ESSENTIAL CONCEPTS IN EVIDENCE

CONCEPT OF EVIDENCE Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (Sec. 1, Rule 128, Rules of Court). Applicability of the rules of evidence The rules of evidence, being part of the Rules of Court, apply only to judicial proceedings (Sec. 1, Rule 128, Rules of Court). It is a well-settled procedural principle that the Rules of Court shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases, except by analogy or in a suppletory character and whenever practicable and convenient (Sec. 4, Rule 1, Rules of Court). Application of the Rules on Electronic Evidence It is significant to note that while the definition of evidence under the Rules of Court applies only to judicial proceedings, the Rules on Electronic Evidence apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases (Sec. 2, Rule 1, Rules on Electronic Evidence). Distinction between proof and evidence 1. Proof is not the evidence itself. There is proof only because of evidence. It is merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence (29 Am Jur 2d, Evidence 2). 2. Evidence is the medium or means by which a fact is proved or disproved. Proof is the effect of evidence because without evidence there is no proof (Blacks Law Dictionary, 5th Ed., 1094). It must be remembered that bare allegations unsubstantiated by evidence, are not equivalent to proof (Domingo vs. Robles, 453 SCRA 812, March 18, 2005). Requisites for the admissibility of evidence 1. Under Sec. 3 of Rule 128, Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. Thus, for evidence to be admissible, two elements must concur, namely: (a) (b) the evidence is relevant, and the evidence is not excluded by the rules (competent).

These two elements correspond to Wigmores two axioms of admissibility, namely: (a) That none but facts having rational probative value are admissible; and (b) That all facts having rational probative value are admissible unless some specific rule forbids. (I Wigmore, 9-10, 289-295). The first axiom is, in substance, the axiom of relevance while the second is the axiom of competence. When collateral matters are allowed 1

As a rule, evidence on collateral matters are not allowed (Sec. 4, Rule 128,Rules of Court). This rule is, however, not an absolute rule. Sometimes a collateral matter may be admitted in evidence. Under the Rules of Court, a collateral matter may be admitted if it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4, Rule 128, Rules of Court). In other words, while the evidence may not bear directly on the issue, it will be admitted if it has the tendency to corroborate or supplement facts established previously by direct evidence, or to induce belief as to the probability of improbability of a fact in issue. To illustrate: Although evidence of character is generally inadmissible, evidence of the good moral character of the accused is admissible when said character is pertinent to the moral trait involved in the offense charged (Sec. 51(a)(1), Rule 130, Rules of Court). In civil cases, evidence of the moral character of a party is admissible only when pertinent to the issue of character involved in the case (Sec. 51(b), Rule 130, Rules of Court). Also, evidence of the good character of a witness is admissible if his character has been previously impeached but not before impeachment (Sec. 14, Rule 132, Rules of Court). Inadmissibility of character evidence 1. Character refers to what a man is and depends on the attributes he possesses. It is not the same as a mans reputation because the latter is what he is supposed to be in accordance with what people say he is and depends on how people perceive him to be (Blacks, 5th Ed., 211). 2. Character evidence is not generally admissible (Sec. 51, Rule 130, Rules of Court). Character is generally irrelevant in determining a controversy because the evidence of a persons character or trait is not admissible to prove that a person acted in conformity with such character or trait in a particular occasion (29 Am Jur 2d Evidence 363). Proof of bad moral character of the accused 1. In a criminal case, the prosecution cannot prove the bad moral character of the accused in its evidence-in-chief. It can only do so in rebuttal (Sec. 51, (a)(2), Rule 130, Rules of Court). This means that the prosecution may not offer evidence of the character of the accused unless the accused himself has offered evidence of his good character. The prosecution therefore, must wait until the accused puts his character in issue during the proceedings. Where the accused proves his good moral character pertinent to the moral trait involved in the offense charged (Sec. 51 (a)(1), Rule 130, Rules of Court), he opens the door to the prosecution to prove that his character is, in fact, bad. Then and only then may the prosecution prove the bad moral character of the accused. 2. In confining the right of the prosecution to prove the bad character of the accused only by way of rebuttal prevents a pronouncement of guilt not because there exists sufficient evidence of his guilt, but because he is a bad man. The rule therefore, allows a conviction only upon evidence affirmatively showing his commission of the offense charged. When character evidence is admissible

Character evidence is admissible in the following cases: (a) The good or bad moral character of the offended party may be proved by the accused if it tends to establish in any reasonable degree the probability or improbability of the offense charged (Sec. 51(a), Rule 130, Rules of Court). The accused may prove his good moral character when pertinent to the moral trait involved in the offense charged (Sec. 51(a)(1), Rule 130, Rules of Court). In doing so, an accused may advance more than one character trait as evidence so long as each trait is germane to some issue in the case (United States vs. Curtis CA3 Pa) 644 F2d 263). He may not however, prove his character by evidence of specific instances of good conduct (29 Am Jur 2d Evidence Evidence 367; Government of Virgin Islands vs. Grant (CA3 VI) 775 F2d 508, 19 Fed Rules Evid Serv 620). Hence, he cannot prove that on one occasion he fed an old woman dying of starvation, and on another, he came to the aid of a damsel in distress. However, when the specific acts are the very issues in the case, an inquiry into such acts is permissible. In civil cases, evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case (Sec. 51(b), Rule 130, Rules of Court). Thus, evidence of a partys intemperance may be admitted when his intemperance is pertinent to the issues involved.

(b)

(c )

4. Evidence of the good moral character of a witness is not admissible until such character has been impeached (Sec. 14, Rule 132, Rules of Court). It is error for counsel to offer evidence of the good moral character of his witness who is presented in court for the first time since he could not have been previously impeached. Admissibility of opinion evidence As a rule, the opinion of a witness is inadmissible (Sec. 48, Rule 130, Rules of Court). When opinion evidence is admissible 1. When the opinion is that of an expert, i.e., the opinion of a witness requiring special knowledge, skill, experience or training which he is shown to posses, may be received in evidence (Sec. 49, Rule 130, Rules of Court). 2. When the opinion is that of an ordinary witness provided that the proper basis of the opinion is given and the subject of the opinion is any of the following matters: (a) the identity of a person about whom the witness has adequate knowledge; (b) the handwriting of the person of which the witness has adequate knowledge; (c ) the mental sanity of a person with whom he is sufficiently acquainted; and

(d) the impressions of the witness on the emotion, behavior, condition or appearance of a person (Sec. 50, Rule 130, Rules of Court). Admissibility of previous conduct or similar acts as evidence 1. Assume that Mr. X is accused of physical injuries. Is evidence that he committed similar acts in the past admissible to prove his propensity for committing such acts? Answer: The evidence is not admissible for the purpose for which it is offered. Sec. 34 of Rule 130 clearly provides: Evidence that one did or did not do a certain thing at one time, is not admissible to prove that he did not do the same or a similar thing at another time (Sec. 34, Rule 130, Rules of Court). 2. In the same vein, evidence that Jose was cleared of a previous charge of robbery is not admissible to prove that he could not have committed the robbery for which he is presently charged. The rule enunciated in Sec. 34 of Rule 130 is founded on common reason. To argue that a person did or did not commit an act because he did not or did a similar thing in the past is non sequitur (it does not follow). When evidence of similar acts or previous conduct is admissible 1. Evidence of similar acts is admissible for any of the following purposes: To prove( a) specific intent (b) knowledge (c ) identity (d) plan (e) system (f) habit (h) custom (i) usage, and the like. 2. For example, evidence of the other crimes, acts or wrongs of the accused is admissible to show that the offense for which he is currently charged and the said previous similar acts show the signature or handiwork of the accused, because of identical or similar modus operandi. In other words, the similar acts may be offered to show that they share distinctive features as the offense for which the accused is charged. Admissible evidence distinguished from credible evidence 1. Admissible evidence is not necessarily credible evidence. In fact, admissibility and credibility must be sharply contrasted. They are entirely two different matters and present different issues. The term admissible means that the evidence is of such a character that the court, pursuant to the rules of evidence, is bound to receive it or to allow it to be introduced at the trial. Admissibility however, does not guarantee credibility. Admissibility is one thing and credibility is another. 2. The term credibility refers to worthiness of belief, that quality which renders a witness worthy of belief (Blacks, 5th Ed., 330). The meaning of credibility in law is exactly what it means in ordinary usage: believability. After the competence of a witness is allowed, the consideration of his credibility follows. Falsus in uno, falsus in omnibus 1. Literally falsus in uno, falsus in omnibus means false in one thing, false in everything (Dawson v. Bertolinin, 70 R.I. 325, 38 A.2d 765, 768). The doctrine means that if the testimony of a witness on a material issue is willfully false and given with an intention to deceive, the jury may disregard 4

all the witness testimony (Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820, 823). It is particularly applied to the testimony of a witness who may be considered unworthy of belief as to all the rest of his evidence if he is shown to have sworn falsely in one detail. 2. The principle of falsus in uno, falsus in omnibus is not strictly applied in this jurisdiction. It deals only with the weight of the evidence and is not a positive rule of law. The rule is not an inflexible one of universal application. Modern trend in jurisprudence favors more flexibility when the testimony of a witness may be partly believed and partly disbelieved depending on the corroborative evidence presented at the trial (People vs. Negrosa, G.R. Nos. 142856-57, August 25, 2003). Alibi as a defense 1. As a defense, alibi is inherently weak and crumbles in the light of positive identification by truthful witnesses. It is evidence in nature and selfserving and cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence (People vs. Larraaga, G.R. Nos. 138874-75, July 21, 2005). It cannot prevail over the positive identification of the accused as perpetrator of the crime. In the face of positive identification of the accused by the prosecution witness, such alibi crumbles like a sand fortress (People vs. Vargas, G.R. No. 122765, October 13, 2003; People vs. Adam, G.R. No. 143842, October 13, 2004; People vs. Enriquez, G.R. No. 158797, July 29, 2005). 2. While the defense of alibi is by nature a weak one, it assumes significance and strength where the evidence for the prosecution is also intrinsically weak (People vs. Canlas, 372 SCRA 401 [2001]). 3. Contrary to the common notion, alibi is not always a weak defense. Sometimes, the fact that the accused was somewhere else may just be the plain and unvarnished truth. But to be exonerating, the defense of alibi must be so airtight that it would admit of no exception. It must be demonstrated that the person charged with the crime was not only somewhere else when the offense was committed, but was so far away that it would have been physically impossible to have been at the place of the crime or its immediate vicinity at the time of its commission. The reason is that no person can be in two places at the same time (People vs. Baro, G.R. Nos. 146327-29, June 5, 2002). 4. For the defense of alibi to prosper, the following must be established: (1) The presence of the accused in another place at the time of the commission of the offense, and (2) The physical impossibility for him to be at the scene of the crime at the time of its commission (People vs. Larraaga, G.R. Nos. 138874-75, July 21, 2005; People vs. Enriquez, G.R. No. 158797, July 29, 2005). Physical impossibility refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places (People vs. Mosquera, 362 SCRA 441). 5. Like alibi, the defense of frame up is viewed with disfavor as it can easily be concocted and is commonly used as a defense in most prosecutions arising from the violations of the Dangerous Drugs Act. The legal presumption that official duty has been regularly performed exists (People

vs. Lee Hoi Ming, G.R. No. 145337, October 2, 2003; People vs. Barita, 325 SCRA 22 [2000]). Factum probans and factum probandum 1. Evidence signifies a relationship between two facts; namely: (a) (b) the fact or proposition to be established (factum probandum) ; and the facts or material evidencing the fact or proposition to be established (factum probans) (John J. Wigmore, Principles of Judicial Proof, 5).

2. Stated in another way, the factum probandum is the fact to be proved; the fact which is in issue and to which the evidence is directed. On the other hand, factum probans is the probative or evidentiary fact tending to prove the fact in issue (Blacks, 5th Ed., 533). Thus, if P claims to have been injured by the negligence of D who denies having been negligent, the negligence is the fact to be established. It is the factum probandum. The evidence offered by P constitute the material to prove the negligence of P. The evidence is the factum probans. Multiple admissibility There are times when a proffered evidence is admissible for two or more purposes. Sometimes it is admissible for one purpose but inadmissible for another or vice versa. It may also be admissible against one party but not against another. This kind of evidence is to be received provided it meets the relevancy and competency tests for which it is offered. This is commonly termed, multiple admissibility. For instance, evidence that the general reputation of the accused for truth, honesty, or integrity is bad is inadmissibility to prove that he committed the crime charged but it may be admissible to impeach his credibility as a witness. The declaration of a dying person may be admissible for several purposes. It may be offered as a dying declaration (Sec. 37, Rule 130, Rules of Court), as part of the res gestae (Sec. 42, Rule 130, Rules of Court) or as a declaration against interest (Sec. 38, Rule 130, Rules of Court). Conditional admissibility It happens frequently enough that the relevancy of a piece of evidence is not apparent at the time it is offered but the relevance of which will readily be seen when connected to other pieces of evidence not yet offered. The proponent of the evidence may ask that the evidence be conditionally admitted in the meantime subject to the condition that he is going to establish its relevancy and competency at a later time. If the connection is not shown as promised, the court may, upon motion of the adverse party, strike out from the record the evidence that was previously conditionally admitted. Curative admissibility The concept of curative admissibility refers to a situation where incompetent evidence was erroneously received by the court despite objection from the other party. It will not apply where the evidence was admitted without objection because of a waiver of the inadmissibility of the 6

evidence. Where the objection was incorrectly overruled, the court must allow the other party to introduce evidence to contradict the evidence improperly admitted. This is for reasons of fairness. For example, in an action for damages arising from a car accident, the plaintiff introduced evidence to show that on several occasions the defendant in the past had injured pedestrians because of his negligence. Of course, under the rules of evidence, this kind of evidence is inadmissible because evidence that a person did a certain thing at one time is not admissible to prove that he did the same or similar thing (Sec. 34, Rule 130, Rules of Evidence). Under the concept of curative admissibility, the court must give the party against whom the evidence was admitted the chance to contradict or explain the alleged past acts he committed to counteract the prejudice which the improperly admitted evidence may have caused. Direct evidence Direct evidence means evidence that directly proves a fact without the need to make an inference from another fact. The testimony of the prosecution witness claiming that he saw that it was actually the deceased who attacked the accused without the latters provocation is a direct evidence. Circumstantial evidence 1. Circumstantial evidence is that evidence that directly proves a fact in issue through an inference which the fact finder draws from the evidence established (People vs. Matito, G.R. No. 144405, February 2, 2004). 2. Circumstantial or indirect evidence is the exact opposite of direct evidence. When the evidence is circumstantial, a fact is established by making an inference from a previously established fact. In other words, in this type of evidence, the court uses a fact from which an assumption is drawn. When the court does not have to make an inference from one fact to arrive at a conclusion, the evidence is direct. For instance, the testimony of the victim that he dreads the mere presence of the accused is direct evidence that the statement was made. However, it is also circumstantial evidence to show that this fear prevented the victim from attacking the accused without provocation. 3. In a criminal case, circumstantial evidence may be sufficient for conviction provided the following requisites concur: (a) (b) (c ) There is more than one circumstance; The 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. (Sec. 4, Rule133, Rules of Court; People vs. Sevilleno, G.R. No. 152954, March 11, 2004).

4. All the circumstances proved must be consistent with each other, and they are to be taken together as proved. Being consistent with each other, and, taken together, they must point unerringly to the direction of guilt and mere suspicions, probabilities, or suppositions do not warrant a conviction (Underhill, Criminal Evidence, 4th Ed., 18). Cumulative evidence

Cumulative evidence refers to evidence of the same kind that tends to prove the same fact. When two or more witnesses testify that they saw the event which the first witness claimed he saw, the subsequent testimonies constitute cumulative evidence. Corroborative evidence 1. As commonly used, the term connotes evidence which tends to confirm, validate, or strengthen evidence already presented. The corroborative evidence may be of the same kind as that already previously presented. For instance, the testimony of X that he saw Y hack the victim corroborates that previous testimony of Z that indeed he also saw Y strike the victim with a bladed weapon. Here, the previous testimony is corroborated by evidence of the same kind, i.e., testimonial evidence from eyewitness. 2. Corroborative evidence may also be of a different type from that previously offered but which tends to prove the same fact. For instance, a witness claims that he saw Mr. X sign the document subject of the action. Mr. X denies the authenticity of his signature. Evidence by a handwriting expert that the signature is indeed that of Mr. X is corroborative evidence. Here, we have a testimonial evidence from an eyewitness, and a testimony from an expert who did not personally witness the signing of the document. Positive and negative evidence 1. These categories of evidence are normally associated with testimonial evidence. Evidence is said to be positive when a witness affirms in the stand that a certain state of facts do exist or that a certain event happened. It is negative when the witness states that an event did not occur or that the state of facts alleged to exist do not actually exist. Thus, the testimony of W that he saw P fire a gun at the victim is a positive evidence. The testimony of W that he could not have fired the gun because he was not armed during the incident, is a negative evidence. 2. A denial is a negative evidence. It is considered by jurisprudence to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when it comes from the mouth of a credible witness (People vs. Mendoza, 450 SCRA 328, January 21, 2005). Liberal construction of the rules of evidence 1. Like all other provisions under the Rules of Court, the rules of evidence must be liberally construed (Sec. 6, Rule 1, Rules of Court). Rules of procedure are mere tools intended to facilitate rather than to frustrate the attainment of justice. A strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice. Procedural rules must be liberally interpreted and applied so as not to frustrate substantial justice (Quiambao vs. Court of Appeals, 454 SCRA 17, March 28, 2005). However, to justify relaxation of the rules, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required (Barcenas vs. Tomas, 454 SCRA 593, March 31, 2005).

2. The Rules of Electronic Evidence shall likewise be construed liberally (Sec. 2, Rule 2, Rules on Electronic Evidence). Absence of a vested right in the rules of evidence There is no vested right in the rules of evidence (Ayala de Roxas vs. Case, 8 Phil. 197). Because the rules of evidence are subject to change by the Supreme Court pursuant to its powers to promulgate rules concerning pleading, practice and procedure (Sec. 5(5), Constitution of the Philippines). The change in the rules of evidence are however, subject to the constitutional limitation on the enactment of ex post facto laws (Art. 3, Sec 22, Bill of Rights, Constitution of the Philippines). An ex post facto law includes that which alters the rules of evidence and receives less or different testimony than that required at the time of the commission of the offense in order to convict the accused (Mekin vs. Wolfe, 2 Phil. 74). Waiver of the rules of evidence 1. The rules of evidence may be waived. When an otherwise objectionable evidence is not objected to, the evidence becomes admissible because of waiver. Thus, a hearsay evidence if not objected to becomes admissible. The benefits of the parol evidence rule and the best evidence rule and other rules may be waived in the same manner. Admissibility however, should not be equated with the credibility or the probative value of the evidence. Evidence is admissible because it is relevant and competent. Whether or not the court will give it weight is an entirely different matter. 2. May the parties stipulate waiving the rules of evidence? The Civil Code of the Philippines (Art. 6) provides that rights may be waived, unless the waiver is contrary to law, public policy, morals, or good customs or prejudicial to a third person with a right recognized by law. As long as no law or principles of morality, good customs and public policy are transgressed or no rights of third persons are violated, the rules of evidence may be waived by the parties. Burden of proof in civil cases 1. The burden of proof, or onus probandi, is traditionally the obligation of a party to the litigation to persuade the court that he is entitled to relief. As defined in the Rules of Court, it is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law (Sec. 1, Rule 131). 2. In civil cases, a party who alleges a fact has the burden of proving it (Gamboa Rodriguez, Rivera & Co. vs. Court of Appeals, G.R. No. 117456, May 6, 2005; De la Cruz vs. Sison, 451 SCRA 754, February 17, 2005). It is a basic rule that he who alleges must prove what is alleged (Nikko Hotel Manila Garden vs. Reyes, 452 SCRA 532, February 28, 2005; Acabal vs. Acabal, 454 SCRA 555, March 31, 2005; Go vs. Achas, 453 SCRA, March 11, 2005). It is thus, inaccurate to say, under the clear terms of Sec. 1 of Rule 131, that the burden of proof lies on the shoulders of the plaintiff. The burden of proof, under the clear terms of Sec. 1 of Rule 131, is the duty to present evidence

not only to establish a claim but also a defense. Hence, it is the duty of the plaintiff who has a claim and the defendant who has a defense. 3. If a party alleges the existence of a fact, that party has the burden of proof whether that party be the plaintiff or the defendant. If the plaintiff alleges that the defendant owes him a sum of money, the plaintiff has the burden to prove the debt. If the defendant asserts that he has already paid the debt then he has the burden to prove payment. 4. The burden of proof that a debt was contracted lies with the creditorplaintiff. El incumbit probation qui dicit, non qui negat he who asserts, not he who denies, must prove (Homeowners Savings & Loan Bank vs. Dailo, 453 SCRA 283, March 11, 2005). If the defendant admits the debt but defends by alleging that it has already been paid, waived or otherwise extinguished, he has the burden to prove the extinguishment of the alleged obligation (Mayon Hotel & Restaurant vs. Adana, 458 SCRA 609 [2005]). 5. In an eminent domain case, the local government that seeks to expropriate private property has the burden of proving to show the existence of compliance with the elements for the valid exercise of the right of eminent domain (Jesus is Lord Christian Foundation, Inc. vs. City of Pasig, G.R. No. 152230, August 9, 2005). This is because the burden of proof is on the party making the allegations (Gamboa & Co.., 458 SCRA 68 [2005]). Test for determining where burden of proof lies The test for determining where the burden of proof lies is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain. If the defendant has affirmative defenses, he bears the burden of proof as to those defenses which he sets up in answer to the plaintiffs cause of action. Hence, if the defendant sets up the affirmative defense of prescription, he must prove the date when prescription began to run (Aznar Brothers Realty Co. vs. Aying, G.R. No. 144773, May 16, 2005). Where burden of proof is fixed The burden of proof is fixed by the pleadings. The claim of the plaintiff which he must prove, is spelled out in his complaint. The defendants defenses which he must likewise prove, are to be found in his answer to the complaint. The burdens of proof of both parties do not shift during the course of the trial. The burden of proof to establish that the defendant owes the plaintiff remains with the plaintiff. The burden of proof to establish that the loan has been paid remains with the defendant throughout the litigation. Burden of proof in criminal cases In criminal cases, the burden of proof lies with the prosecution because of the presumption that the accused is innocent until the contrary is proven (Art. III, Bill of Rights, Philippine Constitution). The obligation to convince the trier of facts to show the guilt of the accused beyond reasonable doubt is upon the prosecution, as a rule, throughout the trial (Stafford v. United States, 300 Fed 537). However, when the accused invokes a lawful defense like self-defense, the burden of proof rests upon the defense to prove that the killing was justified (People vs. Tan, 315 SCRA 75).

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Burden of evidence The burden of evidence is the duty of a party to go forward with the evidence to overthrow the prima facie evidence against him (Bautista vs. Sarmiento, 138 SCRA 587). The burden of going forward with the evidence may shift from one side to the other as the exigencies of the trial require (Chamberlayne, Sec. 203, 108, 169) and shifts with alternating frequency (People v. Bickerstaff, 46 Cal. App. 764, 190 Pac. 656; Chamberlayne, Modern Evidence, Vol. 2, 930-125 cited in Underhill, Criminal Evidence, 4th Ed., 50). Preponderance of evidence 1. The term, preponderance of evidence applies only to civil cases. It means the greater or superior weight of evidence. It is the evidence that is more convincing and more credible than the one offered by the adverse party. It means that the evidence as a whole adduced by one side is, as a whole superior to or has greater weight than that of the other (Habagat Grill vs. DMC-Urban Property Developer, Inc., 454 SCRA 653, March 31, 2005). 2. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence (Sec. 1, Rule 133, Rules of Court; Umpoc vs. Mercado, 449 SCRA 220, January 21, 2005). In determining whether or not there is preponderance of evidence, the court may consider the following: (a) (b) All the facts and circumstances of the case; The witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or probability of their testimony; The witnesses interest or want of interest, and also their personal credibility so far as the same may ultimately appear in the trial; The number of witnesses, although it does mean that preponderance is not with the greater number (Sec. 1, Rule 133, Rules of Court). To persuade by the preponderance of evidence is not to take the evidence quantitatively but qualitatively (McDonald vs. Union Pacific, 109 Utah 493).

(c )

(d)

Equipoise or equiponderance doctrine 1. The doctrine refers to a situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In this case the decision should be against the party with the burden of proof. Hence, where the burden of proof is on the plaintiff and the evidence does not suggest that the scale of justice should weigh in his favor the court should render a verdict for the defendant (Rivera vs. Court of Appeals, 284 SCRA 673; Marubeni Corp. vs. Lirag, G.R. No. 130998, August 10, 2001).

11

2. In labor cases, if doubt exists between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter (Mayon Hotel & Restaurant vs. Adarna (G.R. No. 157637, May 16, 2005). 3. The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty or property without due process of law (Sec. 1, Art. III, Constitution of the Philippines). Proof beyond reasonable doubt 1. In a criminal case, conviction requires a proof beyond reasonable doubt. Proof beyond reasonable doubt is that degree of proof which produces conviction in an unprejudiced mind. This kind of proof does not mean such a degree of proof that excludes all possibility of error. Only moral certainty is required (Sec. 2, Rule 133, Rules of Court; People vs. Sevillano, G.R. No. 152954, March 11, 2004). Proof beyond reasonable doubt is required in order to overcome the cardinal rule that the accused must always be presumed innocent until the contrary is proven. This presumption applies regardless of the enormity of the crime for which he is charged and remains until a verdict is finally rendered. 2. Reasonable doubt does not refer to any doubt or a mere possible doubt because everything in human experience is subject to possible doubt. Reasonable doubt is that state of the case which, after a comparison of all the evidence, does not lead the judge to have in his mind, a moral certainty of the truth of the charge. Where there is reasonable doubt as to the guilt of the accused, there must be an acquittal (People vs. Calma, 295 SCRA 629; U.S. vs. Johnson, C.A N.Y., 343 F.2d 5,6). Thus, if the facts and circumstances are susceptible of two interpretations, one of which is consistent with the innocence of the accused, and the other interpretation is consistent with guilt, then there is no compliance with the moral certainty required and there is no basis for conviction. Substantial evidence 1. Thus degree of proof applies to cases filed before administrative or quasi-judicial bodies and which requires that in order to establish a fact, the evidence should constitute that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion (Sec. 5, Rule 133, Rules of Court; Advincula vs. Dicen, G.R. No. 162403, May 16, 2005; Benares vs. Pancho, 457 SCRA 652 [2005]). 2. Note: Surprisingly, the Supreme Court held in Duduaco vs. Laquindanum, August 11, 2005 that administrative cases against judges are highly penal in nature and requires proof beyond reasonable doubt. The same doctrine was reiterated in an administrative case against a sheriff in Amado vs. Suarin, August 19, 2005. Evidentiary weight of electronic evidence 1. In assessing the evidentiary weight of electronic evidence, certain factors may be considered, like:

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(a) (b) (c ) (d) (e)

The reliability of the manner in which it was generated, stored or communicated; The reliability of the manner in which its originator was identified; The integrity of the information and communication system; The familiarity of the witness or the person who made the entry with the communication and information system; the nature and quality of the information; and Other factors which the court may consider (Sec. 1, Rule 7, Rules on Electronic Evidence).

2. All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained (Sec. 1, Rule 9, Rules on Electronic Evidence). The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party (Sec. 2, Rule 9, Rules on Electronic Evidence). Matters of Judicial Notice (Rule 129) There are matters in a litigation which must be admitted without need for evidence. All these matters which the court may take cognizance of without evidence are called matters of judicial notice. Function of Judicial Notice The function of judicial notice is to abbreviate litigation by the admission of matters that need no evidence because judicial notice is a substitute for formal proof of a matter by evidence (People vs. Rowland, 4 Cal 4th 238, 14 Cal Rptr 2d 377; 29 Am Jur 2d, Evidence 24, 1994). Judicial notice takes the place of proof and is of equal force. It displaces evidence and fulfills the purpose for which the evidence is designed to fulfill. Mandatory judicial notice 1. The application of judicial notice may either be mandatory (Sec. 1, Rule 129, Rules of Court) or discretionary (Sec. 2, Rule 129, Rules of Court). When the matter is subject to a mandatory judicial notice, no motion or hearing is necessary for the court to take judicial notice of a fact. This is a matter which a court must take judicial notice of. When the matter is subject to discretionary judicial notice, a hearing is necessary before judicial notice is taken of a certain matter. This is a matter which the court or may not take judicial notice of. 2. The following are matters subject to mandatory judicial notice. (a) (b) (c ) (d) (e) (f) the existence and territorial existence of states; the political history, forms of government and symbols of nationality of states; 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; 13

(g) (h) (i)

the laws of nature; the measure of time; and the geographical divisions.

When judicial notice is discretionary 1. Under the principle of discretionary judicial notice 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 (Sec. 2, Rule 129, Rules of Court). 2. The principles of discretionary judicial notice will only apply to cases where the following requisites are met: (a) (b) The matter must be one of common knowledge; The matter must be settled beyond reasonable doubt (if there is any uncertainty about the matter, then evidence must be adduced); and The knowledge must exist within the jurisdiction of the court (Berget vs. State (Okia Crim) 824 P2d 364; 29 Am Jur 2d, Evidence 25 1994; State Prosecutors vs. Muro, 263 SCRA 505, 521 [1994]).

(c )

3. Judicial notice under Sec. 2 of Rule 129 rests on the wisdom and discretion of the court. The power to take judicial notice must be exercised with caution and care must be taken that the requisite notoriety exists. Any reasonable doubt on the matter sought to be judicially noticed must be resolved against the taking of judicial notice (State Prosecutors vs. Muro, 236 SCRA 505). Judicial admissions A judicial admission is another matter which no longer requires proof. A judicial admission is an admission, verbal or written, made by a party in the course of the proceedings in the same case (Sec. 4, Rule 129, Rules of Court). To be a judicial admission, the same must be made by a party to the case. It must be emphasized that the admission must be made in the course of the proceedings in the same case. Thus, an admission made in another judicial proceeding will not be deemed a judicial admission under Sec. 4 of Rule 129. It will be considered an extrajudicial admission for purposes of the proceeding where such admission is offered. An extrajudicial admission needs to be formally offered in evidence unlike a judicial admission which is automatically evidence. The form of the admission is immaterial. Sec. 4 of Rule 129 recognizes either a verbal or a written admission. Nature of admissions in superseded pleadings It has been held that the admissions in a superseded pleading are to be considered as extrajudicial admissions which must be proven (Bastida vs. Menzi & Co., Inc., 58 Phil. 188; Torres vs. Court of Appeals, 131 SCRA 24). In Ching vs. Court of Appeals, 331 SCRA 16, the Supreme Court held that pleadings that have been amended disappear from the record, lose their status as pleadings and cease to be judicial admissions, and to be utilized as

14

extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. Admissions in dismissed pleadings Admissions made in pleadings that have been dismissed are merely extrajudicial admissions (Servicewide Specialists, Inc. vs. Court of Appeals, G.R. No. 117728, June 26, 1996). Hypothetical admissions in a motion to dismiss A motion to dismiss hypothetically admits the truth of the allegations of the complaint (Magno vs. Court of Appeals, No. L-28486, September 10, 1981). It partakes of a demurrer which hypothetically admits the truth of the factual allegations made in the complaint. However, the admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging fraud, allegations of legal conclusions or erroneous statements of law, inferences from facts not stated, matters of evidences or irrelevant matters (De Dios vs. Bristol Laboratories, 55 SCRA 349, 354). Only material allegations, not conclusions in a complaint are deemed admitted (Dalandan vs. Julio, 10 SCRA 400, 410). Admissions by counsel Admissions by a counsel are generally conclusive upon a client (Garcia vs. Court of Appeals, 37 SCRA 129). Even the negligence of counsel binds the client (Sarraga vs. Banco Filipino Savings & Mortgage Bank, G.R. No. 143783, December 9, 2002). This rule is not however, without exception. In cases where reckless or gross negligence of counsel derives the client of due process of law, or when its application will result it outright deprivation of the clients liberty or property or when the interest of justice so require, relief is accorded the client who suffered by reason of the lawyers gross or palpable mistake or negligence (Salazar vs. Salazar, G.R. No. 142920, February 6, 2002). Implied admissions in relation to modes of discovery 1. Under Sec. 1 of Rule 26 of the Rules of Court, a party, at any time after the issues have been joined, may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request. The request for admission may also be of the truth of any material and relevant matter of fact set forth in the request. 2. The party to whom the request was made must file and serve upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. The sworn statement must be filed and served within the period designated in the request which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion. If the sworn statement required is not filed and served, each of the matters of which an admission is requested shall be deemed admitted (Sec. 2, Rule 26, Rules of Court. Concept of presumptions 15

1. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action (Blacks, 5th Ed., 1067 citing Uniform Rule 13; NJ Evidence Rule 13). 2. A presumption is not evidence (California Evidence Code cited in Blacks, 5th Ed., 1167). They merely affect the burden of offering evidence (1 Wharltons Criminal Evidence, Sec. 64). It is not evidence in itself but it is an assumption resulting from the evidence. In a sense, a presumption is an inference which is mandatory unless rebutted (29 Am Jur 29 Evidence 181). Example: D is the debtor of C, creditor for P1 Million payable in twelve (12) equal monthly installments. If evidence is introduced that the installment payment for December has been received by the creditor, a presumption arises that previous installment have been paid. This is because under the law, the receipt of a later installment of a debt, without reservation as to prior installments, shall give rise to the presumption that such installments have been paid (Art. 1176, Civil Code of the Philippines). Inference distinguished from a presumption An inference is a factual conclusion that can rationally be drawn from other facts (Computer Identics Corp. v. Southern Pacific Corporation Co. CA1 Mass). It is however, one that is a result of a reasoning process. It need not have a legal effect because it is not mandated by law. A presumption is mandated by law and establishes a legal relation between or among the facts. Kinds of presumptions 1. A presumption may either be (a) conclusive (presumptions juris et de jure); or (b) disputable/disputable (presumptions juris tantum)

A presumption is conclusive when the presumption becomes irrebuttable upon the presentation of the evidence tending to rebut the presumption is not admissible. This presumption is in reality a rule of substantive law (29 Am Jur 2d Evidence 183). A presumption is disputable or rebuttable or if it may be contradicted or overcome by other evidence (Sec. 2(b), Rule 131, Rules of Court). When evidence that rebuts the presumption is introduced, the force of the presumption disappears. Example: While evidence of receipt of payment of a later installment gives rise to the presumption that previous installments have been paid, yet when evidence is shown that prior installments remain unpaid, the presumption falls. 2. The presumption that an accused is innocent of the crime charged until the contrary is proven is a presumption of law embodied in the Constitution (Sec. 14(2), Art. III, Bill of Rights, Constitution of the Philippines). Art. 1176 of the Civil Code of the Philippines also illustrates another presumption mandated by the law. Under the said provision, when the receipt of the 16

principal by the creditor is proven without reservation with respect to the interest, there is a presumption that said interest has been paid. Conclusive presumptions under the Rules of Court 1. The following are the conclusive presumptions under the Rules of Court: (a) Whenever a party has, by his own declaration, or omission, intentionally or deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. (b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them (Sec. 2(a), Rule 131, Rules of Court). 2. The conclusive presumptions under the Rules of Court are based on the doctrine of estoppel. Under this doctrine, the person making the representation cannot claim benefit from the wrong he himself committed (Phil. Price Assurance Corp. vs. Court of Appeals, 230 SCRA 164). Example: Persons who assume to be a corporation without legal authority to act as such shall be considered a corporation by estoppel and shall be liable as general partners (Sec. 21, Corporation Code of the Philippines). 3. For the enumeration of disputable presumptions, please refer to Sec. 3, Rule 130 of the Rules of Court. Admission And Confessions (Rule 130) 1. An admission is an act, declaration or omission of a party as to a relevant fact (Sec. 26, Rule 130, Rules of Court). It is a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action (Blacks Law Dictionary, 5th Ed., 44). 2. A confession is the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein (Sec. 33, Rule 130, Rules of Court; Tracys Handbook, 62 Ed., 242). It is a statement by the accused that he engaged in conduct which constitutes a crime (29A Am Jur 2d, Evidence 708). 3. An admission in a general sense includes confessions, the former being a broader term because accordingly, a confession is also an admission . . . by the accused of the fact charged against him or of some fact essential to the charge (4 Wigmore, Sec. 1050). A confession is a specific type of admission which refers only to an acknowledgment of guilt. As used, the term admission refers to acknowledgment of facts which although may be incriminating falls short of an admission of guilt. 4. An admission may be implied like an admission by silence; a confession cannot be implied. It should be a direct and positive acknowledgment of guilt. Admission distinguished from declarations against interest

17

An admission is oftentimes confused with a declaration against interest. They are however distinct from each other. (a) To be admitted as a declaration against interest, the declarant must be dead or unable to testify; an admission is admissible even if the person making the admission is alive and is in court. (b) A declaration against interest is made before the controversy arises; an admission is made at any time, even during the trial. (c) A declaration against interest is made against ones pecuniary or moral interest; an admission is admissible as long as it is inconsistent with his present claim or defense and need not be against ones pecuniary or moral interest. (d) A declaration against interest is admissible even against third persons; and admissions are admissible only against the party making the admission. (e) A declaration against interest is an exception to the hearsay rule; an admission is not and is admissible not as an exception to any rule. Effects of admissions 1. An admission by a party may be given in evidence against him (Sec. 26, Rule 132, Rules of Court). His admission is not admissible in his favor, because it would be self-serving evidence. Declarations of a party favorable to himself are not admissible as proof of the facts asserted (Cole v. Ralph, 252 US 286, 64 L Ed 567, 40 SC Ct 312, USTC 312a, 3 AFTR 3051; State v. Warren, 242 Iowa 1176, 47 NW2d 221; Jones v. Dugan, 124 Md. 346, 350, 92 A. 775). 2. An example considered as an admission by the Supreme Court are the following alleged statements of former President Joseph Ejercito Estrada as contained in the so-called Angara Diary: (a) his proposal for a snap election in which he would not participate; (b) his statement that he would leave by Monday if the second envelope would be opened by Monday; and (c) statements like: Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. I just want to clear my name, then I will go (Estrada vs. Desierto, 356 SCRA 108). These words were taken by the Court as an admission of his resignation. Classification of admission and confessions 1. An admission may be express or implied. An express admission is a positive statement or act. An implied admission is one which may be inferred from the declarations or acts of a person. A confession cannot be implied. It must be a positive acknowledgment of guilt and cannot be inferred. Sec. 33 of Rule 130 refers to a confession as a declaration which connotes an affirmative statement from the person making the confession. 2. An admission may be judicial or extrajudicial. An admission is judicial when made in the course of a judicial proceeding. An admission is extrajudicial when made out of court or even in a proceeding other than the one under consideration (Perry v. Simpson, Conn. 313). A confession may be also judicial or extra judicial for the same reasons (29A Am Jur 2d 711). 3. An admission may also be adoptive. This admission occurs when a person manifests his assent to the statements of another person. The admission may be received in evidence if it can be shown that a party adopted the statements as his own (Fed. Evid. R. 801(d)(2)(B); Blacks, 5th Ed., 44).

18

The statements of President Estrada as written in the Angara Diary were deemed by the Court as adoptive admissions. To rebut the argument that the diary is not the diary of the former president and thus, could not be admissible against him, the Court declared: . . . The argument overlooks the doctrine of adoptive admission. An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person . . . (Estrada vs. Desierto, 356 SCRA 108). Effect of extrajudicial confession on guilt 1. While a judicial confession may sustain a conviction, an extrajudicial confession is not sufficient for conviction. The rule requires that the confession be corroborated by evidence of corpus delicti (Sec. 3, Rule 133, Rules of Court). 2. Corpus delicti is the body of the crime or the offense (People v. Strook, 347 Ill. 460, 170 N.E. 821). Strictly speaking, it means the actual commission of the crime and someone criminally responsible therefore (People v. Stoll, 84 Cal App. 99, 257 Pac. 583 cited by Underhill, Criminal Evidence, 34). 3. Corpus delicti, and all the elements thereof, may be proved by circumstantial evidence but such proof must be convincing and compatible with the nature of the case (Underhill, Criminal Evidence 37). 4. While an extrajudicial confession will not be sufficient for conviction unless corroborated by evidence of corpus delicti (Sec. 3, Rule 133, Rules of Court), a judicial confession will support conviction without proof of corpus delicti independent of judicial confession (State v. Dena, 28 N. Mexico, 479, 214, Pac. 583). Admission by silence 1. Admission by silence has been traditionally received even in common law as admissible evidence. The usual pattern for its admissibility involves a statement by a person in the presence of a party to the action, criminal or civil. The statement contains assertions against the party, which, if untrue would be sufficient cause for the party to deny. His failure to speak against the statement is admissible as an admission. 2, Suppose a policeman, upon approaching a group of bystanders, points to one of them and accuses him to be the killer of a man found dead the night before. The man pointed at does not respond. He does not deny the accusation. His failure to respond may be given in evidence against him. The idea of the rule on admission by silence is that if an accusation is made, and a reasonable person would have denied the same if it were false, the failure to deny the accusation by the person accused is an implied admission of the truth of the accusation. 3. Admission by silence as expressed in the Rules of Court provides: An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him (Sec. 32, Rule 130, Rules of Court). 19

4. The rule on admission by silence applies to both criminal and civil cases although must be received with caution because not every silence is an admission. For instance, the silence of a person under investigation for the commission of an offense should not be construed as an admission by silence because of constitutional reasons (Sec. 2(b), R.A. 7438). 5. Not every silence of a party is admissible. It is necessary that: (a) that he heard and understood the statement; (b) that he was at liberty to make a denial; (c) that the statement was about a matter affecting his rights or in which he was interested and which naturally calls for a response; (d) that the facts were within his knowledge, and; (e) that the fact admitted from his silence is material to the issue (People vs. Paragsa, 84 SCRA 105). Thus, in one case, despite the many opportunities given to the respondent, he refused to comment and present his side. The gravity of the charges and the weight of the evidence against him would have prompted an innocent man to come out and clear his name. However, he opted to maintain his silence. His silence can easily be interpreted as an admission of guilt (Ortiz vs. De Guzman, A.M. No. P-03-1708, February 26, 2005; OCA vs. Bernardino, 450 SCRA 88, January 31, 2005). Res inter alios acta 1. The expression if fully expressed reads: res inter alios acta alteri nocere non debet which literally means that things done to strangers ought not to injure those who are not parties to them (Blacks, 5th Ed., 1178). 2. The res inter alios acta rule has two branches, namely: (a) The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission or another (Sec. 28, Rule 130, Rules of Court). The rule that evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do the same act at another time (Sec. 34, Rule 132, Rules of Court).

(b)

3. The first branch is a very simple and logical rule which holds that whatever one says or does or omits to do should only affect him but should not affect or prejudice others. In other words, both common reason and fairness demand that a mans actions and declarations should affect him alone and should not affect others. Thus, if X makes a statement before the media admitting his participation in a previous murder, his statement is admissible against him under Sec. 26 of Rule 130. The rest of his statement pointing to Y and Z as co-participants in the murder are not admissible against Y and Z under the first branch of the res inter alios acta rule in Sec. 28 of Rule 130. Under this rule, the statement of X should not affect or prejudice Y and Z. 4. The rule has reference to extrajudicial declarations. Hence, statements made in open court by a witness implicating persons aside from his own judicial admissions, are admissible as declarations from one who has personal knowledge of the facts testified to. Exceptions to the res inter alios acta rule

20

1.

The first branch of the rule admits of certain exception, to wit: (a) (b) (c) admission by a co-partner or agent (Sec. 29, Rule 130); admission by a co-conspirator (Sec. 30, Rule 130; and admission by privies (Sec. 31, Rule 130).

2. The basis for admitting the above admissions is that the person making the statements is under the same circumstances as the person against whom it is offered. Such circumstances give him substantially the same interest and the same motive to make a statement about certain matters (4 Wigmore Sec. 1080a, 140). Admissions by a co-partner or agent 1. An agent performs some service in representation or on behalf of his principal (Art. 1868, Civil Code of the Philippines). The agent therefore, is in legal contemplation, a mere extension of the personality of the principal and unless the agent acts in his own name, the principal must comply with all the obligations which the agent may have contracted within the scope of his authority (Art. 1883; Art. 1910, Civil Code of the Philippines). Hence, whatever is said by an agent to a third person, during the course of the agency and within the scope of his actual or apparent authority, relative to the business contemplated by the agency, is for legal purposes also the statement of the principal and is therefore, admissible against said principal (29A Am Jur 29 Evidence 815 citing Hitchman Coal & Coke Co. v. Mitchell, 245 US 229, 62 L Ed 260, 38 S Ct 65). 2. The relationship among partners is on the same footing with the relationship of an agent to his principal. Both the contracts of agency and partnership involve fiduciary relationships. Under the law (Art. 1818, Civil Code of the Philippines), every partner is an agent of the partnership for the purpose of its business and the act of the partner in carrying out the usual course of business binds the partnership as a rule. Hence, under the same principle governing an agency, the declarations of a partner may be admissible against the other partners or the partnership. 3. Not every declaration or act made or done by a partner or agent is admissible against the other partners or the principal. For the admission of a co-partners or agent to be admissible, the following requisites must concur: (a) (b) The declaration or act of the partner and agent must have been made or done within the scope of their authority; The declaration or act of the partner and agent must have been made or done during the existence of the partnership or agency (while the person making the declaration was still a partner or an agent); and The existence of the partnership or agency is proven by evidence other than the declaration or act of the partner and agent (Sec. 29, Rule 130, Rules of Court).

(c)

4. Any declaration made before the partnership or agency existed or those made after are not admissible against the other partners or the principal but remains admissible against the partner or agent making the declaration. It is also necessary for the application of the exception that the proof of the agency or partnership be from a source independent of the declaration made by the partner or agent. 21

5. The above rules apply to the declarations or acts of a joint owner, joint debtor, or other persons jointly interested with the party (Sec. 29, Rule 130, Rules of Court). Admission by a co-conspirator 1. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Art. 8, Revised Penal Code). Once the conspiracy is proven, the act of one is the act of all. The statement therefore of one, may be admitted against the other coconspirators as an exception to the rule of res inter alios acta. 2. Assume that two months after a successful bank robbery, A was arrested as a direct participant in the crime. During a television interview, he admitted his participation in the robbery. He also implicated B and C as his other companions in the planning and execution of the robbery. Is his statement admissible? The statement is admissible as to him (Sec. 26, Rule 130) but not as to B and C (Sec. 28, Rule 130). While A was a co-conspirator, his statement will be admissible against B and C only when the following concur: (a) (b) (c) The declaration or act be made or done during the existence of the conspiracy; The declaration or act must relate to the conspiracy; and The conspiracy must be shown by evidence other than the declaration or act (Sec. 30, Rule 130, Rules of Court).

Note that the declaration of A was made long after the conspiracy was over. Even assuming that the conspiracy can be proven by independent evidence and even if his statement was related to the conspiracy, the declaration is not admissible as an exception to the rule of res inter alios acta. Incriminating declarations of co-conspirators made in the absence of or without the knowledge of the others after the conspiracy has come to an end is inadmissible (US vs. Nerlinger (CA2 NY) 862 F2d 967, 27 Fed Rules Evidence Serv 271; 29A Am Jur Evidence 838). The arrest of the declarant is often found to terminate the defendants participation in the conspiracy so that the declarants post arrest statements do not qualify as admissible coconspirator statements (29A Am Jur Evidence 840). 3. The rule requiring the concurrence of the above elements does not apply when the co-accused takes the witness stand and repeats his extrajudicial confession as a witness. The declarations referred to here are extrajudicial statements or declarations. An extrajudicial confession made by an accused is admissible against him but not admissible against his co-accused who took no part in the confession (Sparf v. US, 156 US 51). An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused (People vs. Raquel, 265 SCRA 248) but those made by witnesses in open court are admissible as testimonies of a person based on his personal perceptions and knowledge (Sec. 36, Rule 130, Rules of Court).

22

4. The Supreme held in one case that a distinction must be made between extrajudicial and judicial confession. An extrajudicial confession may be given in evidence against the confessant but not against his coaccused since the latter are afforded the opportunity to cross-examine him. A judicial confession is admissible against the declarants co-accused since the latter are afforded the opportunity to cross examine the former. Sec. 30 of Rule 130 applies only to extrajudicial admissions and not testimonies at trial where the party adversely affected has the opportunity to crossexamine the declarant (People vs. Palijon, 343 SCRA 486). 5. To be admitted as an exception, the extrajudicial statements of the coconspirator must be proven by evidence other than the admission (Sec. 30, Rule 130, Rules of Court; US v. Arias-Villaneuva (CA9 Or) 998 F2d 1491; 29A Am Jur 2d 847). This requisite only applies when the admission is extrajudicial. Where the statement of the con-conspirator is made as witness in court, there is no need for the conspiracy to be shown by independent evidence (People vs. Serrano, G.R. No. L-17937, April 27, 1959). Admission by privies 1. Privies are persons who are partakers or have an interest in any action or thing, or any relation to another (Blacks, 5th Ed., 1077). Examples: (a) A lessor and his lessee, a grantor and a grantee, an assignor and an assignee are privies in estate or a contract; (b) An executor or an administrator and the estate of the deceased are privies in representation; or (c) An heir and his ascendants are privies in blood or succession. 2. Assume that X, father of Z, while the former was alive, openly told his acquaintances, that the land where his house stood had already been sold to Y. Is this declaration by X admissible against Z, the sole heir of Y? It is not because that statement was made after X held his title to the land. For an admission of a predecessor-in-interest to be admissible against the successor-in-interest, the following requisites must be present: (a) (b) (c) There must be an act, declaration or an omission by a predecessor-in-interest; The act, declaration or omission of the predecessor must have occurred while he was holding (not after) the title to the property; and The act, declaration or omission must be in relation to the property (Sec. 31, Rule 130, Rules of Court).

3. Accordingly, when the former owner of the property made the declaration after he ceased to be he owner of the property, the rule on admission by privies does not apply and what applies is the general rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another (Gevero vs. Intermediate Appellate Court, 189 SCRA 201). Offer of compromise in civil cases In civil cases, an offer of compromise is not an admission of any liability, and is not an admission against the offeror (Sec. 27, Rule 130, Rules of Court). Offer of compromise in criminal cases

23

1. An offer of compromise by the accused may be received in evidence as an implied admission of guilt (Sec. 27, Rule 130, Rules of Court). Example: Although the marriage of the accused in a rape case extinguishes the penal action (Alonto vs. Savellano, Jr., 287 SCRA 245), an offer of marriage is, generally speaking, an admission of guilt (People vs. Bulos, G.R. No. 123542, June 26, 2001). 2. There is no implied admission of guilt if the offer of compromise is in relation to (a) quasi-offenses (criminal negligence); or (b) in those cases allowed by law to be compromised (Sec. 27, Rule 130, Rules of Court).

3. Plea of guilty later withdrawn A plea of guilty later withdrawn, is not admissible in evidence against the accused who made the plea (Sec. 27, Rule 130, Rules of Court). An unaccepted plea of guilty to a lesser offense An unaccepted plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer (Sec. 27, Rule 130, Rules of Court). An offer to pay or the payment of medical, hospital or other expenses 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 injured party (Sec. 27, Rule 130, Rules of Court). Object Evidence (Sec. 1, Rule 130). 1. Object evidence, also called real evidence is one of the major categories of evidence in the Rules of Court aside from documentary and testimonial evidences. 2. Objects as evidence refer to those which are addressed to the senses of the court. When relevant, it may be exhibited to, or examined or viewed by the court (Sec. 1, Rule 130). 3. An object may be considered a documentary evidence and a document may sometimes be an object evidence. A documentary evidence need not necessarily be a writing. Under Sec. 2 of Rule 130, documents as evidence may consist of writings or any material (not only writings), containing letters, words, figures, symbols or other modes of written expression provided they are offered to prove their contents(Sec. 2, Rule 130). If an object therefore, has modes of written expressions and the object is offered to prove the contents of such written expressions, the object is offered as a documentary evidence even if by nature it is an object. On the other hand, if a writing is offered not to prove its contents but matters like its existence or its execution or any other matter other than its contents, the writing is not a documentary but an object evidence. Thus, if a pen which is an object is offered to prove what is written on its stem, the pen is offered as a documentary evidence. If a

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writing like a deed of sale is offered to prove that a deed exists, the deed of sale, even if a document, is offered as an object evidence. 4. It is important to know whether an evidence is documentary or object evidence. Where a document is offered as an object evidence, evidentiary rules like the best evidence rule and the parol evidence rule will not come into operation. The hearsay rule will not likewise apply to an object evidence. The Best Evidence Rule (Sec. 3, Rule 130). 1. The best evidence rule does not apply to an object evidence. It applies only to documentary evidence. When an issue arises whether or not the best evidence rule applies, the examinee must ask himself two questions: (a) Is there a document involved? (b) Is the subject of inquiry the contents of the document? If both are answered in the affirmative then the best evidence rule applies. Hence, if there is a document involved in the case but the subject of inquiry is the existence or the due execution of the document or the paper on which the document is written, the rule does not apply. 2. When the best evidence rule comes into operation, it is presumed that the subject of inquiry is the contents of the document. If this is so, then the party offering the document must present the original thereof and not its copy or other secondary evidence. 3. The presentation of the original is not an absolute rule. Secondary evidence may be admissible provided the offeror satisfies the requirements for laying the basis for the presentation of secondary evidence. Laying the basis involves explaining to the satisfaction of the court the reason for the inability to offer the original of the document. For instance, where the original is lost or destroyed or cannot be produced in court, laying the basis for the offering of secondary evidence involves showing the following: (a) That an original exists; (b) That the original was duly executed (c) That the cause of its unavailability like loss, destruction, etc. is explained; (c) That its unavailability was without bad faith on the part of the offeror (Sec. 5, Rule 130 in relation to Sec. 3(a)). If the original cannot be produced because the original is in the custody of the adverse party, laying the basis for the offering of secondary evidence consists in showing the following: (a) That an original exists; (b) That the original has been duly executed; (c) That the adverse party has been given reasonable notice to produce the original; (c) That the adverse party fails to produce the original despite such reasonable notice (Sec. 6, Rule 130). 4. If the offeror has successfully laid the basis for the presentation of the secondary evidence, then the original need not be presented. However, one must observe the order in which secondary evidence is to be offered. This is because not every secondary evidence can be offered. The following order must therefore, be observed: (a) a copy of the original; (b) if there is no copy, then a recital of its contents in some authentic document; (c) in default of the above, by testimony of witnesses (Sec. 5, Rule 130).

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5. The rule defines an original as one the contents of which is the subject of the inquiry (Sec. 4(a), Rules of Court). By referring to the contents of the original, the definition implies that the term original refers only to a documentary evidence and not to an object evidence. There could be several originals of a document. 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 (Sec. 4(b), Rule 130). Also, when an entry is repeated in the regular course of business, one being copied from one another at or near the time of the transaction, all the entries are likewise equally regarded as originals. 6. A party who moves for the production and inspection of an original document is not bound to offer the same in evidence. (Sec. 8, Rule 130). This means that one may move for the production of a document and not offer the same in evidence. Parol Evidence Rule (Sec. 9, Rule 130). 1. The term parol refers to an evidence that is outside a writing. Sometimes it is referred to as extrinsic evidence or evidence aliunde. 2. The concept of the rule is intimately related to the law on contracts. Under the Civil Code of the Philippines, a contract is perfected or born by the mere meeting of the minds (Art. 1315, Civil Code). Contracts are therefore, as a rule, consensual. The moment the parties agree on the terms of the agreement, a contract arises. A contract of sale, for instance may exist in any form. It may be oral. It may be in writing, it may be partly in writing or partly oral. It may even be inferred from the conduct of the parties (Art. 1483, Civil Code). As long as the essential elements of a contract are present, a contract exists (Art. 1356, Civil Code). The parol evidence rule does not find application to oral contracts. It will only be applied the moment the oral agreement is set forth in writing. The moment the parties reduce their agreement into writing, such writing now is presumed to contain all the terms of the agreement. If the writing contains all the terms of the agreement, no other evidence can be introduced to modify, change, contradict, explain or add to the writing. In short, the evidence of the terms of the agreement is only the written agreement. Any evidence other than the writing or outside the writing is parol, hence, inadmissible if properly objected to. Hence, if the deed of sale provides for a price of P1 million, a testimony showing that the true agreement is P2 million is parol and must be objected to. The evidence of P2 million is extrinsic to the writing and is parol evidence prohibited by the rule. 3. The rule that parol evidence is inadmissible is not absolute. Parol evidence may be introduced without violating the rule. If a party wants to introduce parol evidence, he must put in issue in his pleading the fact that the terms of the agreement of the parties is not what the written agreement provides because of any of the following reasons: (a) there is an intrinsic ambiguity in the writing, or mistake or imperfection in the writing; (b) the written agreement failed to express the true intent of the parties; (c) the written agreement is not valid;(d) the parties have another agreement after the execution of the written agreement. The key is to put any of the above matters IN ISSUE in the pleadings. Without raising the same in issue in the 26

pleadings, parol evidence will be inadmissible. Thus, if PP sues DD for collection of a loan of P100,000, DD as a rule, cannot present evidence that the actual loan is P50,000 because the latter evidence is an evidence which modifies the contract. It is inadmissible parol evidence. If DD wants the evidence to be admitted, he must put in issue in his answer to the complaint the fact that the note does not contain the true agreement of the parties and that the actual obligation is only P50,000. He does this by specifically denying the allegations of the complaint and since the note is an actionable document, he has to deny the genuineness and due execution of the document under oath. By doing so, he has put the matter of the amount of the debt and the character of the note in issue. 4. The parol evidence rule applies only to writings that are in themselves, agreements. In short, they apply only to contractual writings. Note however, that for the purpose of the parol evidence rule, a will is considered an agreement (Sec. 9, Rule 130). On the other hand, the best evidence rule applies to all writings, contractual or not. Note also that in the best evidence rule, the issue is whether the writing is an original or a mere secondary evidence. In the parol evidence, the issue is whether or not a matter is the true agreement of the parties. Witnesses and Testimonial Evidence 1. When a witness is competent, that means that he has the qualifications and none of the disqualifications of a witness. A witness may be competent to testify but he may not be credible. Thus, there is a distinction between competence of a witness and his credibility. The latter term refers to the believability of the witness or the probative value of his testimony. 2. The religion, political belief and the interest of the witness in the case do not affect the competence of a witness but may affect his credibility. 3. As a rule, all persons who can perceive, and in perceiving can make known their perception to others, may be witnesses (Sec. 20, Rule 130) 4. A witness must answer questions, although his answer may tend to establish a claim against him (Sec. 3, Rule 132). Following this rule, he may be required by the court to answer a particular question even if it would result into his admission of a liability adverse to him. This provision however, obviously refers to a civil claim or a claim not penal in nature because if the answer will tend to subject the witness to a penalty for an offense, he has the right not to give an answer (Sec. 3(4), Rule 132) because he is protected by the constitution through his right against selfincrimination. 5. On cross-examination, the witness may not only be cross-examined as to matters testified to by the witness in the direct examination. He may be asked questions on matters connected with his testimony in the direct examination although not directly testified to by him as long as the connection may be established. The cross-examiner is in fact given sufficient fullness and freedom to ask questions that would test the accuracy and truthfulness of the witness and his freedom from interest or bias and to elicit important facts bearing on the issues (Sec. 6, Rule 132). A witness cannot be compelled to answer a question which degrades his reputation, except if his reputation is the very fact in issue in the case or from which the fact in issue 27

would be presumed. With regards to a previous final conviction of the witness, a witness must answer a question as to the fact of such conviction for an offense. If it is a conviction that is not yet final, a witness may not be compelled to answer (Sec. 3(5), Rule 132). 6. A witness should not be asked leading questions in a direct examination. This is the general rule. Asking leading questions is however, the norm in a cross-examination. In a cross-examination, what is prohibited is asking a misleading question. 7. Even in a direct examination, there are instances when a leading question is allowed. Preliminary questions for instance, could involve leading questions. Also, when there is difficulty in obtaining intelligible answers from a witness who is ignorant, or from a child of tender years, or from one who is feeble-minded, leading questions could be allowed. The same holds true when a witness is unwilling or hostile or is an adverse party or when the witness is one who represents an adverse party which is a juridical person (Sec. 10, Rule 132). 8. Impeachment of a witness Impeachment of a witness is the process by which is credibility is attacked or assailed. The rule recognizes three (3) modes of impeaching a witness. They are: (a) By contradictory evidence (b) by evidence that his general reputation for truth, honesty and integrity is bad, or (c) by evidence that he has made at other times statements inconsistent with his present testimony (Sec. 11, Rule 132). A witness cannot be impeached by presenting evidence of his particular wrongful acts as when evidence of a series of misconduct by the witness is offered. There is one evidence of a wrongful allowed to be offered and that is his previous conviction of an offense (Sec. 11, Rule 132). Note that under Sec. 11 of Rule 132, a witness cannot be impeached by evidence of his bad character although he can be impeached by evidence of his general bad reputation. The rule emphasizes reputation, not character. Reputation is how a person is perceived by his community. While character is what a person is. The reputation of a witness for purposes of impeachment is however confined to three matters, namely: (a) truth, (b) honesty, and (c) integrity. Hence, you cannot impeach a witness because of his reputation for being troublesome. When a witness testifies in court for instance, that it was the plaintiff who ran the red light in an intersection but tells a police officer immediately after the incident that it was the defendant who ran the red light and not the plaintiff, we have a clear case where the witness made a statement inconsistent with his in-court testimony. It is correct to immediately call the police officer to testify on the inconsistent statement of the witness? It would not be procedurally correct. The rule requires the adverse party to lay the predicate before the impeaching witness (the police officer) is called to the stand. Laying the predicate means that the inconsistent testimony must first be related to the witness, with the circumstances of the times and places and the persons present, and then he must be asked whether he made such statement, and if so, be allowed to explain the making of the inconsistent statement. If the 28

inconsistent statement be in writing, it must be shown to the witness before any question is put to him (Sec. 13, Rule 132). 9. Disqualification by reason of marriage (Sec. 22, Rule 130); Marital privileged communication rule (Sec. 24(a, Rule 130)) The disqualification of a witness by reason of marriage is commonly known as the marital disqualification rule. The tenor of this rule obviously applies only to spouses who have been validly married or whose marriage has not been annulled or declared void. The rule does not include common law relationships. The rule prohibits either of the spouses to testify for or against the other without the consent of the affected spouse. Note that the testimony which requires consent is not only a testimony against the spouse because even a favorable testimony (note the term, for) requires consent under Sec. 22 of Rule 130). The prohibition however, no longer exists when the marriage has already been dissolved. The prohibition applies only during the marriage. Do not confuse Sec. 22 with the marital privileged communication rule under Sec. 24(a) of Rule 130. The marital privileged communication rule under Sec. 24(a) will be used only when the facts of the case show that there is a confidential information transmitted from one spouse to the other. This information if meant to be between the spouses alone is privileged and cannot be disclosed without the consent of the affected spouse. The other spouse cannot be examined without the consent of the other as to the privileged communication. If there is a privileged communication, the duration of the prohibition applies not only during the existence of the marriage. The prohibition exists even after the marriage. Rule: If there is no confidential information, use Sec. 22. If there is, use Sec. 24(a). Note that both rules have common exceptions. In a civil case, the prohibition to testify or to be examined will not apply when the case is between the spouses, i.e., by one against the other. In a criminal case, the prohibition will not apply where one spouse is prosecuted for a crime committed against the other spouse, or against the latters ascendants or descendants in the direct line. Thus, the prohibition still applies where the crime is committed against collateral relatives. 10. Attorney-client privileged communication rule (Sec. 24(b), Rule 130 The prohibition on an attorney to disclose communications from his client refers to communications made by the client in the course of the lawyers professional employment. Even the advice of the attorney cannot be disclosed without the consent of the client. The prohibition does not cover only the attorney. It also prohibits a disclosure by the attorneys secretary, stenographer or clerk. Like the attorney, they cannot be examined as to the communication made by the client without the latters consent. 11. Physician patient privileged communication rule(Sec. 24c), Rule 130 This prohibition refers to persons authorized to practice medicine, surgery or obstetrics. Note the express reference only to a civil case. 12. Parental and filial privilege rule (Sec. 25, Rule 130). A restatement of this rule discloses that a person may testify against his parents, other direct ascendants, children or other direct descendants. He should not however, be 29

compelled to make the testimony. Whether or not he will testify against such person is a matter subject to said persons discretion. A compelled testimony is what the rule obviously prohibits. Hearsay Evidence Rule (Sec. 36, Rule 130) 1. Generally, hearsay evidence is inadmissible because the person who testifies does so based on matters not of his personal knowledge but based on the knowledge of another who is not in court and cannot therefore, be cross-examined. The one who is in court is the person who merely repeats matters witnessed personally by another. This type of evidence is inadmissible because of its inherent unreliability. Sec. 36, Rule 130 requires that A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived form his own perception, except as otherwise provided in these rules. 2. A hearsay evidence may be in writing. For instance, an affidavit is hearsay unless the affiant affirms the same in court and is subject to crossexamination. A hearsay testimony involves an outside-declarant and an in-court witness. It is the outside declarant who says something based on what he has perceived. His statement is heard by someone who is the one who testifies in court (in-court witness) as to what he heard. If the witness offers the statement of the outside declarant to prove the truth of such statement (the one which he heard) the testimony of the witness is hearsay. If its offered merely to prove that he heard the statement without reference to its truth or falsity, his testimony is not hearsay. Illustration: Wilfredo testifies: I heard Pablo say that it was Jose who shot the victim! Is this hearsay? It depends upon the purpose. If the statement of Pablo is offered to prove that it was really Jose who shot the victim, the testimony is hearsay. Wilfredo has no personal knowledge of the incident. It is Pablo who witnessed the shooting. It is Pablo who should be in court to testify so he could be examined effectively. Wilfredo cannot be subjected to a true crossexamination because he has no personal knowledge to testify to and hence, cannot be cross-examined to ferret out the truth. If the testimony is offered merely to prove what he heard Pablo say, the testimony is not hearsay. If what he heard is relevant to an issue in the case, it will fall under the category of independently relevant statements which means statements which are relevant as to their tenor or to the fact that they were uttered and not as to whether they are true or false. 3. There are exceptions to the general rule that hearsay evidence is inadmissible. Hearsay evidence may in some instances be admissible. It is not correct to say that the exceptions to the hearsay rule are not hearsay. They are indeed hearsay. But they are admissible because they are considered reliable by common experience. Thus, it would be more appropriate to call these exceptions as admissible hearsay. The following are the exceptions: (a) Dying declarations (b) Declarations against interest (c) act or declaration about pedigree (d) family tradition or reputation regarding pedigree (e) common reputation (f) Part of the res gestae (g) entries in the course of business (h) entries in official records (i) commercial lists and the 30

like (j) learned treatises, and (k) testimony at a former trial. Advice: See the codal descriptions for each. 4. Dying declarations This is the most significant exception to the hearsay evidence rule. If before he died, X told a police officer that it was Y who shot him, it would be the officer who would be testifying in court. The officer has no personal knowledge of the event. If the dying declaration of X is offered to prove the guilt of Y, the testimony of the officer in court is definitely hearsay. The dying declaration of X is however, an exception to the inadmissibility of hearsay evidence. There has been a traditional acceptance of dying declarations because of the presumption that a dying person will tell the truth before he meets his Creator. While there is no guarantee that a person in the throes of death will tell the truth, this assumption has been traditionally accepted for almost two hundred years, an assumption which has trickled down to modern times. The most significant element therefore, of a dying declaration is that the declaration must have been conscious of his impending death. It is this consciousness which is assumed to be the compelling motive to tell the truth. To be admissible as a dying declaration, the declaration must relate to the cause and circumstances of the declarant. Any statement he makes not related to the circumstances of his death is inadmissible as a dying declaration. The dying declaration is admissible in any case provided the subject of inquiry in that case is the death of the declarant. The old rule that it is admissible only in a criminal case no longer holds true because of the phraseology of Sec. 37 of Rule 130. It is required that the declarant should die. If he lives, there is no need for the dying declaration because the declarant may testify personally based on his own personal knowledge. Suppose by chance he survives but is unable to testify due to severe physical and emotional infirmity, may his declaration be admitted in evidence? Yes but not as a dying declaration. It could be admitted as a statement made by a person immediately subsequent to a startling occurrence. The shooting of the declarant is the startling occurrence. The statement made as to the circumstances of the shooting, while not a dying declaration because he survived, could be considered as part of the res gestae under Sec. 42 of Rule 130. 5. Part of the res gestae this exception presupposes that there is a startling occurrence, an event which causes excitement to the perceiver. A statement made by the declarant about the occurrence or event while the event is taking place or immediately prior or subsequent thereto is admissible as part of the res gestae. Note that the one who made the statement is not the one testifying in court. Under normal circumstances he should be the one in court as the actual perceiver of the event. But if he is not available, the person who heard his utterances may testify. The in-court witness is the person who did not perceive the occurrence. His testimony is actually hearsay for lack of personal knowledge. But he is allowed to testify as to what he heard under the presumption that the statement he heard is reliable because when one describes an event as it is taking place or immediately prior or subsequent thereto, there is no room for fabrication.

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Another part of the res gestae refers to the so-called verbal acts. These are statements made which accompany an equivocal act material to the issue, and gives the act legal significance. An equivocal act is an act which may be subject to various interpretations. Thus, if X testifies that W, a customs broker handed a thick wad of bills to a customs employee, one cannot presume automatically that the money was handed as a bribe. It may have been given in payment of a debt or the receiver was merely asked to give the money to someone else. However, when the handing of the money was coupled with the statement, Here is the money you asked for. Can I expect you now to sign for the release of the goods today? The statement has given the act of giving money a legal significance. The person who heard such words uttered may testify on the statement he heard to prove bribery. Opinion Rule (Sec. 48, Rule 130) 1. The opinion of a witness as a rule, is not admissible. This is because a witness is bound to testify only as to facts and from those facts the court makes conclusions. It is also the general rule that only expert witnesses are allowed to testify as to their opinions. There are however, opinions which an ordinary witness may testify to because they are within the realm of ordinary human experience. For instance, an ordinary witness may testify as to the identity of a person. It would be absurd to object to the testimony of a witness who says that he knows his father and brother. An ordinary witness may also testify as to the handwriting of another even if he is not a handwriting expert (Sec. 50, Rule 130). The genuineness of the handwriting may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or because he is familiar with the handwriting of a person. A handwriting expert is not required (Sec. 22, Rule 132). An ordinary witness may testify as to the mental sanity of a person with whom he is sufficiently acquainted. He may also testify on his impressions of the emotion, behavior, condition or appearance of a person (sec. 50, Rule 132). Character Evidence( Sec. 51, Rule 130) 1. Generally, character evidence is not admissible. In a criminal case for instance, the conviction of the accused is not premised on his being of bad moral character but on the basis of evidence that he indeed is the perpetrator of the crime. The guilt of a person does not automatically flow from his lack of endearing traits. After all, the most morally upright person could have been the criminal. To argue that a person is guilty because he is bad is downright illogical. 2. In criminal cases, the accused may prove his good moral character if it is pertinent to the offense charged. He may also prove the moral character of the offended party if the character of the witness is relevant to the issue of guilt or innocence, i.e., it may tend to prove in any reasonable degree the probability or improbability of the offense charged. The prosecution however, cannot, in its initial presentation of evidence (evidence-in-chief) prove the bad moral character of the accused. It can only do so in rebuttal which means that the prosecution must wait before the accused puts his own 32

character in issue before it could present evidence of the bad moral character of the accused. If the accused does not put his character on the line, the prosecutor cannot offer evidence on the character of the accused (sec. 51(a), Rules of Court). 3. In civil cases, evidence of the good moral character of a party is admissible when pertinent to the issue of character involved in the case (Sec. 51(b), Rule 130). Offer and Objection (Sec. 34, Rule 132) 1. It is important to make an offer of evidence. Identifying the evidence during the trial and having marked it as an exhibit is not enough. After the presentation of the testimonial evidences of the party, an offer of evidence of the documentary and object evidences must be made. Evidence not formally offered shall not be considered by the court (Sec. 34, Rule 132). This offer is also called an offer of evidence or the so-called formal offer of exhibits. If the evidence is testimonial, the offer of the testimony must be made at the time the witness is called to testify (Sec. 35, Rule 132). The offer is done orally unless allowed by the court to be done in writing (Sec. 35, Rule 132). 2. Objections to evidence must be made immediately after the offer is made. The time to object to a documentary evidence is not when it is marked as an exhibit but when formally offered. If the objection is to a question asked, the objection should be made as soon as the objection becomes apparent. When the offer is in writing, it shall be objected to within three (3) days after the notice of the offer unless a different period is allowed by the court (Sec. 36, Rule 132). 3. The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented. The ruling however, shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling (Sec. 38, Rule 132). 4. If a witness answers the question before the adverse party had the opportunity to voice fully its objection and the objection is found to be meritorious, the court shall sustain the objection and order that the answer given be stricken out of the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper (Sec. 39, Rule 132). 5. Tender of excluded evidence- This is the procedure by which excluded evidence may still be inserted as part of the records of the case. Assume that evidence was offered by a party. Upon proper objection, the evidence was held inadmissible by the court. Because of this, the evidence will not be considered as part of the record and will not be considered by the court. For the evidence to be on record, the party affected must make a tender of excluded evidence. Traditional jurisprudence called this tender also as an offer of proof. The term should not be confused with offer of evidence which is the formal offer of evidence or exhibits discussed in par. 1 of this topic. 33

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