and after satisfactory proof of
its existence, he fails to produce the document, secondary
evidence may be presented as in the case of its loss.
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Q: What does this mean when Section 6 says “secondary evidence
may be presented as in the case of its loss.”?
 It simply means that you APPLY Section 5. Section 5 tells you what
would be the secondary evidence. Secondary evidence may be
introduced as follows: by a copy, or by a recital of its contents in
some authentic document, or by the testimony of witnesses in the
order stated.
So that’s the meaning of Section 6, you go back to Section 5.
Q: What is the effect of the refusal or failure of the adverse party to
produce the original is justified?
 It does not give rise to the presumption of suppression of
evidence, or create an unfavorable interference against him. It
only authorizes the presentation of secondary evidence.
(Regalado, Vol. II, p. 727, 2008 ed.)
Remember once again that when we go to Rule 131, we will
encounter this “adverse presumption of suppression of evidence” –
that evidence if it is suppressed would be adverse if produced. So
that does not apply under this exception.
x x x (c) When the original consists of numerous accounts or other
documents, which cannot be examine in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole; x x x
Original consists of numerous accounts
 Secondary evidence may be presented if:
 The original consists of numerous accounts or other
documents.
 A good example of this would be books of accounts,
receipts and similar documents;
 These documents 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.
 This means that the purpose for the introduction of such
evidence is not to examine all the documents or pages of
documents but merely to give the judge a summary from
which he may draw a logical inference as to the probability
or improbability of the fact in issue.
Money claims, where the money claims would be the product of
how many years of transactions between one party against another.
Example: Your client is a distributorship, in charge of distributing the
product of Chippy all throughout the Mindanao region. So how
many transactions or deliveries you have of Chippy? How much ana
ang nabayran na? How much ana ang wala pa nabayran? Let’s say
the distributorship agreement with Jack and Jill would be five years.
Imagine the amount of documents then. So in that case I ask a
Certified Public Accountant.
 Read the case of ATLAS VS. COMMISSIONER OF INTERNAL
REVENUE GR No. 141104 & 148763, June 8, 2007
 Requirements to comply with when the original consists in
numerous accounts
LAW ON EVIDENCE
You have to read this case, it’s very important.
Q: What are the requirements to comply with when the original
consists in numerous account? How do you make your life easier
when your documents are voluminous but what is required only is
the general result of the whole?
Summary of ATLAS VS.CIR (2007)
1. The party who desires to introduce as evidence such
voluminous documents must, after motion and approval by
the Court, present:
a) a SUMMARY containing, among others, a chronological
listing of the numbers, dates and amounts covered by
the invoices or receipts; and
b) a CERTIFICATION of an independent Certified Public
Accountant attesting to the correctness of the contents
of the summary after making an examination, evaluation
and audit of the voluminous receipts and invoices. The
name of the accountant or partner of the firm in charge
must be stated in the motion so that he/she can be
commissioned by the Court to conduct the audit and,
thereafter, testify in Court relative to such summary and
certification pursuant to Rule 32 (Trial by Commissioner)
of the Rules of Court.
2. The method of individual presentation of each and every
receipt, invoice or account for making, identification and
comparison with the originals thereof need not be done
before the Court or Clerk of Court anymore. It is enough that
the receipts, invoices, vouchers or other documents covering
the said accounts or payments to be introduced in evidence
must be pre-marked by the party concerned and submitted to
the Court in order to be made accessible to the adverse party
who desires to check and verify the correctness of the
summary and certification. Likewise, the originals of the
voluminous receipts, invoices or accounts must be ready for
verification and comparison in case doubt on the authenticity
thereof is raised.
All you need to do is to ensure that the documents are available for
inspection by the other party. How is that complied with? Give him a
copy of your voluminous documents.
Read also
 CITIBANK, N.A. VS. SABENIANO
(GR No. 156132, October 12, 2006)
 COMPANIA MARITIMA VS. ALLIED FREE WORKERS UNION, ET.AL.
GR No. L-28999, May 24, 1977
CITIBANK, N.A. VS. SABENIANO (2006)
FACTS: Respondent filed a Complaint against petitioners for
"Accounting, Sum of Money and Damages." She claimed to have
substantial deposits and money market placements with the
petitioners, the proceeds of which were supposedly deposited
automatically and directly to respondent's accounts with petitioner
Citibank. Respondent alleged that petitioners refused to return her
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deposits and the proceeds of her money market placements
despite her repeated demands.
Petitioners alleged that the respondent obtained several loans
from petitioner Citibank, for which she executed Promissory Notes
(PNs). The proceeds of the loans were paid to respondent in
Manager Checks (MCs), with the respondent specifically named as
payee. When respondent failed to pay her loans despite repeated
demands by petitioner Citibank, the latter exercised its right to off-
set or compensate respondent's outstanding loans with her
deposits and money market placements.
Respondent alleged that she received these checks, not as
proceeds of loans, but as payment of the principal amounts and/or
interests from her money market placements with petitioner
Citibank. On the other hand, petitioners submitted the
photocopies and microfilm copies of the PNs, MCs, and exchange
of letters between petitioner Citibank and respondent, as well as
the letters sent by other people working for respondent to
establish the existence of respondent's loans. CA dismissed the
documentary evidence submitted by petitioners based on the best
evidence rule.
HELD: The SC disagrees with the CA. Rule 130, Section 5 of the
revised Rules of Court is applicable in this case.
The terms or contents of these documents were never the point of
contention in the Petition at bar.The execution or existence of the
original copies of the documents was established through the
testimonies of witnesses, such as Mr. Tan (bank manager), before
whom most of the documents were personally executed by
respondent. The original PNs also went through the whole loan
booking system of petitioner Citibank.
The original MCs were subsequently turned over to the Control
and Investigation Division of petitioner Citibank. The original
documents in this case, such as the MCs and letters, were
destroyed and, thus, unavailable for presentation before the RTC,
when a fire broke out on the 7th floor of the office building of
petitioner Citibank. There is no showing that the fire was
intentionally set. The fire destroyed relevant documents, not just
of the present case, but also of other cases, since the 7 th floor
housed the Control and Investigation Division, in charge of keeping
the necessary documents for cases in which petitioner Citibank
was involved.The foregoing would have been sufficient to allow
the presentation of photocopies or microfilm copies of the PNs,
MCs, and letters by the petitioners as secondary evidence to
establish the existence of respondent's loans, as an exception to
the best evidence rule.
COMPANIA MARITIMA VS.
ALLIED FREE WORKERS UNION, ET.AL. (1977)
FACTS: Compañia Maritima and the Allied Free Workers Union
entered into a written contract whereby the union agreed to
perform arrastre and stevedoring work for the consignees’ vessels
at Iligan City. The shippers and consignees paid the union for the
arrastre work. They refused to pay for the stevedoring service.
They claimed that the shipowner was the one obligated to pay for
the stevedoring service because the bill of lading provided that the
unloading of the cargo was at the shipowner's expense. A number
of court cases then ensued.
LAW ON EVIDENCE
The consignees’ branch manager hired accountants to ascertain
the losses suffered by the company. Their reports show that the
total damages amounted to P349,245.37. The trial court awarded
actual damages, amounting to P450,000 on the basis of the
auditor's reports. 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", hence, the original writings need not be
produced.
HELD: 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. 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 company, of
the summary may be tested on cross-examination. 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".
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. The
accountants' reports reveal their lack of probative value. The best
evidence on the cost of the damages to the company by reason of
the depreciation of items of equipment would have been the sales
invoices instead of the oral testimony of Teves. He did not produce
the sales invoices.
Rationale for the Exception
 Judicial ECONOMY, EXPEDIENCE and DISPATCH. We do not waste
the court’s time anymore, it’s easier for the parties, it’s faster for
the parties.
And you have this exception:
x x x (d) When the original is a public record in the custody of a
public officer or is recorded in a public office; x x x
Original Document is a Public Record
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.
You go to NSO, you need to get a copy of your birth certificate. Are
you given your actual birth certificate when you were born? Of
course not, only a certified copy thereof.
You go to the ROD, you need a copy of the duplicate original copy
kept by the ROD. Why? Kay nawala imong Owner’s Duplicate
Certificate of Title (ODCT). You need to have it reconstituted but it’s
still there, the ODCT. Pwede ba to na imohang kwaon kay mao
nalang to imong original so that you can file an action for
reconstitution of lost title? No, what they will do is to give you a
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photocopy and certify it as true and correct so that you will be
issued an ODCT again.
Rationale
 The reason for this exception can actually be found in Rule 132,
Section 26. It’s actually predicated on a rule
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. (27a)
 Thus, where the original document is a public record, the
secondary evidence allowed is a certified true copy issued by the
public officer in custody thereof.
Q: Is there any other exception, it’s a public document other than
certified true copy issued by the public officer?
Actually there’s one more according to Herrera, although there’s no
case saying about it.
 Another secondary evidence of a public record: Official
publication (Herrera, Vol. V, p. 203, 1999 ed.)
An official publication of that public record would do. So maybe if
it appears in the Official Gazette, then why not.
A Non-codal Exception to the BER
ESTRADA VS. DESIERTO (GR Nos. 146710-15, April 3, 2001)
ESTRADA VS. DESIERTO (2001)
FACTS: In the wake of EDSA II, President Estrada was constrained
to leave Malacañang, VP Arroyo took her oath as the next
President. Estrada contends that he is merely a president on
leave. Part of the evidence considered by the Supreme Court in
declaring that President Estrada has in fact resigned were
newspaper accounts of diary of then Executive Secretary
Edgardo Angara.
According to reports of the Angara diary: Angara asked Senator
Pimental to advise Estrada to consider the option of dignified
exit or resignation. Estrada did not disagree but listened
intently. At 9:30pm, Senator Pimental repeated to Estrada the
urgency of making a graceful and dignified exit. He gave the
proposal a sweetener by saying that petitioner would be allowed
to go abroad with enough funds to support him and his family.
Estrada expressed no objection to the suggestion for a graceful
and dignified exit but said he would never leave the country.
Due to this, the SC declared Estrada to have resigned as
President.
In the Motion for Reconsideration, Estrada points out that the
admission into evidence of mere newspaper accounts of the
Angara diary violated the Best Evidence Rule as the original itself
was not presented.
LAW ON EVIDENCE
HELD: It is true that the Court relied not upon the original but
only copy of the Angara Diary as published in the Philippine Daily
Inquirer on February 4-6, 2001. In doing so, the Court, did not,
however, violate the best evidence rule. Wigmore, in his book
on evidence, states that: Production of the original may be
dispensed with, in the trial court’s discretion, whenever in the
case in hand the opponent does not bona fide dispute the
contents of the document and no other useful purpose will be
served by requiring production.
One thing that I need to tell you as early as now. A newspaper is
hearsay. Do you know what hearsay evidence is? Hearsay is
evidence that does not come from your personal knowledge, not
based on your own perception. It was something that was merely
told to you.
Newspapers would be double or triple hearsay. Double hearsay na
siya. Why? If I would be a writer, I get information from my source, I
write it down and then it’s printed. That’s three layers of hearsay
there, double hearsay. So it’s really second or third hand
information that you read from the newspaper. So when you
present the newspaper in evidence, what really happens is you’re
merely recounting what you read from something that was merely
told to the writer by someone else. That’s the reason why it’s
chismis, it’s hearsay.
So that’s what was used by the SC, newspaper accounts of the
Angara diary. Double hearsay, triple hearsay even.
That’s the justification of the SC. Is it lawful? No, we have our own
BER with various well-defined exceptions. But the SC has to rule
according to the dictates of the times. Unsa man,they will rule that
we violated the BER and therefore mubalik si President Estrada, the
SC cannot do that. And so this is what happened, even the SC admits
to the fact that its ruling in Estrada vs. Desierto actually breaks a lot
of procedural law barriers including hearsay, admissions, BER.
August 8, 2016
BEST EVIDENCE RULE FOR ELECTRONIC EVIDENCE
Rule 4 - BEST EVIDENCE RULE
Section 1. Original of an electronic document. – An electronic
document shall be regarded as the equivalent of an original
document under the Best Evidence Rule if it is a printout or output
readable by sight or other means, shown to reflect the data
accurately.
Section 2. Copies as equivalent of the originals. – When a document
is in two or more copies executed at or about the same time with
identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by
mechanical or electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which accurately reproduces the
original, such copies or duplicates shall be regarded as the
equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be
admissible to the same extent as the original if:
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(a) a genuine question is raised as to the authenticity of
the original; or
(b) in the circumstances it would be unjust or inequitable
to admit the copy in lieu of the original.
Atty. JZE: Now take note that somehow it borrows from the
provisions of the law regarding best evidence rule and the original
document with certain modifications that follows certain
phraseology of the earlier E-commerce act. What we take out from
the best evidence for electronic documents is the fact even if a
document is electronic, if you remember, their nature is very easily
reproduce. You can reproduce it by printing it but there would still be
some rules to follow. So the best evidence rule also applies therefore
to electronic documents.
Just remember the codal provision, wala pa mn ni gipangutana sa
bar exam, just make sure that your familiar with the provision and
also rememer that there is a best evidence rule for eletronic
evidence.
NAPOCOR vs. CODILLA, G.R. No. 170491, April 4, 2007
Issue: whether or not the photocopies are indeed electronic
documents as contemplated in RA 8792 or the IRR of the Electronic
Commerce Act, as well as the Rules on Electronic Evidence.
Held: NO.
What differentiates an electronic document from a paper-based
document is the manner by which the information is processed;
clearly, the information contained in an electronic document is
received, recorded, transmitted, stored, processed, retrieved or
produced electronically.
A perusal of the information contained in the photocopies
submitted by petitioner will reveal that not all of the contents
therein, such as the signatures of the persons who purportedly
signed the documents, may be recorded or produced electronically.
By no stretch of the imagination can a person’s signature affixed
manually be considered as information electronically received,
recorded, transmitted, stored, processed, retrieved or produced.
Hence, the argument of petitioner that since these paper printouts
were produced through an electronic process, then these
photocopies are electronic documents as defined in the Rules on
Electronic Evidence is obviously an erroneous, if not preposterous,
interpretation of the law.
When the original document has been lost or destroyed, or cannot
be produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital of its contents
in some authentic document, or by the testimony of witnesses in the
order stated. However, in the case at bar, though petitioner insisted
in offering the photocopies as documentary evidence, it failed to
establish that such offer was made in accordance with the
exceptions.
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

MCC INDUSTRIAL V. SSANGYONG G.R. 170633, OCT. 17, 2007
The terms "electronic data message" and "electronic document," as
defined under the Electronic Commerce Act of 2000, do not include a
facsimile transmission. Accordingly, a facsimile transmission cannot
be considered as electronic evidence. It is not the functional
equivalent of an original under the Best Evidence Rule and is not
admissible as electronic evidence.
MCC INDUSTRIAL V. SSANGYONG G.R. 170633, OCT. 17, 2007
ISSUE: Why a facsimile transmission cannot be considered as
electronic evidence.
Atty. JZE: There is a presumption under Rule 131 regarding the
adverse presumption of suppression of evidence that if you do not
present evidence that is within your power to present, it might be
adverse to you cause of action or defense. That is not applicable in
section 8. But by way of cross reference...
RULE 27, Section 1. Motion for production or inspection; order. —
Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books,
accounts, letters, XXX, not privileged, which constitute or contain
evidence material to any matter involved in the action and which are
in his possession, custody or control, XXX. (1a)

The definitions under the Electronic Commerce Act of 2000, its IRR COMPARISON
and the Rules on Electronic Evidence, at first glance, convey the
impression that facsimile transmissions are electronic data messages RULE 130, SECTION 8 RULE 27, SECTION 1
or electronic documents because they are sent by electronic means. Procured by mere notice to The production of document is in
The expanded definition of an "electronic data message" under the the adverse party, which is a the nature of a mode of discovery
IRR, "xxx [is] not limited to, electronic data interchange (EDI), condition precedent for the and can be sought only by the
electronic mail, telegram, telex or telecopy." subsequent introduction of proper motion in the trial court
secondary evidence by the and is permitted only upon good
However, Congress deleted the phrase, "but not limited to, proponent. cause shown.
electronic data interchange (EDI), electronic mail, telegram, telex or Presupposes that the Contemplates a situation wherein
telecopy," and replaced the term "data message" (as found in the document to be produced is the document is either assumed
UNCITRAL Model Law ) with "electronic data message." intended as evidence for the to be favorable to the party in
proponent who is presumed possession thereof or that the
In an ordinary facsimile transmission, there exists an original paper- to have knowledge of its party seeking its production is not
contents. sufficiently informed of the
based information or data that is scanned, sent through a phone
contents of the same.
line, and re-printed at the receiving end. In a virtual or paperless
environment, technically, there is no original copy to speak of, as all
direct printouts of the virtual reality are the same, in all respects, Atty. JZE: so they have different purpose, rule 27 is a mode of
discovery, in rule 130 that is not its purpose, is the introduction of
and are considered as originals. Ineluctably, the law's definition of
secondary evidence. In rule 130 section 8, why is he presumed to
"electronic data message," which, as aforesaid, is interchangeable have knowledge with its contents, because when will we call for the
with "electronic document," could not have included facsimile production of the original document it presupposes na naa kay
transmissions, which have an original paper-based copy as sent and secondary evidence or at least that you a party to that document.
a paper-based facsimile copy as received. These two copies are But in rule 27 section 1, precisely because it is a mode of discovery
distinct from each other, and have different legal effects. you are presumed not to know anything about it that it is whay you
are asking for it. So if you studied will in your civil procedure, it would
be easier for you to delineate.

RULE 130, SECTION 8. Party who calls for document not bound to
offer it. - a party who calls for the document and inspects the same RULE ON ELECTRONIC EVIDENCE
is not obliged to offer it as evidence. Rule 3 - ELECTRONIC DOCUMENTS

Atty. JZE: this is still in relation to the exception of the best evidence
rule. In Section 8, even if you called for the production of the
document, nainspect nimo and it may not help your cause, section 8
says that you are not bound to offer it as evidence. It is not your
evidence.
Section 1. Electronic documents as functional equivalent of paper-
based documents. – Whenever a rule of evidence refers to the term
writing, document, record, instrument, memorandum or any other
form of writing, such term shall be deemed to include an electronic
document as defined in these Rules.

EFFECT OF NOT OFFERING A DOCUMENT IN EVIDENCE AFTER Atty. JZE: So electronic evidence therefore are considered
CALLING FOR ITS PRODUCTION AND INSPECTION documentary evidence. If you translate, the rules on evidence also
includes electronic evidence.
 No unfavorable inference can be drawn for not offering a
document in evidence if the party who calls for its production
or inspection does not offer the same in evidence.

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LAW ON EVIDENCE
RULE 130, PAROL EVIDENCE RULE
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. XXX
Atty. JZE: itranslate nato to something more palatable, ok, kng
nagsabot na ang mga aprtido sa usa ka kontrataand then kay
tungod nagkasinabot na sila, gisulat nila, they already made a writen
contract out of it they will be governed by the writen contract and
nothing else. So whatever terms are written in that agreement, that
will be the repository of their covenant that is included in their
meeting of the minds.
WORD PLAY
“PAROL” comes from the French word parole which means “word”.
Related: Parole d'honneur or “word of honor”. In the 1600, this was
used to describe a promise made by a prisoner not to escape.
Parole d'honneur became the source of the English word “PAROLE”,
which is a word used to describe a process of allowing conditional
release of prisoner.
PAROL EVIDENCE, EXTRINSIC EVIDENCE, EVIDENCE ALIUNDE, and
ORAL EVIDENCE are all the same.
Atty. JZE: so what the immediate connection that you could make?
Parol evidence rule: oral evidence. Somehow there is that evolution
of words. Evidence Aliunde is found in Successions.
Parol evidence rule IS A RULE OF EXCLUSION:
 When parties have already reduced their agreement into
writing, the written agreement becomes supreme. It
supersedes everything they have discussed prior to the
perfection of the contract.
 A party therefore cannot* say something different from what
the contract says. (*the PPT says “can” but Atty. JZE correctly
rephrase it to “cannot” in his lecture)
 He cannot modify or add to its terms.
Atty. JZE: The written agreement becomes supreme, not oral
manifestations not proposed stipulations. It supersedes everything
they have discussed prior to the perfection of the contract.
So during the solicitation stage (a period of bargaining between the
parties), one party makes an offer, the other party either accepts it,
rejects it outright, or makes an counter offer until finally they come
up with mutually agreeable terms and conditions Once they do that
they reduced it into writing and everything else that preceded the
drafting of the agreement in written form would therefore be
deemed waived. Wala na dapat pakialam ang balaod, walay kanay
dapat pakialam sa inyong gisabutan before because its the writing
that would be supreme.
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Effects of PER as a rule of exclusion.
 If not in the contract, it is INADMISSIBLE.
Atty. JZE: So the parol evidence rule is a limitation on your ability to
present certain types of evidence, certain nature of evidence.
 The stipulations may be valid but you cannot prove it in court.
WHY?
1. HIERARCHY OF EVIDENCE. Documentary evidence prevails
over testimonial evidence. (GSIS v. CA)
2. WHATEVER IS NOT WRITTEN IS WAIVED. The rule is based on
the presumption that the parties “have made the writing the
only repository and memorial of the truth and whatever is not
found in the writing must be understood to have been waived
and abandoned” (CARENAN V. CA, G.R. 84358, May 31, 1989)
Atty. JZE: like the 10 commandments, written in stone, you cannot
say that there is an 11th commandment, you cannot add to the terms
of the written commandment, kung napulo, napulo lang na.
Now, take note of the difference between a condition precedent and
a condition subsequent. Condition precedent means it preceded the
meeting of the minds of the parties. Condition subsequent are those
that arise after the meeting of the minds of the parties.
CONDITION PRECEDENT AND SUBSEQUENT
 Under the parol evidence rule, there is a big difference
between a condition precedent and a condition subsequent. A
condition precedent may be established by parol evidence
because there is no varying of the terms for the reason that
there is yet no contract in existence.*
A condition subsequent, as a general rule, may not be
established by parol evidence since a written contract already
exist.**
* Atty. JZE: Now let me bring you back to sales, there's a big
difference between a contract of sale and a contract to sell. In a
contract to sell, there is no contract of sale to speak of because the
condition precedent for the meeting of the minds between the
parties lacking, wala pa nafulfill ang condition and therefore there is
no obligation to transfer ownership. What usually is the condition
precedent there is the full payment of the purchase price.
** ok, we agreed now and this is our contract, but there are
conditions not included in the contract that took place after,
normally under section 9, that cannot be prove as a general rule but
subject to exceptions provided in letters a-b.
3. THE BELIEF THAT PAROL EVIDENCE IS MOST PRONE TO
FABRICATIONS (HERBONV. PALAD, G.R.No. 149542, July 20,
2006) Thus, the purpose of the parol evidence is to give
stability to the written agreements and to remove the
temptation and possibility of perjury, which would be afforded
if parol evidence were admissible. (CONDE v. CA, 119 SCRA
245)
LAW ON EVIDENCE
Atty. JZE: Because it is very easy ,if there were no rule like the parol
evidence rule, what will happen is that anybody can say that instead
of a party owing him 1 million that he owes him 10 million. Why?
Because it allowed without the parol evidence rule, you can vary it,
you can add to it. Di ba? Take note that:
Article 1356. Contracts shall be obligatory, in whatever form they
may have been entered into, provided all the essential requisites for
their validity are present. However, when the law requires that a
contract be in some form in order that it may be valid or
enforceable, or that a contract be proved in a certain way, that
requirement is absolute and indispensable. (..beast mode)
In such cases, the right of the parties stated in the following article
cannot be exercised. (Civil Code.)
Atty. JZE: Remember that parol evidence is not a requirement of
validity, it is a requirement of provability, what cannot and can be
proved.
 While the Parol Evidence Rule does not proclaim itself to be a
limitation on the validity of a contract, it is a requirement that
must be taken into consideration as a condition precedent to a
party's ability to prove the same:
 Even if the contract is valid in its oral form, contracts being
generally and essentially consensual, it is virtually futile if you
cannot therefore sue upon it or if you are barred by the
conclusive presence of a written document relative to the
same agreement.
Requisites of Parol Evidence
1. There must be a written agreement;
2. The terms of the agreement must be reduce to writing
3. The dispute is between the parties or their successors-in-interest.
4. There is a dispute as to the terms of the agreement
Requisite 1: AGREEMENT
 In order for the rule to apply, there must be an “agreement”.
As understood, an agreement is a contract. Thus, where there
is a meeting of the minds between the parties and the same is
reduced into writing, the resulting contract is therefore
covered already by the Rule.
Atty. JZE: Now take note what if you what to present an affidavit of
person, can you add to the terms of that affidavit? Generally, you
cannot, now you can add but the believability of that in the ears of
the court will still vary. But take note lang jud na ang affidavit being
not an agreement, it’s not supposed to be covered by the parol
evidence.
 This general understanding is not available to the last part of
the Rule which provides that “(t)he term “agreement” includes
wills”
Atty. JZE: Why? Because under Rule 130, Section 9 although it
includes will, we all know that a will is not an agreement. Now, can
you subject the making of a will to the mutual agreement between
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the parties? I make you my heir, you make me your heir? Can you do
that? You can’t because it is not allowed by law.
Because…
 Verily, a will is not an agreement. It is strictly personal and
unilateral act. However, by force of the Rules and in an
apparent legal fiction, a will is an agreement as well although
there is clearly no meeting of the minds.
Why is the Rule applied to wills?
 The dangers sought to be avoided by the requirement of the
Rules is present in the making of wills and are deemed to be
more prevalent inasmuch as the maker of a will, the decedent,
can no longer object to attempts to vary his testamentary
intent as his voice is already silenced by death.
Atty. JZE: in contracts, when a parties adds to the terms of the
written agreement, the other parties will still have the ability to
refute the same, which can still be subjected to cross-examination.
But in the making of will, during the probate of the will of a person
deceased, you go to court and you say that actually the testator
intended to give me 2 million pesos, if there is no parol evidence rule
can you do that? If there no parol evidence rule its quite possible but
because of the parol evidence rule, that danger of perjury or making
fraudulent claims will also be diminished, plain and simple. Patay na
gud ang testator unsaon pa nya pgrefute? As simple as that.
RULE ON ELECTRONIC EVIDENCE
Rule 3, Section 2. Admissibility. – An electronic document is
admissible in evidence if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules.
Atty. JZE: What is section 2 trying to tell you? That rules of
admissibility that would normally apply to other types of documents
or agreements that are paper-based are supposed to be applicable
as well to electronic documents.
Rule 2, Section 1 (h)
"Electronic document" refers to information or the
representation of information, data, figures, symbols or other
modes of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by
which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents and any print-
out or output, readable by sight or other means, which accurately
reflects the electronic data message or electronic document. For
purposes of these Rules, the term "electronic document" may be
used interchangeably with "electronic data message".
Atty. JZE: is it possible to come up with an agreement between the
parties by electronic means? Suppose, I have your cellphone number
and I texted you “I promise to give you 100, 000 if you paint my car,
and then you reply “OK”, is there a meeting of the minds? Yes. Does
LAW ON EVIDENCE
it make it that a less of a contract? Is there evidence of the contract?
Yes. There is that text message. So there’s that contract, its source of
the right of extinguishment of obligation. So it’s quite conceivable
that there should be application of Rule 130, Section 9 to electronic
evidence.
Does the parol evidence apply to electronic documents?
 Can an agreement be in digital or electronic form?
Atty. JZE: Yes. Email, can you be bound by your emails? Yes. Can
obligations be extinguish by way of email? Yes.
For example, you have a promissory note by which you promised to
pay the debt and then you received an email from me saying you
don’t have to pay the promissory note because it is already
condoned. That email is your evidence of the agreement. And
therefore, there is no problem for us in applying the parol evidence
rule to electronic documents for agreements in general.
But this is my question…
 Can a will be man in digital or electronic form?
Atty. JZE: Let’s try to analyze, what are the ways that a person may
make a will in the Philippines? It can be holographically, where the
will must entirely signed and dated by the testator and made in his
own handwriting and second is notarial will, subject to the forms and
solemnities required by law. So, in that situation is there a way that a
holographic or notarial will can be produced electronically?
Hypothetically, if you can make your will in a tablet, or an E-will,
does the parol evidence also applies to E-will? Under Philippine law, I
don’t know. Can there be an electronic will? Any way the Supreme
Court has not yet decided on this, but this much I know; e-Wills are
valid in other jurisdictions and they even go to the extent as saying
that the parol evidence rule applies to e-wills.
Now, technically speaking, what would be the effect of the parol
evidence rule? The effect is simple, you are confined to the four
corners of a document or agreement. If it is not within the four
corners, it’s not supposed to be a valid provision, or it’s a valid
provision but it’s something that you cannot prove. You cannot add
to, explain or modify the terms.
But in other jurisdiction, the wills can be electronically made.
E-Wills
 Nevada is the only state in the US that specifically provides
guidelines for creating a valid electronic will. Ohio has trail
court decision declaring E-wills to be valid. While electronic
wills are convenient, they raise concerns about the
authentication and forgery. In some states, electronic will are
not allowed.
Nevada Will Statute
 No will executed in the State, except such electronic wills or
holographic wills as are mentioned in this chapter, is valid
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unless it is in writing and signed by the testator, or by an
attending person at the testator's express direction, and
attested by at least two competent witnesses who subscribe
their names into the will in the presence of the testator.
Nevada Revised Statute, Section113
Electronic will
1. An electronic will is a will of a testator that:
(a) Is written, created and stored in the electronic record;
(b) Contains the date and the electronic signature of the
testator and which includes, without limitation, at least one
authentication characteristic of the testator; and
(c) Is created and stored in such a manner that:
(1) Only one authoritative copy exists;
(2) The authoritative copy is maintained and
controlled by the testator or a custodian designated
by the testator in the electronic will;
(3) Any attempted alteration of the authoritative
copy is readily identifiable; and
(4) Each copy of the authoritative copy is readily
identifiable as a copy that is not the authoritative
copy.
2. Every person of sound mind over the age of 18 years may, by
last electronic will, dispose of all of his or her estate, real and
personal, but the estate is chargeable with the payment of the
testator’s debts.
3. An electronic will that meets the requirements of this section
is subject to no other form, and may be made in or out of this
State. An electronic will is valid and has the same force and effect
as if formally executed.
4. An electronic will shall be deemed to be executed in this State
if the authoritative copy of the electronic will is:
(a) Transmitted to and maintained by a custodian
designated in the electronic will at the custodian’s place of
business in this State or at the custodian’s residence in this
State; or
(b) Maintained by the testator at the testator’s place of
business in this State or at the testator’s residence in this
State.
Other countries with valid e-Wills
South Africa – its Supreme Court already declared the validity of an
e-Will, caveat, subject to certain conditions to be gauged in a case to
case basis.
India – they are crazy.
Requisite 2: REDUCED TO WRITING
Is it required that the agreement should be in a public instrument
for the applicability of the Parol Evidence Rule? No. that is in the
case of…
LAW ON EVIDENCE
INCIONG v. CA G.R. No. 96405 June 26, 1996
Clearly, the rule does not specify that the written agreement be a
public document.
What is required is that the agreement be in writing as the rule is in
fact founded on "long experience that written evidence is so much
more certain and accurate than that which rests in fleeting memory
only xxx. Thus, for the parol evidence rule to apply, a written
contract need not be in any particular form, or be signed by both
parties.
Atty. JZE: Remember that when a law requires an agreement to be in
a public instrument, the general rule is it that it is only for
convenience. The only exception is that when you are dealing with
unregistered lands. In unregistered lands, always, all transactions
must in a public instrument and recorded in the Registry of Deeds.
Is it possible that there is an agreement despite the fact that only
one party signed the agreement? Unilateral contracts right?!
Requisite 3: DISPUTE IS BETWEEN THE PARTIES OR THEIR
SUCCESSORS-IN-INTEREST
The rule does not apply, and may not properly be invoked by either
party to the litigation against the other, where at least one of the
parties to the suit is not party or a privy of a party to the written
instrument in question and does not base a claim on the instrument
or assert a right originating in the instrument or the relation
established thereby. (VICTORIA LECHUGAS vs. COURT OF APPEALS,
G.R. No. L-39972 & L-40300 August 6, 1986)
Thus, if one of the parties to the case is a complete stranger to the
contract involved therein, he is not bound by this rule and can
introduce extrinsic evidence against the efficacy of the writing.
Atty. JZE: That is one of the distinctions between the best evidence
rule and the parol evidence. In the best rule even if you are not a
party to the agreement, you can seek refuge but under the parol
evidence rule, both parties must be parties to the instrument
otherwise the rule will not apply.
Requisite 4: THERE IS DISPUTE AS TO THE TERMS OF THE
AGREEMENT
Thus, if the dispute between parties who are contractually bound
refers to matters extraneous to the agreement or with respect to
rights and obligations that do not emanate from it, the Parol
Evidence Rule does not apply.
Atty. JZE: If you have a document but you are only trying to prove its
existence, execution and physical condition of the paper AS AN
OBJECT, the parol evidence rule does not apply, similar to the best
evidence rule
EXCEPTIONS:
 Under section 9, a party may present evidence to modify,
explain, or add to the terms of the written agreement.
HOW?
He must plead it. He must put in issue in his pleading any of the
following:
(a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
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(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.
In paragraph (a) there are actually 3 exceptions: Intrinsic ambiguity,
mistake and imperfections.
AMBIGUITY
 can be extrinsic (patent) or intrinsic (latent)
Atty JZE: When you say patent it means it’s very clear, when you look
at it, it’s really ambiguous, it’s doubtful, not certain.
 Extrinsic – cannot be proved by parol evidence because by
nature, it is incurable.
Examples: The will provides: “I will give B something”. There is really
no description there.
Atty. JZE: Under the view of the Rules of Evidence it is not curable, do
not confused it with the view under the law of successions.
BORILLO v. CA, G.R. No. 55691 May 21, 1992
In order to admit parol evidence to aid in the description of the
subject matter of a deed or other writing, there must be a
description that will serve as a foundation for such evidence; the
writing must at least give some data from which the description may
be found and made certain. Parol evidence is not admissible to
identify the property where the description thereof is so vague as to
amount to no description at all. In other words, parol evidence is not
permitted to supply a description, but only to apply it.
Atty. JZE: The rule presupposes that, in order in order for parol
evidence to be curative of an ambiguity, there has to be something
to start with in the first place. But if it is extrinsic ambiguity, it
amounts to no description at all.
The situation is different where there is a mere imperfect
description. The principle of FALSA DEMONSTRIO NON NOCET – a
false or mistaken description does not vitiate – would then apply.
Atty. JZE: what is the example of my wife here? “I give to my
beautiful daughter something… unya kung dili gwapa unsa nlng
man? Imperfect ang description, a false description. Does it vitiate
the legacy or gift? It does not. You just disregard the description
“beautiful”, otherwise it will be absurd. Kinahanghan kapa
magpresent og evidence na gwapa ang anak.
FALSA DEMONSTRIO NON NOCET
If, on considering the language of a will with the aid of any
admissible extrinsic evidence, the court comes to the conclusion
that the testator intended to pass something and can determine
LAW ON EVIDENCE
what that something is, then the fact that the testator gave it a
wrong description in his will does not prevent the will taking effect
in regard to the subject matter intended by the testator. The
principle may be applied in whatever part of the description the
error occurred.
Example of Dean Iñigo: In his will, X makes a specific gift of shares of
stock in ABZ Corporation, and X at the date of his will possessed no
such stock but possessed other stock in ABC Corporation which the
court decides was meant, the latter stock passes under the gift
despite the false description.
Atty JZE: There is no ABZ Corporation but there is ABC, that is a false
description, but do you vitiate or render inutile the testamentary
disposition? No.
In that situation, you must present parol evidence to explain that
what was meant was not ABZ but ABC.
Intrinsic ambiguity, on the other hand, can be proved by parol
evidence.
Example: In a will, it is provided that the testator gives to Rrramon,
his nephew, P200,000.
However, the testator has two nephews named Rrramon.
Here, by way of exception, a latent ambiguity may be explained by
parol evidence, for, as the ambiguity has been brought about by
circumstances extraneous to the instrument, the explanation must
necessarily be sought for from such circumstances outside the
instrument.
Atty JZE: The ambiguity came from the outside of the instrument, so
it must also be explained by matters that are also outside the
instrument.
MARQUEZ V. ESPEJO, G.R No. 168387, August 25, 2010
The Espejos sold 2 parcels of land to the bank. One was covered by
TCT No. T-62836 and was located in Lantap. The other one was
covered by TCT No. T-62096 and ws located in Murong and it has
tenants. Sometime later, in 1985, the Espejos brought back one of
the properties. In the deed, the subject matter was described as
“covered by Transfer Certificate of Title No. T-62096”. The Murong
property was later transferred to the tenants by way of VLTs
(Voluntary land transfer), which however, referred to TCT No. T-
62836. CLOAs were subsequently issued to the tenants.
The Espejos filed an action for cancellation of the CLOA on the
ground that the Murong property, occupied by the petitioners, was
owned by the respondents by virtue of the 1985 buy-bay, as
documented in the Deed of Sale. They based their claim on the fact
that their Deed of Sale refers to TCT No. T-62096, which pertains to
the Murong property.
The tenants argued that what the Espejos repurchased from the
bank in 1985 was actually their Lantap property, as evidence by their
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continued occupation and possession of the Lantap property. The
bank also testified that although the Deed of Sale mentioned TCT
No. T-62096, it meant the resell of the Lantap property (parol
evidence).
IS THERE AN INTRINSIC AMBIGUITY?
 Yes. The VLTs suffer from intrinsic ambiguity. The VLTs
describe the subject property as covered by TCT No. T-62836
(Lantap property) being located in Barangay Murong.
Furthermore, respondents, are not parties to the VLTs executed
between RBBI and petitioners; they are strangers to the written
contract. Rule 130, Section 9 specifically provides that parol
evidence rule is exclusive only as between the parties and their
successors-in-interest. The parol evidence rule may not be invoked
where at least one of the parties to the suit is not a party or a privy
of a party to the written document in question, and does not base
his claim on the instrument or assert a right originating in the
instrument.
INTERMEDIATE AMBIGUITY
This arises by the use equivocal word/s which is susceptible of more
than one interpretation. Evidence aliunde may be admitted by the
court to explain or add to its meaning.
Atty. JZE: this the third form of ambiguity. It is not recognized by the
Rules of Court but it is recognized under American jurisdiction and
old Supreme Court Decisions.
Innocently, if you look at it, it is understandable enough. When you
say “writ”, you mean writ. But remember, when you are talking
about contractual terms, there can other meaning or shades of writ.
Hence, evidence aliunde may be admitted by the court to explain or
add to its meaning. There is only one interesting case here…
Case: Intermediate Ambiguity
A Chinese immigrant, Tan Quin Lay, as a manager of Song Fo
Company, entered into a contract with Fred Wilson and Co. for the
purchase of distilling apparatus for P10, 000. He purchased the
apparatus with the specification that it should have a capacity of
6,000 liters a day.
After using the distilling apparatus for some time, Song Fo
complained that it only produced 480 liters of alcohol per day, not
6,000 liters and filed a case for breach of contract. Fred Wilson and
Co. contended that it did not breach its contract which stated that
the aparratus was of “de capacidad de 6,000 litros cada 24 horas de
trabajo”. It said that, since the apparatus was able to process 6,000
liters of raw materials per day, there was no breach of contract.
What does “capacity” mean?
Song Fo – producing capacity
LAW ON EVIDENCE
Fred Wilson and Co. - receptive capacity
Clearly, there is intermediate ambiguity here. The term “capacity” is
susceptible of more than one interpretation.
HELD: Parol evidence is admissible to show which of the two
interpretations was meant by the parties. (Palanca v. Fred Wilson
and Co. 37 Phil. 506)
Atty. JZE: Intermediate ambiguity is actually curable by parol
evidence. Intrinsic ambiguity curable by parol evidence. Extrinsic, no.
MISTAKE
First, the mistake should be of fact; second, that the mistake should
prove by clear and convincing evidence; third; that the mistake
should be common to both parties to the instrument. The rule is, as
has been above stated, that mistake must be mutual. (BPI vs.
FIDELITY G.R. No. L-26743, OCT. 19, 1927)
Atty. JZE: if you recall your obligations and contracts, this actually
are the requisites for the reformation of the instrument. Mistake to
justify the reformation of a contract, but, it’s practically the same
requisites for the parol evidence.
MAGELLAN vs. CA (G.R. No. 95529, AUG. 22, 1991)
The mistake contemplated as an exception to the parol evidence
rule is one which the mistake of the fact mutual to both parties.
Furthermore, the rules on evidence, as amended, require that in
order that parol evidence may be admitted, said mistake must be
put in issue by the pleadings, such that if not raised inceptively in
the complaint or in the answer, as the case may be, a party cannot
later on be permitted to introduce parol evidence thereon.
IMPERFECTION
This simply means that the writing is incomplete and does not
express the whole agreement of the parties. Here, there is a failure
of the parties to lay down all the terms and condition which are to
constitute the agreement.
Failure of the agreement to reflect the true intention of the
parties.
The exception obtains where the written contract is so ambiguous or
obscure in terms that the contractual intention of the parties cannot
be understood from the mere reading of the instrument. In such
case, extrinsic evidence of the subject matter of the contract, of the
relations of the parties to each other, and of the facts and
circumstances surrounding them when they entered into the
contract may be received to enable the court to make a proper
interpretation of the instrument. (HEIRS OF DEL ROSARIO vs.
SANTOS, G.R. No. L-46892, SEPT, 30 1981)
Atty. JZE: So what are we talking about failure of the agreement to
reflect the true intention of the parties? To my mind you are is still
talking about ambiguity. So to my mind this a superfluous additional
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ground. Because the failure should be equated to ambiguity, its more
or less the same exception.
CROSS-REFERENCE
Article 1359. When, there having been a meeting of the minds of the
parties to a contract, their true intention is not expressed in the
instrument purporting to embody the agreement, by reason of
mistake, fraud, inequitable conduct or accident, one of the parties
may ask for the reformation of the instrument to the end that such
true intention may be expressed.
If mistake, fraud, inequitable conduct, or accident has prevented a
meeting of the minds of the parties, the proper remedy is not
reformation of the instrument but annulment of the contract. (Civil
Code)
Atty. JZE: Example of contracts that is open for reformation:
Equitable mortgage.
THE VALIDITY OF THE WRITTEN AGREEMENT
Here, a party seeks to present extrinsic evidence to prove that
the contract is not valid. As in all other exceptions, he must raise
the invalidity of the contract in the pleading.
RECALL
Article 1409. The following contracts are inexistent and void from
the beginning:
(1) Those whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time
of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the
principal object of the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set up
the defense of illegality be waived.
Atty. JZE: Take note of (3), that is a contract void ab initio. Lets the
example of . . .
Hypothetical Problem (Dean Iñigo)
A sells to B his land for 1million. They sign a deed of sale.
So: “In consideration of 1 MILLION PESOS, receipt of which is hereby
acknowledge in full, I hereby sell this property to B xxx”.
LAW ON EVIDENCE
But (in actuality) B says that he has to go to the bank to secure
manager's cheques as P1 Million is to large an amount to be paid in
cash. A agrees to wait for B, while B brings with him the deed of sale
and the title of the land. But B never came back as he went straight
to the Registry of Deeds to have the title of the property transferred
to him.
Atty. JZE: Now, here there is no payment, no consideration. So when
the cause or the object of the contract were no present, under Art.
1409 it is void and inexistent. Now try to reckon that with rule 130,
section 9, …
In case for annulment of sale, how will A prove that B never paid him
the agreed consideration when the deed of sale has been duly
acknowledge and the sale duty registered?*
 A will prove, though his testimony, that he never received the
consideration.
 BUT, based on the general rule. A cannot really prove that he
did not receive the money because the documents will show
otherwise. Any attempt on the part of A to do so will be
objectionable under PER. **
 However, since he filed the case to nullify the deed of sale – in
effect, he is raising the issue on the validity of the said
instrument.
 So, in this case, parol evidence is allowed to prove lack of
consideration.
*Atty. JZE: remember that under the parol evidence rule, one cannot
vary the terms of the agreement. If the written agreement say that
you were already paid, therefore you are paid. So what can he do?
Of course he can then apply the exception.
** So what should he do? He should put in issue in his pleading, the
validity of the written agreement, By filing a case.
What else may be raised under “validity of the written
agreement”?
1. FORGERY. See ALORIA vs. CLEMENTE, G.R. No. 165644,
FEB. 28, 2006
2. FRAUD AND ILLEGALITY. See BOUGH vs. CANTIVEROS, G.R.
No. 13300, SEPT. 29, 1919
3. FALSE REPRESENTATION. See WOODHOUSE vs. HALILI,
G.R. No. L-4811, JULY 31, 1953.
WOODHOUSE vs. HALILI, G.R. No. JULY 31, 1953.
The statement of the plaintiff was not sought to be introduce to
change or alter the terms of the agreement, but to prove how he
induce the defendant to enter into it – to prove the representations
or inducements, or fraud, with which or by which he secured the
other party's consent thereto. These are expressly excluded from the
parol evidence rule. Fraud and false representation are an incident to
the creation of a jural act, not to its integration. And are not
governed by the rules on integration.
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SUBSEQUENT AGREEMENTS
 This is the exception which states:
The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written
agreement.
RATIONALE
 Why is this an exception? When the parties executed the
written agreement, they have yet to enter into the subsequent
agreement. The parties cannot incorporate in the contract or
instrument something that they will still agree on in the
future.
Atty JZE: It does not even matter if the subsequent agreement is
written or oral, what matter is that it is subsequent.
But isn't it easy to escape the obligations in a contract, all you have
to say is that you executed in a subsequent agreement, whether its
true or not? Remember that even if it is allowed, even if it is
admissible, even if you can to modify or allowed to say something to
modify, it does not mean that it will be believe by the court. It is only
an assurance that your testimony will be heard, but there is no
assurance that it will be believed.
Hypothetical Case
 Maja borrowed money from JZE. For this, Maja signed a
promissory note in favor of JZE which fixed the maturity date
on August 15, 2015. When August 15, 2015 came, Maja did
not pay. Thus, JZE sues Maja for payment of the due account.
Maja's defense is that the amount is not yet due because after
the execution pf the promissory note, for unwritten
considerations, JZE agreed to extend the period of payment to
until January 14, 2016.
What is Maja's evidence?
Her testimony that they agreed into a subsequent oral agreement
which happened after the execution of the promissory note. (so
basically, the case is still premature)
ADMISSIBLE?
YES. This is the exception “the existence of other terms agreed to by
the parties or their successors in interest after the execution of the
written agreement.”
Ultimately, Maja can testify orally in court on the subsequent oral
agreement that she had with JZE. The extension in fact resulted in
the novation of their previously agreed-upon maturity date.
Atty JZE: Will it be believable? It’s up to the court to decide.
PRINCIPLE TO REMEMBER
The parties cannot incorporate in the contract or agreement
something that they will still agree on in the future.
LAW ON EVIDENCE
SUMMARY
COVERED: (with respect to the time)
 Only PRIOR AND CONTEMPORANOEUS AGREEMENTS which
are deemed to have been merged in writing conformably to
the “integration of the agreement rule” (WOODHOUSE vs.
HALILI)
NOT COVERED
 SUBSEQUENT AGREEMENTS, despite the fact that such
agreements may have the effect of adding to, changing,
modifying, or even altogether abrogating the contract of the
parties as evidenced by the writing. (RULE 130, Section 9 (d))
 COLLATERAL AGREEMENTS which, although oral and
contemporaneous with the writing, are separate and distinct
agreements. This are also known as CONTEMPORANEOUS
ORAL AGREEMENTS or “SIDE AGREEMENTS”
Atty JZE: Parol evidence rule is also called “a rule on integration”
Collateral agreements are other or side agreements at the time of
having a contract. They must be separate and distinct. Maybe it
does not appear on writing but nonetheless, you made another
agreement.
Remember also what is pactum commissorium. An agreement
where in case of none payment of the mortgage, the property
automatically goes to the mortgagor. This against public policy.
MCIAA vs. CA, G.R No. 121506, October 30, 1996
Sometime in 1949, the National Airport Corporation informed the
owners of the various lots surrounding the Lahug Airport that the
government will purchase their lands for the expansion of the
airport. The landowners were convinced to sell their properties,
otherwise, the government will be forced to institute expropriation
proceedings in court. They were also assured that their properties
will be returned to them when they are no longer used by the
airport.
Ouano did not want to sell at first, However, because she was
reassured by the promise that the land will be returned when it is no
longer in use, she was persuaded to enter into a contract of sale.
Vercide, another landowner, testified that in a meeting called by the
MCIAA, the landowners were given documents to sign, and he asked
for a rider or certification which would indicate that the land ill be
returned to him should it not be used by the airport. He testified
that it was only after the rider was give to him that he signed the
document of sale.
Years later, Pres. Aquino had ordered the airport to be transferred
to Mactan. The grandchildren of Ouano tried to repurchase the
properties originally owned by their grandmother. On 2 October
1991, they wrote to Capt. Antonio Oppus, the manager of MCIAA,
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signifying their intention to repurchase the properties originally
owned by their grandmother. Capt. Oppus denied their request
because the deed of sale covering the properties does not contain
any condition relating to the right of repurchase. These properties, it
was explained, had become the absolute properties of the NAC.
The grandchildren filed a case for reconveyance with the RTC.
MCIAA contended that in the absence of any rider providing for such
right of repurchase, no evidence, whatsoever can be receieved to
establish that such right indeed exists as it would violate the parol
evidence rule.
HELD: Under the parol evidence rule, when the terms of an
agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the
parties and their successors in interest, no evidence of such terms
other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to
the terms of written agreement if he puts in issue in his pleading,
the failure of the written agreement to express the true intent of the
parties thereto.
The fact which private respondents seek to establish by parol
evidence consist of the agreement or representation made by NAC
that induced Ouano to execute the deed of sale; the vendors and
their heirs are given the right to repurchase should the government
no longer need the property. Where a parol contemporaneous
agreement was the moving cause of the written contract, or where
the parol agreement forms part of the consideration of the written
contract, and it appears that the written contract was executed on
the faith of the parol contract or representation, such evidence is
admissable.
It is recognized that proof is admissible of any collateral parol
agreement that is not inconsistent with the terms of the written
contract though it may relate to the same subject matter. The rule
excluding parol evidence to vary or contradict a writing does not
extend so far as to preclude the admission of existing 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 any reference to
such collateral agreement, and whether the action is at law or in
equity.
Atty JZE: Now let’s try to analyze, does the contention that there is a
contemporaneous parol agreement regarding repurchase, is it
inconsistent with a deed of sale without any mention of such right of
repurchase at all?
No. It is not inconsistent because it is silent. It did not prohibit,
although it did not state that there a right of repurchase.
In this case:
 Take note, that the courts should allow extrinsic evidence, if it
is not INCONSISTENT with the written agreement.
 In MCIAA, the contract neither contained nor prohibited a
right or repurchase. Thus, there was no inconsistency.
LAW ON EVIDENCE
SEPARATE OR AT LEAST SEPARABLE
 If the subject matter of the written agreement is different
from that of the contemporaneous oral agreement, then the
later is a separate and distinct agreement and, therefore,
provable by parol evidence.
 If the two agreements refer to the same subject matter, the
test is to determine whether or not the contemporaneous oral
agreement is separable. If the oral agreement is separable
then it is considered separate and distinct and therefore
provable by parol evidence.
In MCIAA Case. . .
The oral agreement to repurchase the property refers to the same
subject matter as the written agreement. Thus, we have to
determine whether it is separable or not.
Atty JZE: Now the question is, would there be separability between
the deed of sale of the land and the right of repurchase?
Remember in you sales that when you talk about a right of
repurchase, it is resolutory condition. Once it is repurchased, the
contract of sale is extinguished. It is usually included in the same
agreement that conveyed the property. So we go to a sales case..
VILLARICA vs. CA 28 SCRA 189-193 (1968)
The right of repurchase is not a right granted to vendor by the
vendee in a subsequent instrument, but is a right reserve by the
vendor in the same instrument of sale as one of the stipulations of
the contract. Once the instrument of absolute sale is executed, the
vendor can no longer reserve the right to repurchase, and any right
thereafter granted to the vendor by the vendee in a separate
instrument cannot be aright of repurchase but some other right like
an option to buy.
Atty JZE: Is it applicable to the case of MCIAA? Remember that in
Villarica, it is a subsequent instrument. In MCIAA, the right of
repurchase is made prior or contemporaneous with the written
agreement. So what's applicable . . .
LAUREANO vs. KILAYCO 34 Phil 148
An agreement of reconveyance is a distinct agreement, separate
from the sale itself, although the two agreements are usually
contained in one and the same document.
In Laureano, the agreement to reconvey was actually similar to the
one in MCIAA, as it was also and inducement to the signing of the
deed.
Atty JZE: So, whether a right of repurchase is separable depends on
when it was actually granted. Subsequent to the written agreement,
it is not even a right but a mere option to buy. If it was made prior or
contemporaneous with the written agreement, even if it be made
orally, then it is considered separable base on a case of Luareano.
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Other permitted collateral agreements
 Inducements and representations which lead to the execution
of an agreement may be proven by parol evidence because
they do not vary the terms of the agreement. (WOODHOUSE
vs. HALILI, BOUGH vs. CANTIVEROS)
 Parol evidence is admissible to prove an independent and
collateral agreement which constitutes an inducement to the
making of the sale or part of the consideration thereof.
(ROBLES vs. LIZARRAGA, 50 Phil. 387)
A condition precedent not stipulated in writing is provable by oral
evidence.
 REASON: Before the happening of the condition, there is no
written agreement yet to which the parol evidence may apply.
 EXAMPLE: Conditional sale where transfer of ownership is
subordinated to the condition of full payment of the purchase
price.
Verbal assurances given by the indorser of an out-of-town check
to the employees of the bank where is it was presented for
encashment that he would refund the amount if the check
should be dishonored by the drawee bank is a collateral
agreement separate and distinct for the indorsement, by virtue
of which the first bank was induced to cash the same, and
therefore, provable by parol evidence. (PNB vs. SEETO, 91 Phil.
756)
Atty JZE: A verbal assurance is more or less same with inducement.
 Any prior or contemporaneous conversation in connection
with a note or its indorsement may be proved by parol
evidence. (PNB vs. SEETO, 91 Phil. 756)
 An extrinsic agreement between indorser and indorsee which
cannot be embodied in the instrument without impairing its
credit may be proved by parol evidence. (PNB vs. SEETO, 91
Phil. 756)
 The fact that parties who appear to have signed as principals
did so as merely sureties is provable by parol evidence. (TAN
MACHAN vs. DELA TRINIDAD, 3 Phil. 684)
NOT COVERED by PER
 ALL OTHER AGREEMENTS, whether prior and
contemporaneous, subsequent or collateral, if the issue
revolves around fraud and false representation since they are
incidental to the execution and not to the integration. (
WOODHOUSE vs. HALILI, G.R. No. L-4811, JULY 31, 1953)
 ALL OTHER AGREEMENTS, whether prior and
contemporaneous, subsequent or collateral,, when third
parties, who are not privy thereto, are involved. (LECHUGAS
vs. COURT OF APPEALSG.R. No. L-39972, August 6, 1986)
LAW ON EVIDENCE based on the lectures of ATTY. JESS ESPEJO

RANDOM NOTES ON THE PAROL EVIDENCE RULE Bars evidence of terms that Bars proof of an agreement
exist outside the agreement. altogether.
ILEU-FFW vs. INTERPHIL LABS (G.R. No. 142824, December 19,
2001)
*Atty JZE: do you apply the best evidence rule to wills? Yes, because
it is still a document. You need to present the original will for
The parol evidence rule cannot be invoked in tribunals not strictly
probate.
bound by the rules of evidence. In labor cases pending before the
Commission or the Labor Arbiter, the rules of evidence prevailing in
Other concepts to be distinguished, parol evidence rule and statute
courts of law or equity are not controlling. Rules of procedure and
of frauds. Not discussed, sir did presume to know more that our obli-
evidence are not applied in a very rigid and technical sense in labor
con professors, read and review on our own.
cases. Hence, the Labor Arbiter is not precluded from accepting and
evaluating evidence other than, and even contrary to, what is stated ** Remember, exclusio unios ex exclusio alterios (?) - only those that
in the CBA. are enumerated would be included under the per view of the statute
of frauds.
HOW TO CONTRADICT WRITTEN AGREEMENT
My favorite way of testing my students; DISTINCTIONS! IF YOU CAN
Quantum of proof required: Oral testimony cannot, as a rule, prevail DISTINGUISH ON TERM FROM ANOTHER IT MEANS THAT YOU HAVE
a written agreement of the parties. In order to contradict the facts UNDERSTOOD. KAYA TUYOK-TUYOKON.
contained in a notarial document XXX as well as the presumption of
regularity in the execution thereof, there must be clear and 2015 TSN
convincing evidence that is more than merely preponderant.
HOW TO RAISE SOF AS A DEFENSE
(MANZANO V. PEREZ, G.R. No. 112485, August9, 2001)
How do you use the SOF to prevent the introduction of parol or oral
CITIBANK vs. SABENIANO, G.R. 156132, October 12, 2006 evidence during trial of the contract? There are many ways to skin
the cat so to speak:
When a document is presented to prove its existence or condition, it  Use it as a ground as a motion to dismiss within the time
is offered not as documentary, but as real evidence. Parol evidence required for you to file your answer. Remember under Rule 16
of the fact of execution of the document is allowed. Section 1, SOF is a ground for motion to dismiss.
Question: So your motion to dismiss based on SOT was granted,
PAROL EVIDENCE RULE BEST EVIDENCE RULE can the plaintiff refile the complaint this time attaching the
written contract? So SOF, with prejudice. Such order ordering
the dismissal of the case based on SOT shall bar the refiling of
Presupposes that the original The original document is not the same action or claim. That is Rule 16, Section 5.
document is available in court. available or is a dispute as to
whether said writing is original.  File an Answer and use SOF as an affirmative defense. An
advantage to that (instead of filing motion to dismiss) is
Prohibits the varying of the Prohibits the introduction of because a motion to dismiss is NOT a pleading, it does not
terms of the written agreement. secondary evidence regardless affect the other parties’ right to amend his pleading as a
of whether or not it varies the matter of right. So you would rather file an Answer and use
contents of original . SOF as a ground as an affirmative defense then ask a
Applies only to documents Applies to all kinds of writings.* preliminary hearing as if a motion for dismissal was made.
which are contractual in nature  In a demurrer of evidence. Remember that if it is
except wills. unenforceable supposedly you cannot present any evidence to
Can be invoked only when the Can be invoked by any party to prove it. But let’s assume that the judge still admitted the oral
controversy is between the an action whether he has contract, erroneously. So the other party has finished
parties to the written participated or not in the presenting his evidence-in-chief. What can you do being the
agreement and their privies. writing. defendant? File a demurrer of evidence stating that there’s
violation of SOF under Rule 33. Why, because there can never
It applies to any type of Its object is to prevent perjured be a prima facie case unless there is admissible evidence to
contract, and its purpose is to testimony in proof of certain support the claim.
make sure that the parties' final contracts and the statute applies
understanding, deliberately only to those enumerated  How else? By objecting to the reception of such oral evidence
expressed in writing shall not be types.** when it is presented in court.
changed.
Remember that failure to object in any of these occasions is
Applies to wills. Does not apply to wills. tantamount to a waiver of the right to object based on the ground of
SOF. That is why you really need to memorize the SOF.
Rule of integration which Rule of unenforceability which For your sake, as future barristers and as future lawyers. Be familiar
applies where there is a written applies in the absence o writing. with it.
agreement.

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STATUTE OF FRAUDS versus PAROL EVIDENCE actually had only two (2), with a further pair nearby, belonging to
Similarities: They are similar in the sense that both rules limit the the municipality of Tabaco.
ability of a party to present oral evidence in certain contractual
situations. Same type of evidence, which is parol or oral evidence is HELD: the appellant is barred by waiver (or rather estoppel) to claim
prohibited in both. violation of the so-called fire hydrants warranty. The insurance
company was aware, even before the policies were issued, that in
Law New Civil Code. Rules of Court.
the premises insured there were only two fire hydrants and two
Article 1403 (2) Rule 130, Section 9
others nearby, owned by the municipality of Tabaco, contrary to the
Object Certain agreement Nothing to do with the manner of requirements of the warranty in question.
must be proved by proving agreements. Its object is
some writing, note to prohibit alteration, change, The appellant company, in this particular case, so worded the
or memorandum modification, variation or
policies that while exacting the greater number of fire hydrants and
in order to be contradiction of the terms of a
enforceable written agreement appliances, it kept the premium discount at the minimum of 2 1/2
RE: Clearly, does not By fiction of law, treats wills as per cent, thereby giving the insurance company a double benefit. No
Wills apply to wills agreement and thus it made reason is shown why appellant's premises, that had been insured
applicable to wills with appellant for several years past, suddenly should be regarded in
1939 as so hazardous as to be accorded a treatment beyond the
When Cannot be invoked Cannot be invoked by either party
invoked by a stranger to to the litigation against the other limits of appellant's own scale of allowances. Such abnormal
the contract where at least one of the parties treatment of the insured strongly points at an abuse of the
to the suit is not a party or a privy insurance company's selection of the words and terms of the
of a party to the written contract, over which it had absolute control.
instrument.
These considerations lead us to regard the parol evidence rule,
Simply stated: This does not apply invoked by the appellant as not applicable to the present case. It is
where third parties are affected
not a question here whether or not the parties may vary a written
(?)
contract by oral evidence; but whether testimony is receivable so
that a party may be, by reason of inequitable conduct shown,
MARKET DEVELOPERS vs. IAC and UY, G.R. No. 74978 (1989) estopped from enforcing forfeitures in its favor, in order to forestall
fraud or imposition on the insured.
We see no reason why the second agreement of the parties to
deliver the petitioner's cargo to Roxas City instead of Kalibo, Aklan,
should not be recognized simply because it was not in writing. Law
and jurisprudence support the validity of such a contract.

The parol evidence rule is clearly inapplicable because that involves

the verbal modification usually not allowed a written agreement
admittedly still valid and subsisting. In the case at bar, the first
written agreement had not merely been modified but actually
replaced by the second verbal agreement, which is perfectly valid
even if not in writing like the first. As has been correctly held:

No principle of law makes it necessary that a new contract upon the

same subject between the same persons shall be reduced to writing
because the old contract was written.

QUA CHEE GAN vs. LAW UNION AND ROCK INSURANCE , G.R. No. L-
4611, December 17, 1955

Qua Chee Gan seeks to recover the proceeds of certain fire

insurance policies, issued by the Law Union, upon certain bodegas
and merchandise of the insured that were burned on June 21, 1940.

The insurance company alleges that xxx the policies were avoided
for breach of warranty, xxx since the bodegas insured had an
external wall perimeter of 500 meters or 1,640 feet, the appellee
should have eleven (11) fire hydrants in the compound, and that he

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