Jhez Notes - "Evidence": Clear and Convincing Evidence

JHEZ NOTES – “EVIDENCE”
2015 ARELLANO UNIVERSITY SCHOOL OF LAW
ATTY. NOEMI MACABABBAD

Saturday 8:00AM-12:00PM (Set A) Clear and convincing evidence
This standard of proof is derived from American
Reference: Riano, Evidence (2013); common law. It is less than proof beyond
Regalado, Evidence, pp.698 to 902 reasonable doubt (for criminal cases) but greater
than preponderance of evidence (for civil cases).
RULE 128 The degree of believability is higher than that of
General Provisions an ordinary civil case. Civil cases only require a
preponderance of evidence to meet the required
3
Section 1. Evidence defined. — Evidence is the means, burden of proof.
sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact. Preponderance of evidence
It means evidence adduced by one side which
is, as a whole, superior to or has greater weight
Evidence Proof
Means or medium of proof Effect of evidence
or more convincing than that which it is offered
Mode and manner of proving The conviction or persuasion in opposition to it; at bottom, it means probability
4
competent facts in judicial of the mind resulting from a of truth. (underscoring supplied)
proceeding consideration of the
evidence
Substantial evidence
Substantial evidence is more than a mere
N.B. Truth being ascertained is not the actual
scintilla of evidence. It means such relevant
or absolute truth but (only) the LEGAL
evidence as a reasonable mind might accept as
TRUTH.
adequate to support a conclusion, even if other
minds equally reasonable might conceivably
Factum probandum Factum Probans
The ultimate fact Evidentiary fact
opine otherwise. xxx Hence, it is not for the
The fact sought to be The fact by which “factum reviewing court to weigh the conflicting
established probandum” is to be evidence, determine the credibility of witnesses,
established or otherwise substitute its judgment for that of
Proposition Materials which establish
the administrative agency with respect to the
that proposition 5
In civil cases: the cause of In civil cases: Preponderant sufficiency of evidence. (underscoring supplied)
action evidentiary fact(s)
In criminal cases: elements In criminal cases: Burden of Proof * Burden of Evidence
of the crime or offense Evidentiary fact(s) tending to Duty of the party to present Duty of the party to go
prove guilt beyond evidence to establish his forward with evidence to
reasonable doubt claim or defense by the overthrow the prima facie
amount of evidence required evidence against him
Quantum of Proof Fixed by the pleadings and May shift from one side to
do not shift in the course of another in the course of trial
trial
In the hierarchy of evidentiary values, proof
*onus probandi
beyond reasonable doubt is at the highest level,
followed by clear and convincing evidence, then Doctrine of Equipoise – (equiponderance rule)
by preponderance of evidence, and lastly • The evidence of the plaintiff and
1
by substantial evidence, in that order. defendant are evenly balanced;
• There is doubt on which side of the
Proof beyond reasonable doubt evidence preponderates;
Proof beyond reasonable doubt does not mean
• The Court shall decide against the
the degree of proof excluding the possibility of
party who has the burden of proof.
error and producing absolute certainty. Only
moral certainty or “that degree of proof which
produces conviction in an unprejudiced mind” is
2
required. (underscoring supplied)
3
Tankeh v. DBP et al., G.R. No. 171428, November 11,
2013
1 4
Dela Cruz v. Malunao, A.M. No. P-11-3019, March 20, Vitarich Corporation v. Losin, G.R. No. 181560, November
2012, citing Manalo v. Roldan-Confessor, G.R. No. 15, 2010, citing Jison v. Court of Appeals
5
102358, 19 November 1992 Miro v. Vda. De Erederos et al., G.R. Nos. 172532,
2
People v. Angus, Jr., G.R. 178778, August 3, 2010 172544, 172545, November 20, 2013
Notes By: ENGR. JESSIE A. SALVADOR, MPICE | http://wordpress.com/engrjhez Page 1

Section 2. Scope. — The rules of evidence shall be the

same in all courts and in all trials and hearings, except as Material
otherwise provided by law or these rules. Relevant
Admissible Probative
N.B. Rules of Evidence shall be the same in Competent
Evidence
all courts, all trials, all hearings, but NOT in
ALL CASES. Credible
May the Rules of Evidence be waived?

GENERAL RULE: YES Exclusionary Rule
EXCEPTION: Rights may be waived, unless the Anti-Wire Tapping Law
6
waiver is contrary to law, public order, public Privacy of communications

policy, morals, or good customs, or prejudicial to Right against unreasonable search and seizure
a third person with a right recognized by law. Right of the accused in custodial investigation
(Art. 6, Civil Code) Right against self-incrimination
7
Bank Secrecy Law
Kinds of Evidence
(1) Object Rights of Persons Arrested, Detained or
(2) Documentary Under Custodial Investigation; Duties of
(3) Testimonial Public Officers.
8
(Add: Electronic and Forensic Evidence) (d) Any extrajudicial confession made by a person
arrested, detained or under custodial investigation shall be
Section 3. Admissibility of evidence. — Evidence is in writing and signed by such person in the presence of his
admissible when it is relevant to the issue and is not counsel or in the latter's absence, upon a valid waiver, and
excluded by the law of these rules. in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal
Section 4. Relevancy; collateral matters. — Evidence judge, district school supervisor, or priest or minister of the
must have such a relation to the fact in issue as to induce gospel as chosen by him; otherwise, such extrajudicial
belief in its existence or non-existence. Evidence on confession shall be inadmissible as evidence in any
collateral matters shall not be allowed, except when it tends proceeding.
in any reasonable degree to establish the probability or xxx
improbability of the fact in issue.
As used in this Act, "custodial investigation" shall include
the practice of issuing an "invitation" to a person who is
Admissibility = relevant + not excluded
investigated in connection with an offense he is suspected
by the Rules to have committed, without prejudice to the liability of the
"inviting" officer for any violation of law.
Requirements for Admissibility
“Fruit of the Poisonous Tree”
1. Relevancy- it must be relevant to the According to this rule, once the primary source (the
issue. Evidence is relevant if it may "tree") is shown to have been unlawfully obtained,
establish directly or indirectly the any secondary or derivative evidence (the "fruit")
existence or non-existence of the facts derived from it is also inadmissible. Stated otherwise,
in issue. illegally seized evidence is obtained as a direct result
of the illegal act, whereas the "fruit of the poisonous
To be considered as relevant, evidence tree" is the indirect result of the same illegal act.
The "fruit of the poisonous tree" is at least once
must be:
removed from the illegally seized evidence, but it is
(a) Material – directly established the equally inadmissible. The rule is based on the
point in issue; and principle that evidence illegally obtained by the State
(b) Probative – as to weight/credibility. should not be used to gain other evidence because
the originally illegally obtained evidence taints all
2. Competency- if it is not excluded by the evidence subsequently obtained. (People v.
Rules of Evidence, the law and the Alicando, G.R. No. 117487 12 December 1995)
Constitution. Evidence is competent if it
is not excluded by any rule of law for the
6
purpose for which it is offered. Republic Act No. 4200.
7
Republic Act No. 1405.
8
Republic Act No. 7438, Section 2.

Admissibility Credibility*
Depends on logic and law; Depends on judicial RULE 129
determined by its relevance evaluation in accordance What Need Not Be Proved
and competence; with Rule 133 and doctrines
laid down by the Supreme Section 1. Judicial notice, when mandatory. — A court
Court. shall take judicial notice, without the introduction of
* weight of evidence evidence, of the existence and territorial extent of states,
their political history, forms of government and symbols of
When Admissibility is Presented nationality, the law of nations, the admiralty and maritime
Upon offer in court: courts of the world and their seals, the political constitution
• when “formally offered” in testimonial and history of the Philippines, the official acts of
evidence, legislative, executive and judicial departments of the
• for object evidence, after the Philippines, the laws of nature, the measure of time, and the
geographical divisions.
presentation of testimonial evdence
Section 2. Judicial notice, when discretionary. — A court
Doctrines of Admissibility may take judicial notice of matters which are of public
1. Multiple Admissibility knowledge, or are capable to unquestionable
2. Conditional Admissibility demonstration, or ought to be known to judges because of
3. Curative Admissibility their judicial functions.
Multiple Admissibility – when the evidence is Section 3. Judicial notice, when hearing necessary. —
relevant and competent for two or more During the trial, the court, on its own initiative, or on
purposes. E.g.. A dying declaration may also be request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be
part of res gestae.
heard thereon.
Conditional Admissibility – where the After the trial, and before judgment or on appeal, the proper
evidence at the time of its offer appears to be court, on its own initiative or on request of a party, may
immaterial or irrelevant unless it is connected take judicial notice of any matter and allow the parties to be
with the other facts to be subsequently proved, heard thereon if such matter is decisive of a material issue
such evidence may be received on the condition in the case.
that the other facts will be proved thereafter,
otherwise the evidence already given will be Section 4. Judicial admissions. — An admission, verbal or
written, made by the party in the course of the proceedings
stricken out.
in the same case, does not require proof. The admission
may be contradicted only by showing that it was made
Curative Admissibility – this doctrine treats through palpable mistake or that no such admission was
upon the right of a party to introduce made.
incompetent evidence in his behalf where the
court has admitted the same kind of evidence
adduced by the adverse party. Kinds of Judicial Notice
N.B. As to curative admissibility, there must 1. Mandatory – without need to introduce
be objection prior to admission of such evidence.
incompetent evidence before the other may
be allowed to introduce likewise incompetent (a) existence and territorial extent of states,
evidence because lack of objection may their (1) political history, (2) forms of
constitute a waiver.) government and (3) symbols of
nationality,
(b) the law of nations,
Collateral Matters
(c) the admiralty and maritime courts of the
world and their seals,
GENERAL RULE: Evidence on collateral (d) the political constitution and history of
matters shall not be allowedH the Philippines,
EXCEPTION: Hwhen it tends in any reasonable (e) the official acts of legislative, executive
degree to establish the probability or and judicial departments of the
improbability of the fact in issue. Philippines,

(f) the laws of nature, of the original instrument is refused, the

(g) the measure of time, and requirement of an oath does not apply. (Rule 8,
(h) the geographical divisions. Section 8)
2. Discretionary – those matters (without Effect of failure to specifically deny under

necessity of hearing): oath an actionable document:
1. The party whose signature it bears
(a) which are of public knowledge, or admits the he signs it;
(b) capable to unquestionable 2. That it was signed by another for him
demonstration, or with his authority;
(c) ought to be known to judges because of 3. At the time it was signed it was in words
their judicial functions and figures exactly as set out in the
pleading and the other party relied upon
Lor any other matters (hearing is it;
necessary) 4. That the document was delivered; and
5. That the formal requisites of law such as
Judicial Admissions seal, acknowledgment, and revenue
stamp which it lacks are waived by him.
GENERAL RULE: When made in open court
(verbal) or in the course of the proceedings Permanent Loans and Savings Bank v. Velarde,
(written) in the same case, does not require G.R. No. 140608, 23 September 2004
proof.
A reading of respondents Answer, however, shows
that respondent did not specifically deny that he
EXCEPTION: The admission may be signed the loan documents. What he merely stated in
contradicted only by showing that it was made his Answer was that the signature appearing at the
through (1) palpable mistake or (2) that no such back of the promissory note seems to be
admission was made. his. Respondent also denied any liability on the
promissory note as he allegedly did not receive the
IMPLIED JUDICIAL ADMISSIONS amount stated therein, and the loan documents do not
express the true intention of the parties. Respondent
reiterated these allegations in his denial under oath,
Material Allegations stating that the promissory note sued upon, assuming
that it exists and bears the genuine signature of
GENERAL RULE: Material averment in the herein defendant, the same does not bind him and
complaint, shall be deemed admitted when not that it did not truly express the real intention of the
specifically denied. parties as stated in the defenses
EXCEPTION: The amount of unliquidated xxx
damages, need not be specifically denied. [R]espondents allegations amount to an implied
(Rule 8, Section 11) admission of the due execution and genuineness of
the promissory note. The admission of the
genuineness and due execution of a document
Allegations of Usury means that the party whose signature it bears admits
that he voluntarily signed the document or it was
Allegations of usury in a complaint to recover signed by another for him and with his authority;
usurious interest are deemed admitted if not that at the time it was signed it was in words and
denied under oath. (Rule 8, Section 11) figures exactly as set out in the pleading of the
party relying upon it; that the document was
Actionable Document delivered; and that any formalities required by law,
such as a seal, an acknowledgment, or revenue
stamp, which it lacks, are waived by him. Also, it
GENERAL RULE: [T]he genuineness and due
effectively eliminated any defense relating to the
execution of the instrument shall be deemed authenticity and due execution of the document, e.g.,
admitted unless the adverse party, under oath that the document was spurious, counterfeit, or of
specifically denies them, and sets forth what he different import on its face as the one executed by the
claims to be the facts. parties; or that the signatures appearing thereon were
EXCEPTION: Hwhen the adverse party does forgeries; or that the signatures were unauthorized.
not appear to be a party to the instrument or
when compliance with an order for an inspection (underscoring and emphasis supplied)

the contents of a document, no evidence shall be admissible

RULE 130 other than the original document itself, except in the
Rules of Admissibility following cases:
Forms of Evidence (a) When the original has been lost or destroyed, or cannot
1. Object be produced in court, without bad faith on the part of the
offeror;
a. Real Evidence
b. Demonstrative Evidence (b) When the original is in the custody or under the control
2. Documentary of the party against whom the evidence is offered, and the
3. Testimonial latter fails to produce it after reasonable notice;
A. OBJECT (REAL) EVIDENCE (c) When the original consists of numerous accounts or
other documents which cannot be examined in court
Section 1. Object as evidence. — Objects as evidence are without great loss of time and the fact sought to be
those addressed to the senses of the court. When an object established from them is only the general result of the
is relevant to the fact in issue, it may be exhibited to, whole; and
examined or viewed by the court.
(d) When the original is a public record in the custody of a
According to ACP Macababbad public officer or is recorded in a public office.
• Purest and highest form of evidence
(best used in criminal proceeding) Section 4. Original of document. —
• Courts may refuse to present object
(a) The original of the document is one the contents of
evidence which are the subject of inquiry.
• In cases involving minor/child
o Presentation of the picture of (b) When a document is in two or more copies executed at
the child may be allowed or about the same time, with identical contents, all such
o Presentation of sex-video may copies are equally regarded as originals.
be allowed only if the case is
one of Anti-Photo and Video (c) When an entry is repeated in the regular course of
Voyeurism Act
9 business, one being copied from another at or near the time
of the transaction, all the entries are likewise equally
• Facial similarity is admissible regarded as originals.
• Gravestone (lapida) may be both object
and documentary evidence According to ACP Macababbad
Examples of Best Evidence

B. DOCUMENTARY EVIDENCE
• Articles of Incorporation
Section 2. Documentary evidence. — Documents as • Motor Vehicle Registration
evidence consist of writing or any material containing • Anogenital report (for rape cases)
letters, words, numbers, figures, symbols or other modes of • Medical Report (for virginity)
written expression offered as proof of their contents. • Income Tax Return
According to ACP Macababbad Meaning of “original”
• “Original” means the copy in issue
Documents (as defined) do not include: • Test of originality is the legal aspect of
• Text message the document
• Photographs • Chronology (as to which was produced
• Unsigned document first) is not the issue
• Photocopy of marked money
Certificate of facsimile is admissible
1. Best Evidence Rule
2. Secondary Evidence
Section 3. Original document must be
produced; exceptions. — When the subject of inquiry is Section 5. When original document is unavailable. —
When the original document has been lost or destroyed, or
9 cannot be produced in court, the offeror, upon proof of its
Republic Act No. 9995

execution or existence and the cause of its unavailability

without bad faith on his part, may prove its contents by a The term "agreement" includes wills.
copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order According to ACP Macababbad
stated.
Parol evidence:
Section 6. When original document is in adverse party's
• May be oral or written
custody or control. — If the document is in the custody or
under the control of adverse party, he must have reasonable • May apply to successors-in-interest
notice to produce it. If after such notice and after • Applicable to private documents
satisfactory proof of its existence, he fails to produce the • Enforceable without need for ratification
document, secondary evidence may be presented as in the
case of its loss. NOTE: Contracts are NOT necessarily
documentary in nature
Section 7. Evidence admissible when original document is
a public record. — When the original of document is in the
Contracts are perfected by mere consent, and from
custody of public officer or is recorded in a public office,
that moment the parties are bound not only to the
its contents may be proved by a certified copy issued by the
fulfillment of what has been expressly stipulated but
public officer in custody thereof.
also to all the consequences which, according to their
nature, may be in keeping with good faith, usage and
Section 8. Party who calls for document not bound to
law. (Article 1315, Civil Code)
offer it. — A party who calls for the production of a
document and inspects the same is not obliged to offer it as
evidence.
In relation to introduction of Secondary
Evidence : Statute of Frauds
According to ACP Macababbad
Article 1403. The following contracts are
Do we need to produce the “original”? unenforceable, unless they are ratified:
• YES in civil cases
(1) xxx;
• NO in criminal cases
(2) Those that do not comply with the Statute of
“Motion to Produce Document” in relation to Frauds as set forth in this number. In the
Rule 130 Section 7 may be done orally. following cases an agreement hereafter made
shall be unenforceable by action, unless the
same, or some note or memorandum, thereof, be
3. Parol Evidence Rule in writing, and subscribed by the party charged,
or by his agent; evidence, therefore, of the
Section 9. Evidence of written agreements. — When the agreement cannot be received without the writing,
terms of an agreement have been reduced to writing, it is or a secondary evidence of its contents:
considered as containing all the terms agreed upon and
there can be, between the parties and their successors in “(a) An agreement that by its terms is not to be
interest, no evidence of such terms other than the contents performed within a year from the making thereof;
of the written agreement.
“(b) A special promise to answer for the debt, default,
However, a party may present evidence to modify, explain or miscarriage of another;
or add to the terms of written agreement if he puts in issue
in his pleading: “(c) An agreement made in consideration of marriage,
other than a mutual promise to marry;
(a) An intrinsic ambiguity, mistake or imperfection in the
written agreement; “(d) An agreement for the sale of goods, chattels or
things in action, at a price not less than five hundred
(b) The failure of the written agreement to express the true pesos, unless the buyer accept and receive part of
intent and agreement of the parties thereto; such goods and chattels, or the evidences, or some of
them, of such things in action or pay at the time some
(c) The validity of the written agreement; or part of the purchase money; but when a sale is made
by auction and entry is made by the auctioneer in his
(d) The existence of other terms agreed to by the parties or sales book, at the time of the sale, of the amount and
their successors in interest after the execution of the written kind of property sold, terms of sale, price, names of
agreement.

the purchasers and person on whose account the 4. Interpretation Of Documents

sale is made, it is a sufficient memorandum;
Section 10. Interpretation of a writing according to its
“(e) An agreement for the leasing for a longer period legal meaning. — The language of a writing is to be
than one year, or for the sale of real property or of an interpreted according to the legal meaning it bears in the
interest therein; place of its execution, unless the parties intended otherwise.
“(f) A representation as to the credit of a third person. Section 11. Instrument construed so as to give effect to all
provisions. — In the construction of an instrument, where
(3) xxx there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect
to all
Parol evidence may not apply in express trust.
Section 12. Interpretation according to intention; general
and particular provisions. — In the construction of an
No express trusts concerning an immovable or instrument, the intention of the parties is to be pursued; and
any interest therein may be proved by parol when a general and a particular provision are inconsistent,
evidence. (Article 1443, Civil Code) the latter is paramount to the former. So a particular intent
will control a general one that is inconsistent with it.
Why only INTRINSIC?
• In extrinsic ambiguity, the principle of Section 13. Interpretation according to circumstances. —
“pari delicto” applies For the proper construction of an instrument, the
circumstances under which it was made, including the
MISTAKE refers only to mistake of FACT, not situation of the subject thereof and of the parties to it, may
be shown, so that the judge may be placed in the position of
mistake in law.
those who language he is to interpret.
According to Dean Riano Section 14. Peculiar signification of terms. — The terms
Parol evidence rule is the most useless rule in of a writing are presumed to have been used in their
evidence. One may simply go over it by putting in primary and general acceptation, but evidence is admissible
issue by the pleading: to show that they have a local, technical, or otherwise
• An intrinsic ambiguity, mistake or peculiar signification, and were so used and understood in
imperfection in the written agreement; the particular instance, in which case the agreement must
• The failure of the written agreement to be construed accordingly.
express the true intent and agreement of the
parties thereto; Section 15. Written words control printed. — When an
• The validity of the written agreement; or instrument consists partly of written words and partly of a
• The existence of other terms agreed to by printed form, and the two are inconsistent, the former
the parties or their successors in interest controls the latter.
after the execution of the written agreement.
Section 16. Experts and interpreters to be used in
Best Evidence Rule Parol Evidence Rule explaining certain writings. — When the characters in
As to availability of the “original” which an instrument is written are difficult to be
Presupposes that the Contemplates a situation where deciphered, or the language is not understood by the court,
original is available in the original is not available in the evidence of persons skilled in deciphering the
court court and/or there is a dispue as characters, or who understand the language, is admissible
to whether said writing is the
to declare the characters or the meaning of the language.
original
What is prohibited?
Varying the terms of Introduction of evidence aliunde Section 17. Of Two constructions, which preferred. —
the written agreement regardless of whether or not it When the terms of an agreement have been intended in a
varies the contents of the original different sense by the different parties to it, that sense is to
Who may invoke? prevail against either party in which he supposed the other
Parties privy to the Any party regardless of whether understood it, and when different constructions of a
written agreement and or not they participated in the provision are otherwise equally proper, that is to be taken
their successors-in- written agreement which is the most favorable to the party in whose favor the
interest provision was made.
To which documents applicable?
Only to contractual Any kind of writing
documents, including
Section 18. Construction in favor of natural right. —
wills When an instrument is equally susceptible of two
interpretations, one in favor of natural right and the other
against it, the former is to be adopted. (16)

The following are disqualified from being witnesses to

Section 19. Interpretation according to usage. — An a will:
instrument may be construed according to usage, in order to (1) Any person not domiciled in the Philippines;
determine its true character. (2) Those who have been convicted of falsification of
a document, perjury or false testimony. (Article 821,
According to ACP Macababbad Civil Code)
Interpretation of contract – as to legal effects

and consequences; it follows the provisions of Disqualification as State Witness (Rule 119)
law.
Section 17. Discharge of accused to be state witness.
Interpretation of Documents – as to contents, it — When two or more persons are jointly charged with
follows the intent of the parties. the commission of any offense, upon motion of the
prosecution before resting its case, the court may
direct one or more of the accused to be discharged
C. TESTIMONIAL EVIDENCE with their consent so that they may be witnesses for
the state when, after requiring the prosecution to
1. Qualification of Witnesses present evidence and the sworn statement of each
proposed state witness at a hearing in support of the
Section 20. Witnesses; their qualifications. — Except as discharge, the court is satisfied that:
provided in the next succeeding section, all persons who
can perceive, and perceiving, can make their known (a) There is absolute necessity for the testimony of
perception to others, may be witnesses. the accused whose discharge is requested;
Religious or political belief, interest in the outcome of the (b) The is no other direct evidence available for the
case, or conviction of a crime unless otherwise provided by proper prosecution of the offense committed, except
law, shall not be ground for disqualification. the testimony of said accused;
(c) The testimony of said accused can be

According to ACP Macababbad substantially corroborated in its material points;
(d) Said accused does not appear to be the most

Testimonial Evidence – oral evidence elicited guilty; and
from the mouth of the witness.
(e) Said accused has not at any time been
Competence – a person perceiving and convicted of any offense involving moral
communicating his perception. turpitude.
Competency examination – is in doubt as to the

sanity or mental condition of witness.
Moral Turpitude
If a person cannot recall what he perceived, he
is already incompetent. [An] act of baseness, vileness, or the depravity
in private and social duties which man owes to
Can a deaf-mute testify in court? his fellow man, or to society in general, contrary
NO. However, he may testify if there is an to the accepted and customary rule of right and
interpreter approved by the Supreme Court duty between man and man. xxx Act or behavior
that gravely violates moral sentiment or
Tergiversating witness – one who makes accepted moral standards of community and is a
conflicting or evasive statements. morally culpable quality held to be present in
• Competent, but NOT credible some criminal offenses as distinguished from
others. xxx The quality of a crime involving
Testimony of a witness is required in grave infringement of the moral sentiment of the
authenticating documentary evidence. community as distinguished from statutory mala
Who are incompetent as witness? prohibita. (Black’s Law Dictionary)
In Succession

Moral turpitude has been defined as Spousal Immunity Rule

everything which is done contrary to justice,
modesty, or good morals. GENERAL RULE: Neither the husband nor the
wife may testify for or against each other without
the consent of the affected spouse.
Section 21. Disqualification by reason of mental incapacity EXCEPTIONS:
or immaturity. — The following persons cannot be
• In a civil case by one against the other
witnesses:
• In a criminal case for a crime committed
(a) Those whose mental condition, at the time of their by one against the other or the latter's
production for examination, is such that they are incapable direct descendants or ascendants.
of intelligently making known their perception to others;
Section 23. Disqualification by reason of death or insanity
(b) Children whose mental maturity is such as to render of adverse party. — Parties or assignor of parties to a case,
them incapable of perceiving the facts respecting which or persons in whose behalf a case is prosecuted, against an
they are examined and of relating them truthfully. executor or administrator or other representative of a
deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot
According to ACP Macababbad testify as to any matter of fact occurring before the death of
such deceased person or before such person became of
unsound mind.
Kinds of Disqualification
1. Absolute – “tumatayo pa lang, Section 24. Disqualification by reason of privileged
disqualified na” communication. — The following persons cannot testify as
2. Relative – “nakaupo na, pero to matters learned in confidence in the following cases:
disqualified sa question”
(a) The husband or the wife, during or after the marriage,
Mental incapacity is broader than insanity cannot be examined without the consent of the other as to
(unsound mind). any communication received in confidence by one from the
other during the marriage except in a civil case by one
against the other, or in a criminal case for a crime
Reason for disqualification: Their mental committed by one against the other or the latter's direct
condition, at the time of their production for descendants or ascendants;
examination, is such that they are incapable of
intelligently making known their perception to (b) An attorney cannot, without the consent of his client, be
others. examined as to any communication made by the client to
him, or his advice given thereon in the course of, or with a
A minor 7 years of age may testify, provided he view to, professional employment, nor can an attorney's
pass the test of competency. secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such
In case of CHILD WITNESS: Live-link television
capacity;
may be used; if not possible, then “chamber
hearing”; if objected because the accused (c) A person authorized to practice medicine, surgery or
cannot confront the child witness, by leaving the obstetrics cannot in a civil case, without the consent of the
door open for viewing; or one may use one way patient, be examined as to any advice or treatment given by
mirrors; or by use of reflective mirrors. him or any information which he may have acquired in
attending such patient in a professional capacity, which
A drunk person may be competent to testify. information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient;
Section 22. Disqualification by reason of marriage. —
During their marriage, neither the husband nor the wife (d) A minister or priest cannot, without the consent of the
may testify for or against the other without the consent of person making the confession, be examined as to any
the affected spouse, except in a civil case by one against the confession made to or any advice given by him in his
other, or in a criminal case for a crime committed by one professional character in the course of discipline enjoined
against the other or the latter's direct descendants or by the church to which the minister or priest belongs;
ascendants.
(e) A public officer cannot be examined during his term of
office or afterwards, as to communications made to him in

official confidence, when the court finds that the public during its existence, may be given in evidence against the
interest would suffer by the disclosure. co-conspirator after the conspiracy is shown by evidence
other than such act of declaration.
2. Testimonial Privilege Section 31. Admission by privies. — Where one derives

title to property from another, the act, declaration, or
Section 25. Parental and filial privilege. — No person omission of the latter, while holding the title, in relation to
may be compelled to testify against his parents, other direct the property, is evidence against the former.
ascendants, children or other direct descendants.
Section 32. Admission by silence. — An act or declaration
made in the presence and within the hearing or observation
GENERAL RULE: No person may be compelled of a party who does or says nothing when the act or
to testify against his parents, other direct declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him
ascendants, children or other direct
to do so, may be given in evidence against him.
descendants.
Section 33. Confession. — The declaration of an accused
EXCEPTION: In a criminal case, when such acknowledging his guilt of the offense charged, or of any
testimony is indispensable in a crime against the offense necessarily included therein, may be given in
descendant or by one parent against the other. evidence against him.
(Article 215, Family Code of the Philippines)
4. Previous Conduct as Evidence
3. Admissions and Confessions Section 34. Similar acts as evidence. — Evidence that one
did or did not do a certain thing at one time is not
Section 26. Admission of a party. — The act, declaration or admissible to prove that he did or did not do the same or
omission of a party as to a relevant fact may be given in similar thing at another time; but it may be received to
evidence against him. prove a specific intent or knowledge; identity, plan, system,
scheme, habit, custom or usage, and the like. (48a)
Section 27. Offer of compromise not admissible. — In civil
cases, an offer of compromise is not an admission of any Section 35. Unaccepted offer. — An offer in writing to pay
liability, and is not admissible in evidence against the a particular sum of money or to deliver a written instrument
offeror. or specific personal property is, if rejected without valid
cause, equivalent to the actual production and tender of the
In criminal cases, except those involving quasi-offenses money, instrument, or property.
(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the accused may COVERAGE OF MIDTERMS
be received in evidence as an implied admission of guilt. (Exam Date 26 September 2015)
Good luck to us!
A plea of guilty later withdrawn, or an unaccepted offer of
a plea of guilty to lesser offense, is not admissible in
evidence against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other

expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury.
Section 28. Admission by third party. — The rights of a
party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided.
Section 29. Admission by co-partner or agent. — The act

or declaration of a partner or agent of the party within the
scope of his authority and during the existence of the
partnership or agency, may be given in evidence against
such party after the partnership or agency is shown by
evidence other than such act or declaration. The same rule
applies to the act or declaration of a joint owner, joint
debtor, or other person jointly interested with the party.
Section 30. Admission by conspirator. — The act or

declaration of a conspirator relating to the conspiracy and

5. Testimonial Knowledge equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.
Section 36. Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only Section 43. Entries in the course of business. — Entries
to those facts which he knows of his personal knowledge; made at, or near the time of transactions to which they
that is, which are derived from his own perception, except refer, by a person deceased, or unable to testify, who was in
as otherwise provided in these rules. (30a) a position to know the facts therein stated, may be received
as prima facie evidence, if such person made the entries in
6. Exceptions To The Hearsay Rule his professional capacity or in the performance of duty and
in the ordinary or regular course of business or duty.
Section 37. Dying declaration. — The declaration of a
dying person, made under the consciousness of an Section 44. Entries in official records. — Entries in official
impending death, may be received in any case wherein his records made in the performance of his duty by a public
death is the subject of inquiry, as evidence of the cause and officer of the Philippines, or by a person in the performance
surrounding circumstances of such death. of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.
Section 38. Declaration against interest. — The
declaration made by a person deceased, or unable to testify, Section 45. Commercial lists and the like. — Evidence of
against the interest of the declarant, if the fact is asserted in statements of matters of interest to persons engaged in an
the declaration was at the time it was made so far contrary occupation contained in a list, register, periodical, or other
to declarant's own interest, that a reasonable man in his published compilation is admissible as tending to prove the
position would not have made the declaration unless he truth of any relevant matter so stated if that compilation is
believed it to be true, may be received in evidence against published for use by persons engaged in that occupation
himself or his successors in interest and against third and is generally used and relied upon by them therein.
persons. (32a)
Section 46. Learned treatises. — A published treatise,
Section 39. Act or declaration about pedigree. — The act periodical or pamphlet on a subject of history, law, science,
or declaration of a person deceased, or unable to testify, in or art is admissible as tending to prove the truth of a matter
respect to the pedigree of another person related to him by stated therein if the court takes judicial notice, or a witness
birth or marriage, may be received in evidence where it expert in the subject testifies, that the writer of the
occurred before the controversy, and the relationship statement in the treatise, periodical or pamphlet is
between the two persons is shown by evidence other than recognized in his profession or calling as expert in the
such act or declaration. The word "pedigree" includes subject.
relationship, family genealogy, birth, marriage, death, the
dates when and the places where these fast occurred, and Section 47. Testimony or deposition at a former
the names of the relatives. It embraces also facts of family proceeding. — The testimony or deposition of a witness
history intimately connected with pedigree. deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same
Section 40. Family reputation or tradition regarding parties and subject matter, may be given in evidence
pedigree. — The reputation or tradition existing in a family against the adverse party who had the opportunity to cross-
previous to the controversy, in respect to the pedigree of examine him.
any one of its members, may be received in evidence if the
witness testifying thereon be also a member of the family, 7. Opinion Rule
either by consanguinity or affinity. Entries in family bibles
or other family books or charts, engravings on rings, family Section 48. General rule. — The opinion of witness is not
portraits and the like, may be received as evidence of admissible, except as indicated in the following sections.
pedigree.
Section 49. Opinion of expert witness. — The opinion of a
Section 41. Common reputation. — Common reputation witness on a matter requiring special knowledge, skill,
existing previous to the controversy, respecting facts of experience or training which he shown to posses, may be
public or general interest more than thirty years old, or received in evidence.
respecting marriage or moral character, may be given in
evidence. Monuments and inscriptions in public places may Section 50. Opinion of ordinary witnesses. — The opinion
be received as evidence of common reputation. of a witness for which proper basis is given, may be
received in evidence regarding —
Section 42. Part of res gestae. — Statements made by a
person while a starting occurrence is taking place or (a) the identity of a person about whom he has adequate
immediately prior or subsequent thereto with respect to the knowledge;
circumstances thereof, may be given in evidence as part
of res gestae. So, also, statements accompanying an (b) A handwriting with which he has sufficient familiarity;
and

(c) The mental sanity of a person with whom he is (c) That a person intends the ordinary consequences of his
sufficiently acquainted. voluntary act;
The witness may also testify on his impressions of the
emotion, behavior, condition or appearance of a person. (d) That a person takes ordinary care of his concerns;
8. Character Evidence (e) That evidence willfully suppressed would be adverse if

produced;
Section 51. Character evidence not generally
admissible; exceptions: — (f) That money paid by one to another was due to the latter;
(a) In Criminal Cases: (g) That a thing delivered by one to another belonged to the
latter;
(1) The accused may prove his good moral character which
is pertinent to the moral trait involved in the offense (h) That an obligation delivered up to the debtor has been
charged. paid;
(2) Unless in rebuttal, the prosecution may not prove his (i) That prior rents or installments had been paid when a
bad moral character which is pertinent to the moral trait receipt for the later one is produced;
involved in the offense charged.
(j) That a person found in possession of a thing taken in the
(3) The good or bad moral character of the offended party doing of a recent wrongful act is the taker and the doer of
may be proved if it tends to establish in any reasonable the whole act; otherwise, that things which a person
degree the probability or improbability of the offense possess, or exercises acts of ownership over, are owned by
charged. him;
(b) In Civil Cases: (k) That a person in possession of an order on himself for
Evidence of the moral character of a party in civil case is the payment of the money, or the delivery of anything, has
admissible only when pertinent to the issue of character paid the money or delivered the thing accordingly;
involved in the case.
(c) In the case provided for in Rule 132, Section 14,(check (l) That a person acting in a public office was regularly
if incomplete) appointed or elected to it;
RULE 131 (m) That official duty has been regularly performed;
Burden of Proof and Presumptions
(n) That a court, or judge acting as such, whether in the
Section 1. Burden of proof. — Burden of proof is the duty Philippines or elsewhere, was acting in the lawful exercise
of a party to present evidence on the facts in issue of jurisdiction;
necessary to establish his claim or defense by the amount of
evidence required by law. (1a, 2a) (o) That all the matters within an issue raised in a case were
laid before the court and passed upon by it; and in like
Section 2. Conclusive presumptions. — The following are manner that all matters within an issue raised in a dispute
instances of conclusive presumptions: submitted for arbitration were laid before the arbitrators
and passed upon by them;
(a) Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led to another to (p) That private transactions have been fair and regular;
believe a particular thing true, and to act upon such belief,
he cannot, in any litigation arising out of such declaration, (q) That the ordinary course of business has been followed;
act or omission, be permitted to falsify it:
(r) That there was a sufficient consideration for a contract;
(b) The tenant is not permitted to deny the title of his
landlord at the time of commencement of the relation of (s) That a negotiable instrument was given or indorsed for a
landlord and tenant between them. (3a) sufficient consideration;
Section 3. Disputable presumptions. — The following (t) That an endorsement of negotiable instrument was made
presumptions are satisfactory if uncontradicted, but may be before the instrument was overdue and at the place where
contradicted and overcome by other evidence: the instrument is dated;
(a) That a person is innocent of crime or wrong; (u) That a writing is truly dated;
(b) That an unlawful act was done with an unlawful intent;

(v) That a letter duly directed and mailed was received in acquire properly through their actual joint contribution of
the regular course of the mail; money, property or industry, such contributions and their
corresponding shares including joint deposits of money and
(w) That after an absence of seven years, it being unknown evidences of credit are equal.
whether or not the absentee still lives, he is considered dead
for all purposes, except for those of succession. (dd) That if the marriage is terminated and the mother
contracted another marriage within three hundred days after
The absentee shall not be considered dead for the purpose such termination of the former marriage, these rules shall
of opening his succession till after an absence of ten years. govern in the absence of proof to the contrary:
If he disappeared after the age of seventy-five years, an
absence of five years shall be sufficient in order that his (1) A child born before one hundred eighty days after the
succession may be opened. solemnization of the subsequent marriage is considered to
have been conceived during such marriage, even though it
The following shall be considered dead for all purposes be born within the three hundred days after the termination
including the division of the estate among the heirs: of the former marriage.
(1) A person on board a vessel lost during a sea voyage, or (2) A child born after one hundred eighty days following
an aircraft with is missing, who has not been heard of for the celebration of the subsequent marriage is considered to
four years since the loss of the vessel or aircraft; have been conceived during such marriage, even though it
be born within the three hundred days after the termination
(2) A member of the armed forces who has taken part in of the former marriage.
armed hostilities, and has been missing for four years;
(ee) That a thing once proved to exist continues as long as
(3) A person who has been in danger of death under other is usual with things of the nature;
circumstances and whose existence has not been known for
four years; (ff) That the law has been obeyed;
(4) If a married person has been absent for four consecutive (gg) That a printed or published book, purporting to be
years, the spouse present may contract a subsequent printed or published by public authority, was so printed or
marriage if he or she has well-founded belief that the absent published;
spouse is already death. In case of disappearance, where
there is a danger of death the circumstances hereinabove (hh) That a printed or published book, purporting contain
provided, an absence of only two years shall be sufficient reports of cases adjudged in tribunals of the country where
for the purpose of contracting a subsequent marriage. the book is published, contains correct reports of such
However, in any case, before marrying again, the spouse cases;
present must institute a summary proceedings as provided
in the Family Code and in the rules for declaration of (ii) That a trustee or other person whose duty it was to
presumptive death of the absentee, without prejudice to the convey real property to a particular person has actually
effect of reappearance of the absent spouse. conveyed it to him when such presumption is necessary to
perfect the title of such person or his successor in interest;
(x) That acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact; (jj) That except for purposes of succession, when two
persons perish in the same calamity, such as wreck, battle,
(y) That things have happened according to the ordinary or conflagration, and it is not shown who died first, and
course of nature and ordinary nature habits of life; there are no particular circumstances from which it can be
inferred, the survivorship is determined from the
(z) That persons acting as copartners have entered into a probabilities resulting from the strength and the age of the
contract of copartneship; sexes, according to the following rules:
(aa) That a man and woman deporting themselves as 1. If both were under the age of fifteen years, the older is
husband and wife have entered into a lawful contract of deemed to have survived;
marriage;
2. If both were above the age sixty, the younger is deemed
(bb) That property acquired by a man and a woman who to have survived;
are capacitated to marry each other and who live
exclusively with each other as husband and wife without 3. If one is under fifteen and the other above sixty, the
the benefit of marriage or under void marriage, has been former is deemed to have survived;
obtained by their joint efforts, work or industry.
4. If both be over fifteen and under sixty, and the sex be
(cc) That in cases of cohabitation by a man and a woman different, the male is deemed to have survived, if the sex be
who are not capacitated to marry each other and who have the same, the older;

(5) Not to give an answer which will tend to degrade his

5. If one be under fifteen or over sixty, and the other reputation, unless it to be the very fact at issue or to a fact
between those ages, the latter is deemed to have survived. from which the fact in issue would be presumed. But a
witness must answer to the fact of his previous final
(kk) That if there is a doubt, as between two or more conviction for an offense.
persons who are called to succeed each other, as to which
of them died first, whoever alleges the death of one prior to Section 4. Order in the examination of an individual
the other, shall prove the same; in the absence of proof, witness. — The order in which the individual witness may
they shall be considered to have died at the same time. be examined is as follows;
Section 4. No presumption of legitimacy or illegitimacy. — (a) Direct examination by the proponent;

There is no presumption of legitimacy of a child born after
three hundred days following the dissolution of the (b) Cross-examination by the opponent;
marriage or the separation of the spouses. Whoever alleges
the legitimacy or illegitimacy of such child must prove his (c) Re-direct examination by the proponent;
allegation. (6)
(d) Re-cross-examination by the opponent. (4)
RULE 132
Presentation of Evidence Section 5. Direct examination. — Direct examination is the
examination-in-chief of a witness by the party presenting
A. EXAMINATION OF WITNESSES him on the facts relevant to the issue.
Section 1. Examination to be done in open court. — The Section 6. Cross-examination; its purpose and extent. —
examination of witnesses presented in a trial or hearing Upon the termination of the direct examination, the witness
shall be done in open court, and under oath or affirmation. may be cross-examined by the adverse party as to many
Unless the witness is incapacitated to speak, or the matters stated in the direct examination, or connected
questions calls for a different mode of answer, the answers therewith, with sufficient fullness and freedom to test his
of the witness shall be given orally. accuracy and truthfulness and freedom from interest or
bias, or the reverse, and to elicit all important facts bearing
Section 2. Proceedings to be recorded. — The entire upon the issue.
proceedings of a trial or hearing, including the questions
propounded to a witness and his answers thereto, the Section 7. Re-direct examination; its purpose and extent.
statements made by the judge or any of the parties, counsel, — After the cross-examination of the witness has been
or witnesses with reference to the case, shall be recorded by concluded, he may be re-examined by the party calling
means of shorthand or stenotype or by other means of him, to explain or supplement his answers given during the
recording found suitable by the court. cross-examination. On re-direct-examination, questions on
matters not dealt with during the cross-examination, may
A transcript of the record of the proceedings made by the be allowed by the court in its discretion.
official stenographer, stenotypist or recorder and certified
as correct by him shall be deemed prima facie a correct Section 8. Re-cross-examination. — Upon the conclusion
statement of such proceedings. of the re-direct examination, the adverse party may re-
cross-examine the witness on matters stated in his re-direct
Section 3. Rights and obligations of a witness. — A examination, and also on such other matters as may be
witness must answer questions, although his answer may allowed by the court in its discretion.
tend to establish a claim against him. However, it is the
right of a witness: Section 9. Recalling witness. — After the examination of a
witness by both sides has been concluded, the witness
(1) To be protected from irrelevant, improper, or insulting cannot be recalled without leave of the court. The court will
questions, and from harsh or insulting demeanor; grant or withhold leave in its discretion, as the interests of
justice may require.
(2) Not to be detained longer than the interests of justice
require; Section 10. Leading and misleading questions. — A
question which suggests to the witness the answer which
(3) Not to be examined except only as to matters pertinent the examining party desires is a leading question. It is not
to the issue; allowed, except:
(4) Not to give an answer which will tend to subject him to (a) On cross examination;
a penalty for an offense unless otherwise provided by law;
or (b) On preliminary matters;

(c) When there is a difficulty is getting direct and any witness not at the time under examination, so that he
intelligible answers from a witness who is ignorant, or a may not hear the testimony of other witnesses. The judge
child of tender years, or is of feeble mind, or a deaf-mute; may also cause witnesses to be kept separate and to be
prevented from conversing with one another until all shall
(d) Of an unwilling or hostile witness; or have been examined.
Section 16. When witness may refer to memorandum. — A
(e) Of a witness who is an adverse party or an officer, witness may be allowed to refresh his memory respecting a
director, or managing agent of a public or private fact, by anything written or recorded by himself or under
corporation or of a partnership or association which is an his direction at the time when the fact occurred, or
adverse party. immediately thereafter, or at any other time when the fact
was fresh in his memory and knew that the same was
A misleading question is one which assumes as true a fact correctly written or recorded; but in such case the writing
not yet testified to by the witness, or contrary to that which or record must be produced and may be inspected by the
he has previously stated. It is not allowed. adverse party, who may, if he chooses, cross examine the
witness upon it, and may read it in evidence. So, also, a
Section 11. Impeachment of adverse party's witness. — A witness may testify from such writing or record, though he
witness may be impeached by the party against whom he retain no recollection of the particular facts, if he is able to
was called, by contradictory evidence, by evidence that his swear that the writing or record correctly stated the
general reputation for truth, honestly, or integrity is bad, or transaction when made; but such evidence must be received
by evidence that he has made at other times statements with caution.
inconsistent with his present, testimony, but not by
evidence of particular wrongful acts, except that it may be Section 17. When part of transaction, writing or record
shown by the examination of the witness, or the record of given in evidence, the remainder, the remainder
the judgment, that he has been convicted of an offense. admissible. — When part of an act, declaration,
conversation, writing or record is given in evidence by one
Section 12. Party may not impeach his own witness. — party, the whole of the same subject may be inquired into
Except with respect to witnesses referred to in paragraphs by the other, and when a detached act, declaration,
(d) and (e) of Section 10, the party producing a witness is conversation, writing or record is given in evidence, any
not allowed to impeach his credibility. other act, declaration, conversation, writing or record
necessary to its understanding may also be given in
A witness may be considered as unwilling or hostile only if evidence.
so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify, or his Section 18. Right to respect writing shown to witness. —
having misled the party into calling him to the witness Whenever a writing is shown to a witness, it may be
stand. inspected by the adverse party. (9a)
The unwilling or hostile witness so declared, or the witness B. AUTHENTICATION AND PROOF OF DOCUMENTS
who is an adverse party, may be impeached by the party
presenting him in all respects as if he had been called by Section 19. Classes of Documents. — For the purpose of
the adverse party, except by evidence of his bad character. their presentation evidence, documents are either public or
He may also be impeached and cross-examined by the private.
adverse party, but such cross-examination must only be on Public documents are:
the subject matter of his examination-in-chief.
(a) The written official acts, or records of the official acts
Section 13. How witness impeached by evidence of of the sovereign authority, official bodies and tribunals, and
inconsistent statements. — Before a witness can be public officers, whether of the Philippines, or of a foreign
impeached by evidence that he has made at other times country;
statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances (b) Documents acknowledge before a notary public except
of the times and places and the persons present, and he last wills and testaments; and
must be asked whether he made such statements, and if so,
allowed to explain them. If the statements be in writing (c) Public records, kept in the Philippines, of private
they must be shown to the witness before any question is documents required by law to the entered therein.
put to him concerning them. All other writings are private. (20a)
Section 14. Evidence of good character of witness. — Section 20. Proof of private document. — Before any
Evidence of the good character of a witness is not private document offered as authentic is received in
admissible until such character has been impeached. evidence, its due execution and authenticity must be proved
either:
Section 15. Exclusion and separation of witnesses. — On
any trial or hearing, the judge may exclude from the court

(a) By anyone who saw the document executed or written; Section 26. Irremovability of public record. — Any public
or record, an official copy of which is admissible in evidence,
must not be removed from the office in which it is kept,
(b) By evidence of the genuineness of the signature or except upon order of a court where the inspection of the
handwriting of the maker. record is essential to the just determination of a pending
Any other private document need only be identified as that case.
which it is claimed to be.
Section 27. Public record of a private document. — An
Section 21. When evidence of authenticity of private authorized public record of a private document may be
document not necessary. — Where a private document is proved by the original record, or by a copy thereof, attested
more than thirty years old, is produced from the custody in by the legal custodian of the record, with an appropriate
which it would naturally be found if genuine, and is certificate that such officer has the custody.
unblemished by any alterations or circumstances of
suspicion, no other evidence of its authenticity need be Section 28. Proof of lack of record. — A written statement
given. (22a) signed by an officer having the custody of an official record
or by his deputy that after diligent search no record or entry
Section 22. How genuineness of handwriting proved. — of a specified tenor is found to exist in the records of his
The handwriting of a person may be proved by any witness office, accompanied by a certificate as above provided, is
who believes it to be the handwriting of such person admissible as evidence that the records of his office contain
because he has seen the person write, or has seen writing no such record or entry.
purporting to be his upon which the witness has acted or
been charged, and has thus acquired knowledge of the Section 29. How judicial record impeached. — Any
handwriting of such person. Evidence respecting the judicial record may be impeached by evidence of: (a) want
handwriting may also be given by a comparison, made by of jurisdiction in the court or judicial officer, (b) collusion
the witness or the court, with writings admitted or treated between the parties, or (c) fraud in the party offering the
as genuine by the party against whom the evidence is record, in respect to the proceedings.
offered, or proved to be genuine to the satisfaction of the
judge. Section 30. Proof of notarial documents. — Every
instrument duly acknowledged or proved and certified as
Section 23. Public documents as evidence. — Documents provided by law, may be presented in evidence without
consisting of entries in public records made in the further proof, the certificate of acknowledgment
performance of a duty by a public officer are prima being prima facie evidence of the execution of the
facie evidence of the facts therein stated. All other public instrument or document involved.
documents are evidence, even against a third person, of the
fact which gave rise to their execution and of the date of the Section 31. Alteration in document, how to explain. — The
latter. party producing a document as genuine which has been
altered and appears to have been altered after its execution,
Section 24. Proof of official record. — The record of public in a part material to the question in dispute, must account
documents referred to in paragraph (a) of Section 19, when for the alteration. He may show that the alteration was
admissible for any purpose, may be evidenced by an made by another, without his concurrence, or was made
official publication thereof or by a copy attested by the with the consent of the parties affected by it, or was
officer having the legal custody of the record, or by his otherwise properly or innocent made, or that the alteration
deputy, and accompanied, if the record is not kept in the did not change the meaning or language of the instrument.
Philippines, with a certificate that such officer has the If he fails to do that, the document shall not be admissible
custody. If the office in which the record is kept is in in evidence.
foreign country, the certificate may be made by a secretary
of the embassy or legation, consul general, consul, vice Section 32. Seal. — There shall be no difference between
consul, or consular agent or by any officer in the foreign sealed and unsealed private documents insofar as their
service of the Philippines stationed in the foreign country in admissibility as evidence is concerned.
which the record is kept, and authenticated by the seal of
his office. Section 33. Documentary evidence in an unofficial
language. — Documents written in an unofficial language
Section 25. What attestation of copy must state. — shall not be admitted as evidence, unless accompanied with
Whenever a copy of a document or record is attested for a translation into English or Filipino. To avoid interruption
the purpose of evidence, the attestation must state, in of proceedings, parties or their attorneys are directed to
substance, that the copy is a correct copy of the original, or have such translation prepared before trial.
a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if C. OFFER AND OBJECTION
there be any, or if he be the clerk of a court having a seal,
under the seal of such court. Section 34. Offer of evidence. — The court shall consider
no evidence which has not been formally offered. The

purpose for which the evidence is offered must be Section 40. Tender of excluded evidence. — If documents
specified. or things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the
Section 35. When to make offer. — As regards the record. If the evidence excluded is oral, the offeror may
testimony of a witness, the offer must be made at the time state for the record the name and other personal
the witness is called to testify. circumstances of the witness and the substance of the
proposed testimony.
Documentary and object evidence shall be offered after the
presentation of a party's testimonial evidence. Such offer RULE 133
shall be done orally unless allowed by the court to be done Weight and Sufficiency of Evidence
in writing.
Section 1. Preponderance of evidence, how determined. —
Section 36. Objection. — Objection to evidence offered In civil cases, the party having burden of proof must
orally must be made immediately after the offer is made. establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
Objection to a question propounded in the course of the evidence on the issues involved lies, the court may consider
oral examination of a witness shall be made as soon as the all the facts and circumstances of the case, the witnesses'
grounds therefor shall become reasonably apparent. manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which there are
An offer of evidence in writing shall be objected to within testifying, the nature of the facts to which they testify, the
three (3) days after notice of the unless a different period is probability or improbability of their testimony, their
allowed by the court. interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon
In any case, the grounds for the objections must be the trial. The court may also consider the number of
specified. witnesses, though the preponderance is not necessarily with
the greater number.
Section 37. When repetition of objection unnecessary. —
When it becomes reasonably apparent in the course of the Section 2. Proof beyond reasonable doubt. — In a criminal
examination of a witness that the question being case, the accused is entitled to an acquittal, unless his guilt
propounded are of the same class as those to which is shown beyond reasonable doubt. Proof beyond
objection has been made, whether such objection was reasonable doubt does not mean such a degree of proof,
sustained or overruled, it shall not be necessary to repeat excluding possibility of error, produces absolute certainly.
the objection, it being sufficient for the adverse party to Moral certainly only is required, or that degree of proof
record his continuing objection to such class of questions. which produces conviction in an unprejudiced mind.
(37a)
Section 3. Extrajudicial confession, not sufficient ground
Section 38. Ruling. — The ruling of the court must be for conviction. — An extrajudicial confession made by an
given immediately after the objection is made, unless the accused, shall not be sufficient ground for conviction,
court desires to take a reasonable time to inform itself on unless corroborated by evidence of corpus delicti.
the question presented; but the ruling shall always be made
during the trial and at such time as will give the party Section 4. Circumstantial evidence, when sufficient. —
against whom it is made an opportunity to meet the Circumstantial evidence is sufficient for conviction if:
situation presented by the ruling.
(a) There is more than one circumstances;
The reason for sustaining or overruling an objection need
not be stated. However, if the objection is based on two or (b) The facts from which the inferences are derived are
more grounds, a ruling sustaining the objection on one or proven; and
some of them must specify the ground or grounds relied
upon. (c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
Section 39. Striking out answer. — Should a witness
answer the question before the adverse party had the Section 5. Substantial evidence. — In cases filed before
opportunity to voice fully its objection to the same, and administrative or quasi-judicial bodies, a fact may be
such objection is found to be meritorious, the court shall deemed established if it is supported by substantial
sustain the objection and order the answer given to be evidence, or that amount of relevant evidence which a
stricken off the record. reasonable mind might accept as adequate to justify a
conclusion.
On proper motion, the court may also order the striking out
of answers which are incompetent, irrelevant, or otherwise Section 6. Power of the court to stop further evidence. —
improper. The court may stop the introduction of further testimony
upon any particular point when the evidence upon it is

already so full that more witnesses to the same point cannot Section 6. Use of deposition. — If a deposition to
be reasonably expected to be additionally persuasive. But perpetuate testimony is taken under this rule, or if, although
this power should be exercised with caution. not so taken, it would be admissible in evidence, it may be
used in any action involving the same subject matter
Section 7. Evidence on motion. — When a motion is based subsequently brought in accordance with the provisions of
on facts not appearing of record the court may hear the Sections 4 and 5 of Rule 24.
matter on affidavits or depositions presented by the
respective parties, but the court may direct that the matter Section 7. Depositions pending appeal. — If an appeal has
be heard wholly or partly on oral testimony or depositions. been taken from a judgment of the Regional Trial Court or
before the taking of an appeal if the time therefor has not
RULE 134 expired, the Regional Trial Court in which the judgment
Perpetuation of Testimony was rendered may allow the taking of depositions of
witnesses to perpetuate their testimony for use in the event
Section 1. Petition. — A person who desires to perpetuate of further proceedings in the said court. In such case the
his own testimony or that of another person regarding any party who desires to perpetuate the testimony may make a
matter that may be cognizable in any court of the motion in the said Regional Trial Court for leave to take the
Philippines, any file a verified petition in the court of the depositions, upon the same notice and service thereof as if
province of the residence of any expected adverse party. the action was pending therein. The motion shall show (a)
the name and the addresses of the persons to be examined
Section 2. Contents of petition. — The petition shall be and the substance of the testimony which he expects to
entitled in the name of the petitioner and shall show: (a) elicit from each; and (b) the reason for perpetuating their
that the petitioner expects to be a party to an action in a testimony. If the court finds that the perpetuation of the
court of the Philippines by is presently unable to bring it or testimony is proper to avoid a failure or delay of justice, it
cause it to be brought; (b) the subject matter of the may make an order allowing the depositions to be taken,
expected action and his interest therein; (c) the facts which and thereupon the depositions may be taken and used in the
he desires to establish by the proposed testimony and his same manner and under the same conditions as are
reasons for desiring to perpetuate it; (d) the names of a prescribed in these rules for depositions taken in actions
description of the persons he expects will be adverse parties pending in the Regional Trial Court.
and their addresses so far as known; and (e) the names and
addresses of the persons to be examined and the substance
of the testimony which he expects to elicit from each, and
shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.
Section 3. Notice and service. — The petitioner shall

thereafter serve a notice upon each person named in the
petition as an expected adverse party, together with a copy
of a petition, stating that the petitioner will apply to the
court, at a time and place named therein, for the order
described in the petition. At least twenty (20) days before
the date of hearing the notice shall be served in the manner
provided for service of summons.
Section 4. Order of examination. — If the court is satisfied

that the perpetuation of the testimony may prevent a failure
or delay of justice, it shall make an order designating or
describing the persons whose deposition may be taken and
specifying the subject matter of the examination, and
whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions
may then be taken in accordance with Rule 24 before the
hearing.
Section 5. Reference to court. — For the purpose of

applying Rule 24 to depositions for perpetuating testimony,
each reference therein to the court in which the action is
pending shall be deemed to refer to the court in which the
petition for such deposition was filed.

Admissibility vs. Credibility of Evidence Exceptions to res inter alios acta rule
Admissibility Credibility First branch

Depends on logic and law; Depends on judicial (a) admission by co-partner or agent (Rule 130, Sec. 29)
determined by its relevance evaluation in accordance (b) admission by co-conspirator Rule 130, Sec. 30)
and competence; with Rule 133 and doctrines (c) admission by privies Rule 130, Sec. 31)
laid down by the Supreme
Court.
Second branch
Factum Probandum vs. Factum Probans Similar acts may be received to prove:
• a specific intent or knowledge;
• identity,
Factum probandum Factum Probans • plan,
The ultimate fact Evidentiary fact
• system,
The fact sought to be The fact by which “factum
• scheme,
established probandum” is to be
• habit,
established
• custom or usage,
Proposition Materials which establish
that proposition • and the like.
In civil cases: the cause of In civil cases: Preponderant
action evidentiary fact(s)
In criminal cases: elements In criminal cases:
of the crime or offense Evidentiary fact(s) tending to Exceptions to Parol Evidence Rule
prove guilt beyond
reasonable doubt A party may present evidence to modify, explain or add to
the terms of written agreement if he puts in issue in his
pleading:
Admission vs. Confession
(a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
Admission Confession
An act, declaration or An acknowledgment of guilt (b) The failure of the written agreement to express the
omission of a party as to of the offense charged true intent and agreement of the parties thereto;
relevant fact
Broader Specific (c) The validity of the written agreement; or
May be express or implied, Only by express, direct and
including omission positive act (d) The existence of other terms agreed to by the parties
or their successors in interest after the execution of the
written agreement.
Quantum of Proof
In civil cases, the party having burden of proof must
Interlocking Confessions
establish his case by a preponderance of evidence.
(Rule 133, Section 1) [Lare extrajudicial confessions] independently made
[by conspirators] without collusion; identical with each
In criminal cases, the accused is entitled to an acquittal, other in their material respects and confirmatory of the
unless his guilt is shown beyond reasonable doubt. other. They are, therefore, also admissible as
Proof beyond reasonable doubt does not mean such a circumstantial evidence against their co-accused
degree of proof, excluding possibility of error, produces implicated therein to show the probability of the latters
absolute certainly. Moral certainly only is required, or actual participation in the commission of the
that degree of proof which produces conviction in an crime. They are also admissible as corroborative
unprejudiced mind. (Rule 133, Section 2) evidence against the others, it being clear from other
facts and circumstances presented that persons other
In administrative cases, a fact may be deemed than the declarants themselves participated in the
established if it is supported by substantial evidence, or commission of the crime charged and proved. They are
that amount of relevant evidence which a reasonable what is commonly known as interlocking confession
mind might accept as adequate to justify a conclusion. and constitute an exception to the general rule that
(Rule 133, Section 5) extrajudicial confessions/admissions are admissible in
evidence only against the declarants thereof. (People v.
Reyes, 178300, 17 March 2009)

Exceptions to Best Evidence Rule Moral Turpitude
[An] act of baseness, vileness, or the depravity in

(a) When the original has been lost or destroyed, or
private and social duties which man owes to his fellow
cannot be produced in court, without bad faith on the
man, or to society in general, contrary to the accepted
part of the offeror;
and customary rule of right and duty between man and
man. xxx Act or behavior that gravely violates moral
(b) When the original is in the custody or under the
sentiment or accepted moral standards of community
control of the party against whom the evidence is
and is a morally culpable quality held to be present in
offered, and the latter fails to produce it after reasonable
some criminal offenses as distinguished from others.
notice;
xxx The quality of a crime involving grave infringement
of the moral sentiment of the community as
(c) When the original consists of numerous accounts or
distinguished from statutory mala prohibita. (Black’s Law
other documents which cannot be examined in court
Dictionary)
without great loss of time and the fact sought to be
established from them is only the general result of the
whole; and
(d) When the original is a public record in the custody of

Requirements of extra judicial admission
a public officer or is recorded in a public office.
Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in
writing and signed by such person in the presence of
Implied judicial admission in pleadings his counsel or in the latter's absence, upon a valid
waiver, and in the presence of any of the parents, elder
GENERAL RULE: Material averment in the complaint, brothers and sisters, his spouse, the municipal mayor,
shall be deemed admitted when not specifically denied. the municipal judge, district school supervisor, or priest
or minister of the gospel as chosen by him; otherwise,
EXCEPTION: The amount of unliquidated damages, such extrajudicial confession shall be inadmissible as
need not be specifically denied. evidence in any proceeding.
(Rule 8, Section 11)
Are successors-in-interest bound by the

Actionable documents omissions of predecessors-in-interest
GENERAL RULE: [T]he genuineness and due execution
Yes.
of the instrument shall be deemed admitted unless the
adverse party, under oath specifically denies them, and
Section 31. Admission by privies. — Where one derives
sets forth what he claims to be the facts.
title to property from another, the act, declaration, or
omission of the latter, while holding the title, in relation
EXCEPTION: Lwhen the adverse party does not appear
to the property, is evidence against the former.
to be a party to the instrument or when compliance with
an order for an inspection of the original instrument is
refused, the requirement of an oath does not apply.
(Rule 8, Section 8) Effect of failure to specifically deny under
oath an actionable document:
(a) The party whose signature it bears admits the he
Disqualification of Witness signs it or that that it was signed by another for him with
his authority;
In Succession
(b) At the time it was signed it was in words and figures
The following are disqualified from being witnesses to a
exactly as set out in the pleading and the other party
will:
relied upon it;
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
(c) That the document was delivered; and
document, perjury or false testimony. (Article 821, Civil
Code)
(d) That the formal requisites of law such as seal,
acknowledgment, and revenue stamp which it lacks are
waived by him
Disqualification as State Witness (Rule 119)
Section 17. Discharge of accused to be state witness. —
xxx
(e) Said accused has not at any time been convicted of
any offense involving moral turpitude.

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JHEZ NOTES – “EVIDENCE”

2015 ARELLANO UNIVERSITY SCHOOL OF LAW

ATTY. NOEMI MACABABBAD

Notes By: ENGR. JESSIE A. SALVADOR, MPICE | http://wordpress.com/engrjhez Page 1

Section 2. Scope. — The rules of evidence shall be the

May the Rules of Evidence be waived?

waiver is contrary to law, public order, public Privacy of communications

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(f) the laws of nature, of the original instrument is refused, the

2. Discretionary – those matters (without Effect of failure to specifically deny under

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the contents of a document, no evidence shall be admissible

Examples of Best Evidence

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execution or existence and the cause of its unavailability

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the purchasers and person on whose account the 4. Interpretation Of Documents

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The following are disqualified from being witnesses to

Interpretation of contract – as to legal effects

(c) The testimony of said accused can be

(d) Said accused does not appear to be the most

Competency examination – is in doubt as to the

Notes By: ENGR. JESSIE A. SALVADOR, MPICE | http://wordpress.com/engrjhez Page 8

Moral turpitude has been defined as Spousal Immunity Rule

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2. Testimonial Privilege Section 31. Admission by privies. — Where one derives

An offer to pay or the payment of medical, hospital or other

Section 29. Admission by co-partner or agent. — The act

Section 30. Admission by conspirator. — The act or

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8. Character Evidence (e) That evidence willfully suppressed would be adverse if

(b) That an unlawful act was done with an unlawful intent;

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(5) Not to give an answer which will tend to degrade his

Section 4. No presumption of legitimacy or illegitimacy. — (a) Direct examination by the proponent;

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Section 3. Notice and service. — The petitioner shall

Section 4. Order of examination. — If the court is satisfied

Section 5. Reference to court. — For the purpose of

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Admissibility Credibility First branch

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Exceptions to Best Evidence Rule Moral Turpitude

[An] act of baseness, vileness, or the depravity in

(d) When the original is a public record in the custody of

Are successors-in-interest bound by the

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