evidence, outline of regalado's book

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!] 1 | P a t i ñ o , E r i c a

RULES OF EVIDENCE

Based on the Book of Regalado

[RULE 128]

GENERAL PROVISIONS

Sec 1. Evidence defined.

Evidence is the means, sanctioned by these rules, of ascertaining in a judicial

proceeding the truth respecting a matter of fact. (1)

Sec. 2. Scope.

The rules of evidence shall be the same:

- in all courts and

- in all trials and hearings,

- EXCEPT as otherwise provided by law or these rules. (2a)

Notes:

Evidence, defined: Bustos v. Lucero: Evidence is the mode and manner of

proving competent facts in judicial proceedings.

Proof is the result or effect of evidence.

- This is the result when the requisite quantum of evidence of a

particular fact has been duly admitted and given weight.

Factum Probandum

- Ultimate fact or the fact sought to be established

- Refers to the proposition

Factum Probans

- The evidentiary fact or the fact by which the factum probandum is to

be established.

- Refers to the materials which established the proposition

Rules of Evidence as Procedural Law

- Amendments in such rules may validly be made applicable to cases

pending at the time of such change. Parties have no vested right in

the rules of evidence.

- HOWEVER, in criminal cases, if the amendment would permit the

reception of a lesser quantum of evidence to convict, retroactive

application would be unconstitutional for being ex post facto.

Other Laws Governing Evidence

- GR: Rules of evidence is governed by the Rules of Court (RoC)

- EXC: Application of other laws

Examples:

- RA 4200 (Anti Wiretapping),

- Code of Commerce (weight of entries in merchant books)

- Electronic Commerce Act

- NCC, RPC

- Constitution: Bill of Rights - Art III

o Sec 2: The right of people against unreasonable searches and

seizures

o Sec 3: The privacy of communication and correspondence

shall be inviolable (EXC. By order of court or when

provided by law for safety and public order)

o Evidence obtained in violation of such provisions shall be

INADMISSIBLE

Applicability of the Rules of Evidence:

- GR: Applicable ONLY in judicial proceedings

- EXC: In quasi-judicial proceedings

o The same apply by analogy, or in a suppletory character and

whenever practicable and convenient.(Rule 1 Section 4)

o It shall apply also when the governing law of such

proceeding specifically adopts such rules

o Note: NOT applicable in agrarian cases

Classification of Evidence According to Form

1. Object (Real) Evidence: directly addressed to the senses of the court

and consist of tangible things exhibited or demonstrated in open court, in

an ocular inspection, or at place designated by the court for its view or

observation of an exhibition, experiment or demonstration. - This is referred to as “autoptic proference” since it proffers or

presents in open court the evidentiary articles for observation or

inspection

2. Documentary Evidence: Evidence supplied by written instruments or

derived from conventional symbols, such as letters, by which ideas are

represented on material substances

- Rule 130 Sec 2: writings or any material containing letters, words,

numbers, figures, symbols or other modes of written expression

offered as proof of their contents

3. Testimonial Evidence: That which is submitted to the court through the

testimony or deposition of a witness.


Other Classification of Evidence:

1. Relevant, Material, and Competent Evidence

- Relevant: evidence having any value in reason as tending to prove

any matter provable in an action.

o TEST: The logical relation of the evidentiary fact to the fact

in issue, whether the former tends to establish the probability

or improbability of the latter.

- Material: evidence directed to prove a fact in issue as determined by

the rules of substantive law and pleadings.

o TEST: w/n the fact it intends to prove is an issue or not.

o W/N a fact is in issue: Determined by substantive law,

pleadings, pre-trial order and by admissions or confessions

on file.

o Evidence may be relevant BUT may be immaterial.

- Competent: one that is not excluded by the Rules, statutes or the

Constitution.

2. Direct and Circumstantial Evidence

- Direct: that which proves the fact in dispute w/o the aid of any

inference or presumption

- Circumstantial: proof of a fact or facts from which, taken either

singly or collectively, the existence of a particular fact in dispute

may be inferred as a necessary or probable consequence.

3. Cumulative and Corroborative Evidence

- Cumulative: evidence of the same kind and to the same state of

facts.

- Corroborative: additional evidence of a different character to the

same point.

4. Prima Facie and Conclusive Evidence

- Prima Facie: that which, standing alone, unexplained or

uncontradicted, is sufficient to maintain the proposition affirmed.

- Conclusive: the class of evidence which the law does not allow to be

contradicted.

5. Primary and Secondary Evidence

- Primary: that which the law regards as affording the greatest

certainty of the fact in question. Also known as “best evidence”.

- Secondary: that which is inferior to the primary evidence and is

permitted by law only when the best evidence is not available. Also

known as “substitutionary evidence”.

6. Positive and Negative Evidence

- Positive: when the witness affirms that a fact did or did not occur.

o Entitled to a greater weight since the witness represents of

his personal knowledge the presence or absence of a fact.

- Negative Evidence: when the witness did not see or know of the

occurrence of a fact.

o Lesser weight since there is a total disclaimer of personal

knowledge, hence without any representation that the fact

could or could not have existed or happened.

o It is admissible only if it tends to contradict positive

evidence of the other side or would tend to exclude the

existence of fact sworn to by the other side.

Sec. 3. Admissibility of evidence.

Evidence is admissible when:

- it is relevant to the issue AND

- is not excluded by the law or these rules. (3a)

Sec. 4. Relevancy; collateral matters.

Evidence must have such a relation TO:

- the fact in issue as to induce belief in its existence or non-existence.

Evidence on collateral matters:

- shall NOT be allowed,

- EXCEPT when it tends in any reasonable degree to establish the

probability or improbability of the fact in issue. (4a)

Notes:

Evidence is ADMISSIBLE when: 2 Requisites (see codal)

- When it is Relevant

o it must have a relation to the fact in issue as to induce belief

of its existence or non-existence

o Determined by the rules of logic and human experience.

- When it is Competent

o When not excluded by the law or by the RoC

o Determined by the prevailing exclusionary rules on evidence

Note: The weight however of admissible evidence depends on judicial

evaluation within the Rule 133 and rules of the SC.

o While evidence is admissible, it may be entitled to little or

no weight at all.

o Conversely, evidence of great weight may also be

inadmissible.


Requisites of Admissibility of Evidence According to Professor Wigmore

1. That none but facts having rational probative value are admissible &

2. That all facts having rational probative value are not forbidden by

specific rules

Note: Here, Relevant Evidence means any class of evidence which has

“rational probative value” to establish the issue in controversy

When is admissibility determined? – At the time it is OFFERED to the

court

- Real Evidence: offered

o when the same is presented for its view or evaluation

o when the party rests his case and the real evidence consists

of objects exhibited in court

- Testimonial Evidence: offered by the calling of the witness to the

stand

- Documentary Evidence: offered by the proponent immediately

before he rests his case

When should admissibility be objected?

- At the time evidence is offered to the court OR

- As soon thereafter as the objection to its admissibility shall have

become apparent

o Objection to the qualification of the witness: made at the

time such person is called to the stand

o Objection to the testimony: made at the time the question is

asked or after the answer is given when the objectionable

features become apparent by reason of the answer

Note: if not done within such time – right to object is deemed WAIVED

Doctrines and Rules of Admissibility Sanctioned by the Supreme Court

1. Conditional Admissibility

- When the evidence at the time it is offered appears to be immaterial

or irrelevant, such evidence may be received on condition that the

other facts will be proved thereafter

- IF not proved subsequently: evidence given will be stricken out.

- REQUISITE: There should be no bad faith on the part of the

proponent. (necessary to avoid unfair surprises)

2. Multiple Admissibility

- When the evidence is relevant AND competent for two or more

purposes, such evidence should be admitted for any or all the

purposes for which it is offered

- PROVIDED it must satisfy all the requirements for its admissibility.

3. Curative Admissibility

- The right of the party to introduce incompetent evidence in his behalf

where the court has admitted the same kind of evidence adduced by

the adverse party.

- 3 Theories of Curative Admissibility cited by Wigmore

o American rule – the admission of incompetent evidence

w/out objection by the opponent, does not justify rebutting it

by similar incompetent evidence.

o English rule – if inadmissible evidence is admitted, the

adverse party may resort to similar inadmissible evidence

o Massachusetts rule –similar incompetent evidence may be

admitted in order to avoid a plain and unfair prejudice

caused by the admission of the other party’s evidence

- What should be determined to apply the curative admissibility

rule?

1. w/n the incompetent evidence was seasonably objected to

Lack of objection: waiver of the right to object admissibility

BUT does NOT deprive him to introduce similar rebutting

evidence

2. w/n the admission of such evidence will cause a plain and

unfair prejudice to the party against whom it was admitted

When the admissible evidence has been improperly

excluded, the other party should not be permitted to

introduce similar evidence

Stonehill, et al. v. Diokno: Documentary evidence illegally obtained, is

inadmissible on a timely motion or action to suppress. (Applies to illegally

obtained confessions)

Collateral Matters, defined: Matters other than the facts in issue and which

are offered as a basis for inference as to the existence or non-existence of the

facts in issue

- GR: Collateral matters are INADMISSIBLE or not allowed

- EXC: when it tends in any reasonable degree to establish the

probability or improbability of the fact in issue (“Circumstantial

Evidence” or evidence of relevant collateral facts)

Note: What is prohibited – IRRELEVANT collateral facts

4 Main Divisions of the Rules of Evidence: (1) Admissibility of Evidence

Rule 130; (2) Burden of proof and what need not be proved Rule 131 & 129;

(3) Presentation of Evidence Rule 132; (4) Weight and Sufficiency of

Evidence Rule 133; Note: Rule 134 has been transposed to Part I as Rule 24


[RULE 129]

WHAT NEED NOT BE PROVED

Sec 1. Judicial notice, when mandatory.

A court shall take judicial notice, without the introduction of evidence:

- of the existence and territorial extent of states, their political

history, forms of government and symbols of nationality,

- the law of nations,

- the admiralty and maritime courts of the world and their seals,

- the political constitution and history of the RP,

- the official acts of legislative,

- executive and judicial departments of the RP,

- the laws of nature,

- the measure of time, and

- the geographical divisions. (1a)

Sec. 2. Judicial notice, when discretionary.

A court MAY take judicial notice of matters which:

- are of public knowledge, or

- are capable to unquestionable demonstration, or

- ought to be known to judges because of their judicial functions.

(1a)

Sec. 3. Judicial notice, when hearing necessary.

During the trial, the court:

- on its own initiative, OR on request of a party,

may:

- announce its intention to take judicial notice of any matter and

- allow the parties to be heard thereon.

AFTER the trial and BEFORE judgment OR ON appeal, the proper court:

- on its own initiative OR on request of a party,

may:

- take judicial notice of any matter and

- allow the parties to be heard thereon IF such matter is decisive of

a material issue in the case.

Notes:

Judicial Notice (JN), Defined: cognizance of certain facts which judges

may properly take and act on without proof.

- JN is based on convenience and expediency.

- JN relieves the parties from the necessity of introducing evidence to

prove the fact noticed. The fact is proven by JN.

- The stipulation and admission of the parties or counsel cannot

prevail over the operation of the doctrine of judicial notice, and such

are all subject to the operation of the doctrine.

Two kinds of JN:

- Mandatory

- Discretionary

How JN May be Taken by the Court:

1. On its own initiative or motion

2. When it is requested or invited by the parties

Note: In Either Case, the court may allow the parties to be heard on the

matter in question

- The purpose of the hearing: NOT for the presentation of evidence

o but to afford the parties reasonable opportunity to present

information relevant to the propriety of taking such JN or to

the tenor of the matter to be noticed

o Also to notify them of the court’s intention to take JN

(no notice = improper JN)

What stage may the court take judicial notice of a fact?

- During trial;

- After trial and before judgment;

- On Appeal

Republic v. CA: JN must be exercised with caution and every reasonable

doubt on the subject must be resolved in the negative.

Judicial Notice of Laws

- GR: courts of justice are required to take JN of the laws

- EXC: In case of ORDINANCES, the rule is different

o MTCs: Required to take JN of the ordinances of the

municipality or city wherein they sit.

o RTC however, they must take such JN ONLY when:

Required to do so by statute (ex. city charter); and

In a case on appeal before them and wherein the

inferior court took JN of an ordinance involved in

said case. (only to determine the propriety of taking

JN)


- Appellate courts may also take JN of municipal and city ordinances

not only where the lower courts took JN BEC these are facts capable

of unquestionable demonstration.

- For the same reason, Courts may take judicial notice of

administrative regulations

Rule on JN of Decisions of Courts

- ALL courts are required to take judicial notice of the decisions of the

Supreme Court

- Lower courts are to take JN of decisions of higher courts (ex. CA)

BUT NOT of the decisions of coordinate trial courts NOR even of a

decision or the facts involved in another case tried by the same court

o EXCEPT when: Parties introduce the same in evidence

The court as a matter of convenience, decides to do

so

Judicial Notice vs. Personal Knowledge of a Judge

- The 2 should not be confused

- It is not essential that matters of JN be actually known to the judge.

The judge may at his discretion, inform himself in any way which

may seem best to him, and act accordingly.

Foreign Laws may NOT be Taken Judicial Notice

- Existence of foreign laws is one of FACT and NOT of LAW

- It MUST BE PROVED like any other fact:

o EXCEPT: when the laws are within the actual knowledge of

the court either because:

They are generally known OR

They have been actually ruled upon in other cases

before it and none of the parties object

How WRITTEN Foreign Law May be Proved

- Requirements in Sec 24 and 25 of rule 132 must be complied w/:

o BY an official publication

o BY a duly attested and authenticated copy thereof

- Absent the above evidence: The Doctrine of Processual

Presumption shall apply

o The foreign law is presumed to be the same as that in the RP

- Note: Exceptions to the required proof in Sec 24 and 25:

o Testimony of a witness who was an active member of the

California Bar and who is familiar with the laws with a full

quotation of the cited law was accepted as sufficient proof.

o An affidavit of an US attorney which does not state the

specific law but merely contained his interpretation of the

facts of the case is NOT sufficient proof.

How UNWRITTEN Foreign Law May be Proved

- Rule 130, Sec 46: A published treatise, periodical or pamphlet on a

subject of such law or a testimony of a written expert

Sec. 4. Judicial admissions.

An admission verbal or written,

- made by the party in the course of the proceedings in the same

case,

does not require proof.

The admission may be contradicted ONLY by showing:

- that it was made through palpable mistake or

- that no such admission was made. (2a)

Notes:

Judicial Admissions May be Made IN:

1. The pleadings filed by the parties

2. In the course of the trial either by verbal or written manifestations or

stipulations

3. In other stages of the judicial proceeding, as in pre-trial of the case

Note: Depositions, written interrogatories, or requests for admission are also

considered judicial admissions

To be considered a judicial admission:

- GR: It must be made in the SAME case in which it is offered

- EXC: It may be made in another case or another court PROVIDED:

o It be proved as in the case of any other fact

IF the judicial admission was made in a judicial

proceeding, it is entitled to greater weight.

o It is pertinent to the issue involved

o There must be no objection

- EXC to EXC:

1. The said admissions were made only for purposes of the first

case as in the rule on implied admissions and their effects under

Rule 26

2. The same were withdrawn with the permission of the court

therein

3. The court deems it proper to relieve the party therefrom.


Judicial Admissions v. Extrajudicial Admissions:

- Judicial: Those so made in the pleadings filed or in the progress of a

trial.

- Extrajudicial: Those made out of court, or in a judicial proceeding

other than the one under consideration

Rules on Extrajudicial Admissions:

- Extrajudicial admissions or other admissions are, as a rule and where

elements of estoppel are not present, disputable.

- Admissions in a pleading withdrawn are considered extrajudicial

admissions – must be proved by a formal offer in evidence of the

original pleading

- Admissions in a pleading superseded by an amended pleading

although filed in the same case are:

o judicial admissions (Note: Based on Regalado on his

interpretation of Sec 4 as amended, p. 792)

o still extrajudicial (If based on Torres v. CA, et al. G.R.

No. L-37420-21, July 31, 1984) – also Judge B.

Note: When the parties agree on what the foreign law provides, these are

admission of facts that the court may rely upon, and hence, they are in

estoppel to take a contrary position.

Rules on Contradicting Judicial Admissions

- GR: Judicial Admissions cannot be contradicted by the admitter

who is the party himself

- EXC: May be contradicted when:

o Such is made through palpable mistake or

o No such admission was made or

o In the case of a pre-trial admission in a civil case, to prevent

manifest injustice (Sec 7, Rule 18) – Note: applies to

criminal cases if the pre-trial admission is reduced into

writing and signed by the accused and his counsel.


[RULE 130]

RULES OF ADMISSIBILITY

A. OBJECT (REAL) EVIDENCE

Sec 1. Object as evidence.

Objects as evidence are:

- those addressed to the senses of the court.

When an object is relevant to the fact in issue:

- it may be exhibited to, examined or viewed by the court. (1a)

Notes:

- When an object is relevant to a fact in issue, the court may acquire

knowledge thereof by actually viewing the object – the object is

called real evidence

- Also known as autoptic proference, physical or demonstrative

evidence

- It is the highest form of evidence

- Even if other evidence have been introduced, it will not prevent the

court from viewing an object to resolve the issue

- Also, the fact that an ocular inspection has been held does not

preclude a party from introducing other evidence on the same issue.

Requirements of an Ocular Inspection (OI)

- An OI conducted by the judge w/o notice to or the presence of the

parties is invalid, as an OI is part of the trial.

- W/N an OI is to be made lies in the discretion of the court.

When can a Court Refuse the Introduction of Object (real) Evidence and

Rely on Testimonial Evidence Alone: 1. When the exhibition of such object is contrary to public policy,

morals or decency

2. When to require its being viewed in court or in an ocular inspection

would result in delay, inconvenience, unnecessary expense out of

proportion to the evidentiary value of such object

3. When such object (real) evidence would be confusing or misleading,

as when the purpose is to prove the former condition of the object

and there is no preliminary showing that there has been no

substantial change in said condition

4. The testimonial or documentary evidence already presented clearly

portrays the object in question as to render a view thereof

unnecessary

When may object (real) evidence which is repulsive or indecent still be

viewed by the court?

- IF the view of the same is necessary in the interest of justice

- In such case, the court may exclude the public from such view

- Note: The view may NOT be refused IF the indecent or immoral

objects constitute the very basis of the criminal or civil actions

(ex. case against obscene exhibits)

-

What does object (real) evidence include?

- Such evidence includes any article or object which may be known or

perceived by the use of any of the senses of: hearing (auditory),

touch (tactile), taste (gustatory) or smell (olfactory)and sight

- It may include:

o Examination of the anatomy of a person or any substance

taken therefrom

o Conducting tests, demonstration or experiments

o Examination of representative portrayals of the object in

question provided the same are properly authenticated (ex.

maps, diagrams, sketches, pictures, audio-visual records)

- Note: Such real evidence may be amplified by interpretations

afforded by testimonial evidence especially by experts (x-ray

interpreted by doctors)

Documents are Considered:

- Object (real) Evidence IF their Purpose is: To prove their

existence or condition, or the nature of the handwritings thereon or to

determine the age of the paper used, or the blemishes or alterations

thereon.

- Otherwise, They are Considered Documentary Evidence IF their

Purpose is: to establish the contents or tenor thereof.

Physical Examination of a Person May be Conducted:

- BY the court OR under its direction

- TO show the nature, extent or location of injuries, facial features, his

resemblance or possibility of relationship to another, or his racial

origin, his probable age, fact of pregnancy


B. DOCUMENTARY EVIDENCE

Sec. 2. Documentary evidence.

Documents as evidence consist of:

- writing or

- any material containing letters, words, numbers, figures, symbols or

- other modes of written expression

offered as proof of their contents. (n)

1. BEST EVIDENCE RULE (Primary Evidence Rule)

Sec. 3. Original document must be produced; exceptions.

When the subject of inquiry is the contents of a document:

- no evidence shall be admissible other than the original document

itself,

EXCEPT in the following cases:

(a) When the original:

- has been lost or destroyed, or cannot be produced in court,

- without bad faith on the part of the offeror;

(b) When the original:

- is in the custody or under the control of the party against whom the

evidence is offered, and

- the latter fails to produce it after reasonable notice;

(c) When the original:

- consists of numerous accounts or other documents which cannot be

examined in court without great loss of time and

- the fact sought to be established from them is only the general result

of the whole; and

(d) When the original:

- is a public record

- in the custody of a public officer OR is recorded in a public office.

(2a)

Sec. 4. Original of document.

(a) The original of the document is:

- one the contents of which are the subject of inquiry.

(b) When a document:

- is in two or more copies executed at or about the same time, with

identical contents,

all such copies are equally regarded as originals.

(c) When an entry:

- is repeated in the regular course of business,

- one being copied from another at or near the time of the transaction,

all the entries are likewise equally regarded as originals. (3a)

Notes:

Document, defined: A deed, instrument or other duly authorized paper by

which something is proved, evidenced or set forth.

Documentary Evidence, defined: That which is furnished by written

instruments, inscriptions and documents of all kinds.

Best Evidence Rule, defined: that rule which requires the highest grade of

evidence obtainable to prove a disputed fact.

- Purpose: To prevent fraud, perjury, and To exclude uncertainties in

the contents of a document

Best Evidence Rule is Applied to Documentary Evidence ONLY

- Operates as a rule of exclusion

- GR: Original writing itself must be produced in court.

Secondary/substitutionary evidence cannot inceptively be introduced

o Effect: The non-production of the original document gives

rise to the presumption of suppression of evidence (Sec 131)

- EXC: Secondary evidence may be produced in 4 Instances in Sec 3

Note: In case of real evidence, secondary evidence may be introduced w/o

having to account for the non-production of such primary evidence

Best Evidence Rule is Applicable ONLY: when the contents of the

document is the subject of inquiry.

- It does NOT apply when the issue is only as to:

o w/n the document exists or w/n it was actually executed or

o the circumstances relevant to or surrounding its execution

Note: Here, testimonial evidence or other evidence will suffice.


When a document is presented to prove existence or condition – It is

offered as REAL evidence, NOT documentary evidence

- Parol evidence of the fact of execution is allowed

- HOWEVER, in criminal cases, where the issue is not only with

respect to the contents of the document but also as to whether such

document actually existed with the participation as imputed to the

accused – the original must be produced (ex. in libel, the

newspaper must be presented)

o In this case, the presentation of the original should affect

ONLY the weight of the evidence intended to establish the

execution of the document

Affidavits and depositions are not best evidence and hence not

admissible, IF the affiants or deponents are available as witnesses

- It is not best evidence ONLY when the contents of the affidavits or

depositions are NOT the issues in the case BUT are merely used to

establish the issues in controversy

o Affidavits are regulated by the hearsay evidence rule (Rule

130 Sec 26) to safeguard the right of cross examination.

o Depositions are regulated by Rule 23 Sec 4

When “Other Copies of a Document” are Considered Originals (Sec 4)

- It includes regular entries in journals and ledgers.

- A signed carbon copy executed at the same time as the original is

known as a “duplicate original” and may be introduced w/o the

original

Rules on Carbon Copies Considered as Originals

- Documents prepared in several copies through the use of carbon

sheets are considered originals:

o PROVIDED that the writing of a contract upon the outside

sheet, including the signature of the party sought to be

charged thereby, produces a facsimile upon the sheets

beneath, such signature being thus reproduced by the SAME

stroke of the pen

- Even if the signature was made through separate acts or separate

occasions, ALL the CARBON COPIES are considered originals

o IF each copy was intended as a repository of the same legal

act of the party thereto.

- BUT imperfect carbon copies are merely secondary evidence

even if the text was made at the same time as the signed original

o Ex. incomplete signatures, something else is left to be done

in order that a document could evidence a binding obligation

Rules on Telegrams and Cables – W/N the dispatch sent or the dispatch

received is the best evidence of the message (depends on the issue)

- IF the issue is the contents of the telegrams

o as received by the addressee - original dispatch received is

the best evidence

o as sent by the sender – the original is the message delivered

- IF the issue is the inaccuracy of the transmission

o BOTH the sent and received dispatch are originals.

Provincial Fiscal of Pampanga v. Reyes: in case of libel IF the issue is:

- On the contents of the articles sent by the accused for publication

o The manuscript is the best evidence

- On what was actually published

o A copy of the newspaper is the best evidence

2. SECONDARY EVIDENCE

Sec. 5. When original document is unavailable.

When the original document:

- has been lost or destroyed, or

- cannot be produced in court,

the offeror, upon proof of:

- its execution or existence and

- the cause of its unavailability without bad faith on his part,

may prove its contents:

- by a copy, or

- by a recital of its contents in some authentic document, or

- by the testimony of witnesses in the order stated. (4a)

Notes:

1st Exception to the Best Evidence Rule: When the original is lost or

destroyed

What Must be Proved by Satisfactory Evidence in Order for Secondary

Evidence May be Admissible:

1. Due execution of the original : proved through the testimony of either:

a. The person/s who executed it

b. The person before whom its execution was acknowledged or

c. Any person who was present and saw it executed and delivered or

who thereafter saw it and recognized the signatures, or

d. One to whom the parties previously confessed its execution


2. Loss, destruction or unavailability of all such originals

- The cause must NOT be due to the offeror’s bad faith

- Loss or Destruction may be Proved BY:

o Any person who knew of such fact

o Anyone who, in the judgment of the court had made a

sufficient examination in the places where the document or

papers of similar character are usually kept by the person in

whose custody the document was and had been unable to

find it

o Anyone who has made any other investigation which is

sufficient to satisfy the court that the document is indeed

lost.

- Duplicates must be accounted for: Only when ALL cannot be

presented can it be considered unavailable/lost/destroyed

3. Reasonable diligence and good faith in the search for or attempt to

produce the original

PNB v. Olila: When the original is OUTSIDE the jurisdiction of the court

(ex. Abroad), secondary evidence is ADMISSIBLE

What Constitutes Secondary Evidence? (Note: Applies to BOTH 1st and

2nd

Exceptions to the Primary Evidence Rule)

1. A copy of said document

2. A recital or its contents in an authentic document or

3. The recollection of witnesses

GR: Availment of such secondary evidence MUST be in the aforesaid

order EXC: Definite Evidentiary Rule When the law specifically provides for the

class and quantum of secondary evidence to establish the contents of a

document or bars secondary evidence such requirement is controlling

- Example. Lost holographic will must be proved only by a copy, lost

notarial will may be proved by the testimony of credible witnesses

Contents of a Document may be Proven BY:

1. Any person who read it

2. Any person who heard it read knowing or it being proved from other

sources that the document so read was the one in question

3. Any person who was present when the contents of the document were

talked over between the parties thereto to such an extent as to give him

reasonably full information as to its contents

4. Any person to whom the parties to the instrument have confessed or

stated the contents thereof.

Sec. 6. When original document is in adverse party's custody or control.

IF the document is in the custody or under the control of adverse party:

- he must have reasonable notice to produce it.

IF after such notice AND after satisfactory proof of its existence, he fails to

produce the document:

- secondary evidence may be presented as in the case of its loss. (5a)

Notes:

2nd

Exception to the Best Evidence Rule: Original is in the custody or under

the control of the adverse party who fails to produce it

Facts Which Must be Shown by the Party Offering Secondary Evidence

1. The adverse party’s custody or control of the original document;

o No need to prove actual possession. It is enough to show the

circumstances that would indicate his possession.

2. That reasonable notice was given to the adverse party who has the

custody or control of the document;

3. Satisfactory proof of the document’s existence;

4. Failure or refusal by the adverse party to produce it in court.

Requirement of “Notice” Demanding the Original Document:

- No particular form of notice is required, as long as it fairly apprises

the other party as to what papers are desired. Even an oral demand in

court will suffice.

- HOWEVER, notice must be given to the adverse party or his

attorney even if the document is in the actual possession of a 3rd

party

- Notice is done by: Motion or Subpoena duces tecum

Notice is NOT Required:

- When the receipt of the original document is acknowledged on a

carbon copy. (The duplicate itself is an original copy and the only

issue is the receipt of the original)

- When the nature of the action is in itself a notice, as when it is for the

recovery or annulment of documents wrongfully obtained or

withheld by the other party

*See Notes on Section 8 as it relates to Section 6


Effect of JUSTIFIED Refusal of the Adverse Party to the Produce the

Document - Does NOT give rise to the presumption of suppression of evidence or

create an unfavorable inference against him

- IT only authorizes the introduction of secondary evidence

Rules on Production of Documents: Rule 130 v. Rule 27

Rule 130 Rule 27

Production is procured by mere notice

to the adverse party

Production is in the nature of a

mode of discovery

Requirements of notice must be

fulfilled as a condition precedent for

the subsequent presentation of

secondary evidence

Can be sought only by proper

motion and only upon good cause

Presupposes that the evidence to be

produced is intended as evidence

Contemplates a situation wherein

the document is either assumed to

be favorable to the party in

possession thereof or that the party

seeking its production is not

sufficiently informed of the

contents of the same

3rd

Exception to the Best Evidence Rule: When the original consists of

numerous accounts or other documents which cannot be examined in court

w/out great loss of time

Requisites for the 3rd

Exception to Apply:

1. The voluminous character of the records must be established and

2. Such records must be made accessible to the adverse party so that

their correctness may be tested on cross examination

Instances When the Original Must STILL be Produced

1. When the detailed contents of the records of accounts are challenged

for being hearsay or

2. Issues are raised as to the authenticity or correctness of the detailed

entries

Note: Here, a summary of the voluminous records can be considered as

secondary evidence

Sec. 7. Evidence admissible when original document is a public record.

When the original of document:

- is in the custody of public officer or

- is recorded in a public office,

its contents may be proved:

- by a certified copy issued by the public officer in custody thereof.

(2a)

Notes:

4th

Exception to the Best Evidence Rule: When the original is a public

record in the custody of a public officer or is recorded in a public office

Such Document may be Evidenced BY:

- An official publication or

- A copy attested by the officer having legal custody and

- In the case of an authorized public record, by a copy thereof attested

by its legal keeper

Sec. 8. Party who calls for document not bound to offer it.

A party who calls for the production of a document and inspects the same

- is not obliged to offer it as evidence. (6a)

Note:

When the document is produced, it must fulfill the requisites of admissibility

to be admitted. The party demanding it is also NOT obliged to offer it.


3. PAROL EVIDENCE RULE

Sec. 9. Evidence of written agreements.

When the terms of an agreement have been reduced to writing:

- it is considered as containing all the terms agreed upon and

- there can be, between the parties and their successors in interest, no

evidence of such terms other than the contents of the written

agreement.

HOWEVER, a party may present evidence to:

- modify, explain or add to the terms of written agreement

- IF he puts in issue in his pleading:

(a)An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b)The failure of the written agreement to express the true intent and

agreement of the parties thereto;

(c)The validity of the written agreement; or

(d)The existence of other terms agreed to by the parties or their successors in

interest AFTER the execution of the written agreement.

The term "agreement" includes wills. (7a)

Notes:

Parol Evidence, defined: Any evidence aliunde (oral or written), which is

intended or tends to vary or contradict a complete and enforceable agreement

in a document

Basis and Effect of the Parol Evidence Rule

- Basis: When the parties have reduced their agreement into writing,

all their previous and contemporaneous agreements on the matter are

merged therein.

- Effect: Hence, a prior or contemporaneous verbal agreement is not

admissible to vary contradict or defeat the operation of a valid

instrument.

When Can Parol Evidence of a Collateral Agreement (CA) Between the

Same Parties on the Same or Related Subject Matter Still be Admissible

Notwithstanding the Existence of a Written Agreement?

1. When the CA is not inconsistent with the terms of the written contract

2. When the CA has not been integrated in and is independent of the

written contract as where it is suppletory to the original contract

3. When the CA is subsequent to or novatory of the written contract

4. When the CA constitutes a condition precedent which determines

whether the written contract may become operative or effective.

o No. 4 does not apply to a condition subsequent not stated in

the agreement

NOTE: In order to apply the above exceptions, evidence thereon may be

allowed PROVIDED they have been put in issue (as part of Sec. 9, Par. d)

Parol Evidence Rule Also does NOT APPLY (may not be invoked

against the other):

- When at least 1 party to the suit is not a party or privy to the written

instrument in question and does not base a claim or assert a right

originating in the instrument.

- A stranger may introduce extrinsic evidence against the written

agreement

-

Parol Evidence is Admissible PROVIDED Section 9 Paragraphs A to D

are put in issue

- GR: Such facts must be put in issue by the pleadings

- EXCEPTION: Parol Evidence may still be admitted even if the

required matters are not put in issue by the pleadings:

o If such facts are invoked in his answer (since it also puts it in

issue)

o When parol evidence is NOT OBJECTED to (waiver of right

to object inadmissibility)

Requisites for the Admissibility of Parol Evidence

1. There is a valid contract

2. The terms of the agreement were reduced into writing

3. The controversy must be between the parties of the agreement of

their successors in interest (parties to the agreement must be the

parties to the suit)

4. There is a dispute as to the terms of the agreement

Rule on Express Trusts Concerning an Immovable or Any Interest

Therein

- Cannot be proved by parol evidence

- Relief: Reformation of contracts


Parol Evidence Rule v. Best Evidence Rule:

Parol Evidence Rule Best Evidence Rule

Presupposes that the original

document is available in court

Contemplates a situation where the

original writing is not available

and/or there is a dispute as to w/n

the said writing is the original

Prohibits the varying of the terms of

the written agreement

Prohibits the introduction of

secondary evidence regardless of w/n

it varies the contents of the original

Applies ONLY to documents which

are contractual in nature or “written

agreement (EXC. It applies to wills)

Applies to all kinds of writings

Can be invoked ONLY when there is

a controversy bet. the parties to the

written agreement and their privies

or any party directly affected thereby

Can be invoked by ANY party

regardless of w/n such party has

participated in the writing involved.

1st Exception to the Parol Evidence Rule: An intrinsic ambiguity, mistake or

imperfection in the written agreement (Sec 9 Par A)

Ambiguities in the Written Agreement or Will

1. “Latent or Intrinsic Ambiguity” – Contemplated in Sec 9 – Curable

by Parol Evidence

- When the writing on its face appears to be clear and unambiguous

but there are collateral matters or circumstances which make the

meaning uncertain

- When a writing admits of 2 or more constructions

- Ex. “I give my estate to my cousin Jimmy Ibarra” (I have 2 cousins

with that same name)

2. “Patent or Extrinsic Ambiguity” – NOT contemplated, Cannot be

Cured by Parol Evidence

- That which is apparent on the face of the writing and requires

something to be added in order to ascertain the meaning. Ex. “I give

my estate to my first cousin”

3. “Intermediate Ambiguity” – May also be Cured by Parol Evidence

PROVIDED it is also put in issue

- Because of the words of the writing, though seemingly clear and

with a settled meaning, is actually equivocal and admits 2

interpretations

Note: False description shall not vitiate a document IF the subject is

sufficiently identified.

Note: When the terms of the agreement are clear – the courts have no right to

interpret it

“Mistake” means “Mistake of Fact” - Such mistake may be a mutual mistake between the parties OR

- Where an innocent party was imposed upon by unfair dealing of the

other.

- Such mistake should be alleged and proved by clear and convincing

evidence

“Imperfection” Includes:

- An inaccurate statement in the agreement or

- Incompleteness in the writing or

- Presence or inconsistent provisions therein

Note: Art. 1363 NCC: When one party was mistaken and the other party

knew that the instrument did not state the real agreement and concealed such

fact – the instrument may be reformed.

2nd

Exception to the Parol Evidence Rule: Failure of the written agreement

to express the true intent and agreement of the parties

Purpose: to enable to court to ascertain the true intention of the parties or the

true nature of the transaction

3rd

Exception to the Parol Evidence Rule: The validity of the written

agreement

In the inquiry into the Validity if the Agreement, Parol Evidence may be

Admitted to Show:

- The true consideration of the contract or the want or illegality thereof

- The Incapacity of the parties

- W/n the contract is fictitious or absolutely simulated

- W/n there was fraud in inducement

4th

Exception to the Parol Evidence Rule: The existence of other terms

agreed to by the parties or their successors in interest AFTER the execution

of the written agreement

Note: Amendment in Section 9


4. INTERPRETATION OF DOCUMENTS

Sec. 10. Interpretation of a writing according to its legal meaning.

The language of a writing is to be interpreted:

- according to the legal meaning it bears in the place of its execution,

- UNLESS the parties intended otherwise. (8)

Sec. 11. Instrument construed so as to give effect to all provisions.

In the construction of an instrument, where there are several provisions or

particulars:

- such a construction is, if possible, to be adopted as will give effect to

all. (9)

Sec. 12. Interpretation according to intention; general and particular

provisions.

In the construction of an instrument:

- the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent,

- the latter is paramount to the former.

- So a particular intent will control a general one that is inconsistent

with it. (10)

Sec. 13. Interpretation according to circumstances.

For the proper construction of an instrument:

- the circumstances under which it was made,

- including the situation of the subject thereof and of the parties to it,

may be shown, so that the judge may be placed in the position of those

whose language he is to interpret. (11)

Sec. 14. Peculiar signification of terms.

The terms of a writing:

- are presumed to have been used in their primary and general

acceptation,

but evidence is admissible to show that they have:

- a local, technical, or otherwise peculiar signification, and

- were so used and understood in the particular instance, in which case

the agreement must be construed accordingly. (12)

Sec. 15. Written words control printed.

When an instrument consists partly of written words and partly of a printed

form, AND the two are inconsistent:

- the former controls the latter. (13)

Sec. 16. Experts and interpreters to be used in explaining certain writings.

When:

- the characters in which an instrument is written are difficult to be

deciphered, or

- the language is not understood by the court,

the evidence:

- OF persons skilled in deciphering the characters, or who understand

the language

- is admissible to declare the characters or the meaning of the

language. (14)

Sec. 17. Of Two constructions, which preferred.

When the terms of an agreement have been intended in a different sense by

the different parties to it:

- that sense is to prevail against either party in which he supposed the

other understood it, and

when different constructions of a provision are otherwise equally proper:

- that is to be taken which is the most favorable to the party in

whose favor the provision was made. (15)

Sec. 18. Construction in favor of natural right.

When an instrument is equally susceptible of two interpretations:

- one in favor of natural right AND the other against it,

- the former is to be adopted. (16)

Sec. 19. Interpretation according to usage.

An instrument may be construed according to usage, in order to determine

its true character. (17)


C. TESTIMONIAL EVIDENCE

1. QUALIFICATION OF WITNESSES

Sec. 20. Witnesses; their qualifications.

EXCEPT as provided in the next succeeding section:

- all persons who can perceive, and

- perceiving, can make known their perception to others,

may be witnesses.

- Religious or political belief,

- interest in the outcome of the case, or

- conviction of a crime

UNLESS otherwise provided by law, shall not be a ground for

disqualification. (18a)

Notes:

Witness, defined: Reference to a person who testifies in a case or gives

evidence before a judicial tribunal

Competence of a Witness, defined: The legal fitness or ability of a witness

to be heard on the trial of a case.

Rule on Competency of Witness

- GR: A person who takes the witness stand is presumed to possess

the qualification of a witness (Presumption of Competency)

- EXC: Prima Facie Presumption of Incompetency when:

o The person has been recently found to be of unsound mind

by a court of competent jurisdiction or

o One is an inmate of an asylum for the insane

Note: The burden is upon the party objecting to the competency of a witness

to establish the grounds of incompetency.

When are the Qualifications and Disqualifications of Witnesses

Determined?

- At the time the witnesses are produced for examination in court

(called to the stand) OR

- At the time of the taking of their depositions.

Note: If they are children of tender years – the time of the occurrence to be

testified to should also taken into account

Note: According to Judge B (different view from other authors) – You must

consider the qualifications of the witness BOTH at the time of the occurrence

to be testified to and at the time the witness is offered to determine his/her

competency.

Instances When a Witness is NOT Disqualified from Being a Witness:

- Interest of a Witness in the Subject Matter of the Action or its

Outcome

o GR: Does NOT disqualify a witness from testifying. It

affects only his credibility but NOT his competency

o EXC: He will be disqualified under those covered by the

rule on surviving parties, also known as the “Dead Man

Statute” or the “Survivorship Disqualification Rule” (Sec

23)

- A Co-defendant Being Declared in Default o GR: A defendant is NOT disqualified from testifying for his

non-defaulting co-defendant although he has an interest in

the case

o Ratio: He may still testify because he is not considered as

taking part in trial as understood in the rule on default.

- A Witness Being Convicted of a Crime

o GR: A person convicted is NOT disqualified from being a

witness (it only affects his credibility) BUT:

He must answer to the fact of a previous final

conviction (sec 3(5), Rule 132) or

Such fact may be shown by his examination or the

record of the judgment (sec 11)

o EXC: When otherwise provided by law (ex. Those guilty of

perjury, falsification or false testimony are disqualified from

being witnesses to a will)

- A Lawyer Being a Witness for his Own Client o GR: In such instance, the lawyer must leave the trial of the

case to other counsel

o EXC. When it concerns merely formal matters

When Objection to a Witness be Made: - GR: Objection to the qualification of the witness must be made

before he has given any testimony

- EXC: IF the incompetency appears during the trial, the objection

must be made as soon as it becomes apparent.

Note: If not made w/in the said time: right to object is deemed WAIVED


2 Kinds of Incompetency to Testify

1. Absolute: Forbidden to testify in any matter

o By reason of mental incapacity or immaturity (sec 21)

o By reason of marriage (sec 22)

2. Relative: Forbidden only on certain matters

o By reason of death or insanity of adverse party (Dead Man’s

Statute) sec 23

o By reason of Privileged Communication (Sec 24)

Sec. 21. Disqualification by reason of mental incapacity or immaturity.

The ff persons cannot be witnesses:

(a) Those whose mental condition:

- at the time of their production for examination,

- is such that they are incapable of intelligently making known their

perception to others;

(b) Children whose mental maturity is such as to render them incapable:

- of perceiving the facts respecting which they are examined and

- of relating them truthfully. (19a)

Notes:

Unsound Mind, defined: That which affects the competency of the witness

which includes any mental aberration, whether organic or functional, or

induced by drugs or hypnosis.

Rules on the Qualification of Soundness of Mind - GR: Unsoundness of mind does not per se render a witness

incompetent, one may be medically insane but in law capable of

giving competent testimony.

Note: As long as the witness can convey ideas by words or signs and give

sufficiently intelligent answers to questions propounded, she is competent as

a witness EVEN if one is feeble-minded, a mental retardate, or is

schizophrenic.

When Should a Witness be of Sound Mind?

- ONLY at the time of their production for examination

- Mental unsoundness of the witness at the time the fact to be testified

occurred – Affects ONLY his credibility.

When are Deaf-mutes Competent Witnesses?

- When they: (1) Can understand and appreciate the sanctity of an

oath; (2) Can comprehend facts they are going to testify to and; (3)

Can communicate their ideas through a qualified interpreter.

Presumption of Soundness of Mind

- GR: Every person is presumed to be of sound mind and the person

challenging such has the burden of proving otherwise

- EXC: Prima Facie Presumption of Incompetency when:

o The person has been recently found to be of unsound mind

by a court of competent jurisdiction

o One is an inmate of an asylum for the insane

In the Case of a Child Witness, the Court in Determining his

Competency Must Consider his Capacity:

- At the time the fact to be testified to occurred, such that he could

receive correct impressions thereof;

- To comprehend the obligation of an oath; and

- To relate those facts truthfully at the time he is offered as a witness.

Hence, the court should take into account his capacity for observation,

recollection and communication.

When is a Child Considered a Competent Witness

- GR: A child is competent if he can perceive and make known his

perception

- EXC: IF the child’s testimony is punctured w/ serious

inconsistencies as to lead one to believe that the child was coached.

An Intelligent Boy is Undoubtedly the Best Observer

- A child is little influenced by the suggestions of others and describes

objects and occurrence as he has really seen them

- Children of sound mind are likely to be more observant of incidents

which take place within their view than older people.

Child Witness Ordinary Witness

Only the judge is allowed to ask

questions to the child during

preliminary examination

Opposing counsels are allowed to

ask

Leading questions are allowed They are generally not allowed

Testimony in a narrative from is

allowed

It is NOT allowed

The child witness is assisted by a

facilitator

An ordinary witness is not assisted


Sec. 22. Disqualification by reason of marriage.

During their marriage, neither the husband nor the wife may testify for or

against the other:

- without the consent of the affected spouse,

EXCEPT:

- in a civil case by one against the other, or

- in a criminal case for a crime committed by one against the other or

the latter's direct descendants or ascendants. (20a)

Notes:

Rule on Marital Disqualification (Spousal Immunity):

- GR: During the marriage, neither the husband nor the wife may

testify for or against the other w/o the consent of the affected spouse

EXCEPTIONS: Rule on Disqualification does NOT Apply When:

1. When the testimony was made outside the marriage

2. In a civil case by one spouse against another

3. In a criminal case for a crime committed by one spouse against the

other or the latter’s direct descendants or ascendants

o Reason: The crime may be considered as having been

committed against the spouse and hence, the conjugal

harmony sought to be protected no longer exists)

o Limited only to direct ascendants and descendants + spouse

4. People v. Castañeda: A complaint filed by a wife against her

husband for falsification of her signature in a deed of sale involving

their conjugal property.

5. Ordonio v. Daquigan: When the marital relations are so strained,

there is no more consideration for applying the said rule. To apply

the exception there must be an offense that directly attacks, or

directly and vitally impairs, the conjugal relations.

6. When there is imputation of a crime by one spouse against the other

Note: “Direct Ascendants and Descendants” = Parents and Children ONLY

Nature of Prohibition: Absolute disqualification or prohibition against the

spouse’s testifying to any fact affecting the other spouse however the fact

may have acquired

Requisites in Order for Marital Disqualification Rule to Apply:

1. The marriage is valid and existing at the time of the offer of

testimony; and

2. The other spouse is a party to the action.

Who may Object: Only the other spouse who is a party to the case.

- Note: Objections to the competency of the witness-spouse may also

be waived. (Ex. Testimony against a spouse is a waiver of a

testimony in rebuttal)

Rationale For Having Such Rule

- Considering the identity of interest between the spouses, there is

consequent danger of committing perjury

- Also, the rule is in order to guard marital confidence and to prevent

domestic disunion

This should NOT be confused w/ “Marital Privilege” (see sec 24 notes)

Sec. 23. Disqualification by reason of death or insanity of adverse party.

Parties or assignor of parties to a case, OR persons in whose behalf a case is

prosecuted:

- against an executor or administrator or other representative of a

deceased person, or

- against a person of unsound mind,

upon a claim or demand against the estate of:

- such deceased person or against

- such person of unsound mind,

cannot testify as to any matter of fact OCCURRING:

- before the death of such deceased person or

- before such person became of unsound mind. (20a)

Notes:

Survivorship Disqualification Rule or Dead Man Statute

- Constitutes only a partial disqualification: A witness is not

completely disqualified BUT is only prohibited from testifying in

certain matters specified

- Disqualification ONLY applies to: A civil case or special

proceeding over the estate of a deceased or insane person

- Incompetency to Testify Applies: w/n the deceased died before or

after the commencement of the action against him provided he is

dead at the time of the testimony


Requirements for the Dead Man Statute to Apply:

1. The witness offered for examination is a party plaintiff, or the

assignor of said party, or a person in whose behalf a case is

prosecuted;

2. The case is against the executor or administrator or other

representative of a person deceased or of unsound mind;

3. The case is upon a claim or demand against the estate of such person

who is deceased or of unsound mind

4. The testimony to be given is on matter of fact occurring before the

death, of such deceased person or before such person became of

unsound mind.

Requirement No. 1: The witness offered for examination is a party plaintiff,

or the assignor of said party, or a person in whose behalf a case is

prosecuted

- Such plaintiff must be the real party in interest and not a mere

nominal party.

- The disqualification does NOT apply:

o when the counterclaim has been interposed by the defendant

as the plaintiff would thereby be testifying in his defense

o when the deceased contracted with the plaintiff through an

agent and said agent is alive and can testify, but the

testimony of the plaintiff should be limited to acts performed

by the agent.

- Assignor, defined: Assignor of a cause of action which has arisen,

and not the assignor of a right assigned before any cause of action

has arisen

- Interest in the outcome of the suit, per se, does not disqualify a

witness from testifying

Requirement No. 2: The case is against the executor or administrator or

other representative of a person deceased or of unsound mind;

- It is necessary that the said defendant is being sued and defends in

such representative capacity and not in his individual capacity

- Even if the property has been judicially adjudicated to the heirs, they

are still protected under the rule

- The protection would extend to the heirs of the deceased and the

guardians of persons of unsound mind

Requirement No. 3: The case is upon a claim or demand against the estate

of such person who is deceased or of unsound mind

- The rule does not apply where it is the administrator who brings an

action to recover property allegedly belonging to the estate or the

action is by the heirs of a deceased who represented the latter

- This is restricted to debts or demands enforceable by personal

actions upon which money judgments can be rendered.

- An action for damages for breach of agreement to devise property for

services rendered is a claim against an estate

Requirement No. 4: The testimony to be given is on matter of fact occurring

before the death, of such deceased person or before such person became of

unsound mind.

- Negative testimony (testimony that a fact did not occur during the

lifetime of the deceased) is NOT covered by the prohibition – as

such fact exists even after the decedent’s demise

The Rule Does NOT Apply:

1. Land registration cases instituted by the decedent’s representatives

(since the oppositors are considered defendants and may therefore

testify against the petitioner)

2. It does not apply in cadastral cases – since there is no plaintiff or

defendant

3. When the testimony is offered to prove a claim less than what is

established under a written document or is intended to prove a

fraudulent transaction against the deceased

o Provided such fraud is first established by evidence aliunde

o To apply the rule, the testimony must be against the estate

4. When the disqualification is waived - when the defendant:

o does not timely object to the admission of such evidence or

o testifies on the prohibited matters or cross examines thereon

o or offers evidence to rebut such prohibited testimony

Reason for the Rule:

1. To prevent perjury

2. To protect the estate from fictitious claims

3. To give the parties an equal opportunity to present evidence


Sec. 24. Disqualification by reason of privileged communication. The ff. persons cannot testify as to matters learned in confidence in the

ff. cases:

(a) The husband or the wife, during or after the marriage:

- cannot be examined w/out the consent of the other

- as to any communication received in confidence by one from the

other during the marriage

EXCEPT:

- in a civil case by one against the other, or

- in a criminal case for a crime committed by one against the other or

the latter's direct descendants or ascendants;

(b) An attorney cannot:

- without the consent of his client,

be examined as to:

- any communication made by the client to him, or his advice

- given thereon in the course of, or with a view to, professional

employment,

NOR can an attorney's secretary, stenographer, or clerk be examined:

- without the consent of the client AND his employer,

- concerning any fact the knowledge of which has been acquired in

such capacity;

(c) A person authorized to practice medicine, surgery or obstetrics

cannot in a civil case:

- without the consent of the patient,

be examined as to:

- any advice or treatment given by him or any information

- which he may have acquired in attending such patient in a

professional capacity

which information:

- was necessary to enable him to act in such capacity, and

- which would blacken the reputation of the patient;

d) A minister or priest cannot:

- without the consent of the person making the confession,

be examined as to:

- any confession made to or any advice

- given by him in his professional character in the course of discipline

enjoined by the church to which the minister or priest belongs;

(e) A public officer cannot be examined:

- during his term of office OR afterwards,

- as to communications made to him in official confidence,

- when the court finds that the public interest would suffer by the

disclosure. (21a)

Notes:

Basis of the Privilege: The confidential nature of the communication

Who May Object Under the Disqualification Rules – ONLY by the

persons protected thereunder (upon whom the testimony is directed). They

may also waive the right to object.

[MARITAL PRIVILEGE]

Requisites for the Disqualification By Reason of Marital Privilege to

Apply:

1. There is a valid marital relation;

2. The privilege is invoked with respect to a confidential

communication between the spouses during said marriage;

3. The spouse against whom such evidence is being offered has not

given his or her consent to such testimony.

Instances When the Privilege Cannot Be Claimed:

1. With respect to communications made prior to the marriage of the

spouses

2. With respect to communication not intended to be kept in confidence

(ex. dying declaration of a husband to his wife as to who was his

assailant since it is intended to be reported)

3. When the information is overheard by a third party whether he

acquired the information legally or not. (A 3rd

person is not covered

by the prohibition)

o Provided: There must be no collusion between the 3rd

person

and one of the spouses.

4. In a conspiracy between spouses to commit a crime - since it is not

the intention of the law to protect the commission of a crime.

5. When the spouses are living separately and there is an active

hostility. But if there is a chance to reconcile, then this privilege will

apply.

6. When waived

Note: Any information received during the marriage is presumed to be

confidential


Disqualification By Reason of

Marriage (Sec 22)

Disqualification By Reason of

Marital Privilege (Sec 24a)

Can be invoked ONLY if one of the

spouses is a party to the action

Can be claimed w/n the other spouse

is a party to the action

Applies ONLY if the marriage is

existing at the time the testimony is

offered

Can be claimed even after the

marriage is dissolved

Constitutes a vital prohibition for or

against the spouse of the witness

Applies ONLY to confidential

communication between spouses

Objection would be raised on the

ground of marriage. Even if the

testimony is for or against the other

spouse.

The objection of privilege is raised

when confidential marital

communication is inquired into.

Note: Waiving Sec 22 does not prevent the spouse from invoking sec 24 and

vice versa. So even if the information is not confidential, the spouse may still

invoke sec 22 which is an absolute disqualification.

[ATTORNEY-CLIENT PRIVILEGE]

Requisites for the Disqualification Based on Attorney-Client (A-C)

Privilege to Apply

1. There is an attorney and client relation;

2. The privilege is invoked with respect to a confidential

communication between them in the course of professional

employment;

3. The client has not given his consent to the attorney’s testimony.

Note: IF the atty’s secretary or clerk is sought to be established – then

BOTH the consent of the atty and the client is required.

Note: The client owns the privilege and therefore he alone can invoke it.

Prohibition is also applicable even to a counsel de oficio.

Basis: public policy

Confidential Communication: The attorney must have been consulted in

his professional capacity EVEN if no fee has been paid.

- It includes preliminary communications made for the purpose of

creating the A-C relationship. (But if it is not for the purpose of

creating the A-C relationship – it will not be protected even if the

client subsequently hires the same attorney)

- Includes verbal statements as well as documents or papers entrusted

to the attorney

Instances when the A-C Privilege Does NOT Apply:

1. Intended to be made public;

2. Intended to be communicated to others;

3. Intended for an unlawful purpose;

4. Received from third person not acting in behalf or as agent of the

client;

5. Made in the presence of third parties who are strangers to the

attorney-client relationship.

The period to be considered is:

- the date when the privileged communication was made by the client

to the attorney in relation to either a crime committed in the past or

with respect to a crime intended to be committed in the future

BUT Communication Regarding:

- A crime already committed - is privileged communication

- Contemplated criminal acts or in aid or furtherance thereof - is not

covered.

The A-C Privilege Does NOT Attach:

- When the attorney is a conspirator

- When all the attorney has to do is to either affirm or deny the secret

revealed by the client to the court

- When the information is voluntarily given after the attorney has

refused to accept employment.

[PHYSICIAN-PATIENT PRIVILEGE]

Purpose: It is intended to facilitate confidential disclosure by a patient to a

physician of all facts and symptoms w/o apprehension to the end that the

physician may form a correct opinion and may safely treat his patient.

Requisites for the Disqualification Based on Physician-Patient (P-P)

Privilege to Apply

1. The physician is authorized to practice medicine, surgery, or

obstetrics;

2. The information was acquired or the advice or treatment was given

by him in his professional capacity for the purpose of treating and

curing the patient;

3. The information, advice or treatment, if revealed, would blacken the

reputation of the patient;

4. The privilege is invoked in a civil case, whether patient is a party or

not.


Note: It is not necessary that the P-P relationship was created through the

voluntary act of the patient. Death of the patient does not extinguish the

relation.

Note: The privilege extends to all forms of communications as well as to the

professional observations and examinations of the patient

The P-P Privilege Does NOT Attach:

1. The communication was not given in confidence;

2. The communication is irrelevant to the professional employment;

3. The communication was made for an unlawful purpose, as when it is

intended for the commission or concealment of a crime;

4. The information was intended to be made public;

5. There was a waiver of the privilege either by provisions of contract

or law.

6. Under Rule 28 of the Rules of Court,

o The results of the physical and mental examination of a

person, when ordered by the court, are intended to be made

public, hence not privileged.

o Also, result of autopsies or post mortem examinations are

generally intended to be divulged in court.

The Privilege May Also be Waived:

- Ex. Section 4 of said Rule 28: if the party examined obtains a

report on said examination or takes the deposition of the

examiner, he thereby waives any privilege regarding any other

examination of said physical or mental condition conducted or to be

conducted on him by any other physician.

- Ex. Waiver of the privilege by contract may be found in stipulations

in life insurance policies.

[MINISTER/PRIEST-PENITENT PRIVILEGE]

Requisites for the Disqualification Based on Minister/Priest-Penitent

Privilege to Apply

1. That the same were made pursuant to a religious duty enjoined in the

course of discipline of the sect or denomination to which they

belong; and

2. They must be confidential and penitential in character.

- Ex: under seal of the confessional

Note: It is the person making the confession who can invoke the privilege.

[PRIVILEGED COMMUNICATION TO PUBLIC OFFICERS]

Requisites for the Disqualification Based on Privileged Communication

to Public Officers to Apply

1. That it was made to the public officer in official confidence;

2. That public interest would suffer by the disclosure of such

communication, as in the case of State secrets.

Note: When no public interest will be prejudiced - this rule will NOT apply.

[OTHER INSTANCES OF PRIVILEGE]

RA 53 as amended by RA 1477, the publisher, editor or duly accredited

reporter of any newspaper, magazine or periodical of general circulation

cannot be compelled to reveal the source of any news report or

information appearing in said publication unless the court or a House or

committee of Congress finds that such revelation is demanded by the

Security of the State.

Art. 233 of the Labor Code - All information and statements made at

conciliation proceedings shall be treated as privileged communications

and shall not be used as evidence in the NLRC, and conciliators and

similar officials shall not testify in any court regarding any matter taken

up at the conciliation proceedings conducted by them.

Voters cannot be compelled to reveal their ballots

Trade Secrets will be covered by this privilege

Informer’s Privilege: Prosecutor is not to be compelled to dispose the

identity of the informer unless the informer is already known to the

accused and when the identity of the informer is vital.

Those covered in the Secrecy of Bank Deposits Law

EO 464: Executive Privilege

Income Tax returns

Anti-Graft Cases


2. TESTIMONIAL PRIVILEGE

Sec. 25. Parental and filial privilege.

No person may be compelled to testify against his:

- parents, other direct ascendants, children or other direct descendants.

(20a)

Notes:

- It is not a rule of disqualification but was a privilege NOT to testify

- hence it was referred to as “filial privilege

- However, under the Family Code, the descendant may be compelled

to testify against his parents and grandparents, if such testimony is

indispensable in prosecuting a crime against the descendant or by

one parent against the other (Art. 215).

- Both parental and filial privileges are granted to any person

Reason for the Rule: The reason for the rule is to preserve “family

cohesion”

Note: The privilege may now be invoked in both civil and criminal cases.

3. ADMISSIONS AND CONFESSIONS

Sec. 26. Admission of a party.

The act, declaration or omission of a party as to a relevant fact may be given

in evidence against him. (22)

Notes:

Admission, defined: Any statement of fact made by a party against his

interest or unfavorable to the conclusion for which he contends or is

inconsistent with the facts alleged by him.

Admission Confession An admission is a statement of fact

which does not involve an

acknowledgement of guilt or liability

It involves an acknowledgment of

guilt or liability

It may be express or tacit Must be express

May be made by third persons Can be made only by the party

himself and in some instances, is

admissible against his co-accused

Express Admissions, defined: are those made in definite, certain and

unequivocal language.

Implied Admissions, defined: are those which may be inferred from the

acts, declarations or omission of a party. Therefore, an admission may be

implied from conduct, statement of silence of a party.

Requisites for Admissions to be Admissible

1. They must involve matters of fact and not of law;

2. They must be categorical and definite;

3. They must be knowingly and voluntarily made;

4. They must be adverse to the admitter’s interests, otherwise it would

be self-serving and inadmissible.

Other Forms of Admissions:

- Verbal or written, express or tacit, judicial or extrajudicial

- Judicial: One made in connection w/ a judicial proceedings

(conclusive – does not require proof)

- Extrajudicial: Any other admissions (Sec 26 to 32) (Rebuttable –

requires proof)

Ex. Testimony of the accused in a parricide case to the effect that he was

married to the victim is an admission against his penal interest and will

sustain his conviction even in the absence of independent evidence to prove

such marriage

Admission Declaration Against Interest

An admission need not be against

one’s proprietary or pecuniary

interest,

The declaration against interest must

have been made against the proprietary

or pecuniary interest of the parties

Made by the party himself, and is a

primary evidence and competent

though he be present in court and

ready to testify

Must have been made by a person who

is either deceased or unable to testify

Admission can be made any time The declaration against interest must

have been made ante litem motam

(prior to the controversy)

Self-Serving Testimony, defined: One which has been made extra-judicially

by the party to favor his interests. It is not admissible in evidence.

- It does not include his testimony as a witness in court

- No application to a judicial declaration


- When the statement was not made in anticipation of a future

litigation – It cannot be considered self-serving

Self serving declarations made by a party are admissible in his own

behalf in the ff: 1. When they form part of res gestae, including spontaneous statements

and verbal acts;

2. When they are in the form of complaint and exclamations of pain

and suffering;

3. When they are part of a confession offered by the prosecution

4. When the credibility of a party has been assailed on the ground that

his testimony is a recent fabrication (Testimonial Rehabilitation)

5. When they are offered by the opponent

6. When they are offered without objection, the evidence cannot

afterward be objected to as incompetent.

Admission by Conduct

- Flight from justice is an admission by conduct and circumstantial

evidence of consciousness of guilt

- Attempts to suppress evidence (ex. Destruction of evidence)

- The act of repairing facilities after an injury has been sustained

therein – is NOT an implied admission of negligence by conduct (It

is merely a measure of extreme caution)

Sec. 27. Offer of compromise not admissible.

In civil cases, an offer of compromise:

- is not an admission of any liability, and

- is not admissible in evidence against the offeror.

In criminal cases:

EXCEPT:

- those involving quasi-offenses (criminal negligence) or

- those allowed by law to be compromised,

an offer of compromise by the accused:

- may be received in evidence as an implied admission of guilt.

A plea of guilty later withdrawn OR an unaccepted offer of a plea of guilty to

lesser offense:

- is not admissible in evidence AGAINST the accused who made the

plea or offer.

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

occasioned by an injury:

- is not admissible in evidence as proof of civil or criminal liability for

the injury. (24a)

Notes:

Compromise, defined: An agreement made between two or more parties as

a settlement of the matters in dispute.

Civil Cases Criminal Cases

GR: An offer of compromise is not a

tacit admission of liability and is not

admissible in evidence against the

offeror. It cannot be proved over the

objection of the offeror.

GR: An offer of compromise by the

accused may be received in evidence

as an implied admission of guilt.

EXC: Unless the offer is not only to

“buy peace” but amounts to an

admission of liability (compromise

directed only to the amount to be

paid).

EXC: (1)Those involving quasi-

offenses (criminal negligence) or

(2)those allowed by law to be

compromised

Ratio in Civil Cases: It is the policy

of the law to favor the settlement of

disputes, to foster compromises and

to promote peace.

In criminal cases however, the

accused may be permitted to prove

that such offer was not made under

consciousness of guilt but merely to

avoid criminal action.

Instances when Offer of Compromise is Admissible

- In cases of violation of the internal revenue laws

o Since the law provides that the payment of any IR tax may

be compromised, and all criminal violations may likewise be

compromised EXC those already filed and those involving

fraud.

- In rape cases

o GR: In effect it may be compromised by actual marriage

o EXC: An offer to compromise for monetary consideration is

an implied admission.

o People v. Valdez: An offer of marriage during the

investigation is an admission of guilt

Good Samaritan Rule: An offer to pay or the actual payment of the

medical, hospital or other expenses by reason of the victim’s injuries is not

admissible to prove civil or criminal liability.


No Compromise is Valid Upon the Following Cases:

1. Civil status of persons

2. Validity of marriage or legal separation

3. Any ground for legal separation

4. Future support

5. Jurisdiction of courts

6. Future legitime

7. Habeas Corpus and Election Cases.

Sec. 28. Admission by third party.

The rights of a party cannot be prejudiced:

- by an act, declaration, or omission of another,

- EXCEPT as hereinafter provided. (25a)

Notes:

Principle of Res Inter Alios Acta Alteri Noceree Non Debet: Things done

between strangers ought not to injure those who are not parties to it.

- 1st Part: Sec 28, rule 130

- 2nd

Part: Sec 34, rule 130

- EXC: to the Rule: When the 3rd

person is a

o Sec 29: A partner, agent, joint owner, joint debtor, or has a

joint interest with the party

o Sec 30: A co-conspirator

o Sec 31: A privy of the party

Basis of the GR: A party is not bound by any agreement to which he has no

knowledge and to which he has not given his consent. His rights cannot be

prejudiced by the declaration, act or omission of another EXC by virtue of a

particular relation between them.

Basis of the EXC: A third party may be so united in interest with the party-

opponent that the other person’s admissions may be receivable against the

party himself. The term “privy” is the orthodox catchword for the relation.

Sec. 29. Admission by co-partner or agent.

The act or declaration of a partner or agent of the party:

- within the scope of his authority and

- during the existence of the partnership or agency,

may be given in evidence against such party AFTER:

- the partnership or agency is shown by evidence other than such act

or declaration.

The same rule applies:

- to the act or declaration of a joint owner, joint debtor, or other person

jointly interested with the party. (26a)

Notes:

Requisites for This Exception To Apply:

1. That the partnership, agency, or joint interest is established by

evidence other than the act or declaration

o Partnership relation must be shown;

2. The act or declaration is within the scope of the partnership, agency

or joint interest

o With regard to a non-partnership affair: The fact that each

partner has individually made a substantially similar

admission does not render the aggregate admission

competent against the firm.

3. Such act or declaration must have been made during the existence of

the partnership, agency or joint interest.

o Statements made after the partnership has been dissolved do

not fall within the exception

o BUT if they are made in connection with the winding up of

the partnership – such admission is STILL admissible.

Rule on Admission Made By Counsel

- GR: They are ADMISSIBLE against the client as the counsel acts

in representation and as an agent of the client

- EXC: It must not amount to a compromise or confession of

judgment (Because in compromise, the rule requires the consent of

the client)


Joint Debtor, defined: It does not refer to mere community of interest but

should be understood according to its meaning in solidum and not

mancomunada.

Sec. 30. Admission by conspirator.

The act or declaration of a conspirator:

- relating to the conspiracy and

- during its existence,

may be given in evidence:

- against the co-conspirator

- AFTER the conspiracy is shown by evidence other than such act of

declaration. (27)

Notes:

Application of the Requirement that the Conspiracy must Preliminarily

be Proved by Evidence other than the Conspirator’s Admission

- Applies ONLY to extrajudicial acts or statements

- NOT to judicial admission as to a testimony given on the witness

stand at the trial where the party adversely effected has the

opportunity to cross examine the declarant

An Admission by a Conspirator is Admissible Against his Co-

conspirator

- Such conspiracy is shown by evidence aliunde

o Conspiracy must be established by prima facie proof in the

judgment of the court;

- The admission was made during the existence of the conspiracy

o After the termination of a conspiracy, the statements of one

conspirator may not be accepted as evidence against any of

the other conspirators;

- The admission related to the conspiracy itself

o Should relate to the common object.

Existence of the Conspiracy May be Inferred:

- From the acts of the accused

- From the confessions of the accused

- Or by prima facie proof thereof

Note: If there is no independent evidence of the conspiracy – the

extrajudicial confession CANNOT be used against his co-accused (res inter

alios rule applies to both EXJ and J admissions)

- Here, there is no need to produce direct evidence - independent

circumstantial evidence will suffice.

Quantum of Evidence to Prove Conspiracy: Clear and convincing

evidence

Rules on Extrajudicial Admissions Made by a Conspirator AFTER the

conspiracy had terminated and BEFORE the trial - GR: NOT admissible

- EXC: Admissible against the co-conspirator IF:

1. Made in the presence of the co-conspirator who expressly or

impliedly agreed therein – as there is tacit admission under Sec 32

2. Where the facts stated in said admission are confirmed in the

individual extrajudicial confessions made by the co-conspirators

after their apprehension (interlocking confessions)

3. As a circumstance to determine the credibility of a witness

4. As circumstantial evidence to show the probability of the co-

conspirator’s participation in the offense.

In order that the EX-J statements of a co-accused may be taken into

consideration in judging the testimony of a witness it is necessary that:

1. The statements are made by several accused,

2. The same are in all material respects identical, and

3. There could have been no collusion among said co-accused in

making such statements.

Sec. 31. Admission by privies.

Where one derives title to property from another:

- the act, declaration, or omission of the latter, while holding the title,

- in relation to the property,

is evidence against the former. (28)

Notes:

Privity, defined: mutual succession of relationship to the same rights of

property.

Privies, defined: those who have mutual or successive relationship to the

same right of property or subject matter

To be Admissible, The Following Requisites Must Concur:

1. There must be a relation of privity between the party and the

declarant;

2. The admission was made by the declarant, as predecessor in interest,

while holding the title to the property;


3. The admission is in relation to said property.

The privity in estate may arise: by succession, by acts mortis causa or by

acts inter vivos.

Sec. 32. Admission by silence.

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. (23a)

Notes:

To be Admissible the FF Requisites Must Concur:

1. He must have heard or observed the act or declaration of the other

person;

2. He must have had the opportunity to deny it

3. He must have understood the statement;

4. He must have an interest to object, such that he would naturally have

done so, as if the statement was not true;

5. The facts are within his knowledge;

6. The fact admitted or the inference to be drawn from his silence is

material to the issue.

The rule on admission by silence applies:

- Where a person was surprised in the act or

- Even if he is already in the custody of the police.

- Applies to both civil and criminal cases

Rules on Voluntary Participation in a Reenactment of the Crime

Conducted by the Police

- GR: It is considered a tacit admission of complicity.

- Note: To be given any evidentiary weight, the validity and efficacy

of the confession must first be shown.

Note: Implication of guilt is not derived from mere silence but from the

acquiescence in participating in the reenactment

Application of The Rule:

- DOES NOT Apply IF: the statements adverse to the party were

made in the course of an official investigation, as where:

o he was pointed out in a custodial investigation and was

neither asked to reply nor comment on such imputations or

o when the party had a justifiable reason to remain silent, as

when he was acting on advice of counsel

- It May Apply: To adverse statements in writing IF the party was

carrying on a mutual correspondence with the declarant.

o However, if there was no mutual correspondence, the rule is

relaxed since such prompt response can generally not be

expected if the party still has to resort to a written reply.

Basis of Rule: It is basic instinct or a natural reaction to resist or deny a false

statement

Doctrine of Adoptive Admission: A party’s reaction to a statement or action

by another person when it is reasonable to treat the party’s reaction as an

admission of something stated or implied by the other person.

Instances Where There is NO Implied Admission

1. Allegations of unliquidated damages

2. Allegations which are not material to the cause of action

3. Conclusions of fact/law

4. Allegations of usury other than in a complaint

5. If defendant has not filed his answer and is declared in default.

Sec. 33. Confession.

The declaration of an accused acknowledging his guilt:

- of the offense charged, or

- of any offense necessarily included therein,

may be given in evidence against him. (29a)

Notes:

Confession, Defined: A categorical acknowledgement of guilt made by an

accused in a criminal case, w/o any exculpatory statement or explanation.

- IF the accused admits the act BUT alleges a justification – it is

merely an admission - Confession of Judgment in Civil Cases = Admission of Liability

Forms of Confession:


- Oral and under oath

- In writing (need not be under oath)

Note: Sec 33 refers to EX-J Confessions

Types of Confessions

1. Judicial Confession: One made before a court in which the case is

pending and in the course of legal proceedings therein

o By itself, can sustain conviction, even for a capital offense

o But for Capital Offenses: there must be evidence presented

other than the plea of guilty, also proof that such plea was

made voluntarily and w/ full comprehension

2. Extrajudicial (EX-J) Confession: One made in any other place or

occasion

o GR: Cannot sustain a conviction

o EXC: Unless corroborated by evidence of the corpus delicti

Requirements for the Admissibility of EX-J Confessions

1. The confession must involve an express and categorical

acknowledgment of guilt;

2. The facts admitted must be constitutive of a criminal offense;

3. The confession must have been given voluntarily;

4. the confession must have been intelligently made, the accused

realizing the importance or legal significance of this act;

5. There must have been no violation of Section 12, Art. III of the 1987

Constitution. (Rights in custodial investigation)

Rule on Presumption of Voluntariness: Confessions are presumed to be

voluntary and the onus is on the defense to prove that it was involuntary

(obtained by violence, intimidation, threat or promise of reward or leniency)

Circumstances Held to be Indicia of Voluntariness of a Confession:

- The confession contains details which the police could not have

supplied or invented.

- The confession contains details which could have been known only

to the accused

- The confession contains statements which are exculpatory in nature

- The confession contains corrections made by the accused in his

handwriting or with his initials and which corrected facts are best

known to the accused.

- The accused is sufficiently educated and aware of the consequences

of his act.

- It was made in the presence of impartial witnesses with the accused

acting normally on that occasion

- There is lack of motive on the part of the investigators to extract a

confession, with improbabilities and inconsistencies in the attempt of

the accused to repudiate his confession.

- The accused questioned the voluntariness of the confession only for

the first time at the trial of the case. (Estoppel)

- The contents of the confession were affirmed by the accused in his

voluntary participation in the reenactment of the crime, as shown by

his silent acquiescence thereto.

- The facts contained in the confession were confirmed by other

subsequent facts

- After his confession, the accused was subjected to physical

examination and there were no signs of maltreatment or the accused

never complained, but not where he failed to complain to the judge

on a reasonable apprehension of further maltreatment as he was still

in the custody of his torturers

Abandoned Ruling: Involuntary confessions are admissible if it contains the

truth (Prior to Stonehil v. Diokno)

Current Ruling: Involuntary Confessions are INADMISSIBLE, Ratio:

1. They are unreliable

2. On grounds of humanitarian considerations, or

3. On legal considerations of their being violative of one’s

constitutional right against self incrimination

EX-J confession obtained prior to the 1973 Consti: It is admissible even if

the confessant was not informed of his right to silence and to counsel and

even if made while under arrest (ratio: consti mandate should be given a

prospective effect)

Rules on EX-J Confession and the Constitution

- Verbal EX-JC Made Without Counsel

o IF made spontaneously after the assault – admissible as

part of res gestae NOT under the confession rule

o Provided: It was not made under custodial investigation

- IF the accused was informed of his consti rights and was asked if

he understood it BUT was not asked if he wanted to exercise it

o INADMISSIBLE

- EX-JC under Custodial Investigation

o If made w/o counsel – Inadmissible


o If prefaced by the investigator w/ a statement of his consti

rights to which he answered that he was going to tell the

truth – Not a waiver of his consti right to counsel

o IF accused is illiterate – investigation officer must make sure

that his rights were fully explained to him

Custodial Investigation (CI), defined:

- Questioning initiated by a law officer after a person has been taken

into custody or deprived of freedom

- Present where the investigation ceases to be a general inquiry and

begins to focus on a particular suspect taken into custody and asked

questions that lead into eliciting incriminating statements

- Includes “invitations” to an investigation

Note: There is NO presumption of regularity in CIs

Rights of a Person under Investigation

1. Right to be informed of ones right to remain silent, to have

competent and independent counsel preferably of his own choice

and the charges against him

2. Right to be provided with counsel if accused cannot afford one

- Note: Waiver of 1 & 2 must be made: In writing AND in the

presence of counsel

3. Right not to be treated with torture, force, violence, threat,

intimidation or other means which vitiate free will

4. Right not to be placed under secret detention or under a solitary,

incommunicado form of detention

NOTE: Confession obtained in violation of these rights is INADMISSIBLE

(Art 3 Section 12, 1987 Constitution)

Instances of Vitiated Confession – Renders EX-JC INADMISSIBLE

- Any form of coercion, whether physical, emotional, or mental

- A promise of immunity or leniency IF given by the offended party

or by the fiscal (person in a position to give such) vitiates a

confession, BUT IF given by:

o A person whom the accused could not have reasonably

expected to be able to comply with such promise (not a

prosecuting officer) or could not bind the offended party -

IT is ADMISSBLE

Note: IF the accused voluntarily made a second confession after he had

been maltreated

- 2nd

confession is ADMISSBLE – Provided it is proven that he was

already relieved by the fear caused by the previous maltreatment

Note: Judgment based solely on a vitiated confession is NULL and VOID

- Accused may be released on a writ of habeas corpus

Admissibility of EX-J Confessions

- Entire confession should be admitted in evidence – BUT the court

may in appreciating the same reject portions which are incredible

- Confessions are admissible NOT ONLY to the offense charged

BUT also to any offense necessarily included therein

- Illegal confessions are inadmissible against the admitter but are

admissible against the person who obtained such confession

(violator of consti rights)

- EX-JC is Binding ONLY Upon HIMSELF and NOT Admissible

Against his Co-Accused, EXC:

1. If the latter impliedly acquiesced in or adopted said confession by

not questioning its truthfulness

2. If the accused persons voluntarily and independently executed

identical confessions w/o collusion (interlocking confessions) which

confessions are corroborated by other evidence and w/o

contradiction by the co-accused who was present;

3. Where the accused admitted the facts stated by the confessant after

being apprised of such confession;

4. If they are charged as co-conspirators of the crime which was

confessed by one of the accused and said confession is used only as a

corroborating evidence;

5. Where the confession is used as circumstantial evidence to show the

probability of participation by the co-conspirator;

6. Where the confessant testified for his co-defendant; or

7. Where the co-conspirator’s extra judicial confession is corroborated

by other evidence of record.

Note: For Judicial Confessions: It is binding to BOTH the confessant and

the other party

Fruit of the Poisonous Tree Doctrine:

- Evidence obtained in violation of the right of a person against

unreasonable searches and seizures are inadmissible

- It refers to an object NOT testimonial evidence

- It does not refer to testimony or confessions obtained illegally.


4. PREVIOUS CONDUCT AS EVIDENCE

Sec. 34. Similar acts as evidence.

Evidence that one did or did not do a certain thing at one time

- is not admissible to prove that he did or did not do the same or

similar thing at another time;

BUT it may be received to prove:

- a specific intent or knowledge; identity, plan, system, scheme, habit,

custom or usage, and the like. (48a)

Notes:

Principle of Res Inter Alios Acta: Things done between strangers ought not

to injure those who are not parties to it.

- 1st Part: Sec 28, rule 130; 2

nd Part: Sec 34, rule 130

Note: Sec 34 applies to both civil and criminal cases and is strictly enforced

in all cases where it is applicable

GR: 1st Sentence of Codal

EXC: Where the evidence or similar acts may prove:

1. A specific intent or knowledge;

2. Identity;

3. A plan, system or scheme;

4. A specific habit; or

5. Established customs, usages and the like

Basis: Evidence must be confined to the point in issue in the case on trial.

Evidence of collateral offenses must not be received as substantive evidence of

the offense on trial.

Purpose: To compel the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues,

and thus diverts the attention of the court from the charge immediately before it.

Examples of the Exceptions:

- Evidence of another crime is admissible in a prosecution for robbery:

o When it has the tendency to identify the accused or show his

presence at the scene of the crime

o NOT where the evidence is to prove a commission of

another crime wholly independent of that which is on trial.

- Previous acts of negligence, is admissible to show knowledge or

intent.

Sec. 35. Unaccepted offer.

An offer in writing:

- to pay a particular sum of money or

- to deliver a written instrument or specific personal property

is, IF rejected without valid cause, equivalent to:

- the actual production and tender of the money, instrument, or

property. (49a)

Notes:

- This section complements the rule on tender of payment (Art. 1256,

NCC) by providing that said offer of payment must be made in

writing.

- Such tender must, however, be followed by consignation of the

amount in court in order to produce the effects of valid payment.

5. TESTIMONIAL KNOWLEDGE

Sec. 36. Testimony generally confined to personal knowledge; hearsay

excluded.

A witness can testify ONLY to those facts:

- which he knows of his personal knowledge; that is,

- which are derived from his own perception,

EXCEPT as otherwise provided in these rules. (30a)

Notes:

Hearsay Rule (HR), defined: Any evidence, whether oral or documentary is

hearsay of its probative value is not based on the personal knowledge of the

witness but on the knowledge of some other person not on the witness stand.

(Including: all assertions not subjected to cross-examination)

- GR: Hearsay evidence is excluded or INADMISSIBLE as evidence


- Ratio: It is excluded because the party against whom it is presented

is deprived of his right to cross-examine the persons to whom the

statements or writings are attributed.

- Note: If one has personal knowledge – it is not hearsay anymore

Inadmissibility of hearsay evidence MAY be WAIVED: By not objecting

to such evidence. (Ratio: since the right to cross-examine may also be

waived) Repeated failure to cross-examine is an IMPLIED waiver

Value of Hearsay Evidence

- Hearsay Evidence alone is insufficient to establish a fact

- IF not objected to – it may be considered and given the importance it

deserves like any other evidence (Manlilic v. Calaunan, 2007)

HOWEVER, it has also been held that even if it may be admissible, whether

objected to or not, has NO probative value, and as opposed to direct primary

evidence, the latter always prevails. (People v. Willians, 2001)

Ex. Newspaper Clippings are hearsay and have no evidentiary weight

UNLESS substantiated by person w/ personal knowledge of the facts

EXCEPTIONS to the HR: They are hearsay BUT are admissible

Preliminary Notes on the Exceptions to the HR: 11 Exceptions to the HR

– Sections 37 to 47 (DDECCLARE FT)

1. Dying Declaration

2. Declaration Against Interest

3. Entries In The Ordinary Course of Business

4. Common Reputation

5. Commercial Lists

6. Learned Treatises

7. Act Or Declaration Against Pedigree

8. Res Gestae

9. Entries In Official Records

10. Family Reputation Or Tradition Against Pedigree

11. Testimony Or Deposition At A Former Proceeding (sec 47)

Note: Sec 47 logically is not an exception. It merely requires for its

admissibility that the party had cross-examined or had the opportunity to do

so.

Other Exceptions to the HR

1. Special Exception to the HR in child abuse cases: Hearsay testimony

of a child describing any act or attempted act of sexual abuse may be

admitted in any criminal proceeding. (Sec 28 of the Rule on

Examination of a Child Witness, A.M. No. 00-4-07-SC)

o SUBJECT to certain prerequisites and the right to cross

examine of the adverse party

o Admissibility shall be determined by the court in light of

specified subjective/objective considerations to determine

the reliability of the child

2. Rule 8 of the Rules on Electronic Evidence: Business records as an

exception to the HR

3. Statements or writings offered not to prove the truth of the facts

stated but only to prove that those statements were actually made or

those writings were executed (See doctrine of independently

relevant statements)

Doctrine of Independently Relevant Statements: Independent of whether

the facts stated are true or not, they are relevant since they are the facts in

issue or are circumstantial evidence of the facts in issue.

- The only question to be answered: W/N the statements were made

- Hence, A witness may testify to the statements made by a person if

the fact that such statements were made would indicate the latter’s

mental state or physical condition

2 Classes of Independently Relevant Statements:

1. Those statements which are the very fact in issue;

2. Those statements which are circumstantial evidence of the fact in

issue. It includes the following:

a. Statements of a person showing his state of mind that is, his

mental condition, knowledge, belief, intention, ill-will, and

other emotions;

b. Statements of a person which shows his physical condition

as illness and the like;

c. Statements of a person from which an inference may be

made as to the state of mind of another, that is, knowledge,

belief, motive, good/bad faith of the latter;

d. Statements which may identify the date, place, person in

question;

e. Statements showing the lack of credibility of a witness.

Ratio for the Exceptions to the HR:

- Necessity for such evidence and

- On the assumption that in the ordinary course of events, they are

trustworthy

(Necessity AND Trustworthiness)


6. EXCEPTIONS TO THE HEARSAY RULE

EXCEPTION NO. 1: DYING DECLARATION

Sec. 37. Dying declaration.

The declaration of a dying person, made under the consciousness of an

impending death:

- may be received in any case wherein his death is the subject of

inquiry,

- as evidence of the cause and surrounding circumstances of such

death. (31a)

Notes:

Dying Declaration (DD), defined: Statements made by a person after the

mortal wound has been inflicted under the belief that the death is certain,

stating the fact concerning the cause of and the circumstances surrounding

the attack.

- Also known as “Ante Mortem Statements” or “Statement in

Articulo Mortis”

Requisites for DDs to be Admissible

1. That the death is imminent and the declarant is conscious of such

fact;

2. That the declaration refers to the cause and the surrounding

circumstances of such death

3. That the declaration refers to the facts which the victim is competent

to testify to;

4. That the declaration is offered in a case wherein the declarant’s

death is subject of the inquiry (the victim necessarily must have

died);

5. That the statement must be complete in itself.

Reason for its admission

1. Necessity – because the declarant’s death renders impossible his

taking the witness stand

2. Trustworthiness – at the point of death, every motive for falsehood is

silenced. The mind is induced by the most powerful consideration to

speak the truth.

Considerations for the Determination of Whether Statements Were

Made in Consciousness of an Imminent or Impending Death:

1. The words or statements of the declarant on the same occasion

2. His conduct at the time the declaration was made

3. Serious nature of his wounds as would necessarily engender a belief

on his part that he would not survive.

Intervening Time From the Declaration to the Actual Death: An

Immaterial Factor in Determining its Admissibility

- Immaterial as long as the declaration was made under the

consciousness of impending death

- This is a question of fact for the courts to determine

- No retroaction must be made by the declarant

- If the gravity of the wounds did not diminish – DD is still admissible

even if the decedent died days after the declaration

- Interval of Time is taken into account ONLY when the

declaration is ambiguous

-

Question: Do you think you will die?; IF the Answer is

- “I will not die if treated” - admissible as part of res gestae or DD

- “I cannot ascertain” – admissible as part of res gestae or DD

- “I don’t know” – NOT admissible

- “It all depends” + condition improved – DDs thereafter are NOT

admissible

Note: DDs may be regarded as part of res gestae as they were made soon

after a startling occurrence w/o any opportunity for fabrication or concoction

- If the declarant doesn’t die – it is part of res gesta

DD once proved and admitted – its credibility and weight shall be

determined like any other testimonial evidence - Circumstances such as surprise, rapidity and confusion should be

taken into consideration in giving weigh to the testimony of the

declarant when identifying his assailants

- It may be impugned: in the same manner as the testimony of any

other witness on the stand


People v. Mallare: DD has to be admitted with utmost care and should be

considered in light of all the facts because the source, accuracy and

completeness of the declarant’s knowledge as to the facts asserted could not

be tested by cross-examination

US v. Antipoli: DD is an exception to the Marital Privilege Rule since it is

NOT meant to be confidential communication between spouses.

DDs are Admissible: DDs NOT admissible:

Only insofar as the DD refers to facts

regarding the cause and surrounding

circumstances of the declarant’s

death (W/N they are in favor of or

against the accused)

Statements referring to the

antecedents of the fatal encounter

Opinions, impressions and

conclusions of the declarant

Note: DDs are admissible in ANY case for as along as the requisites are met.

Old rule that it only applies to certain criminal cases is now abandoned.

Note: DDs favorable to the accused are admissible

Forms of DDs

- May be oral or written or

- Made by signs which could be interpreted and testified to by a

witness

Note:

- If Oral - It may be testified to w/o the need of repeating the exact

words as long as he can give the substance thereof

- If unsigned written DD – It may used as a memorandum by the

witness who took it down

EXCEPTION NO. 2: DECLARATION AGAINST INTEREST

Sec. 38. Declaration against interest.

The declaration made:

- by a person deceased OR unable to testify,

- against the interest of the declarant,

IF the fact asserted in the declaration was at the time it was made:

- so far contrary to declarant's own interest,

- that a reasonable man in his position would not have made the

declaration UNLESS he believed it to be true,

may be received in evidence against:

- himself or

- his successors in interest and

- against third persons. (32a)

Notes:

Declaration Against Interest - DAI

DECLARATIONS Against Interest ADMISSIONS Against Interest

Made by a person who is neither a

party nor in privity with a party to the

suite.

Made by a party to a litigation or by

one in privity with or identified in

legal interest with such party

Secondary Evidence Primary Evidence

Exception to the Hearsay Rule Covered by the Hearsay Rule

Admissible ONLY when the

declarant is UNavailable as a witness

Admissible w/n the declarant is

available as a witness

Must be made ante litem motam

(before the controversy)

May be made at any time

before/during the trial

May be admitted against

himself/successor in interest and

against 3rd

parties

Used ONLY against the party

admitting.

Requisites in Order for a Statement to be Admissible as a DAI

1. That the declarant is dead and unable to testify;

2. That it relates to facts against the interest of the declarant;

3. That at the time he made the said declaration the declarant was aware

that the same was contrary to his aforesaid interest; and

4. That the declarant had no motive to falsify and he believed such to

be true.

Reasons for such Admission

1. Necessity – such declarations are the only mode of proof available

2. Trustworthiness – persons do not make statements that are

disadvantageous to themselves without substantial reason to believe

that the statements are true. Self-interest induces men to be cautious

in saying anything against themselves.

Interest covered:

1. Proprietary interest

2. Penal interest

o A justifiable theory because one who is criminally liable is also

civilly liable.


o People v. Toledo and Holgado: A declaration admitting that he

was the one who killed the victim, made by a delcarant who died

shortly thereafter, is admissible where another person was

subsequently charged as the killer of the same victim

3. Pecuniary interest

Note: It is essential that at the time of the statement, the declarant’s interest

affected is actual/real/apparent not merely contingent/future/conditional

Self Serving Declaration, defined: Statements favorable to or intended to

advance the interests of the delcarant

- It is inadmissible as being hearsay if the delcarant is unavailable as a

witness

- Opposite of DAI

EXCEPTION NO. 3: ACT OR DECLARATION ABOUT PEDIGREE

Sec. 39. Act or declaration about pedigree.

The act or declaration:

- of a person deceased OR unable to testify,

- in respect to the pedigree of another person related to him by birth

or marriage,

may be received in evidence where:

- it occurred before the controversy, AND

- the relationship between the two persons is shown by evidence other

than such act or declaration.

The word "pedigree" includes relationship, family genealogy, birth,

marriage, death, the dates when and the places where these fast occurred, and

the names of the relatives. It embraces also facts of family history intimately

connected with pedigree. (33a)

Notes:

Requisites in Order that Pedigree May be Proved by Acts or

Declarations of Relatives

1. The actor or declarant is dead or unable to testify

2. The act or declaration is made by a person related to the subject by

birth or marriage

3. The relationship between the declarant or the actor and the subject is

shown by evidence other than such act or declaration

4. The act or declaration was made ante litem motam or prior to the

controversy

Pedigree May be Established or Proved By:

1. The act or declaration of a relative (sec 39)

2. The reputation or tradition existing in his family (sec 40)

3. Entries in Family Bibles (sec 40)

4. With respect to marriage, by common reputation in the community

(Sec 41)

Note: The relationship must preliminarily be proved by direct or

circumstantial evidence.

- No specific degree of relationship is required

- BUT the weight to which such act or declaration is entitled may be

affected by the degree of relationship

Note: Reputation between the declarant and the person subject of inquiry

must be legitimate unless the issue is the legitimacy itself.

EXCEPTION NO. 4: FAMILY REPUTATION OR TRADITION

REGARDING PEDIGREE

Sec. 40. Family reputation or tradition regarding pedigree.

The reputation or tradition:

- existing in a family previous to the controversy,

- in respect to the pedigree of any one of its members,

may be received in evidence:

- IF the witness testifying thereon be also a member of the family,

either by consanguinity or affinity.

Entries in family bibles or other family books or charts, engravings on rings,

family portraits and the like:

- may be received as evidence of pedigree. (34a)

Notes:

Requisites W/ Respect to Reputation or Tradition Under Sec 40

1. The witness testifying thereto must be a member, by consanguinity

or affinity, of the same family as the subject; and

2. Such reputation or tradition must have existed in that family ante

litem motam


Note: A statement as to one’s date of birth and age as learned from parents or

relatives is an ante litem motam declaration of family tradition

- Such statement prevails over a mere opinion of a trial judge

- BUT cannot prevail over a secondary statement of the father

Section 39 Section 40

Act or declaration against pedigree Family reputation or tradition regarding

pedigree

Witness need not be a member of

the family

Witness is a member of the family

Testimony is about what declarant,

who is dead or unable to testify,

said concerning the pedigree of the

declarant’s family

Testimony is about family reputation or

tradition covering matters of pedigree.

Relation bet the declarant and the

person subject of inquiry must be

established by independent evidence

The witness himself is the one to whom

the fact relates. No need to establish

relationship by independent evidence.

EXCEPTION NO. 5: COMMON REPUTATION

Sec. 41. Common reputation.

Common reputation:

- existing previous to the controversy,

- respecting facts of public or general interest more than 30 years old,

or

- respecting marriage or moral character,

may be given in evidence.

Monuments and inscriptions in public places:

- may be received as evidence of common reputation. (35)

Notes:

Common Reputation, defined: The definite opinion of the community in

which the fact to be proved is known or exists. It means the general or

substantially undivided reputation, as distinguished from a partial or

qualified one, although it need not be unanimous.

Common Reputation May be Established:

1. By testimonial evidence of competent witness

2. By monuments and inscriptions in public places

3. By documents containing statement of reputation

Common Reputation or General Reputation is Admissible to Prove

1. Facts of public interest more than 30 years old

2. Facts of general interest more that 30 years old

3. Marriage

4. Moral Character

Note: Common reputation must have existed ante litem motam

Public Interest = Those of National Interest

General Interest = Those affecting inhabitants of a particular region or

community

Character = Inherent qualities of a person

Reputation = Opinion of him by others (Should be existing in his place of

residence, but may also exist in a place where he is known best)

Note: Here, character is permitted to be established by his common

reputation

Evidence of Negative Good Repute: Where the foundation proof shows that the

witness was in such position that he would have heard reports derogatory to one’s

character, the reputation testimony may be predicated on the absence of reports of

bad reputation or on the fact that the witness heard nothing against the person.

EXCEPTION NO. 6: RES GESTAE

Sec. 42. Part of res gestae.

Statements made by a person:

- while a startling occurrence is taking place OR immediately prior

OR subsequent thereto

- with respect to the circumstances thereof,

may be given in evidence as part of res gestae.

So, also, statements accompanying an equivocal act material to the issue, and

giving it a legal significance,

- may be received as part of the res gestae. (36a)


Notes:

Res Gestae which means “things done”, TYPES: 1. Spontaneous statements: Statements in connection with a startling

occurrence relating to that fact and in effect forming part thereof

2. Verbal Acts: Statements accompanying an equivocal act, on the

theory that they are the verbal parts of the act to be explained.

Requisites for Res Gestae No 1:

Spontaneous Statements

Requisites for Res Gestae No 2:

Verbal Acts

1. The principal act, the res gestae, be

a startling occurrence;

2. The statements were made before

the delcarant had the opportunity to

contrive

3. The statements must refer to the

occurrence in question and its

attending circumstances

4. The statement must be

spontaneous.

1. The res gestae or principal act or to

be characterized must be equivocal;

2. Such act must be material to the issue

3. The statements must accompany the

equivocal act.

4. The statements give a legal

significance to the equivocal act

The res gestae is the startling

occurrence

The res gestae is the equivocal act.

Statements may be made prior,

during or immediately after the

startling occurrence.

Verbal act must be contemporaneous

with or accompany the equivocal act.

Requisites for Admissibility of Res Gestae, The statement must:

1. Be Spontaneous

2. Made while a startling occurrence is taking place or immediately

prior or subsequent

3. Relates to the circumstances of the startling occurrence.

4. Must be involuntary and simultaneously wrung from the witness by

the impact of the occurrence

Reasons for Admission:

1. Necessity – natural and spontaneous utterances are more convincing than

the testimony of a person on the stand.

2. Trustworthiness – the statement is made indistinctively. The facts speaking

thru the party and not the party speaking thru the facts.

Res Gestae in connection with a

homicidal act

Dying Declarations

May be made by the killer himself

after or during the killing OR that of a

3rd person.

Can be made only by the victim.

May precede or be made after the

homicidal attack was committed.

Made only after the homicidal

attack has been committed.

Justification in the spontaneity of the

statement.

Trustworthiness based upon in its

being given in awareness of

impending death.

Note: If both elements for res gestae and dying declarations are present –

they may be admitted as both.

When Must the Statement or Act be Made:

GR: While the declarant was under the immediate influence of the startling

occurrence. Hence, done immediately prior, during or subsequent to the

events.

EXC:

- If the declarant was unconscious – statements regarding the event will

still be admissible

- If the declarant did not have the opportunity to concoct or contrive a

story – it is still admissible even if statement was made after hours

Statements or Outcries as Part of Res Gestae are Admissible:

- To establish the identity of the assailant

- To prove the complicity of another person in the crime

- To establish an admission of liability on the part of the accused

EXCEPTION NO. 7: ENTRIES IN THE COURSE OF BUSINESS

Sec. 43. Entries in the course of business.

Entries made:

- at, or near the time of transactions to which they refer,

- by a person deceased, OR unable to testify, who was in a position to

know the facts therein stated,

may be received as prima facie evidence, IF such person made the entries:

- in his professional capacity or in the performance of duty AND

- in the ordinary or regular course of business or duty. (37a)

Notes:

Shop Book Rule Requisites


1. The person who made the entry must be dead or unable to testify.

2. The entries were made at or near the time of the transaction to which

they refer;

3. The entrant was in a position to know the facts stated in the entries;

4. The entries were made in his professional capacity or in the

performance of a duty whether legal, contractual, moral or religious;

and

5. The entries were made in the ordinary or regular course of business

or duty;

Rules for Admissibility of Business Entries

- If the Entrant is Available as a Witness – the entries will be

INADMISSIBLE as an exception to the hearsay rule.

o They may be used as a memo to refresh his memory while

testifying in the transaction

- There is no necessity to bring into court all the clerks or employees

who individually made the entries

- It is sufficient that the person who supervises the work of the

employees testify:

o That the account was prepared under his supervision

o That the entries were entered in the ordinary course of

business

- There is no precise moment required when the entries should be

made – it is sufficient if it is made w/in a reasonable time while the

memory of the facts is unimpaired

- Probative Value: Prima Facie of the facts stated therein

EXCEPTION NO. 8: ENTRIES IN OFFICIAL RECORDS

Sec. 44. Entries in official records.

Entries in official records made in the performance of his duty:

- by a public officer of the RP or

- by a person in the performance of a duty specially enjoined by law,

are prima facie evidence of the facts therein stated. (38)

Notes:

Requisites for Admissibility of Official Records

1. The entries was made by a public officer in the performance of his

duty or by a person specially enjoined by the law to do so;

2. The entrant had personal knowledge of the facts stated by him or

such facts were acquired by him from reports made by persons under

a legal duty to submit the same

3. Such entries were duly entered in a regular manner in the official

records

Reasons for Admission

1. Necessity – practical impossibility of requiring the official’s

attendance as a witness to testify to the innumerable transactions

occurring in the course of his duty.

2. Trustworthiness – there is a presumption of regularity in the

performance of official duty.

Examples of Official Records:

- A register, a cash book, or an official return or certificate,

- motor vehicle accident report (if made in the performance of the

officer’s duties, at about the time of the accident, based on

information given as personal knowledge)

- Sheriff’s return (statement in the performance of a duty especially

enjoined by law) – no need for the sheriff to testify

Entries in the Course of Business

(sec 43)

Entries in Official Records

(Sec 44)

Entries are made by a person who is

dead or unable to testify

No such requirement

Needs authentication No need

Best evidence rule applies Exception to the best evidence rule

Entries are made pursuant to a duty,

either legal, contractual, moral or

religious

The entrant is a public officer, or if a

private individual, must have acted

pursuant to a legal duty

Note: The entrant must have been competent with respect to the facts stated

in his entries.

- Entries made by a priest in the register of the facts of baptism are

NOT admissible to prove the date of birth or its relation to persons

o A priest is not competent to testify to the truth of these facts.

- BUT church registries are ADMISSIBLE as evidence of the facts

with respect to marriage solemnized by the priest (BUT needs to be

authenticated)

- If the certificate is transmitted to a public officer – it is admissible

w/o a need for prior authentication.

Entries in Official Records May be Proved: See Sec 24 and 25 Rule 132


Probative Value: Also prima facie of the facts stated therein

EXCEPTION NO. 9: COMMERCIAL LISTS

Sec. 45.Commercial lists and the like.

Evidence of statements of matters of interest to persons:

- engaged in an occupation contained in a list, register, periodical, or

other published compilation

is admissible as tending to prove the truth of any relevant matter so stated IF

that compilation:

- is published for use by persons engaged in that occupation AND

- is generally used and relied upon by them therein. (39)

Notes:

Requisites for Admissibility

1. Statements of matters of interest to persons engaged in an

occupation;

2. The statements must be contained in a list, register, periodical or

other published compilation;

3. The compilation was published for use by persons engaged in that

occupation; and

4. Is generally relied upon by them.

Reasons for Admission:

1. Necessity – because of the unusual accessibility of the persons

responsible for the compilation of matters contained in a list,

register, periodical or other published compilation and tremendous

inconvenience it would cause to the court if it would issue summons

to these numerous individuals.

2. Trustworthiness – they have no motive to deceive and they further

realize that unless the list, register, periodical or other published

compilation are prepared with care and accuracy, their work will

have no commercial and probative value.

Ex. Mortality tables, annuity tables

EXCEPTION NO. 10: LEARNED TREATISES

Sec. 46. Learned treatises.

A published treatise, periodical or pamphlet on a subject of history, law,

science, or art:

- is admissible as tending to prove the truth of a matter stated therein

IF:

- the court takes judicial notice OR

- a witness expert in the subject testifies, that the writer of the

statement in the treatise, periodical or pamphlet is recognized in his

profession or calling as expert in the subject. (40a)

Notes:


1. That the court takes judicial notice thereof; or

2. The same are testified by a witness expert on the subject

Reasons for admission

1. Necessity – even if such person is legally procurable, the expense is

frequently disproportionate.

2. Trustworthiness – learned writers have no motive to misrepresent.

He is aware that his work will be carefully scrutinized by the learned

members of his profession and that he may be subject to criticisms

and ultimately rejected as an authority of the subject matter if his

conclusions are found to be invalid.


EXCEPTION NO. 11: TESTIMONY OR DEPOSITION AT A FORMER

PROCEEDING

Sec. 47. Testimony or deposition at a former proceeding.

The testimony or deposition of a witness deceased or unable to testify:

- given in a former case or proceeding, judicial or administrative,

- involving the same parties and subject matter,

may be given in evidence AGAINST:

- the adverse party who had the opportunity to cross-examine him.

(41a)

Notes:


1. The witness is dead or unable to testify

2. His testimony or deposition was given in a former case or

proceedings, judicial or administrative between the same parties or

those representing the same interests

3. The former case involved the same subject as that in the present case

although on different causes of action

4. The issue testified to by the witness in the former trial is the same

issue involved in the present case

5. The adverse party had an opportunity to cross examine the witness in

the former case.

Inability to Testify: Inability proceeding from a grave cause, almost

amounting to death (ex. Losing one’s power of speech)

- Subsequent failure or refusal to appear at the second trial, or hostility

since testifying at the first trial does NOT amount to such inability

Actions may be Essentially Different: Testimony given in a civil case is

admissible in a subsequent criminal case PROVIDED the above requisites

are met.

Rule on Admissibility of Prior Judgment (Not testimony)

- A judgment in a criminal proceeding cannot be read in evidence in a

civil action against a person not a party thereto to establish any fact

therein

- The mater is res inter alios and cannot invoked as res judicata

- It may only be admitted in a civil case by way of inducement or to

show a collateral fact relevant to the issue in the civil action

- It may not be admitted to prove the plaintiff’s action or the

defendant’s defense – it is not binding upon the parties in the civil

action

- Ratio: Parties are not the same and different rules of evidence are

applicable to each

HOWEVER, in Miranda v. Malate: Judgment of conviction in the absence

of collusion between the accused and the offended party is binding and

conclusive to a person subsidiarily liable w/ regard to his liability and to the

amount thereof.


7. OPINION RULE

Sec. 48.General rule.

The opinion of witness is not admissible EXCEPT as indicated in the

following sections. (42)

Notes:

Opinion, defined: An inference or conclusion drawn from facts observed.

- GR: Sec 48: Witnesses must give the facts and not their inference,

conclusions, or opinions. Opinions are INADMISSIBLE

- EXCEPTIONS: Opinion of the Witness is Admissible (Sec 49 &50)

1. On a matter requiring SPECIAL knowledge, skill, experience or

training which he is shown to possess, that is when he is an expert

(Sec 49);

2. Regarding the identity or the handwriting of a person, when he has

knowledge of the person or handwriting, whether he is an ordinary or

expert witness (Sec 50 a & b)

3. On the mental sanity of a person, if the witness is sufficiently

acquainted with the former or if the latter is an expert witness (Sec

50c)

4. On the emotion, behavior, condition, or appearance of a person

which he has observed; and (Sec 50d)

5. On ordinary matters known to all men of common perception, such

as the value of ordinary household articles (Galian v. State

Assurance Co., Ltd.)

Reason for the Rule: It is for the court to form an opinion concerning the

facts in proof of which evidence is offered. Witnesses must testify to facts

w/in their knowledge and not their opinions.

Sec. 49. Opinion of expert witness.

The opinion of a witness:

- on a matter requiring special knowledge, skill, experience or training

which he shown to posses,

may be received in evidence. (43a)

Notes:

Expert Witness, defined: One who belongs to the profession or calling to

which the subject matter of the inquiry relates to and who possesses special

knowledge on questions on which he proposes to express an opinion.

Test: Whether the opinion called for will aid the fact finder in resolving an

issue

Degree of Skill or Knowledge Required of an Expert Witness

- There is no definite standard of determining the degree of skill or

knowledge that a witness must possess in order to testify as an

expert.

- It is sufficient that the following factors are present: 1. Training and education

2. Particular, first hand familiarity with the facts of the case

3. Presentation of authorities or standards upon which his opinion is based.

Requisites for Admissibility of Expert Evidence - only if:

1. The matter to be testified to is one that requires expertise, and

2. The witness had been qualified as an expert


Value of an Expert Witness: It is NOT conclusive BUT purely advisory.

The courts are not bound by the expert’s findings.

Rules on Expert Testimony

- Courts must consider all the circumstances of the case (expert’s

qualifications, experience and degree of learning, the basic and logic

of his conclusions and other evidence on record)

- The value of expert testimony depends largely on the extent of the

experience or studies of such expert.

Note: An expert witness may base his opinion either on the first-hand

knowledge of the facts or on the basis of hypothetical questions where the

facts are presented to him and on the assumption that they are true,

formulates his opinion on the hypothesis.

Probative Value of Expert Evidence

- W/N the courts are bound by the testimony of an expert: DEPENDS on

the nature of the inquiry.

o ONLY when the subject of inquiry is of such a technical nature

that a layman can possibly have no knowledge thereof that courts

must depend and rely upon experts.

- Conflicting expert evidence have neutralizing effect on contradictory

conclusions. They generate doubt.

- A non-expert private individual, may examine certain contested

documents, it is not necessarily null and void if there are facts w/in his

knowledge which may help the court in the determination of the issue.

Rules on Handwriting Expert Evidence

- Value of such expert evidence depends upon the assistance that he

affords in pointing out distinguishing marks, characteristics,

dissimilarities as regards spontaneity, rhythm, pressure of a pen, loops,

strokes, and discrepancies between genuine and false specimens

- Expert evidence on handwriting is at best weak and unsatisfactory. It

is very unreliable. It is not conclusive. It has less weight than direct and

credible testimonies of witnesses as to matters w/in their personal

observation.

- It is not necessarily binding especially when the expert was not presented

as a witness to give the adverse party an opportunity to cross-examine.

- When the inquiry merely involves a comparison of existing signatures,

an opinion of an expert is not necessary.

- Other factors that should be considered: The position of the writer, the

condition of the surface in which the paper is placed, his state of mind,

feelings and nerves, kind of pen and paper.

- It is common knowledge that the writing of a person changes as time

elapses. It changes as one advances in age.

- From the ink alone, it is impossible to determine the ink writing’s age.

On Paraffin Tests for Firearm Use

- Paraffin Tests are NOT conclusive as to the presence of gunpowder since other compounds with nitrates can give the same reaction. It is

unreliable since the only thing it can definitely establish is the presence

or absence of nitrates BUT not if its source is a firearm

- Tobacco, cosmetics, fertilizers, fireworks can give a positive result as

well.

- It also doesn’t definitely establish the distance where the gun was

fired. Blackening and burning around the wound better establishes the

short distance of the gunshot.

Rules on Paternity Testing

- Blood tests on filiation of a child, competently conducted by

qualified persons are admissible on the non-paternity of a person

- It is however, inconclusive to affirm paternity but can only show a

possibility of such fact absent any other evidence.

On DNA Testing

- DNA evidence based on genetic code is admissible to prove

paternity since except for identical twins, each person’s DNA is

distinct and unique

- In assessing the probative value of DNA evidence, it is necessary to

consider how the samples were collected, handled, the possibility of

contamination and w/n the standards of procedure were followed

- Obtaining DNA does not violate the right against self-

incrimination.

- The probative value or weight of DNA analysis is subject to the

requisites of evaluation

o Less than 99.9%: Corroborative Evidence

o 99.9% or higher: Rebuttable Presumption

On Evidence Obtained By Sound Recording

- Tape Recording is admissible provided the ff requisites are first

established:

1. Recording device was capable of taking testimony

2. The operator of the device was competent

3. No changes, additions or deletions have been made

4. The testimony was elicited and voluntarily made w/o any kind of

inducement


5. The establishment of the authenticity and correctness of the

recoding

6. The identity of the speakers

7. The manner of the preservation of the recording

- A witnesses’ declaration that the sound recording represents a true

portrayal of the voices satisfies the requirements of authentication.

Sec. 50. Opinion of ordinary witnesses.

Opinion of a witness for which proper basis is given, may be received in

evidence regarding:

(a) The identity of a person about whom he has adequate knowledge;

(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify:

- on his impressions of the emotion, behavior, condition or appearance

of a person. (44a)

Notes:

Ordinary Opinion Evidence, defined: That which is given by a witness

who is of ordinary capacity and who has by opportunity acquired a particular

knowledge which is outside the limits of common observation and which

may be of value in elucidating a matter under consideration.

Shorthand Rendering of Facts: Instantaneous conclusions of the mind. The

witness may testify as to the emotion, behavior, condition or appearance of a

person

8. CHARACTER EVIDENCE

Sec. 51. Character evidence not generally admissible; exceptions:

(a) In Criminal Cases:

(1)The accused may prove his good moral character which is pertinent to the

moral trait involved in the offense charged.

(2)UNLESS in rebuttal, the prosecution may not prove his bad moral

character which is pertinent to the moral trait involved in the offense

charged.

(3)The good or bad moral character of the offended party may be proved IF it

tends to establish in any reasonable degree the probability or improbability of

the offense charged.

(b) In Civil Cases:

Evidence of the moral character of a party in civil case is admissible ONLY

when pertinent to the issue of character involved in the case.

(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

Notes:

Character, defined: The aggregate of the moral qualities which belong to

and distinguish an individual person.

Rules on the Admissibility of Character Evidence:

- GR: Character evidence is NOT admissible in evidence

Ratio: The evidence of a person’s character does not prove that such person

acted in conformity with such character or trait in a particular occasion.

In Criminal Cases

- GR: The prosecution may not prove the BAD Moral Character (MC) of

the accused which is pertinent to the moral trait involved in the offense

charged.

- EXCEPTION:

o The prosecution may prove BAD MC at the rebuttal stage - IF

the accused, in his defense attempts to prove his GOOD MC.

o GOOD or BAD MC of the offended party may always be proved

if such evidence tends to establish the probability or

improbability of the offense charged.

- EXC to the EXC:


o Proof of the bad character of the victim is not admissible:

In a murder case: If the crime was committed through

treachery and evident premeditation

In a rape case: If through violence and intimidation

o In prosecution for rape, evidence of complainant’s past sexual

conduct, opinion thereof or of his/her reputation shall not be

admitted unless, and only to the extent that the court finds that

such evidence is material and relevant to the case. (RA 8505)

Note: In criminal cases

- GR: The prosecution cannot initially attack the character of the accused

- EXC: ONLY if the accused opens that issue by introducing evidence of

his good MC when he makes his defense.

Ratio: To avoid unfair prejudice to the accused who may be convicted

because of such character

In Civil Cases - GR: MC of either party can NOT be proved

- EXC: Unless it is pertinent to the issue of character involved in the

case

Note: Here, the issue involved must be character. (Ex. Civil actions for

damages arising from the offenses of libel slander or seduction)

In BOTH Criminal and Civil Cases

- BAD MC of a witness may always be proved by either party but

NOT evidence of his character, UNLESS it has been impeached.

Rules with Respect to the Nature or Substance of the Character

Evidence (CE)

Person Referred To Nature or Substance of the CE

W/ Respect to the Accused:

CE “must be pertinent to the moral trait

involved in the offense charged”

Ex. In a prosecution for estafa, perjury or false testimony where in the

person’s moral trait is involved

W/ Respect to the Offended

Person

It is sufficient that CE “may establish in any

reasonable degree the probability of the

offense charged”

Ex. In a case of rape, the victim’s chastity may be questioned.

W/ Respect to Witnesses

CE must “refer to his general reputation for

truth, honesty or integrity” affecting his

credibility


[RULE 131]

BURDEN OF PROOF AND PRESUMPTIONS

Sec 1. Burden of proof.

Burden of proof 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. (1a, 2a)

BURDEN OF PROOF

Burden of Proof or “onus probandi”, defined: Obligation imposed upon a

party who alleges the existence of facts necessary for the prosecution of his

action or defense to establish the same by the requisite quantum of evidence.

Proof, defined: The establishment of a requisite degree of belief in the mind

of the trier of fact as to the fact in issue.

Quantum of Evidence Required:

Civil Cases Preponderance of Evidence

Charges of Misconduct

Against Judges

Clear and Convincing Evidence

*For Removal: Proof Beyond Reasonable Doubt

Administrative, Quasi-

Judicial and Agrarian

Cases

Substantial Evidence: Such relevant evidence as a

reasonable mind might accept as sufficient to

support a conclusion

Hierarchy of Evidence

1. Proof beyond reasonable doubt

2. Clear and convincing evidence

3. Preponderance of evidence

4. Substantial evidence

2 Separate Burdens in Burden of Proof

1. Burden of Going Forward: Burden of Producing evidence

2. Burden of Persuasion: The burden of persuading the trier of fact that

the burdened party is entitled to prevail.

Upon Whom BURDEN OF PROOF Rests:


On the party who would be defeated if no

evidence were given on either side.

The burden of proof is

always with the prosecution.

Plaintiff Has the burden of proof to show

the truth of his allegations if the

defendant raises a negative defense.

(w/ respect to his complaint)

Note: It is required that

courts determine first if the

evidence of the prosecution

has at least shown a prima facie case before considering

the evidence of the defense.

*If established – then the

burden is shifted upon the

accused to prove otherwise

Defendant Has the burden of proof if he raises

an affirmative defense on the

complaint of the plaintiff.

(w/ respect to his counterclaim)

Cross

Claimant

w/ respect to his cross claim

Burden of Evidence, defined: The logical necessity on a party during a

particular time of the trial to create a prima facie case in its favor or to

destroy that created against him by presenting evidence.

In BOTH civil and criminal cases: The BURDEN OF EVIDENCE lies w/ the

party who asserts an affirmative allegation.


Plaintiff Must prove the

affirmative

allegations in his

complaint

Prosecution Must prove the its

affirmative allegations in

the indictments (elements of

the crime and the attending

circumstances)

Criminal

Cases

To Sustain

Conviction

Preliminary Investigation Issuance of Warrant

of Arrest

Proof

beyond

reasonable

doubt

Evidence as to “engender a

well-founded belief” as to

the fact of the commission

of the crime and the

respondent’s probable guilt

Probable Cause:

Reasonable ground to

believe that the

accused has committed

the offense .


Defendant In his counterclaim

and in his

affirmative defenses

Defense As to the justifying,

exempting, mitigating, and

absolutory circumstances

Burden of Proof Burden of Evidence

Does not shift and remains

throughout the entire case

exactly where the original

pleadings placed it.

Shifts from party to party depending upon the

exigencies of the case in the course of the trial

Generally determined by the

pleadings filed by the party.

Generally determined by the developments of

the trial, or by the provisions of substantive law

or procedural rules which may relieve the party

from presenting evidence on the facts alleged.

(ex. Presumptions, judicial notice)

Principle of Negative Averments (NA)

- GR: NAs need not be proved (whether in civil or criminal action)

- EXC: It has to be proved when such negative allegations are:

o The essential parts of the cause of action (civil case) or

o The essential ingredients of the offense of the defense (criminal

case). Only needs to establish a prima facie case from the best

evidence obtainable

Example: In breach of contract, non-performance must be proven. In illegal

possession of firearms, the lack of license must be proved.

- EXC to the EXC: In civil cases, even if the NA is an essential part

of the cause of action or defense, it does not need to be proved:

o IF it is only for the purpose of denying the existence of a

document which should properly be in the custody of the adverse

party.

Note: It is not incumbent upon the prosecution to adduce positive evidence to

support a NA the truth of which is indicated by established circumstances and

which if untrue could readily be disproved by documents or other evidence w/in

the knowledge or control of the accused. When the negative of an issue does not

permit of direct proof or when the facts are more immediately w/in the

knowledge of the accused – the onus rests on the accused.

WHAT NEED NOT BE PROVED

The Following Facts Need Not be Proved:

1. Facts which are presumed (Rule 131)

2. Facts which are of judicial notice (Rule 129)

3. Facts which are judicially admitted (Rule 129)

PRESUMPTIONS

Presumption, defined: An inference as to the existence or non-existence of

a fact which courts are permitted to draw from the proof of other facts.

Note: A presumption shifts the burden of going forward with the evidence.

It imposes on the party against whom it is directed the burden of going

forward with evidence to meet or rebut the presumption.

Presumptions Judicial Admission and Judicial

Notice

The proponent still has to introduce

evidence of the basis of the presumption

(evidence of the existence and non-

existence of the facts from which the court

can draw the inference of the fact in issue

The proponent does not have to

introduce any evidence

Classifications of Presumptions

Presumptions of Law (praesumptiones juris)

Presumptions of Fact (praesumptiones hominis)

Definition: A deduction which the

law expressly directs to be made

from particular facts.

Definition: A deduction which reason draws

from facts proved without an express direction

from the law to that effect

A certain inference must be made

whenever the facts appear which

furnish the basis of the inference

Discretion is vested in the tribunal as to

drawing the inference.

Reduced to fixed rules and form

part of the system of jurisprudence

Derived wholly and directly from the

circumstances of the particular case by means

of the common experience of mankind

Presumptions of Law Can Be:

a. Conclusive or Absolute (juris et de jure) - A presumption of law that is

not permitted to be overcome by any proof to the contrary

b. Disputable, Rebuttable or Prima Facie (juris tantum) - is that which the

law permits to be overcome or contradicted by proofs to the contrary;

otherwise the same remains satisfactory.

Sec. 2. Conclusive presumptions.


The ff are instances of conclusive presumptions:

(a)Whenever a party has by his own declaration, act, or omission:

- intentionally and deliberately led another:

o to believe a particular thing true, and

o 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. (3a)

Notes:

Classes of Conclusive Presumptions

1. ESTOPPEL IN PAIS (Rule 131, Sec. 2(a)) – The fact which the party in

estoppel has represented to be true is conclusively presumed as against

him to be true

Requisites as to the Party Estopped Requisites as to the Party Claiming

Estoppel

a. Conduct amounting to false

representation or concealment

b. Intent or at least expectation that the

conduct shall be acted upon

c. Knowledge, actual or constructive of

the real facts

a. Lack of knowledge of truth as to the

facts in question

b. Reliance in good faith upon the

conduct or statements of the party to

be stopped

c. Action or inaction based thereon to

his detriment or prejudice.

Note: Estoppel is effective only as between the parties thereto or their

successors in interest

2. ESTOPPEL BY DEED (Rule 131, Sec. 2 (b)) – The ownership of the

landlord at the start of the tenancy relation is conclusively presumed as

against the tenant.

Note: If the title asserted is one that is alleged to have been acquired

subsequent to the commencement of that relation, the presumption will not

apply

Sec. 3. Disputable presumptions.

The ff presumptions are satisfactory if uncontradicted, but may be

contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

Presumption of Innocence (A)

Applies to both civil and criminal cases

The legislature may provide for prima facie evidence of guilt:

- Provided: There be a rational connection between the facts proved

and the ultimate fact presumed.

This presumption accompanies the accused throughout the trial down to

the moment of conviction. This presumption disappears after conviction

and the appellate court then will presume the accused guilty.

An accused is not called upon to offer evidence on his behalf for his

freedom is forfeited only if the requisite quantum of proof necessary for

conviction be in existence.

Basis: founded on the principles of justice and is intended not to protect the

guilty but to prevent the conviction of an innocent person.

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

(c) That a person intends the ordinary consequences of his voluntary act;

(d) That a person takes ordinary care of his concerns;

Presumption That a Person Takes Ordinary Care of his Concerns (D)

All men are presumed to be sane and normal and subject to be moved by

substantially the same motives.

When of age and sane, they must take care of themselves. Courts operate not

because one person has been defeated or overcome by another but because he

has been defeated or overcome illegally. There must be a violation of law,

the commission of what the law known as an actionable wrong before the

courts is authorized to lay hold of the situation and remedy it.

(e) That evidence willfully suppressed would be adverse if produced;


Presumption of Suppression of Evidence (E)

Ratio: The natural conclusion is that the proof if produced, instead of

rebutting would support the inference against him and the court is justified in

acting upon that conclusion

Requisites for Presumption (e) to Apply:

1. That the evidence is material

2. That the party had the opportunity to produce the same

3. That the said evidence is available only to said party

When Presumption (e) Will Not Apply:

1. When the evidence in question is equally available to both parties

2. When the evidence is merely corroborative or merely cumulative, or

is unnecessary

3. When the suppression of evidence is not willful

4. When the suppression is an exercise of privilege

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

(i) That prior rents or installments had been paid when a receipt for the later

one is produced;

(j) That a person found in possession of a thing taken in the doing of a recent

wrongful act is the taker and the doer of the whole act:

- otherwise, that things which a person possess, or exercises acts of

ownership over, are owned by him;

Presumption from Possession of Stolen Goods (J)

This is not in conflict with the presumption of innocence. At the start of the criminal case, the court will apply the presumption of innocence. But once the

prosecution is able to prove that a certain object has been unlawfully taken, that

there is a crime of theft committed and that the prosecution has also proven that

the accused is in possession of this object unlawfully taken, then the presumption

of innocence disappears. The new presumption of guilt takes place.

Facts to Be Proved By the Prosecution for Presumption (J) to Apply:

1. The crime was actually committed

2. The crime was committed recently

3. The stolen property was found in possession of the accused and

4. The accused is unable to satisfactorily explain his possession there

To Conclusively Prove Possession, It is Necessary That:

1. The possession must be unexplained by any innocent origin

2. The possession must be fairly recent and

3. The possession must be exclusive

Note: Convictions in these cases are not sustained upon a presumption of law

but rest wholly upon an inference of fact as to the guilt of the accused.

(k) That a person in possession of an order on himself for:

- the payment of the money, or

- the delivery of anything,

has paid the money or delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or elected

to it;

Presumption that a Person in a Public office was Regularly Appointed or

Elected to it: (L)

Ratio: It would cause great inconvenience if in the first instance strict proof

were required of appointment or election to office in all cases where it might

be collaterally in issue.

Burden of Proof: Is on the adverse party to show that he was not appointed

or designated.

(m) That official duty has been regularly performed;

Presumption that an Official Duty has been Regularly Performed (M)

Ratio:

1. Innocence and not the wrongdoing is to be presumed

2. An official oath will not be violated


3. A republican form of government cannot survive unless a limit is

placed upon controversies and certain trust and confidence reposed

in each government, department, or agent at least to the extent of

such presumption.

Note: This presumption applies to both civil and criminal cases

This presumption of authority is not confined to official appointees. It has

been extended to persons who have been appointed pursuant to a local or

special statute to act in quasi-public or quasi-official capacities and to

professional men like surgeons and lawyers.

Omnia praesumuntur rite et solemniter esse acta donec probetur in

contrarium – all things are presumed to have been done regularly and with

due formality until the contrary is proved.

While ordinarily, irregularity will not be presumed, an adverse assumption

may arise when the official act in question appears to be irregular upon its

face.

(n) That a court, or judge acting as such, whether in the Philippines or

elsewhere, was acting in the lawful exercise of jurisdiction;

Presumption of Regularity of Judicial Proceedings (N)

The court rendering the judgment is presumed to have jurisdiction over the

subject matter and the parties and to have rendered a judgment valid in every

respect.

- Jurisdiction is presumed in all cases, be it superior or inferior court.

- However, jurisdiction may not be presumed when the record itself

shows that jurisdiction has not been acquired or there was something

on the record showing the absence of jurisdiction.

(o)That all the matters within an issue raised in a case:

- were laid before the court and passed upon by it; and

in like manner that all matters within an issue raised in a dispute submitted

for arbitration:

- were laid before the arbitrators and passed upon by them;

(p)That private transactions have been fair and regular;

Presumption that Private Transactions have Been done Fairly and

Regular (P)

An individual intends to do right rather than wrong and intends to do only

what he has the right to do.

In the absence of proof to the contrary, there is a presumption that all men act

fairly honestly, and in good faith.

(q)That the ordinary course of business has been followed;

Those who were engaged in a given trade or business are presumed to be

acquainted with the general customs and usages of the occupation and with

such other facts as are necessarily incident to the proper conduct of the

business.

(r)That there was a sufficient consideration for a contract;

(s)That a negotiable instrument was given or indorsed for a sufficient

consideration;

(t)That an endorsement of a negotiable instrument was made:

- before the instrument was overdue and

- at the place where the instrument is dated;

(u)That a writing is truly dated;

(v)That a letter duly directed and mailed was received in the regular course

of the mail;

Presumption in Paragraph (V)

For the Presumption in Par (V) to Arise, It Must Be Proved:

- That the letter was properly addressed with postage pre-paid and that

it was actually mailed

- IF the said letter was not returned to the sender: It is presumed that it

was received by the addressee

Service of Pleadings By Mail (Sec 10, Rule 13)

- Service is complete upon the expiration of 10 days after mailing

UNLESS the court otherwise provides

- If by registered mail: The service is complete upon actual receipt by

the addressee (If he fails to claim his mail from the post w/in 5 days


from date of 1st notice – service is complete from the expiration of

such time)

(w)That after an absence of 7 years, it being unknown whether or not the

absentee still lives:

- he is considered dead for all purposes,

- EXCEPT for those of succession.

The absentee shall not be considered dead for the purpose of opening his

succession:

- till after an absence of 10 years.

IF he disappeared after the age of 75 years:

- an absence of 5 years shall be sufficient in order that his succession

may be opened.

The following shall be considered dead for all purposes including the

division of the estate among the heirs:

(1) A person on board

- a vessel lost during a sea voyage, or

- an aircraft which is missing,

who has not been heard of for 4 years since the loss of the vessel or

aircraft;

(2) A member of the armed forces who:

- has taken part in armed hostilities, and

- has been missing for 4 years;

(3) A person who:

- has been in danger of death under other circumstances and

- whose existence has not been known for 4 years;

(4) If a married person has been absent for 4 consecutive years, the

spouse present may:

- contract a subsequent marriage IF he or she has well-founded belief

that the absent spouse is already death.

In case of disappearance, where there is a danger of death under the

circumstances hereinabove provided:

- an absence of only 2 years shall be sufficient for the purpose of

contracting a subsequent marriage.

However, in any case, before marrying again, the spouse present must:

- institute a summary proceedings as provided in the Family Code and

in the rules for declaration of presumptive death of the absentee,

- without prejudice to the effect of reappearance of the absent spouse.

Ordinary But Continued Absence: (First 2 subpars) The absentee is

presumed to have died at the end of the said period

Qualified Absence: (In danger of death under the 3 instances contemplated)

The absentee is presumed to have died at the time he was exposed to such

danger or peril, at the start of the period.

Note: Distinction is important for successional rights

(x) That acquiescence resulted from a belief that the thing acquiesced in was

conformable to the law or fact;

(y) That things have happened according to the ordinary course of nature and

ordinary nature habits of life;

(z)That persons acting as copartners have entered into a contract of co-

partneship;

(aa) That a man and woman deporting themselves as husband and wife have

entered into a lawful contract of marriage;

(bb) That property acquired by a man and a woman:

- who are capacitated to marry each other and

- who live exclusively with each other as husband and wife

w/out the benefit of marriage OR under void marriage,

has been obtained by their joint efforts, work or industry.

http://www.chanrobles.com/executiveorderno209.htm


(cc) That in cases of cohabitation by a man and a woman:

- who are not capacitated to marry each other and

- who have acquire properly through their actual joint contribution of

money, property or industry,

such contributions and their corresponding shares including joint deposits of

money and evidences of credit are equal.

(dd) That IF the marriage is terminated and the mother contracted another

marriage:

- within 300 days after such termination of the former marriage,

these rules shall govern in the absence of proof to the contrary:

(1) A child born BEFORE 180 days after the solemnization of the

subsequent marriage:

- is considered to have been conceived during the former marriage,

- PROVIDED it be born within the 300 days after the termination of

the former marriage.

(2) A child born AFTER 180 days following the celebration of the

subsequent marriage:

- is considered to have been conceived during such marriage,

- even though it be born within the 300 days after the termination of

the former marriage.

(ee) That a thing once proved to exist continues as long as is usual with

things of the nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or published

by public authority, was so printed or published;

(hh) That a printed or published book, purporting to contain reports of cases

adjudged in tribunals of the country where the book is published, contains

correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property

to a particular person has actually conveyed it to him

- when such presumption is necessary to perfect the title of such

person or his successor in interest;

(jj) That EXCEPT for purposes of succession, when:

- two persons perish in the same calamity, such as wreck, battle, or

conflagration, and

- it is not shown who died first, and

- there are no particular circumstances from which it can be inferred,

the survivorship is determined from the probabilities resulting from the

strength and the age of the sexes,

According to the following rules:

1. If both were under the age of 15 years:

o the older is deemed to have survived;

2. If both were above the age of 60:

o the younger is deemed to have survived;

3. If one is under 15 and the other above 60:

o the former is deemed to have survived;

4. If both be over 15 and under 60, and the sex be different:

o the male is deemed to have survived,

o if the sex be the same, the older;

5. If one be under 15 or over 60, and the other between those ages:

o the latter is deemed to have survived.

In Order for Presumption (JJ) to Apply, It is Necessary That:

1. The deaths occurred in a calamity and

2. There are no particular circumstances from which it can be inferred

that one died ahead of the other

(kk) That IF there is a doubt, as between two or more persons who are called

to succeed each other, as to which of them died first:

- whoever alleges the death of one prior to the other, shall prove the

same;


- in the absence of proof, they shall be considered to have died at the

same time. (5a)

Presumption is the same as the rule in Art 43 of the CC

Par (KK) Par (JJ)

The parties are NOT required to perish in

a calamity

It is Required that the deaths

occurred during a calamity

It only applies to questions of

successional rights

It applies to cases not involving

successional rights

Provides a presumption of simultaneity in

the deaths of the persons called to succeed

each other

Provides for presumptions of

survivorship

Sec. 4. No presumption of legitimacy or illegitimacy.

There is NO presumption of legitimacy of a child:

- born after 300 days following the dissolution of the marriage or the

separation of the spouses.

Whoever alleges the legitimacy or illegitimacy of such child must prove his

allegation. (6)

Notes:

- An exact copy of Art 261 of the CC

- Applies when the dissolution of the marriage is by reason of causes other

than the death of the husband.

- Separation may be: legal separation or a separation de facto


[RULE 132]

PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES

Sec 1. Examination to be done in open court.

The examination of witnesses presented in a trial or hearing:

- shall be done in open court, and

- under oath or affirmation.

UNLESS:

- the witness is incapacitated to speak, or

- the questions calls for a different mode of answer,

the answers of the witness shall be given orally. (1a)

Sec.2. Proceedings to be recorded.

The entire proceedings of a trial or hearing, INC:

- the questions propounded to a witness and his answers thereto,

- the statements made by the judge or any of the parties, counsel, or

witnesses with reference to the case,

shall be recorded:

- by means of shorthand or stenotype or

- by other means of recording found suitable by the court.

A transcript of the record of the proceedings:

- made by the official stenographer, stenotypist or recorder and

- certified as correct by him

shall be deemed prima facie a correct statement of such proceedings. (2a)

Notes:

Rules For Admissibility

- GR: The testimony of the witness must be given in open

- EXC: Such requirement may be supplanted

o In civil cases, by depositions pursuant to and under the

limitations of Rules 23 and 24

o In criminal cases, by depositions or conditional

examinations, pursuant to Sec 12 to 15 Rule 119 and Rule

123, or by the records of the preliminary investigation

How Oral Evidence is Given

- GR: It is usually given orally in open court. Therefore, generally,

the testimonies of witnesses cannot be presented in affidavits.

- EXC: Testimonies of witnesses may be given in affidavits is under

the Rules of Summary Procedure (BP 129)

Purpose: to enable the court to judge the credibility of the witness by the

witness’ manner of testifying, their intelligence, and appearance.

GR: Testimony of witnesses shall be given under oath or affirmation.

- Two fold object in requiring a witness to be sworn:

1. By affecting the conscience of the witness to compel him to

speak the truth;

2. If he willfully falsifies that truth, that he may be punished by

perjury.

- The right to have the witness sworn may be waived

o If a party fails to object to the taking of the testimony of a

witness without the administration of an oath, he will be deemed

to have waived his objection.

How Testimony of the Witness Should be Elicited

- By question of counsel

- The court may also propound questions either on the direct or cross-

examination of the witness or suggest questions to counsel.

Note: The testimony of a witness cannot be considered self-serving if he is

subjected to cross-examination.

Questions propounded to a witness must:

1. Not be indefinite or uncertain;


2. Be relevant;

3. Not be argumentative;

4. Not for conclusion of law;

5. Not call for opinion or hearsay evidence;

6. Not call for illegal answer;

7. Not call for self-incriminating testimony;

8. Not be leading;

9. Not be misleading;

10. Not to tend reputation of witness;

11. Not to be repetitions;

12. Not call for a narration.

Sec. 3. Rights and obligations of a witness.

A witness MUST answer questions:

- although his answer may tend to establish a claim against him.

However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and

from harsh or insulting demeanor;

(2) Not to be detained longer than the interests of justice require;

(3) Not to be examined EXCEPT ONLY as to matters pertinent to the issue;

(4) Not to give an answer which will tend to subject him to a penalty for an

offense UNLESS otherwise provided by law; or

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

- UNLESS it to be the very fact at issue or to a fact from which the

fact in issue would be presumed.

But a witness must answer to the fact of his previous final conviction for an

offense. (3a, 19a)

Notes:

GR: A witness cannot refuse to answer questions material to the inquiry

even if it may tend to establish a claim against him

EXC: He may validly refuse to answer:

1. Under the right against self-incrimination (If it will subject him to

punishment for an offense)

- Available in civil, criminal and administrative cases

- May be with reference to the offense involved in the same case

where he is charged or in another case

- It may be waived however in immunity statutes wherein the witness

is granted immunity from criminal prosecution for offenses admitted

in his testimony

2. Under the right against self-degradation (If it will have a direct

tendency to degrade his character) UNLESS:

- Such question is directed to the very fact at issue or to a fact from

which the fact at issue would be presumed or

- It refers to his previous final conviction for an offense

Note: Right should be seasonable invoked and may be waived.

Classification of Immunity Statutes

1. Use Immunity – Only prohibits the use of witness’ compelled

testimony and its fruits in any manner in connection with the

criminal prosecution of the witness. It does not render a witness

immune from prosecution.

2. Transactional Immunity – grants immunity to the witness from

prosecution for an offense to which his compelled testimony relates.

Scope of the right against self-incrimination

1. No person should be compelled to be a witness against himself;

2. The rule may be invoked in any court or proceedings;

3. The rule covers only testimonial compulsion and production by him

of incriminating documents and articles. (Forced Reenactment

comes within the ban since prohibition against testimonial

compulsion extends to those communicative in nature)

Note: Right against self-incrimination is granted only in favor of individuals.

When is an act testimonial: If it explicitly or implicitly relate a factual

assertion or discloses information.

Rationale against testimonial compulsion: The court may not extract from

the defendant’s own lips and against his will an admission of his guilt.

Limitation if a witness is a party in a civil action: Before the plaintiff can

compel the defendant to be a witness, the plaintiff must first prove that he has

submitted written interrogatories of the defendant.

Right of Self-Incrimination Distinguished


Accused Ordinary Witness

Cannot be compelled to testify or produce

evidence even by subpoena or other

process or order of the court. He cannot

be required either for the prosecution, for

co-accused or even for himself.

May be compelled to testify by

subpoena having only the right to

refuse to answer a particular

incriminating question at the time it

is put to him.

Sec. 4. Order in the examination of an individual witness.

The order in which the individual witness may be examined is as follows;

(a) Direct examination by the proponent;

(b) Cross-examination by the opponent;

(c) Re-direct examination by the proponent;

(d) Re-cross-examination by the opponent. (4)

Sec. 5. Direct examination.

Direct examination is the examination-in-chief of a witness by the party

presenting him on the facts relevant to the issue. (5a)

Sec. 6. Cross-examination; its purpose and extent.

UPON the termination of the direct examination the witness may be cross-

examined BY the adverse party

- as to many matters stated in the direct examination, or connected

therewith,

- with sufficient fullness and freedom

o to test his accuracy and truthfulness and freedom from

interest or bias, or the reverse, and

o to elicit all important facts bearing upon the issue. (8a)

Notes:

Purposes of Cross Examination

1. To discredit the witness

2. To discredit the testimony of the witness

3. To clarify certain matters

4. To elicit admissions from witnesses

Scope and Limits of Cross Examination

- American Rule: Restricts cross-examination to facts which are

connected with the matters that have been stated in the direct

examination of the witness

- English Rule: A witness may be cross-examined, not only upon

matters testified to by him on his direct examination, BUT ALSO on

all matters relevant to the issue

What Rule Do we Follow? - BOTH

- GR: We follow the English Rule – However, it does not mean that

the party is making the witness his own, as stated in Sec 5

- EXC: We follow the American Rule (may only be cross-examined

on matters covered by direct examination )when:

o The witness is an unwilling or hostile witness as so declared

by the court OR is an adverse party

o The witness is an accused who testifies as a witness in his

own behalf

Hostile Witness, defined: One declared so by the court upon adequate

showing of his – adverse interest, unjustified reluctance to testify or his

having misled the party into calling to the stand.

Misleading Facts (Questions which assumes facts not on record), IF asked:

- On cross-examination: Objectionable for being misleading

- On direct-examination: Objectionable for lack of basis

Doctrine of Incomplete Testimony: When cross-examination cannot be

done or completed due to causes attributable to the party who offered the

witness, the incomplete testimony is rendered incompetent

- GR: Such testimony should be stricken from the record.

- EXC: However, in criminal cases when the prosecution witness was

extensively cross-examined on the material points (essential

elements of the crime) and thereafter failed to appear and cannot be

produced despite a warrant for his arrest – striking out is not

warranted (Pp v. Gorospe, 1984)


When direct-examination may be stricken out for lack of cross-

examination: Depends on who is at fault:

- IF it is on the party presenting the witness – it may be expunged

- IF it is on the adverse party: There can be no forfeiture of direct

testimony.

Sec. 7. Re-direct examination; its purpose and extent.

AFTER the cross-examination of the witness has been concluded, he may be

re-examined BY the party calling him:

- to explain or supplement his answers given during the cross-

examination.

On re-direct-examination:

- questions on matters NOT dealt with during the cross-examination,

- may be allowed by the court in its discretion. (12)

Principal Object: To prevent injustice to the witness and the party who has

called him by affording an opportunity to the witness:

- To explain/amplify/reaffirm the testimony which he has given on

Cross-E

- To explain any apparent contradiction or inconsistency in his

statements

Sec. 8. Re-cross-examination.

UPON the conclusion of the re-direct examination, the adverse party may:

- re-cross-examine the witness

o on matters stated in his re-direct examination, and also

o on such other matters as may be allowed by the court in its

discretion. (13)

Purpose: To overcome the other party’s attempt to rehabilitate a witness or

to rebut damaging evidence brought out on Cross-E

It is NOT a Matter of Right on Re-Cross-E for Counsel to Touch on

Matters NOT Brought on Re-Direct-E

- Re-Cross-E is limited to new matters brought out on the Re-Direct-E

and such matters as may be allowed by the court

Sec. 9. Recalling witness.

AFTER the examination of a witness by both sides has been concluded:

- the witness cannot be recalled w/out leave of the court.

The court will grant or withhold leave in its discretion, as the interests of

justice may require. (14)

- GR: After the examination of a witness by both sides has been

concluded, the witness, CANNOT be recalled W/O leave of court

- EXC: When a recall of the witness has been expressly reserved –

recall is a matter of right

Sec. 10. Leading and misleading questions.

A question:

- which suggests to the witness the answer which the examining

party desires is a leading question.

It is not allowed, EXCEPT:

(a) On cross examination;

(b) On preliminary matters;

(c) When there is a difficulty in getting direct and intelligible answers from a

witness who is ignorant, or a child of tender years, or is of feeble mind, or a

deaf-mute;

(d) Of an unwilling or hostile witness; or

(e) Of a witness who is an adverse party or an officer, director, or managing

agent of a public or private corporation or of a partnership or association

which is an adverse party.

A misleading question is one which assumes as true a fact:

- not yet testified to by the witness, or

- contrary to that which he has previously stated.

It is not allowed. (5a, 6a, and 8a)

Leading Question, defined: One which suggests to the witness the answer

desired.


GR: It is not allowed

- Ratio: It causes the witness to testify in accordance with the

suggestion rather than a genuine recollection of events

EXC: Leading Questions are Allowed:

1. On cross-examination

2. On preliminary matters

3. Difficulty in getting direct and intelligible answers

4. Unwilling or hostile witness

5. Adverse party or an officer, director or a corporation or partnership

which is an adverse party

Note: For Nos. 3 and 4: There is no need of a preliminary showing of

hostility before leading questions can be asked

Leading questions have been allowed by the SC when the witness is:

immature, aged and infirm, in bad physical condition, uneducated, ignorant

unaccustomed to court proceedings, feeble-minded, confused, has slow

comprehension, deaf and dumb, unable to speak or understand English.

(People v. Dela Cruz, 2002)

Note: A question that merely suggests a subject w/o suggesting an answer or

a specific thing is NOT a leading question

Misleading Question, defined: One which assumes facts not in evidence or

w/o sufficient basis or which assumes testimony or proof which has not been

given. – It has little probative value

- GR: It is NOT allowed as well

- EXCEPTIONS:

1. When waived;

2. When asking questions to an expert witness

Sec. 11. Impeachment of adverse party's witness.

A witness may be impeached:

- by the party against whom he was called,

- by contradictory evidence,

- by evidence that his general reputation for truth, honestly, or

integrity is bad, or

- by evidence that he has made at other times statements inconsistent

with his present, testimony,

BUT NOT:

- by evidence of particular wrongful acts,

EXCEPT that it may be shown:

- by the examination of the witness, or the record of the judgment,

- that he has been convicted of an offense. (15)

Notes:

GR: One who voluntarily offers a witness’ testimony is bound by such (i.e.

cannot impeach or contradict),

EXCEPTIONS:

1. In case of a hostile witness or an unwilling witness

2. Where the witness is an adverse party or the representative of a

juridical person which is the adverse party or

3. When the witness required is NOT voluntarily offered but is required

by law to be presented (ex. Subscribing witness to the will)

A Party Can Impeach a Witness of the Adverse Party BY: 1. Contradictory evidence from testimony in same case

2. Evidence of prior inconsistent statement

3. Evidence of bad character and

4. Evidence of bias, interest, prejudice or incompetence

5. Evidence of mental, sensory derangement or defect

6. Evidence of conviction of an offense which affects credibility of

witness. (People v. Givera 349 SCRA 573 (2001)

Other Modes of Impeaching Aside From Sec 11

1. By involving him during Cross-E in contradiction

2. By showing the impossibility or improbability of his testimony

3. By proving action or conduct of the witness inconsistent with his

testimony

4. By showing bias, interest or hostile feeling against the adverse party

Note: Impeachment is LIMITED to bad reputation for lack of veracity and

NOT for lack of morals

Rehabilitation of Witnesses: An impeached witness may be allowed on

redirect to attempt to rehabilitate (to restore the witness’ credibility) by the

party who called the witness to the stand

Note: An impeached witness does not stricken his testimony

Sec. 12. Party may not impeach his own witness.

EXCEPT with respect to witnesses referred to in paragraphs (d) and (e) of

Section 10:

- the party producing a witness is NOT allowed to impeach his

credibility.


A witness may be considered as unwilling or hostile only if so declared by

the court UPON adequate showing of:

- his adverse interest, unjustified reluctance to testify, or

- his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared OR the witness who is an

adverse party, may be impeached:

- BY the party presenting him in all respects as if he had been called

by the adverse party,

- EXCEPT by evidence of his bad character.

He may ALSO be impeached and cross-examined:

- BY the adverse party,

- but such cross-examination must ONLY be on the subject matter

of his examination-in-chief. (6a, 7a)

Notes:

A Party Can Impeach His Own Witness ONLY By:

1. Evidence contradictory to his testimony or

2. Evidence of prior inconsistent statements

Note: In Case of Hostile Witnesses, Adverse Witnesses or Involuntary

witnesses – They may be impeached other than by #1 & #2

Sec. 13. How witness impeached by evidence of inconsistent statements.

BEFORE a witness can be impeached by evidence that he has made at other

times statements inconsistent with his present testimony:

- the statements must be related to him, with the circumstances of the

times and places and the persons present, and

- he must be asked whether he made such statements, and IF so,

allowed to explain them.

If the statements be in writing :

- they must be shown to the witness BEFORE any question is put to

him concerning them. (16)

Notes:

Contradictory Evidence: Refers to other testimony of the same witness, or

other evidence presented by him in the same case

Prior Inconsistent Statement: Refers to statements oral or documentary,

made by the witness sought to be impeached on occasions other than trial in

which he is testifying. Impeaching under is done by “laying the

predicate”:

1. By confronting him with such statements, with the circumstances

under which they were made

2. By asking him whether he made such statements and

3. By giving him as chance to explain the inconsistency

Note: Unless the witness is given the opportunity to explain the

discrepancies, the impeachment is incomplete

- HOWEVER, such defect is deemed WAIVED if no objection on that

ground is raised when the document involved is offered for

admission

Laying the Predicate Laying the Foundation or Bases

Refers only to impeachment of a

witness through PIS

Refers to a situation where evidence which

is incompetent will be introduced in

evidence because it fails under the

exceptions to the rule on exclusion

Impeaching “by laying the predicate” May be Dispensed With In case of

Prior Inconsistent Statements (PIS)

- As to the testimony of the Adverse Party: If the PIS appears in a

disposition of the adverse party and not a mere witness (the

deposition may be used by any party for any purpose)

- When the previous statements of a witness are offered as evidence of

an admission, and not merely to impeach him

- When such PIS is admissible as independent evidence (Beda, p308)

Ratio for Laying the Predicate

1. To avoid unfair surprise to the adversary

2. To save time (an admission will make extrinsic proof unnecessary)

3. To give the witness a chance to explain

Sec. 14. Evidence of good character of witness.

Evidence of the good character of a witness is not admissible UNTIL such

character has been impeached. (17)

Sec. 15. Exclusion and separation of witnesses.


On any trial or hearing, the judge may:

- exclude from the court any witness not at the time under

examination, so that he may not hear the testimony of other

witnesses.

The judge may also:

- cause witnesses to be kept separate and to be prevented from

conversing with one another

- until all shall have been examined. (18)

Notes:

Application of the Power of Exclusion: Applies only to the witnesses and

not to the parties to a civil action.

Power Does NOT Apply:

- To Parties: They have a right to be present at the trial either by

themselves or their attorneys, as well as reasonable notice of the time

fixed thereof. Parties CANNOT be divested by an exclusion order.

- To an Accused in a Criminal Case: He has the right to be present

and defend in person and by counsel at every stage of the

proceedings.

If the Witness Violates the Order of Exclusion: Court may:

- Bar him from testifying

- Give little weight to his testimony aside from his liability for

contempt

Note: It is within the power of the judge to refuse to order the exclusion of

the principal witness during the hearing of a criminal case

Sec. 16. When witness may refer to memorandum.

A witness may be allowed to refresh his memory respecting a fact:

- by anything written or recorded by himself or under his direction

at the time:

- when the fact occurred, or

- immediately thereafter, or

- at any other time when the fact was fresh in his memory and knew

that the same was correctly written or recorded;

but in such case:

- the writing or record must be produced and may be inspected BY the

adverse party, who may, IF he chooses:

o cross examine the witness upon it, and may read it in

evidence.

So, also, a witness may testify from such writing or record, though he

retain no recollection of the particular facts:

- IF he is able to swear that the writing or record correctly stated the

transaction when made;

- but such evidence must be received with caution. (10a)

Notes:

Application of the Article – ONLY when it is shown beforehand that there

is a need to refresh the memory of the witness.

Revival of Present Memory Present Recollection Revived

(1st Sentence)

Revival of Past Recollection Past Recollection Recorded

(2nd

Sentence)

Applies if the witness remembers the

facts regarding his entries

Applies where the witness does not

recall the facts involved

Requisites:

1. Memorandum has been written by

him or under his direction; and

2. Written by him:

o When the fact occurred or

immediately thereafter; or

o At any other time when the

fact was fresh in his memory

and he knew that the same

was correctly recorded

Requisites:

1. Witness retains no recollection

of the particular facts

2. But he his able to swear that

the record or writing correctly

stated the transaction when

made

Entitled to greater weight Entitled to lesser weight

Evidence is the testimony Evidence is the writing or record

(the memorandum)

Rule of evidence affected is

competency of witness, examination

of witness (laying the predicate)

Rule of evidence affected is the best

evidence rule

The witness simply testifies that he

knows that the memorandum is

correctly written by him or under his

direction: No need to swear

Witness must swear that the writing

correctly states the transaction


Value of the Memorandum: It is STILL testimonial in character

- The memorandum used to refresh the memory of the witness does

not constitute evidence, and may not be admitted as such

- The memorandum is NOT admissible as corroborative evidence

since a witness cannot be corroborated by any written statement

prepared wholly by him

Note: The memorandum NEED NOT be the original writing. A copy will

suffice.

Sec. 17. When part of transaction, writing or record given in evidence, the

remainder, the remainder admissible.

When part of an act, declaration, conversation, writing or record is:

- given in evidence by one party,

- the whole of the same subject may be inquired into by the other, and

when a detached act, declaration, conversation, writing or record is given in

evidence:

- any other act, declaration, conversation, writing or record necessary

to its understanding

- may also be given in evidence. (11a)

Sec. 18. Right to respect writing shown to witness.

Whenever a writing is shown to a witness, it may be inspected by the adverse

party. (9a)

B. AUTHENTICATION AND PROOF OF DOCUMENTS

Sec. 19. Classes of Documents.

For the purpose of their presentation evidence, documents are either public or

private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign

authority, official bodies and tribunals, and public officers, whether of the

RP, or of a foreign country;

(b) Documents acknowledge before a notary public:

- EXCEPT last wills and testaments; and

(c) Public records, kept in the RP, of private documents required by law to be

entered therein.

All other writings are private. (20a)

Notes:

Authentication, defined: The process of proving the due execution and

genuineness of the document

Document, defined: A deed, instrument or other duly authorized paper by

which something is proved, evidenced or set forth.

Classes of Documents

- Public Documents: A document acknowledged before persons

authorized to administer oaths. “Official Documents”

o A document to be public must be an official written act of a

public officer

o A foreign decision purporting to be the written record of an

act of an official body or tribunal of a foreign country is a

public writing.

- Private Documents: Includes commercial documents

However, private documents required by law to be entered in public

records may be considered “public documents”

- Note: If a private writing itself is inserted officially into a public

record, its record, its recordation or its incorporation into the public

record becomes a public document BUT that does NOT make the

private writing itself a public document so as to make it admissible

w/o authentication.

For the purpose of their presentation in evidence:

PUBLIC DOCUMENTS PRIVATE DOCUMENTS

As to

Authenticity

GR: Admissible in evidence

w/o further proof of its

NOT Self Authenticating. It

must be proved relative to


genuineness and due

execution

EXC: Where a special rule

of law requires proof thereof

despite its being a document

acknowledged (ex. Probate

of notarial wills)

its due execution and

genuineness, before it may

be received in evidence

As to

Persons

Bound

Evidence even against 3rd

persons, of the fact which

gave rise to its due execution

and to the date of the latter

Binds only the parties who

executed it or their privies,

insofar as due execution

and date of the document

concerned

Note: Certain transactions must be in a public document; otherwise they will

not be given any validity.

Requisites for the Admissibility of a Copy of a Foreign Official

Document:

1. It must be attested by the officer having legal custody of the records

or by his deputy and

2. It must be accompanied by a certificate of the Philippine diplomatic

and consular representative to the foreign country certifying that

such attesting officer has the custody of the document,

Ratio of #2: Not a mere technicality but is intended to justify the giving of

full faith and credit to the genuineness of a document in a foreign country.

Sec. 20. Proof of private document.

BEFORE any private document offered as authentic is received in evidence,

its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the

maker.

Any other private document:

- need only be identified as that which it is claimed to be. (21a)

Sec. 21. When evidence of authenticity of private document not necessary.

Where a private document:

1. is more than 30 years old,

2. is produced from the custody in which it would naturally be found if

genuine, and

3. is unblemished by any alterations or circumstances of suspicion,

no other evidence of its authenticity need be given. (22a)

Sec. 22. How genuineness of handwriting proved.

The handwriting of a person may be proved:

- by any witness who believes it to be the handwriting of such person

because:

o he has seen the person write, OR

o has seen writing purporting to be his upon which the witness has

acted or been charged, AND

o has thus acquired knowledge of the handwriting of such person.

Evidence respecting the handwriting may also be given by a comparison,

made:

- by the witness or the court,

- with writings admitted or treated as genuine by the party against

whom the evidence is offered, or proved to be genuine to the

satisfaction of the judge. (23a)

Sec 20, 21, 22: Rules on Authentication of Private Documents

Doctrine of Self Authentication: Where the facts in the writing could only

have been known to the writer

Doctrine of Authentication of the Adverse Party: Where the reply of the

adverse party refers to and affirms the transmittal to him and his receipt of

the letter in question, a copy of which the proponent is offering in evidence.

Authentication of a Document is NOT Required When:

1. The writing is an Ancient Document (Sec 21)

2. When the writing is a public document on record (Sec 19)

3. When it is a notarial document, acknowledged, proved and certified

in accordance with Sec 30

4. When the authenticity and due execution of the document has been

expressly and impliedly admitted by failure to deny the same under

oath (ex. Actionable documents)

Additional Ground in Beda Reviewer:

5. When such genuineness and due execution are immaterial to the

issue


Authenticity and

Due Execution of a

Private Document

Proved by: Evidence of the genuineness of the

handwriting of the maker

Handwriting

Proved by:

1. Testimony of the purported writer

2. A witness who actually saw the person writing the

instrument (Sec 20a)

3. A witness familiar with such handwriting (Sec 22)

and who can give his opinion thereon, such opinion

being an exception to the opinion rule

4. A comparison by the court of the questioned

handwriting and admitted genuine specimens thereof

(Sec 22)

5. Expert Evidence (Sec 49)

Note: Sec 22 merely enumerated the methods of proving handwriting but it

does not give preference or priority to a particular method

Handwriting Experts – NOT Mandatory; Weight of Expert Testimony:

It depends upon the assistance he may afford in pointing out distinguishing

marks, characteristics, discrepancies in and between genuine and false

specimen of writings which would ordinarily escape notice or detection by an

untrained observer

Ancient Documents

- 3 Requirements (See codal Sec 21)

- An ancient document is said to be in the proper custody if it is in the

place in which and under the care of the person with whom it would

naturally be.

- Ratio: The fact of its coming from the natural and proper place tends to

remove presumptions of fraud and strengthen the belief of its

genuineness

- By merely producing the document: it establishes prima facie its own

authenticity. The burden then shifts to the adverse party to prove

otherwise.

Sec. 23. Public documents as evidence.

Documents consisting of entries in public records made in the performance

of a duty by a public officer:

- are prima facie evidence of the facts therein stated.

All other public documents are evidence:

- even against a third person,

- of the fact which gave rise to their execution and of the date of the

latter. (24a)

Notes:

Public documents are admissible w/o further proof of their due execution and

genuineness

Ratio:

- Necessity: practical impossibility of requiring the official’s attendance as

a witness to testify to the innumerable transactions occurring in the

course of his duty

- Trustworthiness: There is a presumption of regularity, legality and

accuracy

Sec. 24. Proof of official record.

The record of public documents referred to in paragraph (a) of Section 19,

when admissible for any purpose, may be evidenced:

- by an official publication thereof or

- by a copy attested by the officer having the legal custody of the

record, or by his deputy, and

accompanied, IF the record is not kept in the RP, with:

- a certificate that such officer has the custody.

IF the office in which the record is kept is in foreign country:

- the certificate may be made BY a secretary of the embassy or

legation, consul general, consul, vice consul, or consular agent or by

any officer in the foreign service of the RP stationed in the foreign

country in which the record is kept, and

- authenticated by the seal of his office. (25a)

Whether the Record if Domestic or Foreign – It may be Evidenced By:

1. An official publication

2. A copy thereof duly attested by the proper officers

Note: Absent the attestation of the proper officer, a mere copy of the foreign

document is not admissible as evidence to prove the foreign law.

Sec. 25. What attestation of copy must state.

Whenever a copy of a document or record is attested for the purpose of

evidence, the attestation must state, in substance:


- that the copy is a correct copy of the original, or a specific part

thereof, as the case may be.

The attestation:

- must be under the official seal of the attesting officer, IF there be

any, or

- IF he be the clerk of a court having a seal, under the seal of such

court. (26a)

Sec. 26. Irremovability of public record.

Any public record, an official copy of which is admissible in evidence:

- must not be removed from the office in which it is kept,

- EXCEPT upon order of a court where the inspection of the record is

essential to the just determination of a pending case. (27a)

Irremovability of Public Record

- GR: A public record cannot be removed from the office which it is kept

- EXC: It may be removed by order of the court BUT ONLY when

essential to the just determination of a pending case (ex. subpoena duces

tecum)

Note: The rule however, refers only to a public record, an official copy of

which could be made available to the interested party and is admissible in

evidence.

Ratio:

1. To enable others to use the record;

2. To prevent the serious risk of loss;

3. To prevent its exposure to wear and tear

Sec. 27. Public record of a private document.

An authorized public record of a private document may be proved:

- by the original record, or

- by a copy thereof, attested by the legal custodian of the record, with

an appropriate certificate that such officer has the custody. (28a)

Note: If a private writing itself is inserted officially into a public record, its

record, its recordation or its incorporation into the public record becomes a

public document BUT that does NOT make the private writing itself a public

document so as to make it admissible w/o authentication.

Sec. 28. Proof of lack of record.

A written statement:

- signed by an officer having the custody of an official record or by his

deputy

- that after diligent search, no record or entry of a specified tenor is

found to exist in the records of his office,

- accompanied by a certificate as above provided,

is admissible as evidence that the records of his office contain no such record

or entry. (29)

Sec. 29. How judicial record impeached.

Any judicial record may be impeached by evidence of:

(a) want of jurisdiction in the court or judicial officer,

(b) collusion between the parties, or

(c) fraud in the party offering the record, in respect to the proceedings. (30a)

Sec. 30. Proof of notarial documents.

Every instrument:

- duly acknowledged or proved and

- certified as provided by law,

may be presented in evidence:

- without further proof,

- the certificate of acknowledgment being prima facie evidence of the

execution of the instrument or document involved. (31a)

Notes:

Notarial Document, defined: One which is duly acknowledged before a

notary public. (It is a public document)

- The notary must be duly authorized and must have notarized said

document in accordance with the Notarial Law.

Probative Value of a Notarial Document: It is evidence of the facts

expressed therein


When a Certified True Copy is Presented It Should Comply With the FF

to be Admissible:

1. The provisions that should appear in the certification or attestation of

the said copy (Sec 24 & 25)

2. It must have the documentary stamp affixed unless specifically

exempted as in the case of baptismal or birth certificate.

Note: It is presumed that the requisite stamps have been affixed to the

original copy of a document where only the carbon copies thereof are

available

Note: When a special power of attorney is executed and acknowledged

before a notary public or other competent officer in a foreign country, it

cannot be admitted in evidence in RP courts unless it is certified as such in

accordance with Sec 24.

Public Instruments do NOT Have Uniform Probative Value

- The law does not specifically provide that the contents of public

instruments w/o distinction are equally evidence against 3rd

parties

- The probative value of public instruments depends on the kind of

document that is presented in evidence.

Rules on Baptismal Certificates (BC)

- Issued by priests during the Spanish regime: Considered public

documents

- Issued after the Spanish regime: Considered private documents and

cannot even be considered as prima facie evidence of the fact that gave

rise to its execution (it is considered hearsay unless the priest who

performed the baptismal rites are produced)

Note: - BCs are not sufficient proof of paternity or recognition of a child. It

is only proof of the baptism administered but not the veracity of the

statements in the certificate concerning the relationship of the person

baptized. (OLD RULE)

- NOW, Art 172 of the Family Code provides: “Filiation of legitimate

children is established by the record of birth in the civil registry”

Note: BCs may be used to determine the minority of the victim in statutory

rape

Note: Death Certificates is not proof of the cause of death – its probative

value being confined only to the fact of death

- Statements therein regarding the duration of illness and the cause of

death are mere hearsay.

- However, it is admissible to prove residence of decedent at the time

of death.

Sec. 31. Alteration in document, how to explain.

The party producing a document as genuine:

- which has been altered and

- appears to have been altered after its execution,

- in a part material to the question in dispute,

must account for the alteration.

He may show that the alteration:

- was made by another, without his concurrence, or

- was made with the consent of the parties affected by it, or

- was otherwise properly or innocently made, or

- that the alteration did not change the meaning or language of the

instrument.

If he fails to do that:

- the document shall NOT be admissible in evidence. (32a)

Sec. 32. Seal.

There shall be no difference between sealed and unsealed private documents:

- insofar as their admissibility as evidence is concerned. (33a)

Sec. 33. Documentary evidence in an unofficial language.

Documents written in an unofficial language:

- shall not be admitted as evidence,

- UNLESS accompanied with a translation into English or Filipino.

To avoid interruption of proceedings:

- parties or their attorneys are directed to have such translation

prepared before trial. (34a)

Note: Under the 1987 Constitution: “The official languages are Filipino and,

until otherwise provided by law, English, with the regional languages as

auxiliary official languages in the region”


C. OFFER AND OBJECTION

Sec. 34. Offer of evidence.

The court shall consider NO evidence which has not been formally offered.

The purpose for which the evidence is offered:

- must be specified. (35)

Notes:

GR: The court shall consider no evidence which has not been formally

offered. The purpose for which the evidence is offered must be specified.

EXC: If there was repeated reference thereto in the course of the trial by

adverse party’s counsel and of the court, indicating that the documents were

part of the prosecution’s evidence.

- Two requisites must concur: (Pp v. Napta)

1. The document must have been duly identified by testimony duly

recorded.

2. The document must have been incorporated to the records of the case.

Ex. Presented and marked in the pre-trial and testified as to the details

and contents and was cross examined.

Purpose Why Offer Must be Specified: To determine whether that piece of

evidence should be admitted or not because such evidence may be admissible

for several purposes under the doctrine of multiple admissibility.

You Follow What is Stated in the Offer: It must be rejected if it is

inadmissible for the purpose stated even if it is admissible for another

purpose.

Sec. 35. When to make offer.

As regards the testimony of a witness, the offer must be made:

- at the time the witness is called to testify.

Documentary and object evidence shall be offered:

- AFTER the presentation of a party's testimonial evidence.

- Such offer shall be done orally UNLESS allowed by the court to be

done in writing. (n)

When to Make an Offer: Depends on its form:

Testimonial/Oral Evidence Documentary and Object Evidence

At the time the witness is called to

testify

After the party has presented his

testimonial evidence, before he rests

Oral Evidence is Always Offered 2x:

1. Before the witness testified

2. Every time a question is asked of

him (implied offer)

Offered only once

Procedure Before Documentary and Object Evidence Can be

Considered by the Court

1. Marking: To facilitate their identification. May be made during pre-

trial or trial.

2. Identification: Proof that the document being presented is the same

one referred to by the witness in his testimony

3. Authentication: Proof of a document’s due execution and

genuineness.

4. Formal Offer: After the termination of the testimonial evidence, the

proponent will then make a formal offer and state the purpose for

which the document is presented.

5. If the evidence is excluded, an offer of proof

6. Objections: It is only when the proponent rests his case and

formally offers the evidence that an objection may be made.

Objection prior thereto is premature


Identification and Authentication is Not needed in private documents: If

there is a stipulation on its due execution and genuineness.

Authentication is Not needed in public documents

Marking and identifying of evidence as an exhibit does NOT mean that

it has been offered as part of evidence.

- Evidence identified and marked as exhibits may be withdrawn before

the formal offer thereof or may not at all be offered as evidence.

- If they are not formally offered in evidence – such cannot be

considered as evidence nor can they be given any evidentiary value.

Note: The SC has admitted evidence to prove mitigating circumstance even

if they are not presented or offered in evidence considering the gravity of the

offense and the interest of justice.

Sec. 36. Objection.

Objection to evidence offered orally must be made:

- immediately after the offer is made.

Objection to a question propounded in the course of the oral examination of a

witness shall be made:

- as soon as the grounds therefor shall become reasonably apparent.

An offer of evidence in writing shall be objected to:

- within 3 days AFTER notice of the

- UNLESS a different period is allowed by the court.

In any case, the grounds for the objections must be specified. (36a)

Notes:

Classifications of Objections:

1. General Objection – It does not go beyond declaring the evidence as

immaterial, incompetent, irrelevant or inadmissible. It does not specify

the grounds for objection. “Broadside Objection”

2. Specific Objection – It states why or how the evidence is irrelevant or

incompetent.

Requirements to Exclude Inadmissible Evidence:

1. One has to object to the evidence

2. The objection must be timely made and

3. The grounds for the objection must be specified (specific objections)

Effect of General Objection:

- Failure to specify the grounds is a waiver of objection

- BUT when evidence is excluded upon a mere general objection, the

ruling will be upheld IF any ground in fact existed for the exclusion.

When to make Objection: (If not made w/in such time = waived)

Offer Time to Object

Offered orally Made immediately after the offer is made

Question propounded in the course

of the oral examination of a witness

Made as soon as the grounds thereof shall

become reasonably apparent

Offer of evidence in writing W/in 3 days after notice of the offer

unless a different period is allowed by the

court.

Note: the formal offer of evidence at the time the witness is called to testify

is necessary to enable the court to intelligently rule on any objection.

- Proponent must: Show its evidence, materiality and competence

- Adverse party must: Promptly raise any objection thereto

Note: A document admitted not as an independent evidence but merely as

part of the testimony of a witness does NOT constitute proof of the facts

related therein.

Sec. 37.When repetition of objection unnecessary.

When it becomes reasonably apparent in the course of the examination of a

witness:

- that the question being propounded are of the same class as those to

which objection has been made,

- whether such objection was sustained or overruled,

it shall NOT be necessary to repeat the objection:

- it being sufficient for the adverse party to record his continuing

objection to such class of questions. (37a)

Note: Here, the party may just enter a general and continuing objection to the

same class of evidence and the ruling of the court shall be applicable to all

such evidence of the same class.

- The court may also motu proprio treat the objection as a continuing one,

Sec. 38.Ruling.


The ruling of the court must be given:

- immediately AFTER the objection is made,

- UNLESS the court desires to take a reasonable time to inform itself

on the question presented;

but the ruling shall ALWAYS be made:

- during the trial and

- at such time as will give the party against whom it is made an

opportunity to meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated.

- However, IF the objection is based on two or more grounds:

o a ruling sustaining the objection on one or some of them

must specify the ground or grounds relied upon. (38a)

Note: The court should only consider evidence for the purpose for which it

was offered.

When Should the Ruling Be Made?

GR: Parties who object is entitled to a ruling at the time the objection is

made

- If no ruling is made, it would prejudice the rights of the client since there

would be no way of knowing if one would be compelled to meet any

evidence.

- The attorney must inform the court of the lack of ruling – IF NOT:

o gr: The case cannot be reopened on such ground. The right to

object is deemed waived and cannot be raised on appeal

o exc: When there is a serious prejudice on substantial rights – the

appellate court may consider it a reversible error.

EXC: Unless the parties present a question to which the court desired to

inform itself before making its ruling.

- Here, it is proper for the court to take reasonable time to study the

questions

Sec. 39.Striking out answer.

Should a witness answer the question:

- BEFORE the adverse party had the opportunity to voice fully its

objection to the same, and

- such objection is found to be meritorious,

the court shall:

- sustain the objection and

- order the answer given to be stricken off the record.

On proper motion, the court may also:

- order the striking out of answers which are incompetent, irrelevant,

or otherwise improper. (n)

Mode of Excluding Inadmissible Evidence

1. Objection when the evidence is offered

2. Motion to strike out or Expunge – proper in the following cases:

a. When the witness answers prematurely before there is reasonable

opportunity for the party to object (Sec 39)

b. Unresponsive answers

c. Answers that are incompetent, irrelevant, or improper (Sec 39)

Note: There must be an objection before motion to strike.

d. Uncompleted testimonies where there was no opportunity for the

party to cross-examine

e. Conditionally admitted evidence not later substantiated.

Sec. 40.Tender of excluded evidence.

IF documents or things offered in evidence are excluded by the court:

- the offeror may have the same attached to or made part of the

record.

IF the evidence excluded is oral, the offeror may state for the record:

o the name and other personal circumstances of the witness and

o the substance of the proposed testimony. (n)

Rationale of the Requirement of Attaching Evidence: So that in case of

appeal, the appellate court may be able to examine the same and determined

the propriety of their rejection - Since Documents forming no part of proofs

before the appellate court cannot be considered in disposing of the case,

otherwise that would infringe upon the constitutional right of the adverse

party to due process.

Erroneous Admission or Rejection of Evidence

- GR: New Trial is warranted

- EXC: Not a ground for new trial or reversal:

o IF there are other independent evidence to sustain the decision or

o IF in correcting it, would not have changed the decision

Note: IF the court discovered such error BEFORE judgment had become

final or BEFORE an appeal had been perfected – it may reopen the case


Policy of “Por lo Que Puedo Valer” - The practice of excluding evidence

on doubtful objections should be avoided.

- It is impossible for the judge of first instance to known with certainty

whether testimony is relevant or not and when there is no indication of

bad faith on the attorney offering such evidence – the court as a rule may

safely accept the testimony upon the statement that the proof offered will

be connected later.

- Greater reason to adhere to such policy in criminal cases when it can lead

to the erroneous acquittal of the accused which the People can no longer

appeal.

The ruling of the court on procedural questions and on admissibility of

evidence during the course of the trial is interlocutory.

- They may not be the subject of a separate appeal

- They are to be assigned as errors and reviewed in the appeal taken

from the trial court on the merits of the case.

[RULE 133]

WEIGHT AND SUFFICIENCY OF EVIDENCE

Sec 1.Preponderance of evidence, how determined.

In civil cases, the party having burden of proof:

- must establish his case by a preponderance of evidence.

In determining where the preponderance or superior weight of evidence on

the issues involved lies, the court may consider:

- all the facts and circumstances of the case,

- the witnesses' manner of testifying,

- their intelligence,

- their means and opportunity of knowing the facts to which there are

testifying,

- the nature of the facts to which they testify,

- the probability or improbability of their testimony,

- their interest or want of interest, and also

- their personal credibility so far as the same may legitimately appear

upon the trial.

The court may also consider:

- the number of witnesses, though the preponderance is not necessarily

with the greater number. (1a)

Sec. 2.Proof beyond reasonable doubt.

In a criminal case, the accused:

- is entitled to an acquittal,

- UNLESS his guilt is shown beyond reasonable doubt.

Proof beyond reasonable doubt:

- does not mean such a degree of proof as, excluding possibility of

error, produces absolute certainly.

Moral certainly ONLY is required, OR that degree of proof which produces

conviction in an unprejudiced mind. (2a)

Notes:

Requirements for Evidence to Be Worthy of Credit

- Must not only proceed from a credible source but must, in addition,

be credible in itself – It must be natural, reasonable and probable as

to make it easy to believe.

- It should be in accord with the common knowledge and experience

of mankind

GR: Findings of the judge who tried the case and heard the witnesses are not

to be disturbed on appeal

EXC: It may be disturbed for good cause: if there are substantial facts and

circumstances which have been overlooked and which, if properly

considered, might effect the result of the case

ISSUE: Credibility of the Witness

- Defined: The witnesses’ is meant his integrity, disposition and

intention to tell the truth in the testimony he has given

GR: The findings of the TC will not be disturbed on appeal since it is in a

better position to decide the question, having heard and observed the

demeanor of each witness

- For the same reason, the matter of assigning values to declarations at

the witness stand is best and competently performed by the TC

EXCEPTIONS:

1. It may be disturbed if the TC has plainly overlooked certain facts of

substance and value which, if properly considered, might effect the

result of the case

2. Also, when the identification of the accused or credibility of witness

and one judge heard the testimony of the prosecution witness BUT

different judge penned the decision – GR rule does not apply

Competency of a witness does not mean that the witness is credible or

will be believed by the court.


- Facial expressions are not necessarily indicative of one’s feelings.

The TC should not however discredit a witness by the supposed

expression of lack of sincerity in his face, the judge should put that

fact on the record and allow the witness to explain

- Demeanor, emphasis gestures, inflection of the voice aids the proper

evaluation of credibility

- The fact that a person has reached the “twilight of his life” (advance

age) is not always a guaranty that he would tell the truth

- The facts adduced in a record of a preliminary investigation are

evidence ONLY for the purpose of testing the credibility of the

witness

ISSUE: Number of Witness

- GR: The number of witness should not in and by itself determine he

weight of evidence

- EXC: In case of conflicting testimonies of witness – such factor may

be given certain weight

Note: The failure of a party to present merely corroborative or cumulative

evidence does not give rise to any adverse or unfavorable presumption

2 Conflicting Testimonies of 1 Witness 2 Witnesses w/ Conflicting

Testimonies

The court can accept either statement as proof

Note: If the witness gives a false testimony -

he impeaches his own testimony and the court

should exclude it from all consideration

The court shall adopt the

testimony which he believes

to be true

Note: The most subtle and prolific of all fallacies of testimony arises out of

“unconscious partisanship” (ex. Passengers and driver in an accident)

Bias, defined: That which motivates the disposition to see and report matters

as they are wished for rather than as they are

- It is present when a witnesses’ relation to the cause or to the parties

is such that he has an incentive to exaggerate or give false color to

his statements or to suppress or pervert the truth, or to state what is

false.

- Bias is NOT a factor: When the witnesses on both sides are equally

interested or biased, especially if there is no numerical

preponderance on either side.

- The testimony of an interested witness is not necessarily biased,

incredible or self-serving

Testimonies in Criminal Cases

- Testimony of a co-conspirator or an accomplice is admissible – since

it comes from a polluted source, it must be scrutinized with caution

- The testimony of a SINGLE witness may be sufficient to produce

conviction IF:

o It appears to be trustworthy and reliable, clear and

convincing

o NOT if there is unexplained contradictions on an important

detail

- Testimony of the offended party is not essential to convict an

accused if there are already other evidence to prove such guilt

- The fact that the prosecution w/o explanation failed to call several

witnesses mentioned in the information – gives rise to the

presumption that their testimonies would not be favorable to the

prosecution’s cause.

- Delays of a witness in revealing what he knows about a crime does

not render his testimony false since there is always the inherent fear

or reprisal in criminal cases. Such delay if satisfactorily explained

does not undermine her credibility

- The refusal of a person to submit to investigation to explain the

innocent role he professes is inconsistent with the normal reaction of

an innocent man.

- GR: The mere relationship of the witness to the victim does not

impair his positive and clear testimony nor render the same less

worthy of credit; EXC: When there is a showing of improper motive

- Using as witnesses persons who were accomplices w/o including

them in the information – does not render the testimony inadmissible

- The identity of the offender like the crime must be proved beyond

reasonable doubt

Rules on Conspiracy

- Conspiracy need not be established by direct evidence

- It may be proved by: A number of indicative acts, conditions and

circumstances

- It may be proved by circumstantial evidence but it must be proved

with as much certainty as the crime itself.

- It may be deduced from the mode and manner in which the offense

was committed

Rule on Qualifying or Aggravating Evidence:

- It must be proved in an evident and incontestable manner.


- It must be proved as conclusively as the acts constituting the offense.

Rule on Proving Self-defense

- The one claiming self-defense must rely on the strength of his own

defense and not on the weakness of the prosecution

- Self-defense must be proved by “clear and convincing” evidence

Rule on Alibi

- Alibi is one of the weakest defense since it is easily susceptible of

concoction – hence must be viewed w/ suspicion

- It may be considered ONLY: by “positive, clear and satisfactory

evidence”

- The accused must not only prove his alibi but also that it was

physically impossible for him to be at the scene of the crime

- Such defense becomes weaker when not corroborated

- Still, the prosecution still has the onus probandi in establishing the

guilt of the accused and the weakness of the defense does not relieve

it from such responsibility

- Defense of alibi must be predicated on substantial and reliable

evidence sufficient and reliable to engender reasonable doubt

Note: When the accused withdraws his appeal after realizing the futility of

his defense and the other escapes from confinement – said acts are

unmistakable signs of guilt.

- Flight of the accused is evidence of guilt; however, non-flight is not

indicative of innocence.

Rules on Inconsistent or Contradictory testimony

- If they refer to mere insignificant details – they do not materially

impair the credibility of witness

o It does not affect the material points.

o They indicate veracity rather than prevarication and only

tend to bolster the probative value of such testimony

“Falsus in Uno, Falsus in Omnibus”: When testimony is believed in part

and disbelieved in part depending upon the corroborative evidence and the

probabilities of the case

- Deals only with the weight of evidence and is not a positive rule of

law. It is not an absolute one nor mandatory and binding upon the

court which may accept or reject the witnesses’ testimony

- Does NOT Apply:

o When the challenged testimony is sufficiently corroborated

on many grounds

o When such mistakes do not arise from an apparent desire to

pervert the truth but from innocent lapses and the desire of

the witness to exculpate himself although not completely

Rules on Corroborative Testimonies

- Non-production of a corroborative witness w/o any explanation –

weakens the testimony of the witness to be corroborated

- Corroboration is NOT required in the crime of rape (EXC. when the

point at issue is whether the act was committed w/ or w/o the use of

force or threat – such testimony should be scrutinized with the

greatest caution)

Note: The testimony of persons accidentally present at the time of the

execution of the will is not weighty as that of the subscribing witness

Affirmative Testimony v. Negative Testimony

- Affirmative testimony has greater weight than negative testimony

- Negative testimony cannot prevail over positive statements

- In weighing contradictory declarations – greater weight is given to

positive testimony

Note: Witnesses admittedly present while a fact is taking place may not

coincide in describing all the details of the occurrence. It doesn’t necessarily

imply falsehood.

Effect of Falsehood

- When a party resorts to falsehood to advance his suit – it is presumed

that he knows perfectly well that his cause is groundless

- Falsehood, fraud, fabrication or suppression of evidence are receivable as

indications of his consciousness that his cause is weak or unfounded

Rules on Affidavits

- They are subordinated in importance to open court declarations (Since they are oftentimes executed when the affiant is at a high pitch of

excitement and when his mental state is not as to afford him a fair

opportunity of narrating in full the incident when it transpired)

- They are not complete reproductions of what the declarant has in

mind (since the are generally prepared by the administering officer)

- Ex parte affidavits are generally incomplete, hence discrepancies

between the statements of the affiant and that made on the witness stand

do not necessarily discredit him

- It is an affidavit is only prima facie evidence of weak probative force


- When the affidavit is inconsistent with the testimony – the latter is

invariably believed.

- Omissions and misunderstandings by the writer are not infrequent.

Note: These rules do not apply when the omission in the affidavit refers to a

very important detail

Non-Payment of Taxes: Indicative of the fact that the claimant does not

believe himself to be the owner of the property.

Continuous Payment: Great weight in favor of ownership

Tax declarations: NOT conclusive evidence of ownership BUT if

accompanied by open, adverse and continued possession in the concept of an

owner – they constitute evidence of great weight

On the Motive of the Accused in a Criminal Case

GR: Motive is immaterial and since it is not an element of a crime – it need

not be proved

- Mere proof of motive, no matter how string, cannot sustain a

conviction if there is no other evidence establishing the guilt of the

accused

EXC: Evidence of motive is relevant or essential in the ff instances:

1. When the identity of the assailant is in question

2. To determine the voluntariness of the criminal act or the sanity of the

accused

3. To determine from which side the unlawful aggression commenced, as

where the accused invoked self-defense wherein unlawful aggression on

the part of his opponent is an essential element

4. To determine the specific nature of the crime committed (ex. When

murder is during a rebellion)

5. To determine whether a shooting was intentional or accidental

6. When the accused contends that he acted in defense of a stranger since

he must not have been motivated by revenge

7. When the evidence is circumstantial or inconclusive and there is a doubt

whether a crime has been committed or whether the accused has

committed it.

8. When it is an element of the offense (ex. To show malice in libel)

Rule on Identification of Suspects: The “Totality of Circumstances” Test

- Such test utilizes the following factors

1. The witness’ opportunity to view the criminal at the time of the

crime

2. The witness’ degree of attention at that time

3. The accuracy of any prior description given by the witness

4. The level of certainty demonstrated by the witness at the

identification

5. The length of time between the crime and the identification and

6. The suggestiveness of the identification procedure

12 Danger Signals That the Identification May be Erroneous

1. The witness originally stated that he could not identify anyone

2. The witness knew the accused before the crime but made no

accusation against him when questioned by the police

3. A serious discrepancy exists between the witness’ original

description and his actual description of the accused

4. Before identifying the accused at the trial, the witness erroneously

identified some other person

5. Other witnesses of the crime fail to identify the accused

6. Before trial, the witness sees the accused but fails to identity him

7. Before the commission of the crime, the witness had limited

opportunity to see the accused

8. The witness and the person identified are of different racial groups

9. During his original observation of the offender, the witness was

unaware that a crime was involved

10. A considerable time elapsed between the witness’ view and his

identification of the accused

11. Several persons committed the crime

12. The witness failed to make a positive trial identification

Res Ipsa Loquitor (“the thing speaks for itself”)

- Rule that the fact of the occurrence of an injury taken with the

surrounding circumstances, may permit an inference or raise a

presumption of negligence, or make out a plaintiff’s prima facie case

- The rule is however, considered as merely evidentiary or in the

nature of a procedural rule – the application does NOT dispense with

the requisite of proof of negligence.

Sec. 3.Extrajudicial confession, not sufficient ground for conviction.

An extrajudicial confession made by an accused:

- shall not be sufficient ground for conviction,

- UNLESS corroborated by evidence of corpus delicti. (3)


Corpus Delicti, defined: Actual commission of someone of the particular

crime charged.

- Literally means “The body or the substance of the crime”

- It is the actual commission by someone of the particular crimes

charged.

Elements:

1. The existence of a certain act or result forming the basis of the

criminal charge and

2. The existence of a criminal agency as the cause of the act or result

(someone criminally responsible)

Note: The identity of the accuse is NOT a necessary element

How Proved?: When the evidence on record shows that the crime prosecute

had been committed

Corpus Delicti in THEFT

1. That the property was lost by the owner and

2. That it was lost by a felonious taking

Note: The fact of the crime of theft may be established even w/o recovery of

the thing stolen

Corpus Delicti in ILLEGAL POSSESSION OF A FIREARM

1. The existence of the firearm

2. That it has been actually held with animus possidendi by the accused

w/o the corresponding license.

Corpus Delicti in MURDER

- The fact of death

- Note: If there is doubt as to the identity of the cadaver – there is no

corpus delicti

Requirement of Independent Evidence of the Corpus Delicti

- Mere EX-J confession uncorroborated by independent proof of

corpus delicti is NOT sufficient to sustain a judgment of conviction

- The evidence may be circumstantial, but just the same, there must be

some evidence substantiating the confession

- Corpus Delicti is NOT synonymous with the whole charge so as to

require that all the elements of the crime be established (Hence for a

complex crime of robbery with murder – corpus delicti of only

murder will still be admissible although there is no independent

evidence of robbery)

Sec. 4.Circumstantial evidence, when sufficient.

Circumstantial evidence is sufficient for conviction if:

(a)There is more than one circumstance;

(b)The facts from which the inferences are derived are proven; and

(c)The combination of all the circumstances is such as to produce a

conviction beyond reasonable doubt. (5)

Notes:

In Order to Convict on the Strength of Circumstantial Evidence (CE)

Alone:

- It is incumbent on the prosecution to present such CE which will and

must necessarily lead to the conclusion that the accused is guilty of

the crime charged beyond reasonable doubt.

GR: CE is sufficient even for a capital offense

EXC: When the law specified the species and quantum of evidence (ex.

Treason)

When CE does NOT suffice to sustain conviction:

- Falsification

- Bigamy, adultery, parricide (evidence of 1st marriage is necessary),

- libel through written publications

Note: Not only prior and coetaneous actuations of the accused in relation to

the crime but also his acts or conduct after thereto can be considered as CE of

Guilt

Note: Motive becomes important when the evidence of the crime is purely

circumstantial

Sec. 5.Substantial evidence.

In cases filed before administrative or quasi-judicial bodies, a fact may be

deemed established IF:

- it is supported by substantial evidence, or

- that amount of relevant evidence which a reasonable mind might

accept as adequate to justify a conclusion. (n)

Note: Substantial Evidence does not necessarily mean preponderant proof as

required in ordinary civil cases, but:


1. That amount of relevant evidence which a reasonable mind might

accept as adequate to justify a conclusion or

2. Evidence commonly accepted by reasonably prudent man in the

conduct of their affiants

In Civil Cases: The proponent must establish the case by preponderance of

evidence

- If there is an equiponderance of evidence (same weight) – the court

will find for the defendant – same rule will apply in criminal cases –

if there is an equiponderance , the prosecution will lose

Sec. 6.Power of the court to stop further evidence.

The court may stop the introduction of further testimony upon any particular

point when:

- the evidence upon it is already so full that more witnesses to the

same point cannot be reasonably expected to be additionally

persuasive.

- But this power should be exercised with caution. (6)

Note: The court has the power to stop the introduction of testimony which

will merely be cumulative

Sec. 7.Evidence on motion.

When a motion is based on facts not appearing of record:

- the court may hear the matter on affidavits or depositions presented

by the respective parties,

- BUT the court may direct that the matter be heard wholly or partly

on oral testimony or depositions. (7)

Note: If the affidavits contradict each other on matters of fact – the court can

have no basis to make its findings of fact and the prudent course is to subject

the affiants to cross-examination