EYIDENCERULES OF COURT IN THE PHILIPPINES

RULES 128-134

Ry

RICARDO J. FBANCISCOAssociate-J'usticeSupreme Court

Prolessor of l-awAteneo de Manila UniversitY

THII{,D EDITION1996

ir',iilibi" at:

PGNIC BuildingFourth Floor

i.jbertad St. corner CalbaYog\landaluy'ong CitY

TeL- \,rs. 5 -r 19 i 63 Loc. 501 or:-i:tL5-1 -il I:-i:.Il-$: ;22

EVIDENCEGENERAL PROVISIONS

RULE T28

Section 1. E,,*idence defined. - Dvidence is the means, s"r,nctioned bylhese rules, of ascertaining in a judicial proceeding the truth respecting amatter of fact.

1. Evidence defined.2. Evidence distinguished from proof.3. l'actum probandum distinguiah€d from factum probans.4. Kinds of evidence.

ia) Direct evidence and circumstantial evidence.(b) Primary evidence and secondary evidence.(.) Positive evidence and negative evidence.(di Conoborative evidence and cumulative evidence.

iei frima facie evidence and conclusive evidcnce.(ri Relevant evidence and material evidence.(g) Competent evidence.(f,) neUuttal and sur-rebuttal evidence.(i) Object (Real) evidence.(j) DocumentarY evidence.(k) Testimonial evidence.(m) Substantial evidence.

5. What the rules of evidence determine.6. Sources of the rules of evidence.

QUESTION \. - Define eLidence.

ANS$,/En. - The term ,,evidence" has given rise to a variety ofmeaiint;. This sectionl of tle mle defines one. Murphy, in his yolk $i,ro.ti"ii gpproach to Evidence defines evidence as "any material whichtentls to persuacie the court of the truth or probability of some factsasserted before it"; gnd, Carter, in his treatise Cases and Statutes on

bvidence as "the means'l:y which nny alleged matter of fact, the truthof .ufri.f. is submittetl to investigation, is established or disproved."

QUESTION 2. - Dist'inguislt eaidence from proof.

ANSWER. - Proof is the effect or result of evidence while evidenceis the medium of Proof.r

QUESTION 3. - Distinguish facturn probanilum from factunx pro-

uo"o**ruER.

- Evidence is always a relative term. It signifies'arelation between facts, the factum pr;bandum, or proposition to be ep!a\lished and the factum probans, or material eyidencing the proposition.'tft" io*"r is necessariiy to be conceived of as hypothetical; it is that*fti.fi tU. one party affirms and the other denie!, tle tribunal being

-asV*f "oi .ommiited-in either direction. The latter is conceived of foriractical purposes as existent, and is offered as such for the eonsiderationbt ttte tribunbl. The latter is brought fonvard as reality for th,e purpose

oi i""tit.ing the tribunal that the former is also a reality. . No eorrectand sure coriprehension of the nature of any evidential-question can evelb"-h"d unf..i this double or relative aspeci of it is distinctly pictured.O"

"o.tt occasion the question must be asked: What is the proposition

A.iiira lo be proved? lVtrat is the evidentiary fact offered to prove it?r'

1 Sec, 1, Rule 128, Ruies of Courb, as amended.s 1 Jones on Evidence, p. 5.s lVigmore on Evidence, Sec. 2.

o N,ULES OF COURT sEc. I, RULE 128

QUESTION 4. - Wh.at are th.e kinils of euirlenee and, gi,ue ane*ample of each?

ANS\\rER. - They ar€ as follor,vs:(a) Direct eaid,ence and, cireumstantial eaidence. - Dit,ect euid.ence

is that which proves the fact in dispute rvithout the aid of any inferenc,eol'presumption.a Thus, the testimony of N that he saw A attack B with abolo, killing hirn, is d.,irect eaidence in the charge for homicide against A.

Circumstantial eai,ilence is the proof of facts from rvhich, takeucollectively, the existence of the particular fact in dispute may be inferredas a necessary or probable consequence.o Thus, the testimony of N thathe saw B running away from the place where A was found dead withwounds; that the clothing of B was stained with blood, and that B hada bolo also stained rvith blood, all these facts are circumstantial e"-idencewhich taken together show that B is the one who killed A.

, (b) Primary eaidence ancJ secondary euid,ence. - Primary or besteuidenee is that x'hich afforcls the greatest certainty of the fact in ques-tion. 'fhus, in an action on a written contract the original instrumentrS prirnarE eaidencc of its contents.

Secondary euidcnce is that evidence rvhich is necessarily inferior toprimary evidence and shows on its face that better evidence exists.,; Iuan action on a written contract, a copy of the written instrument or thetestimotty of a rritness as to its content-s constitutes secondary euidence.

(c) Positiue euidencc and, negatiue ec-irJence - Evidence is Ttositiueu'hen the witness affirms that a fact did or. did not occur. Evidence isnegative when the witness states that he did not see or know the occur-rence of l fact.7 Generally speaking, the testimony of those who swearnegatively that they did not see or hear is not to be accorded as greatweight as the testimony of equally credible per.sons, having the sameopportunities of seeing and observing that a tl-ring was or w:rs not done.For instance, the testimony of N that he saw A set fire the house of 13

on a specific date and time, is a positiue eaid,ence. And, accordingly,the testimony of N that he was on that occasion at the place where thehouse of B was burned and that he did not see A set fire on said houseis a negatiue e,uidence.

Negative evidence is admissible only if it tends to contradict positiveevidence of the other side or would tend to exclude thc existence of factsworn to by the other side. On the other hand, the witness who testifiesaffirmatively that something did happen and that he sarw it, if he beotherwise credible, should be believed, because it is unlikely that tr witnesswill remember what never happened. The rule does not apply where twowitnesses with equal opportunity for knowledge contradict each other ss1.o the existence or nonexistence of a fact.8

(d) Corroboratiae eaiclence and c'umulatiae euidence. - Corrobora-tiue euid.ence is additional evidence of a different kind and character,tending to prove the same point.e For instance, in a case, the Court

I Lake County vs, Nellon, 44 Or., L4, 21, ,i4, p. 212.! Stlte vs. Avery, 113, Mo. 476, 494,21 S.W. 193; Reynolds Trial Ev., sec. 4, p. 108.lt 1 Jones on Evidence, scc, 8.? Moore on Facts, p. 133G.r Underhill's Criminal Evidence, 5th Ed., Vol. I, pp. 10-11.e lVyne vs. Newman, ?5 Va. 811, 81?,

sEC. 1, RULE 198 EVIDENCE

concluded: "The testimonies of the prosecution witnesses that the victimsdied because of stab wounds inflicted by the armed men who enteredtheir residence on the night of December 4, lg6b remain uncontroverted.xxx Their death certificates therefore are only corroborative of thetestimonies of the prosecution witnesses.,,ro

cumulatiue euid,ence is evidence of the same kind and character asthat- already given, and tends to prove the same proposition.' Thus,on the issue of the capacity of a boy to write a certain paper, evidenceof his school fellows as to his capacity is cumulative to that of hii teachersand medical men upon the same question.rz

. - (e) Prima facie euid.ence and eonclusiue euid,ence,

- primo facic

euid,ence is that which suffices for the proof of a particular fact, untilccntradicted and overcome by other evidence.la For example: entrlies inthe course of business ryqde by a person in his professional capacity-or in the performance of duty and in the ordinary br regular cour." ,rfbusiness or _{.u!r, are prima facie eaidcnce of the- facts sTated therein,sentries in official records made in the performance of his duty by pubiicofficer of the Philippines, or by a person in the per{ormance of a autyspecially enjoined by law ate Ttrima facie euiileice of the facts stateiltherein,ls instruments acknowledged or proved and certified in the mannerprovided- by larr* arc prima facie ea'id..ence of the execution of thcinstrument.l6

Conclusiue eaid,ence is f,hat u'hich is incontrovertible.l? Whenevidence is received which the law does not allow to be contradicted, it issaid to be "conclusive." Accordingly, a party intr.oducing in eviclence :letter written by his agent to the adverse party, is bound by the statementscontained therein.l8 Also, in an action to rccover money p:rid in setile-ment of an account in stock transactions, plaintiff is bound by his owntestimony that the transactions were gambling tr:ansactions, so as topreclude recovery by him.tc

(f) Releuant cuiclenee and,material eaid,ence. - Evidence is releuantwhen it has a tendency in reason to establish the plobability or impro-bability of a fact in issue.2, The terms rnaterial and, inrmaterial, asused in the law of evidence, do not appear to have been defined or distin*guishecl from the terms relevancy and irrelevancy, either by courts or textrvriters. That materiality has been used interchangeably with relevancyis apparent in numerous cases and texts. 4

(g) Competent e.r*idence. - Evidence is "competent,, when it is notexcluded by law in a particular case.21 In other words, evidence excludedby law or rules is incompetent.22 By way of illustrations we have thefollowing rules:

loPeople vs. Watson, 2?8 Ala. 425, 118 So. 2d 819, SZ1 (1965).11 Cal. Code of Civ. Proc., Sec. 2839.1e Gardner vs. Gardner, 2 Gtay (Mass. 434).l'3 Sec. 1833, Code of Civil Procedure of California.la Sec. 43, Rule 130, Rules of Court, as amended.r5 Sec. 44, Rule 180, ibid.16 Sec. 80, Rule 132, ibid.l7 1 Jones on Evidence, Sec. 18.rc Lilian Realty Co. vs. Erdum, 120 N.Y.S. ?49.le Atwater vs. A. G. Edwards Brokerage Co., L47 Mo. A. 4A6, 126 S.W. gZ2.zo 1 Elliot on Evidence, p. 1g?.21 Porter vs. Valentine, 18 Misc. Rep. 213, 41 N.y.S. 507.22 See Sec. 3, Rule 128, Rules of Court, as amended.

I

NULES O}'COUIIT sEc. 1, liul,E 198

(a) Best eaidence rul.e. - When the subject of inquiry is the contents ot

a document, no evidence shall be admissible other than the original documentitself . . . (Sec. 3, Rule 130, as amended)

(b) Parol evid,enca ru,le.-Iilhen the terms of an agreement have beenreduced to writing, it is considered as containing all the ternrs agreed uponand there can !e, between the parties and their successors in interest, noevidence of such terms other than the contents of the rvritten agreement...(Sec. 9, Rule 130, as amended)

(c) Haorsay eoid.ence. - A rvitness can testify only to those facts which

he knows of his personal knowledge; that is, which are. derived from his ownperception... (Sec. 36, Rule 130, as amended)

(d) Offer of conlryorrLise.-In civil case an offer of conrpromise is notadmission of any liability and is not admissible in evidence :rgainst the offeror. . .(Sec. 27, Rule 130, as amended)

(e) Disqualification of .witnesses by reason of mental incapacity orimmaturity... (Sec. 21, Rule 130, as amended)

(f) Disqualification by reason of marriage... (Sec. 22, Bule 130, asamended)

(g) Disqualification by reason of death or insanity of adverse party...(Sec. 23, Rule 130, as amended)

(h) Disqualification by reason of privileged communication... (Sec.24,* Rule 130, as amended)

(i) Exclusionary provisions in the Constitution, sueh as evidencc obtainedin violation of the right ogainst unreasonatrle searehes and seizures and theprivacy of communication and correspondence (Secs. 2 and 3 of Art. III);confessions and admissions obtained in violation of the rights of a p€rsouunder investigation forthe commission of an offense (Sec.12, Art. III); andthe right against self-incrimination (Sec. 17, Art. III).

/ $) Rebu,ttal d,ncl srlr'-r'ebuttal, er;id,ence. - Rebuttal e'uidence is thatwhich is given to explain, repel, counteract or disprove facts given inevidence by the adverse party.23 It is also defined as evidence in denialof some affirmative case or fact which the adverse party has attemptedto prove.2{ Rebuttal evidence is, generally speaking, receivable onlywhere new matter has been developed by the evidence of one of the partiesand is generally limited to a reply to new points.z6

Ordinarily, the rebutting evidence offered by him upon whom tlleburden of proof rests eoncludes the intruduction of evidence, but noialways, and for god reasons, in the fuftherxnce of justice, the courimay, in its discretion, allow evidence in reply to that called forth by therebuttal testimony. When plaintiff in reb',rttal is permitted to introductrnew matter, defendant should be permitted to introduce eviclence iirsur-rebuttal, and to decline to permit him to do so is error, especiailywher€ the evidence offered in sur-rebuttal is for tl:re first time made com-petent by the evidence introduced by plaintiff in rebuttal but defendantshould ask for the right to meet the new matter.3o

In a homicide case, the accused put up the defense of alibi and he andtwo witnesses testified that at the time the crime charged was committe(i-- around 10:30 p.n.

- the accused was attending a baptismal palty ina Xlunicipality five kilometers away from the place of the crimer Thept'osecution introduced in rebuttal the testimonl' of two witnesses whotestified that the accused had really attended said baptismal party on theday of the crirne but that he left the party at 7 o'clock p.m., and boardeil

zs Stete vs. Silva, 2l Id,a,247,120, p. 835.2aCarver vs. United States, 160 U.S. 653,40 L. eC.532, 16 S.Ct. 382.2564 C.J., Sec. 1?6.2oFraneisco's Trial Technique and Practice Court, pp. 726-127.

sEc. 1, RULE 128 EVIDENCE

a jeepney. The accused in sur-rebuttal, may introduce the testimonyof the persons who attended the party to the effect that those witnesseslvho testified in rebuttal for the prosecution had never been in that party.rr

(i) Obiect (Real) eaid,ence. - Obiect (Real) eaidence is that whichis addressed to the senses of the tribunal, as where objects are presentedfor the inspection of the court.28 For instance, in a case where a weaponis used, the weapon, if it is a firearm the bullet and shells.

(j ) Documenta,rg euid,ence. - Do_cumentary eoid,ence is evidence

supplied by written instruments, or derived from conventional symbols,such as letters, by which ideas are presented on material substances.It includes books, papers, accounts, and the like.s

Documents as evidence consist of writings or any material containingletters, words, numbers, figures, symbols or other modes of writtenexpressions offered as proof of their contents.so

(k) Testi'monial eai'dence. - Testi,monial euiilence is the testimonygiven in court or the deposition by one who has observed that to whichhe ls testifying; or one who, though he has not observed the facts, isnevertheless qualified to give an opinion relative to such facts.3l

(l) Etpert euidence. - Enpert euid,ence is the testimony of onepossessing in regard to a particular subject or department of humanactivity, linowledge not usually acquired by other persons.s2 For instancea handwriting expert may testify on the genuineness of a signature,identity of thumbmark and fingerprints .

(m) Su.bstantial, eui,d,ence. - Substantial euidence is that amount o1

relevant eviclence which a reasonable mind might accept as adequate tojustify a conclusion;s evidence which is substantial, that is, affording asubstantial basis of fact from which the fact in issue can be reasonablyinferred. (National Labor Relations Board vs. Columbian Enameling andStamping Co., Inc., 306 U.S. 292-306).$4

QUESTION 5. * What clo the ru,les of eaid,ence d,etermine?--laNSwnR.

- All rights ancl liabilities are dependent upon and ar.ise*t $"iil'tsiuoiciat proceeding wh:rtever has for its pur?ose the or"i-

taining of some right or liabiliiy. If the proceeding is Criminal, thq.object is to ascertain the liability to punishment of the person accused.If the proceeding is Civil, the object is to ascertain some right of propertyor of status, or the right of one party, and the liability of the other, tosome form of relief.

In order to effect this result, provision must be made by law forthe following objects: - First, the legal effeet of particular classes ot

27 Ibid., pp. 141-142.28 1 Jones on Evidence, 2nd ed., Sec. 16.2s 22 C.J. 79!.3rr Sec. 2, Rule 130, Rules of Court, as amended.3r Gilbert, Law Summaries on Evidence, p. 2.3? U.S. vs. Gil, 13 Phil. 530.

^.- _1,,S9".5, Rul_e 133, Rules.of Court, as amended; Philippine Overseas Drilling andoil Development corp. vs. l\{inistry of Labor, 146 scRA ?g;-caflete vs. workmeu,s-com-pensation Commission, 136 SCRA 302.

3+ united states Lirles, et al. vs. Associat€d watchman and security union, Nos.L-12208-lL, May 21, 1958.

RULES OF COURT sEc. 2, RULE 128

facts in establishing rights and liabilities must be determined. This isthe province of what has been called substantive law. Secondly, accurse of procedure must be laid down by which persons interested mayapply the substantive law to particular cases. The law of proeedureincludes, amongst others, two main branches: (1) the law of pleading,which determines rvhat in particular cases are the questions in disputebetween the parties, and (2) the law of evidence, which determines howthe parties ate to convince the Court of the existence of that state offacts which, according to the provisions of substantive law, would estab-lish the existence of the right or liability which they allege to exist.st

Consequently, the rules of evidence determine the following:(a) The relevancy of facts, or what sort of facts may be ploverl

in order to establish the existence of the right, duty, or liability definedby substantive law.'

. (b) The proof of facts, that is what sort of proof is to be given; of those facts.

(c) The production of proof of relevant facts, that is rvho is togive it and how it is to be given; and the effect of improper admissionor rejection of evidence.s

Thus, before the rules of evidence can be understood or applied-toany partiiular case, it is necessary to know so much of the substantivelaw as determines what, under given states of facts, would be the rightsof the parties, and so much of the law of procedure as is sufficient todetermine what questions it is open to them to raise in the particularproceeding.3i

,,..QUESTION 6. - What are the sorrl'ces of ow rules of eaidence?

AI{SWER. - The sources of the rules of evidence are:(a) The 1987 Constitution of the Philippines;(b) Rules 128 to 133 of the Revised Rules of Court, effective on

January 1", 1964, foi'merly Rule 123 of the (1940) Rules of Court(Evidence);

(c) Resolution of the Supreme Court dated March L4, 1989 approvingthe Proposed Rules on Evidence submitted by the Rules of Court RevisionCommittee on August 31, 1987;

(d) Rule 115, Sec. 1, formerly Rule 111, Sec. t of the Rules of Court(Rights of defendant at the trial) ;

(e) Substantive and remedial statutes;(f) Judicial decisions.

The former rules of evidence were found in Sections 173 to 347 andSecs. 381-383 of Act No. L90, known as the Code of Civil Procedure.

Sec. 2. Scope. - The rules of evidence shall be the same in alleourts and in all trials and hearings, except as otherwise provided bylaw cr these rules.

1. Rule of evidence same in all courts and trials.2. Reasons for the rule.

36 Woodroffe's, Law on Evidence, p, 14.36 lbid.87 lbid.

_tr

sEc.2, RULE 128 DVIDENCE

3.4.D.

6.7.

Rules of evidence in civil and criininal eases distinguished'No vested right of property in rules of evidence.nut"" of evidence sinciion6d by the Constitution cannot be altered by legis'

lation.Rules of evidence may be waived.Foiicy to be observed Ly courts in the enforcement of the rules of evidence.

QUESTION l. - Are the rules of eaid,ence the sam,e in all courtsanil, in all trtals anil heari'ngs?

ANSWER. Yes, they are, unless otherwise provided by law .o-rttrese rutes (Rules of Cburt). Foi instance, there are laws--which-provideother rules'of evidence to govern certain proceedings. Under Sec. 16,p.O. ga6, affidavits and counter-affidavits, which are otllerwise inadmis-rinf", *ny be allowed and are admissible in evidence. Direct testimoniesoi *itn"si"s may be in narrative form subiect to cross-examination. Or,itre nutes of Summary Procedure where the decisioll can be reached

iii"oogii position paperi, affidavits and counter-affidavits of the pafiies.

In this connection, the rules of evidence are not strictly applied inp"o.."ainE* before the Labor Arbiter and the Nationnl Labor Relationsbommissi6n,t Employees, Compensation Commission,? Securities and Ex-

"ft"og" -Co"*issi-on,i

CommisJion on Elections,a Agrarian cases,t Immi';;iifi Fioceedingsio Court of Tax App94s/- P-robatiol court,a Board ofil;;n""t"tioo,n ?6ti." Commission,'d

- oil Industry Commission,ll and

other similar bodies.

,,::qUESTION 2. - WhA shoulil th'e mtles of eaid'ence be uniform'?

ANSWER. - The rules of evidence must be applied uniformly i" ?ltcourts and in all triais and hcarings for the following reasons: (1) the,l"lutiott between the evidentiary fact and a particular proposition- is

J;;yr the same, without regard to the kind of litigation in rvhich tliatp""p".iti* lu.rir.r materiaf to be proved; (2) if the rules of evidence

ii'.J""iti" ttte best course to arrive af the truth, that must be and are thesame in all cases and in all civilized countries.l2

QUESTION 3. - What are some of the dtfferences in the rutes ofeuidence in criminal and ciail case?

ANSWER. - The principle that the rules .of evidence shou6 6e

uniform in all trials and hearings does not mean that said principle;;;t;i;.;

"o .liffe"etrces between civil and criminal proceedings, for therq

il ilG"ial differences which must n6t be overloohed'

In civil proceedings the parties attend by accord, while in criminalp"o.."aingt ti" accuseid attends by compul.lion; in .civil proceedings thereil;;-p-;il*piio" as to either pirty, while in criminal proceedings the

I Ltt. 221, P.D. No. 442, Labor Code.g Ftritippine O""r"ea. S"itllng- ana Oil Development Corporation vs. nfinister of

Labor, 146 SCRA ?9.--- lS;5,-Rule 1'8, Rules of Procedure of Securities and Exchange Commission.4 Gerorno vs. Commission on Electiols, et al., 118 SCRA 165'5 Bagsican vs. Court of Appeals, 141 SCRA 226.c Mov Yoke Shue vs. Johnson, 290 Fed. 621.? Sec: 8, Republic Act No' 1125.e Sec. 1'5, p'.O. No. 968, as amended by P.D. No. 1257 (Probation Law)'o Sec. 29, Public Service Act, as arnended by P.D. No., 1.* S".. ioi Executive Order lio. 113 (Rules ind Reguldtions for City and Munieipal

Police Agencies).- --- rt gJluiiic ict No. 61?3, as amended by P.D, 1128 (Oil Industry Commission).ls R. V. Burdett, 4 B & Ald, 95, L22.

RULES OF COURT SEC. 2, RULE 128

presumption of innocence attends the accused throughout the trial untilthe same has been overcome by prima facie evidence of his guilt; and,finally, an offer to compromise in civil cases does not, as iI general rule,asrount to an admission of liability, whereas, in criminal cases it is ar"r

implied admission of guilt.In civil cases the plaintiff must prove his claim by a preponderance

of the evidence; in criminal cases the government must establish the guiltof the accused beyond a reasonable doubt. The rule that a preponderanceof evidence is sufficient to sustain a verdict in a civil suit is due partlyto the fact that there is no presumption in civil cases corresponding tothe presumption of innocence, and partly to the fact that the ploof willonly-result in a judgment for pecuniary damages or establish a civil right.In a criminal trial the accused starts with a legal presumption that he isinnocent of the crime charged, which some authorities regard as evidencein his favor and which must'be overcome even though he should offerho evidence in his own behalf. So the reputation, the future livelihoodand career, and, perhaps, even the life of the accused are involved, whilein civil cases any loss-the party may sustain, however great, may oftenbE retrieved by his future efforts.ls

QUESTTON 4. - Ma.y euid,erzce inad,nuissible aecortling to the latt:sin foice at the time the cause of uction accrued be aclnzitterl at tlre tintcof the tr,iat of the case tf ba the laws tft,en in force the sum,e is alreod?Jmade admissible?

ANSWER. - Yes. There is no vested right of property in lttlesof evidence. Hence, any evidence inadmissible according to the iaws inforce at the time the action accrued, but admissible according to the larvsin force at the time of the trial, is receivable. Thus, at the trial ofl {r caseafter the Codc of Civil Procedure (Rules of Court) took effect, parolevidence of the contents of a document was admitted after pleliminaryproof of execution and destruction has been made, although the causeof action accrued when Articte 7221 of the Civil Code was still in force,under which parol evidence could not be given to prove the contents ofa destroyed instrument.la

The reason is that the rules of evidence are merely methods forascertaining facts. It must be supposed that change of law merely makesit more likely that the fact will be truly ascertained, either by admittittgevidence whose former suppression, or by suppressing evidence whoseformer admission, helped to conceal the truth. In either case no fact hasbeen taken away from the party; it is merely that good evidence hers beengiven the one, or bad evidence been taken from the other.rt

QUESTION 5. - lilhat. rules of eaidence. sanctionetl by thc Con'stitution cannot be altered by ordinarg lngislcr,tion?

ANSWER. - A constitutional provision sanctioning a rule of evi-dence has the legal effect of naking it unalterable by ordinary statutot'1'legislation. It also has the practical effect of inducing most Courts toconstrue the rule (if one of exclttsion) with unusual care to avoid theevasion of the Constitution, and with unusual and sometimes reprehe,t-sible technicality in favor of the party benefitted by the rule.

13 Undelhill's Crinrinal Evidence, 6th Ed., Vol. 1, p. 8.u Aldeguer vs. Hoskyn, 2 Phil. 500; Ayala de Roxas vs. Case, 8 Phil. 19?.15 Wigmore on Evidence, Sec. 7.

f

SEC. 3, RULE 128 EVIDENCE

The rules of evidence which have been expressly sanctioned by thevarious Constitutions are comparatively few. They include usually thepr.ivilege against self-incrimination, with occasional limitations of itsi"op.;"the accused's right to confrontation, or cross-examination ofwitnesses; the rrrle for two witnesses in treason; the lccused's right top"oceg for compelling the 2lfsniance of witnesses; and the right ofiestifying without regard to theological belief.

Apart from these rules expressly thus protected -against statutorylegislative change, the Legislature has the power to alter or create anyru'i" of eviclencJ This is io for reasons inherent in the ntrture of legis-lative functions.lc

QUESTION 6/ May the rules of etticlence bc -wat'acil?,.ANSWER. - There are rules of evidence established merely for the

protection of the parties. If, according to the .w-ell-,established doctrinc','the parties may liaive such rules during the trial of a case. there.is noreas6n why they cannot m4ke the waiver in a contract. For instance,a contrlct bf iniurance requiring the testimony of eyewitness as the oqlyevidence admissible conceming fhe death of the insured person' is valid.r?Contract lvaiving the privilege against the disclosure of confidentialcommunications made by a patient to 1 physician is also valid.rs How-;;;; if td-iuie of evid'ence waived by the parties h-as been establishetlbt 61n' on grounds of public policy, the waiver is void. Accordingly, the*oiver of t*he privileee against the disclosure of state secrets is void.le

QUESTION 7. - What pokcy nrust courts obserue in th,e enforce-ment of the ru.les of euidence?

ANSWER. - Trial courts are enjoined to observe the strict enforce-meni of the rules of evidence which crystallized through constant use andpto.li"u and are very useful ancl effective aids in the search for truihi*A io" the effective administration of justice. But in connection withevidence which may appear to be of doubtful relevancy or incompetencyor admissibility, it is the safest policy to be liberal, not rejecting themon doubtful or-technical grounds, but admitting them unless plainly irre-levant, immaterial or incompetent, for the reason that their-rejection qlac.e.s

ihem L"yottd the consicleration of the court, if -theV- are thereafter foundielevant-or competent; on the other hand, their admission, if they turnout later to be irrelevant or incompetent, can easily be remedied b$.

completely discarding them or ignoring them.lo

'sec. 3. Ad,missibility of euidence. - Evidence is admissible when

it is relevant to the issue-and is not excluded by the law or these rules.

I Requisites of admissibility of evidence.2. Two axioms of admissibilitY.

B-4. Admissibility of evidence diltinguished from rveight of evidence.5. Multiple admissibility of evidence.6. Conditional admissibiiity of evidence.

1d lbid.1? National Acc. Soc. vs. Ralstin, 101 I1l. App, 192; Connel vs. Travelling Men's

Ass'n., 139 la. 444 N'W. 820.lsKeeler vs. Iss. Co., 95 Mo. App. 627,69 S.W. 612.rs Rorvland vs. Iss. Co., 95 Mo. App. 627,69 S.W. 612'2o Banaria vs. Banaria, et al', C.A. No. 4142, May 31, 1950; People vs. Jaca,

et al., G.R. No. L-10971, November 28' 1959.

10 RULES OF COURT sEc. 3, nuLE 128

?. Curative admissibility of evidence,8. Admissibility of telephone conversations,9. Admissibility of radio broadcast.

f0-11. 4dmissibility of wiretapping and tape recordings.12. Requisites of recording conversations.18. Admissibility of evidence illegally seized.

- QUESTION 1. - wlnt are the requisites of aclntissibitity ofeuid,ence?

-./ANswER. - rn order that evidence may be admissible, two requisitesmust concur, narnely:

(1) that it is relevant to the issue; and(2, that is is competent, that is, that it does not belong to thlt

class of evidence which is excluded by the law{' or Rules of Evidence.

_ Admissibility is determined, first, by relevancy - an affair of logicgnd n9t of law; second, but only indirectly, by the larv of Evidence whicrr,[n strictness, only declares whether matter which is logically pr.obativels excluded.l

QUESTION 2. - .State the two aciom,s of ailntissibitita." ANSWER. - The modern system r.ests upon two axioms. The firsi

is that:(a) None but facts hauing rational probatiue aalue are adlrissiblc.

This principle is indeed axiomatic, for any system of evidence purportingto be rational. It assumes no particnlar doctrine as to the tcinct of ratio-cinatio-n implied - whether practical or scientific, coarse and ready orrefined and systematic. It prescribes merely that whatever is presentedas evidence shall be presented on the hypothesis that it is calculaterl,according to the prevailing stand:lrds of r.easoning, to effect lationrrlp€rsuasron.

The second axiom on which our lalv of eviclence rests is this:(b) All facts hnaing rational probatiue aalue are acl.missibre, unress

some- speeific rule forbids. This axiom expresses dre tr.uth flrat legalp{99f, though it has peculiar rules of its own, does not intend to vir.lwithout cause from what is generally nccepted in ilre rational processesof life; and that of such variations some vindication may, in theory.always be demanded. In other wor.ds. in the system of

-evidence ilie

rules of exclusion are, in their ultimate r-elation, iules of exeeption to :rgenet'al admissibility of all that is rational and probative.s

QUESTION 3. - Distinguish atlmissibility of euiclence f rom rceightof eaidence

ANSWER. - Objections to the admissibility of eviclence wliich merelyrefer to the weight of the evidence should be overruled, for. facts whicirhave distinet probative value are not to be rejected mer:ely because ilre;l-;Iil-"lav/" was added to the former Rule and this includes the exelusionaryprovisions in the Constitution, such as evidence obtained in violation

"i ifr. "ighiagainst unleasonable searches and seizures and privacy of

- communication and

cor-reslronde^nce (Sec' 2 and 3 of Art. III); confessions .nd adrnissions obtained inviolation 9f the,rights of a person under'investigation fo; lh; eommission of anoffense (sec. 12, Ibid.); and-the right against s6lf-incriminatlon- (sec. rz, iuld.j.Feria, Retised Ru.les on Eaid.ence Annotalecj (plr;ilippine Legal Stuclies, Siries /r),p. 2.

l Presumptions and the Law of Evidence, B Flar.v. L. Rcv. 18-14.3 S igmore on Evidence, Secs, g, 10.

sEc. 3, RULE 128 EVIDENCE t1

are not, in themselves, convincing. Admissibility of evidence should not be

confounded with its probative value'r

The admissibility of a particular item of e.vidence has to do withtnhet-ne" it;;;6 trre various tests by which its reliability is to be detep

;;;a;;-; to U"-"o"*iderea with bther e'idence admitted in the case

in arriving at a decision as to the truth'The weight has to do with the effect of evidence admitted, its tendency

to convince -ut a p""ro"a". The weight of evidence is not determined

;";h;;ti."uy uv tr,"-"otn""i.al suilriority of the witnesses testifvingil;;ffi-i*it, '6ot'Oun""a; *"1 its praciical effect in inducing belief

ot thl part of the iudge trying the case'a

QUESTION 4. - X is acaueil, lf murder anil. bv. "yau ,of def ense

ne aitiipts to estabtiri oo attbi. -M,-hi's mothe.t', t-estifies that he uas

at lromc inbeil at ttie'-itmi-thi muriler r1as cont'mitied. P, a d'istinguished'iniitrni,- iiruii"i'"itrii'"ii ios itiend.ins..to x. in \i2,ltgme at the timbtltc. nzurd.er lroas committed. Are their teitimonies ad'nissible in euidence?

ANSWER. - Both are admissible. But it is likely that the coud

*,oot,a giuu grerter *.isht i" the. testimony of P, a disinterested physician,

iir;;;rM;irnour.i;;fi;;isha be expected to commit perjury in rn effortto save her son.

QUESTION 5. - state the rule regard,ing multiple atlmissibiktv ol

eui,ilence and illustrate gour answe'r'

ANswER._Whenafactisofferedforonepurpose'and^i.sadmis.sible in so far ur ii'r"ii.iies all rules applicable. to it when offered for

;ffi firp;r", itr }"il"" to satisfy som" other rule which would be appli'

;;bt-di1 it' offered to" uttottei putpose does not exclude it.5 Thus, :t

confession of u1 a.iur"O -"v ""t be cbmpetent as against his co-accused'

being hearsay *r-io the latter, or to prove conspiracy between them

withoui the conspiri.v-U.i"g esiablisheil by other evidence, nonetheless,

iii.--"oot"Jrion of Jtu"o..otEd-may be admitted as evidence of his owtt

guilt.s

QUESTION 6. - state the tale regard'i'ng cond;itionnl admissibik',tE

of euiilence anil illustrate '11our answer' a

ANSWER. - where two or more evidentiarl' facts are so connected"

under the issues that the relevancy of ott. depends upon another. not 1pt

"i:ia.tJ.C,

-*a tn. p""ly i* on"bte to introduce them both at the same

moment, the offeri]ni1"i"r"f ma' Ue "equired

by the court, as a conditicn

precedent (1) to &u th;;uppoi"a coniiectins facts, and (2) to promise

3 People vs. Abellera, 47 Phil' ?31'Imprcbability ot

"JiiL*-" l""r "Jf':o.tify

refusing to adtnit it. shanes tts. Stote'

179 so. 972,2t8 Ala. I18.Manifest ir,"on.i.torr-"ies and discreparcies in the testimony of -a witness are not

considere<l in det"rminjn"g"irrl"iaill.tifi'ifitv &-to.tt- tlstimonf' McCIwtg us' State'

142 So sl|, 25 Aln- A72P. 81.--- iguia"nce Handboii-by Donigan, Fisher, Reeder and Williams, pp. 6-7'

6 Wifrmore's Code of Evidence, 3rd 4d" p' l'8'o People vs. Yatco, et al., 9? Phil' 940.A declaration of a deceased person may be received as an admission, as -a decla'

ration against interest, ;-;;6t-ii.--tft" io""te-oi business, as a dying declaration

or as part of res gestJe. - if iu is offered for one of these purposes' the requirements

;i th"-l^" L tn"t-"rfJ th;"ld b. ratisfied, it not being necessary that the requisites

for the other purpos..-u" p.".."t. Peopte ot. Anoniaa, gs PhiL 979 (unrep)'

t2 NULES OF COURT sEc. 3, RULE 128

to evidence them later. If a promise thus made is not fulfillerl, the courtmay strike out the evidence thus conditionally admitted, if a motion ismade by the opposite party.? Thus, evidence of facts and declarationsmay noi become material or admissible until shown to be those of anagent of the other party, and a copy of a writing may not become com-petent evidence until the original is proven to be lost or destroyed.s

QUESTION 7. - State th,e ru,Ie re,garcling curati.ue u,ilntissibilit,y ofepid,enne ancl illustrate gour ansu)er.

AIiSWER. - Where an inadmissible fact has been offered by oneparty and received without objection, and the opponents afterrvards, forthe purpose of negativing or examining: or otherwise eounteracting it,offers a fact similarly intrdmissible, such fact is admissible if it servesto remove an unfair effect upon the court which might otherwise ensuefrom the original fact.e If the opponent made a timely objection at thetime the inadmissiNe evidence was offer.ed, and his objection was erroll-lously overruled in the first instanee, the claim to present similar inadrnis-sible farts would be untenable since his objection would save him, onappeal, fiom any harm' which may accrue.s Thus, A sues B for'thelafter's alleged lefusal to pay for merchandise supplied by A. B denieshaving received the merchandise. In the course of the trial A introducesevidence showing that B swindled C, a third person, on a similar transactionbefore. This should not have been admitted. B norv offers to explainthat he entered into a fair and honest tr.ansaction with C. In fairnessto B, this should be admitted.ll

QUESTION 8. - Are telephone conaersations ulmissible in eui-d,ence ?

ANSWER. - Unless otherwise objectionable, a telephone conver'-sation bctween a witness and another person is aclmissible in any case inwhich r face to face conversation betrveen a witness and another personwould he admissible in evidence, provided that the identity of the personwith rvhom the witness was speaking is satisfactorily established, butnot otherwise.

Pr',rof of identity is most readily afforded by the witness' recognitio:rof the voice of the person with whom he rvas speaking, and, indeed, anumber of cases seem to regtrld the rvitness recognition or identificatiotrof the voice of the person with whom he spoke as essential to theadmissibility of evidence of l telephone conversation. The gener.allyaccepted vierv, however, is that the identity of the speaker may be estal>Iished by means other th:rn the recognition of his voice.lr

QUESTION 9. - lVlrcn is ct speech, by nteans of a radio broatlcastadmissible iu, etttdence?

7 Wignrore on Evidence (Students' Textbook), p. Brl.e lbid., p. 35.t) McCormick on Evidence, p. 134.

ro lbid., p. 196.r1 Cf. Wigmore, Textbook, p, 35.

1t-S1 C..1.S.908,911. See also Joncs on Evidence in Civil Cases, Sec.211,pp. 410-413.

Where the witness $ias one of the parlies to the conversation and testifies thathe recognized the voicc of the person on the other end of the line, because he hadprevious conversation with him, there is sufficient foundation and the conversationwill be admittcd. Urdted Stat.es lus. EusterdaV, ST Fed. (21) 165 eertiot'ari clenied,286 u.s.564,76 L. ed. 1297,51 Sup. Ct.646.

\

SEC.3, RULE 128 EVIDENCE

B. anyrvho: [Sec.

1.

- . C. _

any_ pers-on who shall qid, permit, or cause to be done any of the actsdeclared to be unlawful: [Sec.2]

. ?. . uty pers^on who -shall violate the provisions of sbction B of the exemptedacts below or of an order issued thereunder, or aids, permits, or causes ;uctviolation: [Sec. 2]

II. EXEMPTED ACTSA. use of such record ot any copies thereof as evidence in any civil, criminat

investigation or trial of offenses mentioned below: [Secs. 1, par.2]B. any peace officer, w'ho is authorized by the written order of the court

(Regional Trial Court within rvhose territorial jurisdiction the acts for whichauthority is applied for are to be executed), to execute any of the acts declaredto be unlavful in cases involving the crimes of: [Sec. B, par. lJ

1. treason2. espionage3. provoking war and disloyalty in case of war4. piracy5. mutiny in the High Seas6. rebellion?. conspiracy and proposal to commit rebellion8. inciting rebellion

_13Francisco, Revised Rules of court Annotated, (1990 Edition) vol. vII, part I,p. :,1.

13

ANSWER. - Evidence of a message or a speech by means of racliobroadcast is admissible as evidence when the identity df the speaker i;established either by the testimony of a witness who saw him iroadcasihis message or speech, or by the witness' recognition of ilre voice of thespeaker.r$

QUESTION 10. - Are wi,retapping an(I tape record;i,ngs ailmi.ssi,blein eaidcnce?

ANSWER. - The constitution explicitly provides that "The privacyof communications and. correspondence shail be inviolable excepl uponlawful order of the court, or when public safely or order requires odtrertiiseas prescribed by law." In this connection, wiretapping and other relatedviolations of the privacy of communications, are prbhibited and penalizedby Republic Act No. 4200, the contents of which are ouilined hereunder:

I. UNLAWFUL ACTSA. .any person who, without authority from all the parties to the private

communication or spoken word, does any of the following-acts: [sec. 1, par. l]1. to tap any wire or cable; cr2. to secretly overhear or intercept such communication or spohen word

by using any other device or arrangement; or3. to record such private communication or spoken word by using a

device cornmolly k19yn as dictaphone oi dictagraph or deteita-phone or q'alkie-talkie or tape iecorder, or h-orv6ver otherwisedescribed.

_ person,-_whether participant or not in the above penalized acts,

1, par. 21

knowingly possesses any tape record, wire record, disc record orany ot}er such recold, or copies thereof, of any communicationor spoken word secured either before or'after tf,e effective dateof this Act in the manner prohibited by law;, or

to replay the sarne for any other person or persons; orto communicate the contents thereof, eittrer verbally or in writing; orto furnish transcriptions thereof, whether eomplete or partial, to

any other person.

q

.).

4.

l

l4 RITLES OF COURT sEc. 3, RULE 128

sediti0nconspiracy to commit scditioninciting to scditiontidnup-pittg as defined by the Revised Penal.Codevlolutldns"of Commonw"alth Act 616, punishing espionage and otheroffenses against national security

The 1VRITTEN ORDEn shall only be issued or granted u-pon written- applieationrvith the examination uncler oath or affirmation of the applicant and the witnesseshe may ploduce and must show:

a) that there ere reasonable grounds to believe that any.of !!: ^"I1-f:enumeraded tre"ein has been comrnitted or is being committed-or ig about to be

;;;ilGa;;o"ia.a,"itt"i i" cases involving lhe ofJenses of reb-ellion, conspiracv;;A;;;p"ri.i-to *o."-ii

""f"ttio", 4citin! to. rebellicn, sedition, conspira.cy. to.o*,nit iedition, .o.fr ""tto.iti

sirall be lranted only upon prior proof tlt-! 1rebellion or acts of sedition, as the case may be, have actually been or are D€rng

committed;b) that there are reasonable, grounds to believe that-evidence may be

obtained'essential to ifr" .""ri.ii* of -""V person for, or to the solution of, or,.lo the prevention of, any of such crimes;

c) that thele """

ro other means readily avaiiable for obtaining such

. cvidenee'Ctmtents: 1. the identity of the person or persons whose com-mtrnications,-con-vcrsrtions, Ois"ussionsl oi .poiiln-*ords ari to be overheard, intercepted, -orrccorded and, in tfte'Jas" oi-t"i"g"aphic or telephonic-ccmmunications, the tele-graph line and the telephone number involved and its location;

2. the identity of the peace officer authorized to overhear, intercept' or

reeord the communications, conversations, discussions, or spoken words;

3, the offerse or offenses sought to be conrmitted or prevented; and

4, the perir:tl of the authorization.El{ectidtlr: The authorization shall be effectiv-e for-the-period speeified in theorder which sfr*ii nol uxcee{ siity tOOl days fronr the- dite of issuance of theorder, unless u*t.naui-o"-""".*"d d,V itt" iourt upon being satisfied that such

extension or renerval is in the public interest.Pt'aced,are: All recor{ings made under court authorization within forty-eighthours after the expiratio-n of the period fixed in the order:

1. shali be deposited with the courl in a sealed envelope or sealed package;

2. shall be accompanied by an affidavit of the- peace officer granted such

authority stating tire riumber oi recordings made, th; -dates- arrd times coveredtt ;;;ii"rt;rOtrie, ih"

""mber of tapes, discs,.or records.included in the deposit

a"na-.o"iiivi"s tirit ;J aupiicates or cbpibs are'included in the envelope or pockage

deposited with the court;3. shull not be opened, or the recordings replayed, or used in evidence or

their content" ""u"ui"Jlu*."irt-"p""

o"4." Jt itt" courd, which shall-not b9 granted;;;;et opo" *otio", *itn aoe notice and opportunity to be heard to the pcrson

o"-p'"".oit" tlhose conversations or communiiations havc been recorded.

iII, PENALTYAny person who violates the provisions of this Act, shall, upon conviction,

be punislted by:A. inrprisonment for not less than six months or more than six years;

andR. rvith the accessoty penalty of perpetual absolute. disqualification

from- nublic offiie lf the-offender be a public official at the timeof the cornmission of the offense; and

c. if the offender is an alien, he shall be subject to deportation pro-ceedings.

IV. ADl\TISSIBILiTYAny communication or spoken rvord, or the existence^ contents, substance,

purport, effect or meaning of th. r"-. or {rny part thereof,.of any informationit.".itt contained, obtained or secured by any persori in violation of this act

shall not be admissible in evidence in any judicial, quasi-judicial, or adminis'

tratir"e hearing cr investigation'

9,10.11.12.13.

-

L

SEC. 3, RULD 1S8 EVIDENCE 15

QUESTION 11. - Cornplainan't Atty. Tito Pintar is cou,nsel forMa,nuel Montebon i.n a complaint, f or direct assault filed' against I'eonard,ttLaconieo. On October 22, 1975, complainant called uyt Ltr,conico to rj,[t:-

cq,ss the withd,rawal of his client's complai,nt. In turn, Laconico contactd,appellant, Edgardo Gaanan, to seek adaice on the matter. He asktclappellant to listen to his corvuersattion uith the complainant through tlL('eatension line. Thus, uhen complainnnt ca'Ileil up, appel'Iant ouerlteari.the former's demo,nds for the settling of the case. Minutes later, com,-plainant called up again to ask tahether Lacoruico was agree,a,ble and toLell ltim to wait for further instructions regarcling th,e del;ittery of money.In a La"ter call, Lacon:ico, through, the ad'uice of CoI. Zuluetu of the CIS,i,nsisted that eomplainant himself sh'ould, receiue the money" (Jpon cam,'plainnnt's receipt of the'nloneA at the Igloo Restaurant, he. ruas im,mctliat,rllrapprehen(Ied bg agents of the Philippine Cortstalntlarll.

A com,plaint for robbery/eutortion lans filed aguinst r:atrupluhtanr-Attacheil thereto is an affiilauit exeaded bg appellant stuting thrt"t htheard complninnnt demand ?8,000 from Laconico for the utithdrutrfi, *fthe casa. On the other hand, complninant chu'rged' Lacanico and. n'pi,el-lant for uiolation of the "Anti'-Wiretapping Aet" fo'r listerun.rl l,a llt'r:telephone conaersation without his consen't.

Is an ertension teleTthone of the sam,e category as the othtt"prohibit:tldeui.ces enunteraied in section 1 of the Anti-Wirela7ttn51 Act?

ANSWER. - No. The phr:rse "any other device or &rrzrngemerit"refers to a "tap" of :r wire or cable or the use of a "device cr xrl:iini{e-ment" for the purpose of secretly overheaping, intercepting: 01 recordii::tthe communication. There must be ejther a physical interrui;tion thror:!.ira wiretap or the deliberate installzrtion of a device or arrangenreut iti olr.'to overhear, intercept or record the spoken words.

An extension telephone cannot be plerced in tire s:rntc c:rtugor)" :;;; :tdictaplrone, dictagraph or the other devices enumerz)ted in Section 1. *fthe Act as the use thereof cannot be considered as "tappillg" the r'vil'q ''icable of a telephone line, The telephone extension in this c:Lse was ;i+tinstalled for that purpose. It just happened to be there for ordinnr'"purpose. a

The phrase "device or arrangement," although ni:t tlxclusive to i , 'enumerated therein, should be construed to comprehend instruurents .o

tire same or similar in nature, that is, instruments, tlie use of rlil' -,'would be tantamount to tapping the main line of the t eleirhone. It re{r r *to instruments whose installation or presence cannot be llresumed bi7 11;':

p.arty or parties being overheard because, by their very n:rtur€, thsl':'1'^not of eommon usage and their purpose is precisely for tapping, iriri:''cepting or recording a telephone conversation.

An extension telephone is an instrument whicir is very common esp":-cially now when the extended unit does not have to l:e connected by wileto the trtain telephone but can be moved from place to plnce within a

radius of a kilometer or more. A person should safely presume that th;party he is calling at the other end of the line 1rrobably htrs iln extensiorttelephone and he runs the risk of third party listening as in the c:ise i:"i

a party line or a telephone unit whicfr shares its line with another.

A perusal of the Senate Congressional Records will show that notonly did our lawmakers not contemplate the inclusion of an extensittn

,l

16 RULES OF COURT sEc. 4, RULE 128

telephone as a prohibited device or arrangement but o{ 8:reater importance,thei were more concerned with penalizing the act of recording than tht'act-of merely listening to a telephone conversation. x x x It can be readilyseen that our lawmikers intended to discourage, through punishment,persons such as govemment authorities or representatives of organizedgroups from instalHng devices in order to gather evid-enc,e for use in couri6r to intimidate, blackmail or gain some unvrarranted advantage over thetelephone users. Consequentli, the Inere act of listening, in order to bepunishable must strictly be with the use of the enumerated devices inRA No. 4200 or others of similar nature.l4

QUESTION 12. - Before a recoriltng of conuersati,on, can be giaenprobatiae aa.Iue, wtwt reQuisites must first be established'?

ANSWER. - Before a recording of conversation can be given pro-

bative value, the following requisites must first be established: (1) a

sftowing that the recording device was capable of taking testimony; (2) a

$trowing that the operatorof the device was competent; (3) establishmeniof ttre-authenticitf and correctness of the recording; (4) a showing thatclpnges, additioni, or deletions have not been made; (5) a showing cfttre frariner of the presel'vation of the recording; (6) identification of thespeakers; and (?) a showing that the testimony eliciled -was voluntarilyniatte wiihout any kind of lnducement (Francisco, Evidence, 1964 cd.,pp, 24-25, citing 20 Am. Jur., 1961 Supplement 43;.tc

QUESTION 13. - Is eaid,ence itlegal.Ig seized admissible in etti.dence?

ANSWER. - The Moncado ruling (80 Phil. 1) that illegally seized

documents, papers and things are admissible in evidence, must be aban-doned. ttie ei'ctusion of such evidence is the only practical means ofenforcing the constitutional injunction against unreasonable searches andseizures.- The non-exclusionary rule is contrary to the letter and spiritof the prohibition against unreasonable searches and seizures. If thereis competent evidence to establish the probable cause of the commissionof a given crime by the party against whom the warrant is intended,then there is no reason why the applicant should not comply rvith theconstitutional requirements" If he has no such evidence, then it is notposrible for the iudge to find that there is a probable cause, and henee,

no justification for the issuance of the warrant. The only possible

explanation for the issuance in that case is the neeessity of fishing forevidence of the commission of a crime. Such a fishing expedition isindicative of the absence of evidence to establish a probable cause.ro

Sec. 4. Releoancy;. collnteral matters, - Evidence must have suehe relation to the fact in issue as to induce belief in its existence or non'existenee. Evidence on collateral rhatters shall not be allowed, exceptwhen it tends in any reasonable degree to establish the probability orimprobability of the fact in issue.

1. Relevancy of evidence.2. Tert of relevancy.

14 Gaanan vs. IAC. 146 SCRA 112.rsFeople w. Orpilla, CA-G.R. No. 06591-CR, Julv 22, t97t; XXXVI L'J' 284'

See also Pascual vs. De la Cruz, 28 SCRA 421.- - ro Stonehill, et al. vs. Diokno, 20 SCRA 853. See also Corro vs. Lising, et aJ.'

13? sCRt 641; M;to vl. Bayotti, et al., 128 SCRA 391; Nolasco vs. Pafro, et al.,fSg SCRA 162; People vs. Burgos, 144 SCRA 1.

h!

sEc. 4, RULE r28 EVIDENCE

3. Logical relevancy distinguished from legal relevancy.4. Issue defined.6. Fact defined.S' "Facts in issue" distinguished from .,facts relevant to the issue,,.g-10. Effect of pleadin-gs-ir -a.t"iiiiiriing

the relevancy of evidence.11. Collateral facts difined12. Admissibility of eollaieral facts.QUESTION l-/ When is eai.d,enee releaant?ANswER.

--Evidence is rerevant.when it rerates direcry to a factin issue; or to a.fag! from r"hi"il'iy the p"o.".u'i?iogic, an inferencemay be made as to the existence-o.norr-exisi""." oi:ort*t in issue.rQUESTION 2. - What is the test of releaancy?ANS*ER'

- The test of rerevancy.is variousry stated: (1) everyf:rct or eircumstance tendinj-to--t-rrrow-rigrrt on T116 i*.u" is rerevant:(2) evidence is relevant from;hi.fihg f*?; i*"o;'il togicallv inferable:(3) anv circumstance is rel,evanl- i"r,i.1, -*,iial-t"

-iii ti" p"o*.ition aiissue more or less probable,-o"-irti'.ii is carcurrt"J il'"e*prain or establishfacts pertinent to th-e i-ncuirv;'-a). !rr"-'t".J"iJ #r,ltfr"" the evidenceconduces to the p".oof- or i p6"iin'#t hypoi-hesiq .*h"'r,vpothesis beingone which, if sustained, wourcr tosi"urivffiil;ih;'ilue; (b) f*cts a.erelevant if thev fairrv tend to pi"t" irt" ;ff;; a;r.u..t.,Frrim these tests, we may draw the following examples:(a) A is accuse{ of a crime. The facts that after the commissio'of the alleged crime tte absconoea; i". *"* P ndirJl.ii, of property orthe proceeds of nropertv.4;g"ii€d bv trt" ""i-";;';;;;pted to eoncearthings which wei'e or mrgtrt il"; bd used in committing it, are rerevant.(b) The ouestion is whether A was ravished. The iacts that shorily

Lf_tl *1. alleged rape she -rA" i complaint relating to the crime, thecrrcumstances under which and the tenns in -,t

i.ii'the comptaint wasmade, ar.e relevant.(c) The question is whether A was robbed. The facts that, soonaiter' .the alleged robbery, t e maae atrre circums;;?;;. under'*i,1.1i"",'a-*f;1-r1t# ,'ft1liIfnttn:n:"$iilif;

_was ma.de. are relevant.(d) A sues B^for inducing c to break a contract of service madeby him with A. c, gn 6;id -I'. i""uic",_.^v"--tJ"i,' ,,1 am reaving tyou because B has made me

" 6tt".otr"*;;-'dhi", .#"ffL't is a rerevantfact as explanatory of c's .onao.i*iii.t, i,

".i""o"i""?', fact in issue.(e) A accused of theft, is seen ^to give the stolen property to tswho is seen to give. it to_A( *ii".---g *"-v.,-u...rr."iliji"r, it, ..A saysyou are to hide this." B's statem"nt i, "".fi; "i-'"*pron"tory of afact which is part of the tiu"r".tion'

QUESTT'N B. - Distingui.sh Logicar rereaancgl from ,egar rereaaneE.ANSWER-

- LosicaJ. r-erevancy of evidence means that the evidencemust be absoruterv essentiar to the fact in i.ru;;;i;ite'tegat rerevancyrequires a higher standar.d of evidentiary force ""a

ir.i"aes rogicar rele_vancv. Thus, the fact that evidence is iogicaily ;;i";;;Tioes not insureadmissilibity. It must be arso regairv-rerevant., A fact which, in connec_t Ft"lt*"n vs. Consumerts Rrcuino f.!^

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18 RULES OF COURT SEC. 4, IiUI,E 133

tion with other facts, t'enders probable the existertce of a fact in issue,may still be rejected, if, in the opinion of tlte iudge, and undel the circum-stances r-.f the ease, it is considered essentiall)'misleading or too rrmote.:l

Legal relevancy is not different in its nature from logical relevancy.The only distinction is in its field of application. Legal relevancy is thcattribute of all those logically relevant matters which are not declaredinadrnissible by one or mol€ of the excluding rules. Stephen procged..s

upon the theoriy that logical relevancy is the main condition of admissi-bility, and that all rules excluding evidence which is logically relevantare,-iherefore, exceptions to the general rule.{ But it is equally.plainthal logical relevaniy does not in all cases render proposed testimonyadmissible. For example, a husband may not as 1 general rule, testifyto the declarations of his wife, when she is a party to the suit; and an

attorney may not testify to the communications of his client rnade inconfidence. In these and other cases the testimony is exclurlecl, howeverpelevant, by positive rules of law.5

QUESTION 4. - Define issue under the rulcs of plcading.

- ANSWER. - Issue is the point or points in question, at the con-clirsiol of the pleadings which one side affirms, and the othel' denies.6

The pleadings are but the forms intended as the basis of the proofto be submitted it the trial of the issue. Issues arise upol the pleadingwhere a faet or conclusion of law is mainfurined by the one llrttty, an<l

is controverted by the other.?

QUESTION 5. - Define a fact.ANSWER. - Fact is defined as :r thing done, or existing. Whether

a thing was donr: or does exist, is a question of fact for the court.s

Thus, that a man heard or saw something, is a fact; that a mllnsaid certain words, is a fact; that a m:in holds a certain opinion, has acertain intention, acts in good faith or fraudulently, or uses a patticulirrword in a particular sense, or is 01 was at a specified time consciousof a par'ticular sensation is a fact; that a man has a certain reputzrtion,is a fact.e

QUESTION 6. - Distinguish facts in iss'ue f rom facts releuant iothe issue.

ANSWER. - Facts in issue are those facts rvhich a plaintiff mttstprove in order to establish his claim and those facts rvhich the defendantmust prove in order to establish a defense set up by him, but only whenthe fact alleged by the one party is not admitted by the other p:rrty.Facts which are admitted, expressly or by implication, are not in issue.r"To determine the relevancy of the evidence, the pleadings of the partiesmust first be looked to for the purpose of ascertaining the issue.l1 Forexample, if A sues B for assault, A must prove the assault. If B's defense

3 Best on Evidence, Sec. 251.a McKelvey on Evidence, Sec. 99.5 Jcnes on Evidence, pp. 23?-238.o Cochran's Law Lexicon, p. 176.? Sutherland's Code Pleading', Practice and Forms, Sec. 84.8 Cochran's Law Lexicon, p. 133.I Woodroffe's Larv of Evidence, p. 11.

10 Phipson's Manual of the Law of Evidence, p. 24'11 2 Jones on Evidence, 2nd Ed., Sec. 609.

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sDc. 4, RULE 128 EVIDENCE

is that A was trespassing on B's land and B was ejecting hirn with nomore force than was reasonably necessary, B must prove that A wastrespassing and that no unnecessary force was usetl to eject him. Ifthere are no admissions, the facts in issue are that B assaulted A, thatA was a trespasser and B edmits the assault, the sole fact at issue iswhether the force used was reasonable in the circumstances.l2

Facts relevant to the issue are those facts which render probable theexistence or non-existence of a fact in issue, or some other rilevant fact.Facts relevant to the issue are in the main determined by ordinary logicand experience.rs For instance, in the example given above, to prove tliatthe forcc used on A was no more than was necessary to eject him, B mightprove that A was abusive, refused to leave when asked, and resistedviolently when B attempted to escort him off the property. These facts,if proved, render it more likely that the for.ce used on A was not morethan was necessary.la

QUESTION 7. - What. is the effect of pleailings in iletermi,ningthe rele.,^ancy of eaiilence?

ANSWER. -- The effect of the pleadings is that they hetp in deter.-mining whether the evidenee offered is relevant to the case, for it is afamiliar proposition that the evidence must be confined to the facts putin issue by the pleadings.rs

QUESTION 8. - In a prosecution for illcgal ytossessi.on of o,pium,reci.diaism is not charged in the fui,fonnation. Maa proof of the same beailmitteil?

ANSWER. - No, because no evidence can be adduced during thetrial of the cause which does not'directly or indirectly tend to prove someof the essential allegations of the complaint. Any evidence presentedwhich rloes not directly or indirectly tend to prove some of the factsalleged in the complaint should be rejectecl by the court. Otherwise, andunder any other rule, a defendant misht be charged with one crime andconvicted of a very diffbrent and dissimilar crime, which, of course, cannot be sanctioned under a government of law.10

QUESTION 9. - A instituteil an action against B as enecutor olthe d,eceaseil X to recoaer one-half of certain properties, alleging that thesame pertuined, to an orilinary ytartnership formeil between her anil X. '\

Eaidence of mari,tal cohabitation beteoeen X anil A was presented,, and,4A contendeil, that in aiew of said, ersid,ence, it should, be presumed that amarriage took place between th,em and there u;as, therefore, a conjugalpartnershi,p tuhich gaae rise to patrhnoninl rights and obligati,ons. Mar-riage, howeuer, was not a,llegeil in the eom,plnint. Is the contention ofA tennble?

ANSWER. - No, the contention of A is not tenable. The presump-tion of marriage from the marital cohabitation can not be invoked sincesuch presumption would be inadmissible in view of the fact that maniagewas not alleged in the complaint. Presumptions are not allegafions, butare evidence. And as they constitute evidence, presumptions are irre.

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12 Phipson's Manual of the Law of Evidence, p. 24.13 lbid.14 Ibid., pp. 24-26,16 2 Jones, Commentaries on Evidence, 2d ed., Sec. 609.ro U.S, vs. Tieng Pay, 42 Phil. 212.

RULES OF COURT SEC. 4, RULE 128

levant and therefore inadmissible rvhen they do not correspond with 'the

allegations and the facts at issue in the allegations.r?

QUESTION 10. - A utas accu,sed of usurpation in that he tooltpossession of real property belonging to another by the use of aiolenceanil inti'm.id.ation. A offered to pr"oue, by auth'entic d,ocument, thnt h,e

was thc lawful owner of the lnnd in question. The ud.mission of theeuidence was objected to on the ground that it was 'irnrnaterial and it're'leaant. Sh.ould the obiection bc sustained'?

ANSWER. - |rfs, the objection should not be sustained, for in thecase of usurpation, ownership of the property constitutes a necessary andindispensable element for the determination of the defendant's grilt crinnoCence. If A could show that he was the owner of the land in questionthere would be no ground on which he could be convicted of the offensecharged, because no one can, in a legal sense' be guilty of the usurpationof his own property.ls

r QUESTION 11. - Define collateral facts.ANSWER. - Collateral farcts may be defined as those that are out-

si$e the controversy, or ttrre not directly connected with the principalmatter or issue in dispute, as indicated in the pleadings of the parties.lt

QUESTION 72. - Are euidence of colluteral fucts admissihle.

ANSWER. - Collateral matters are not allowedlo because thel' drarvaway the mind of the court from the point at issue, and excite prejudiceand mislead it.21 They are however admissible when they tend in anyreasonable degree to establish the probability or improbability of the factin issue.er

Conduct of the defendant which is inconsistent with his innocenceis properly allowed to go to the court, such as evidence of flight, pre-paration for crime, .and the possession of incriminating evidence. It isi'elevant to show that the accused possessed or had access to articles lvithwhich the crime lvas or might have been committed, and the articlesthemselves may be admitted. Mere ability to commit a crime does notevidence its commission, but ability plus the possession af tools and skillnecessary to commit it does have a probative value. Opportunity tocommit the crime is generzrlly regarded as relevant. Motil'e and lach otmotive are always relevant, but motive alone is not enough to suppolta conviction. Proof of motive, however, is not required when a delibelritecrimina! act is shown. Intent in offenses where it is not inferred fro:nthe act itself may always be shorlt.s

17 De Leon vs. Villanueva, 51 Phil. 6?6.r8 U.S. vs. Fuster, 2 Phil. 695-697.resummerour vs. Felker, 102 Ga. 254,29 S.E. 448; Garner vs. State, 76 Miss,

615,25 So. 363.30 Sec. 4, Rule 128, Rules of Court, as amended.3r Wharton's Criminal Evidence, p" 271.P See, 4, Rule 128, Rules of Court, as amended'3sUnderhill's Criminal Evidence, 5th Ed., Vol. I, pp. 13-14.To show the state of mind of the accused towards the deceased, it is relevant

to introduee in evidence facts and circumstances relating to any ill-treatment ofthe accused by the deceased, or any act which had greatly cxcited the anger of theaccused. Not only quarrels and ill-wili rc'ievant in general, but the facts fromwhich a stress of feeling may be reasonably inferred are aiso relevant. 1 Whartoii'tCriminal Euidence, p. 316,

IVlotive is inrpoitant only if the culprit's iricnlily is in doubt, not when he is

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