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ATENEOCENTRALBAROPERATIONS 2007

Remedial LawSUMMER REVIEWER

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

EVIDENCE

RULE 128GENERAL PROVISIONS

Section 1. Evidence defined

Section 2. Scope

PROOF - the result or effect of evidence. When therequisite quantum of evidence of a particular fact hasbeen duly admitted and given weight, the result iscalled the proof of such fact.

FACTUM PROBANDUM- the ultimate fact or the fact sought to be

established.- Refers to proposition

FACTUM PROBANS- is the evidentiary fact or the fact by which the

factum probandum is to be established.

- Materials which establish the proposition.

The law of evidence is fundamentally aprocedural law.

In criminal cases, if the alteration of theserules may validly be made applicable to casespending at the time of such change, as the parties toan action have no vested right in the rules ofevidence.

In criminal cases, if the alteration of theserules of evidence would, for instance, permit the

reception of a lesser quantum of evidence than whatthe law required at the time of the commission of theoffense in order to convict, then the retroactiveapplication of such amendatory law would beunconstitutional for being ex post facto.

The rules of evidence are specificallyapplicable only in judic ial proceedings.

In quasi-judicial proceedings, the rules ofevidence shall apply by analogy, or in a suppletorycharacter and whenever practicable and convenient

except where the governing law on that particularproceeding specifically adopts the rules of evidencein the Rules of Court.

In cases before the Court of AgrarianRelations, the Rules of Court were not applicableeven in a suppletory character, except in criminal andexpropriation cases, which procedure has beensuperseded by the provisions of RA 6657.

CLASSIFICATION OF EVIDENCE ACCORDING TOFORM

1. OBJECTIVE OR REAL EVIDENCE – directlyaddressed to the senses of the court andconsist of tangible things exhibited ordemonstrated in open court, in an ocularinspection, or at place designated by thecourt for its view or observation of anexhibition, experiment or demonstration. Thisis referred to as autoptic preference.

2. DOCUMENTARY EVIDENCE – evidencesupplied by written instruments or derivedfrom conventional symbols, such as letters,by which ideas are represented on material

substances

3. TESTIMONIAL EVIDENCE – is that which issubmitted to the court through the testimonyor deposition of a witness.

RELEVANT, MATERIAL AND COMPETENTEVIDENCE

RELEVANT EVIDENCE – evidence having any valuein reason as tending to prove any matter provable inan action. The test is the logical relation of theevidentiary fact to the fact in issue, whether theformer tends to establish the probability orimprobability of the latter.

MATERIAL EVIDENCE – evidence directed to provea fact in issue as determined by the rules ofsubstantive law and pleadings. The test is whetherthe fact it intends to prove is an issue or not. AS towhether a fact is in issue or not is in turn determinedby the substantive law, the pleadings, the pre-trialorder and by the admissions or confessions on file.


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Consequently, evidence may be relevant but may beimmaterial in the case.

COMPETENT EVIDENCE – one that is not excludedby this Rules, a stature or the Constitution.

DIRECT AND CIRCUMSTANTIAL EVIDENCE

DIRECT EVIDENCE – that which proves the fact indispute without the aid of any inference orpresumption

CIRCUMSTANTIAL EVIDENCE - is the proof of afact or facts from which taken either singly orcollectively, the existence or a particular fact indispute may be inferred as a necessary or probableconsequence.

CUMULATIVE AND CORROBORATIVE EVIDENCE

CUMULATIVE EVIDENCE – evidence of the samekind and to the same state of facts.

CORROBORATIVE EVIDENCE – is additionalevidence of a difference character to the same point.

PRIMA FACIE AND CONCLUSIVE EVIDENCE

PRIMA FACIE EVIDENCE – that which is standingalone, unexplained or uncontradicted, is sufficient tomaintain the proposition affirmed.

CONCLUSVE EVIDENCE – the class of evidencewhich the law does not allow to be contradicted.

PRIMARY AND SECONDARY EVIDENCE

PRIMARY EVIDENCE – that which the law regardsas affording the greatest certainty of the fact inquestion. Also referred to as the best evidence.

SECONDARY EVIDENCE – that which is inferior tothe primary evidence and is permitted by law onlywhen the best evidence is not available. Known asthe substitutionary evidence.

POSITIVE AND NEGATIVE EVIDENCE

POSITIVE EVIDENCE – when the witness affirmsthat a fact did or did not occur. Entitled to a greaterweight since the witness represents of his personalknowledge the presence or absence of a fact.

NEGATIVE EVIDENCE - when the witness did notsee or know of the occurrence of a fact. There is a

total disclaimer of persona knowledge, hence withoutany representation or disavowal that the fact inquestion could or could not have existed orhappened. It is admissible only if it tends to contradictpositive evidence of the other side or would tend to

exclude the existence of fact sworn to by the otherside.

What do the rules of evidence determine? All rights and liabilities are dependent upon and ariseout of facts.

Every judicial proceeding whatever has for itspurpose the ascertaining of some right or liability. Ifthe proceeding is Criminal, the object is to ascertainthe liability to punishment of the person accused. Ifthe proceeding is Civil, the object is to ascertainsome right of property or status, or the right of oneparty and the liability of other to some form of relief.

Two branches of the law of procedure1. The law of the pleadings which determines

the questions in a dispute between theparties

2. The law of evidence, which determines howthe party can convince the court of theexistence of facts which according to theprovisions of substantive law, would establishthe existence of the right or liability whichthey allege to exist.

Why should the rule of evidence be uniform?

1. the relation between the evidentiary fact anda particular proposition is always the same,without regard to the kind of litigation inwhich that proposition becomes material tobe proved.

2. if the rules of evidence prescribe the bestcourse to arrive at the truth, that must be andare the same in all civilized countries.

Differences in the Rules of Evidence in Criminaland Civil Cases

CIVIL CRIMINAL

Parties attend by

accord

The accused attends

by compulsionThere is nopresumption as toeither party

Presumption ofinnocence attends theaccused throughoutthe trial until the samehas been overcome byprima facie evidenceof his guilt

An offer tocompromise does not,as a general rule,

It is an impliedadmission of guilt.


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amount to anadmission of liability

Must prove bypreponderance of

evidence: Reason isthat there is nopresumption and dueto the fact that theproof will only result ina judgment ofpecuniary damages orestablish CIVILRIGHT.

Guilt beyondreasonable doubt

Any evidence inadmissible according to the laws inforce at the time the action accrued, but admissibleaccording to the laws in force at the time of the trial,is receivable. There is no vested right of property inrules of evidence.

Reason: The rules of evidence are merelymethods for ascertaining facts. It must besupposed that change of law merely makes itmore likely that the fact will be truly ascertained,either by admitting evidence whose formersuppression or by suppressing evidence helpedto conceal the truth.

There are rules of evidence established merely forthe protection of the parties. If according to the well-established doctrine, the parties may waive such

rules during the trial of a case, there is no reason whythey cannot make the waiver in a contract. However,if the rule of evidence waived by the parties has beenestablished by law on grounds of public policy, thewaiver is void.

Trial courts are enjoined to observe the strictenforcement of the rules of evidence whichcrystallized through constant use and practice andare very useful and effective aids in the search fortruth and for the effective administration of justice.But in connection with evidence which may appear tobe of doubtful relevancy or incompetence or

admissibility, it is safest policy to be liberal, notrejecting them on doubtful or technical grounds, butadmitting them unless plainly irrelevant, immaterial orincompetent, for the reason that their rejection placesthem beyond the consideration of the court, if theyare thereafter found relevant or competent; on theother hand, their admission, if they turn out later to beirrelevant or incompetent, can easily be remedied bycompletely discarding them or ignoring them.

Section. 3 Admissibility of evidence.

Section 4. Relevancy; collateral matters.

2 AXIOMS OF ADMISSIBILITY1. None but facts having rational probative

value are admissible

2. all facts having rational probative value areadmissible unless some specific rule forbidstheir admission.

The Admissibility of Evidence is Determined atthe Time it is Offered to the Court

When offered When may beobjected

Object

evidence

When the sameis presented forits view orevaluation, as inocular inspectionor

demonstrations,or when theparty rest hiscase and thereal evidenceconsists ofobjects exhibitedin court.

Be made eitherat the the time itis presented inan ocularinspection ordemonstrations

or when it isformally offered

Testimonialevidence

By calling of thewitness to thestand

As to thequalification ofthe witness –should be madeat the time he is

called to thestand.If otherwisequalified -objection shouldbe raised whentheobjectionablequestion isasked or afterthe answer isgiven if theobjectionable

features becameapparent byreason of suchanswer.

Documentar y evidence

Formally offeredby the proponentimmediatelybefore he restshis case.

At the time it isformally offered.


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Every objection to the admissibility of evidenceshall be made at the time such evidence isoffered, or as soon thereafter as the objection toits admissibility shall have become apparent,otherwise the objection shall be considered

waived.

CERTAIN DOCTRINES OR RULES OF ADMISSIBILITY

1. Conditional admissibility

Where the evidence at the time of its offerappears to be immaterial or irrelevant unless it isconnected with the other facts to be subsequentlyproved, such evidence may be received ob conditionthat the other facts will be proved thereafter,otherwise the evidence given will be stricken out.This is subject to the qualification that there shouldbe no bad faith on the part of the proponent.

2. Multiple admissibility

Where the evidence is relevant and competentfor two or more purposes, such evidence should beadmitted for any or all the purposes for which it isoffered provided it satisfies all the requirements oflaw for its admissibility therefore.

3. Curative admissibility

This treats upon the right of the party to introduce

incompetent evidence in his behalf where the courthas admitted the same kind of evidence adduced bythe adverse party.

Three theories on curative admissib ility:

a. American rule – the admission ofsuch incompetent evidence, withoutobjection by the opponent does not

justify such opponent in rebutting itby similar incompetent evidence.

b. English rule – if a party has

presented inadmissible evidence, theadverse party may resort to similarinadmissible evidence

c. Massachusetts rule – the adverseparty may be permitted to introducesimilar incompetent evidence inorder to avoid a plain and unfairprejudice caused by the admission ofthe other party’s evidence.

What should determine the application of the ruleof curative admissibility:

1) whether the incompetent evidence wasseasonably objected to

2) whether, regardless of the objection, theadmission of such evidence shall cause aplain and unfair prejudice to the party againstwhom it is admitted.

The evidence which was illegally obtained isinadmissible on a timely motion or action to suppress.

The rules prohibit the admission of irrelevantcollateral facts only.

Circumstantial evidence is legal evidence and ifsufficient, can sustain a judgment. Circumstantialevidence is evidence of relevant collateral facts.

ISSUE – is the point or points in question, at theconclusion of the pleadings which one side affirms,and the other side denies.

FACT – thing done or existing.

FACTS IN ISSUE - are those facts which the plaintiffmust prove in order to establish his claim and thosefacts which the defendant must prove in order toestablish a defense set up by him, but only when thefact alleged by the one party is not admitted by theother party..

FACTS RELEVANT TO THE ISSUE - are those factswhich render the probable existence or non-existenceof a fact in issue, or some other relevant fact.

The effect of the pleadings is that they help indetermining whether the evidence offered is relevantto the case, for it is a familiar proposition that theevidence must be confined to the facts put in issue bythe pleadings.

RULE 129WHAT NEED NOT BE PROVED

Section 1. Judicial Notice, when mandatory

JUDICIAL NOTICE – no more than that the court willbring to its aid and consider, without proof of thefacts, its knowledge of those matters of publicconcern which are known by all well-informedpersons.


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- cognizance of certain facts which judges may takeand act on without proof because they are alreadyknown to them

The object of judicial notice is to save time, labor

and expense in securing and introducing evidence onmatters which are not ordinarily capable of disputeand not actually bona fide disputed, and the tenor ofwhich can safely be assumed form the tribunal’sgeneral knowledge or from slight search on its part.

Judicial notice is based on convenience andexpediency.

Two kinds of judicial notice1) mandatory2) discretionary

The direct effect of judicial notice upon the burden ofproving a fact is to relieve the parties from thenecessity of introducing evidence to prove the factnoticed. It makes evidence unnecessary.

The stipulation and admission of the parties orcounsel cannot prevail over the operation of thedoctrine of judicial notice, and such stipulation andadmissions are all subject to the operation of thedoctrine.

Municipal trial courts are required to take judicialnotice of the ordinances of the municipality or citywherein they sit.

In the RTC, they must take such judicial noticeonly

1. when required to do so by statute and2. in a case on appeal before them and wherein

the inferior court took judicial notice of anordinance involved in said case.

Courts are required to take judicial notice of thedecisions of the appellate courts but not of thedecisions of coordinate trial courts

Section 2. Judicial Notice, when discretionary .

The mere personal knowledge of the judge is not the judicial knowledge of the court; Judicial cognizance istaken only of those matters which are commonlyknown.

It is not essential that matters of judicial cognizancebe actually known to the judge if the subject is properfor judicial knowledge, the judge may at hisdiscretion, inform himself in any way which mayseem best to him, and act accordingly.

The doctrine of judicial notice rests on the wisdomand discretion of the courts. The power to take

judicial notice is to be exercised by courts withcaution; care must be taken that the requisite

notoriety exists; and every reasonable doubt uponthe subject should be promptly resolved in thenegative.

Foreign laws may not be taken judicial notice of andhave to be proved like any other fact EXCEPT wheresaid laws are within the actual knowledge of the courtsuch as when they are well and generally known orthey have been actually ruled upon in other casesbefore it and none of the parties claim otherwise.

To prove a written foreign law , the requirementsmust be complied with, that is, by an officialpublication or by a duly attested and authenticatedcopy thereof.

DOCTRINE OF PROCESSUAL PRESUMPTION –absent any of the evidence or admission, the foreignlaw is presumed to be the same as that in thePhilippines.

Section 3. Judicial notice, when hearingnecessary

The purpose of the hearing is not for the presentationof evidence but to afford the parties reasonableopportunity to present information relevant to the

proprietary of taking such judicial notice or to thetenor of the matter to be noticed.

What stage may the court take judicial notice of afact?

1. During trial2. after trial and before judgment3. appeal

A DISTINCTION is made between judicial noticetaken during trial and that taken after trial but before

judgment or on appeal.

During the trial: the Court may announce itsintention to take judicial notice of any matter and mayhear the parties thereon.

Af ter tr ial but before judgment or onappeal: the Court may take judicial notice of anymatter and allow the parties to be heard thereon ifsuch matter is decisive of a material issue in the case

The judge may consult works on collateralscience, or arts, touching the topic on trial.


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Section 4. Judicial Admissions .

JUDICIAL ADMISSIONS are those so made in thepleadings filed or in the progress of a trial.

EXTRAJUDICIAL ADMISSIONS are those made outof court, or in a judicial proceeding other than the oneunder consideration

Extrajudicial admissions or other admissions are, asa rule and where elements of estoppel are notpresent, disputable.

A judicial admission may be oral as a verbal waiver ofproof made in open court, a withdrawal of acontention or a disclosure made before the court, oran admission made by a witness in the course of histestimony or deposition, or may be in writing as inpleading, bill of particulars, stipulation of facts,request for admission, or a judicial admissioncontained in an affidavit used in the case.

To be considered a judicial admission, the admissionmust be made in the same case, otherwise, it is anextrajudicial admission.

When a defendant is declared in default for havingfailed to answer the complaint, such a failure doesnot amount to an admission of the facts alleged in thecomplaint.

Stipulations voluntarily entered into between theparties will be respected and enforced by the courtsunless contrary to public policy or good morals.However, the binding effect of the facts applies onlyto the parties in agreement.

Pleadings superseded or amended disappear fromthe record of judicial admissions, and in order thatany statements contained therein may be consideredas an extrajudicial admission, it should be offeredformally in evidence.

RULE 130RULES ON ADMISSIBILITY

Section 1. Object as evidence

Where an object is relevant to a fact in issue, thecourt may acquire knowledge thereof by actuallyviewing the object, in which case such objectbecomes object evidence or by receiving testimonialevidence thereon.

The fact that an ocular inspection has been held doesnot preclude a party from introducing other evidenceon the same issue.

Whether an ocular inspection is to be made or notlies in the discretion of the trial court.

An ocular inspect ion conducted by a judgewithout notice to or presence of the parties isinvalid as an ocular inspection is a part of thetrial.

THE COURT MAY REFUSE THE INTRODUCTIONOF OBJECT EVIDENCE AND RELY ONTESTIMONIAL EVIDENCE ALONE IF:

1. the exhibition of such object is contrary tomorals or decency

2. to require its being viewed in court or in anocular inspection would result in delays,inconvenience, unnecessary expenses out ofproportion to the evidentiary value of suchobject

3. such object evidence would be confusing ormisleading, as when the purpose is to provethe former condition of the object and there isno preliminary showing that there has beenno substantial change in said condition

4. the testimonial or documentary evidencealready presented clearly portrays the objectin question as to render a view thereofunnecessary.

Even if the object is repulsive or indecent, if a view ofthe same is necessary in the interest of justice, suchevidence may still be exhibited but the court mayexclude the public from such view.

Object evidence includes any article or object whichmay be known or perceived by the use of any of thesenses.

Example: examination of the anatomy of aperson or of any substance taken therefrom, orthe examination of the representative portrayalsof the object in question, such as maps, diagrams

or sketches, pictures or audio-visual recordings,provided the same are properly authenticated.

Just like ocular inspection, which are only auxiliaryremedies afforded to the court, such observations ofthe court may be amplified by interpretations affordedby testimonial evidence, especially by experts.

NOTE: Documents are object evidence if the purposeis to prove their existence or condition, or the natureof the handwriting thereon, or to determine the age of


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the paper used, or the blemishes or alterationsthereon, as where falsification is alleged. Otherwise,they are considered documentary evidence if thepurpose is to establish the contents or tenor thereof.

Object evidence may consist of articles or persons,which may be exhibited inside or outside thecourtroom; it may also be a mere inspection of anobject or an experiment.

OBJECT EVIDENCE - is a tangible object thatplayed some actual role on the matter that gave riseto the litigation. For instance, a knife.

DEMONSTRATIVE EVIDENCE - is a tangibleevidence that merely illustrates a matter ofimportance in the litigation such as maps, diagrams,models, summaries and other materials createdespecially for litigation.

The DISTINCTION between object anddemonstrative evidence is important because ithelps determine the standards that the evidencemust meet to be admissible. For OBJECTEVIDENCE, the required foundation relates toproving that the evidence is indeed the object used inthe underlying event. The foundation forDEMONSTRATIVE EVIDENCE, does not involveshowing that the object was the one used in theunderlying event, but the foundation generallyinvolves the showing that the demonstrative objectfairly represents or illustrates what it is alleged to

illustrate.

Physical evidence is the highest form ofevidence.

REQUISITES FOR THE ADMISSIBILITY OF THEOBJECT EVIDENCE:

1. Must be relevant to the fact in issue.

Example: In murder case, the prosecutionoffered in evidence a gun. The gun musthave some connection to the crime. Theremust be a logical nexus between the

evidence and the point on which it is offered.

2. Object must be authenticated before it isadmitted. Authentication usually consists ofshowing that the object was involved inunderlying event.

The “chain of custody” method of authentication requires that every link in the chain of custody –every person who possessed the object since it was

first recognized as being relevant to the case, mustexplain what he did with it.

In order that photographs may be given as evidence,it must be shown that it is the true and faithful

representation of the place or object which to whichthey refer. Photographs may be verified by thephotographer or any person acquainted with theobject represented and testify that the same faithfullyrepresents the object.

For tape recordings, the ff. must be shown:1. the recording device was capable of

recording testimony2. the operator of the device was competent3. establishment of the correctness or

authenticity of the recording4. deletions, additions, changes have not been

made5. manner of the preservation of the recording6. identification of the speakers7. Testimony elicited was voluntarily made.

Authenticated fingerprints may be compared tofingerprints found on the crime scene.

2 theories on whether the court may compel theplaintiff to submit his body for inspection inpersonal injury cases:

1. No, because the right of a person to besecured of the possession or control of hisperson is sacred.

2. Yes, because if it is not allowed then thecourt will be an instrument of the grossestinjustice and therefore the object for whichcourts are instituted would be defeated sincethe courts will be compelled to give a one-sided decision.

Weight of authority favors the first 2nd

theory

The accused may be compelled to submit himself toan inspection of his body for the purpose ofascertaining identity or for other purpose.

There cannot be any compulsion as to the accusedtaking dictation from the prosecuting officer for thepurpose of determining his participation in the offensecharged.

Whenever the defendant, at the trial of his case,testifying in his own behalf, denies that a certainwriting or signature is in his own hand he may oncross-examination be compelled to write in opencourt in order that the jury may be able to comparehis handwriting with the one in question.


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Where the object in question cannot be produced incourt because it is immovable or inconvenient toremove, it is proper for the tribunal to go to the objectin its place and there observe it.

DOCUMENTARY EVIDENCE

Section 2. Documentary evidence

DOCUMENT – any substance having any matterexpressed or described upon it by marks capable ofbeing read.

NOTE: If it is produced without regard to themessage which it contains, it is treated as realevidence.

1. Best Evidence Rule

Section 3. Original document must be produced;exceptions

GENERAL RULE: The original document must beproduced.

EXCEPTIONS:1. When the original has been lost or destroyed,

or cannot be produced in court, without badfaith on the part of the offeror;

2. When the original is in the custody or underthe control of the party against whom the

evidence is offered, and the latter fails toproduce it after reasonable notice;

3. When the original consists of numerousaccounts or other documents which cannotbe examined in court without great loss oftime and the fact sought to be establishedfrom them is only the general result of thewhole; and

4. When the original is a public record in thecustody of a public officer or is recorded in apublic office

BEST EVIDENCE RULE - is that rule which requires

the highest grade of evidence obtainable to prove adisputed fact.

Purpose of the rule requiring the production ofthe best evidence: is the prevention of fraudbecause if the best evidence is not presented thenthe presumption of suppression of evidence will bepresent.

NOTE: Best evidence rule applies only when thepurpose of the proof is to establish the terms ofwriting.

For the application of the best evidence, it is

essential that: the original writing or if it is a privatedocument, be first duly identified, and a sufficient anda sufficient foundation be laid, so as to entitle thewriting to be admitted in evidence, and it must beavailable to the opposite party for cross-examination

Section 4. Original document.

WHAT IS AN ORIGINAL DOCUMENT?(a) the original of a document is one in two 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, withidentical contents, all such copies are equallyregarded as originals

(c) When an entry is repeated in the regularcourse, of business, one being copied fromanother at or near the time of the transaction,all entries are likewise equally regarded asoriginals.

Document - is a deed, instrument or other dulyauthorized appear by which something is proved,evidenced or set forth.

Documentary evidence is that which is furnished bywritten instruments, inscriptions and documents of all

kinds.

RULE OF EXCLUSION: that which is secondaryevidence cannot inceptively be introduced as theoriginal writing itself must be produced in court,except in the four instances mentioned in Section 3.

The non-production of the original document unless justified in Section 3, gives rise to the presumption ofsuppression of evidence.

In the case of real evidence, secondary evidence ofthe fact in issue may readily be introduced without

having to account for the non-production of suchprimary evidence.

With respect to documentary evidence, the bestevidence rule applies only when the content of suchdocument is the subject of inquiry.

If carbon copies are signed, they are considered asoriginals.


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In criminal cases, where the issue is not only withrespect to the contents of the document but also asto whether such document actually existed, theoriginal itself must be presented.

Affidavits and depositions are considered as notbeing the best evidence, hence not admissible if theaffiants or deponents are available as witness.

If the issue is the contents of the telegram asreceived by the addressee, then the original dispatchreceived is the best evidence; and on the issue as tothe telegram sent by the sender, the original is themessage delivered for transmission. If the issue isthe inaccuracy of transmission, both telegrams assent and received are originals.

GENERAL RULE: An objection by the party againstwhom secondary evidence is sought to be introducedis essential to bring the best evidence rule intoapplication. Where secondary evidence has beenadmitted, the rule of evidence might have beensuccessfully invoked if proper and timely objectionhad been taken.

When a duplicate or a copy is amended or altered bythe party, it becomes the original.

Blueprints and vellum tracings have been held to beoriginals rather than copies.

Photocopies are not originals since they are

reproduced at a latter time.

When an entry is repeated in the regular course ofbusiness, one being copied from another at or nearthe time of the transaction, all the entries areregarded as originals.

2. Secondary Evidence

Section 5. When original document is unavailable

SECONDARY EVIDENCE – shows that better orprimary evidence exists as to the proof of fact in

question. It is deemed less reliable.

What must be proved to admit secondaryevidence?

(a) The execution of the original(b) loss, destruction or unavailability of all such

originals(c) Reasonable diligence and good faith in the

search for or attempt to produce the original.

The due execution can be proved through thetestimony of either:

1) the person who executed it2) The person before whom its execution was

acknowledged

3) any person who was present and saw itexecuted and delivered or who thereaftersaw it and recognized the signatures, or oneto whom the parties thereto had previouslyconfessed the execution thereof

Intentional destruction of the originals by a party who,however, had acted in good faith does not precludehis introduction of secondary evidence of thecontents thereof.

When the original is outside the jurisdiction of thecourt, as when it is in a foreign country, secondaryevidence is admissible.

Secondary evidence may consist of (IN THESAME ORDER):

1. a copy of said document2. recital of its contents in an authentic

document3. the recollection of the witnesses

Where the law specifically provides for the class andquantum of secondary evidence to establish thecontents of a document, such requirement iscontrolling.

It is not necessary to prove the loss beyond allpossibility of mistake. A reasonable probability of itsloss is sufficient, and this may be shown by bona fideand diligent search for it in place where it is likely tobe found.

Where both parties admit that an instrument hasbeen lost, it is sufficient to warrant the reception ofsecondary evidence.

The fact of loss or destruction must, like any otherfact, be proved by a fair preponderance of evidence,and this is sufficient.

The fact that a writing is really a true copy of theoriginal may be shown by the testimony of a personwho has had the opportunity to compare the copywith the original and found it to be correct. In orderthat the testimony of such person may be admissible,it is sufficient that the original was read to him byanother person while he read the copy and found thatit corresponded with what was read to him. It is alsosufficient where the person who made the original a


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short time thereafter made a copy by writing downthe dictation of another reading from the original.

As long as the originals of a public document in thepossession of the parties have been proven lost, a

certified copy of the document made before it waslost is admissible as secondary evidence of itscontents, and the burden of proof is upon the partyquestioning its authenticity to show that it is not a truecopy of the original.

In proving the contents of the original in someauthentic document, it is sufficient if it appears in aprivate document which is proved to be authentic.“Authentic” means that the document should begenuine. It need not be a public document.

It is not expected of a witness to state the contents ofa document with verbal accuracy, it is enough thatthe substance of the documents be stated.

Section 6. When original document is in adverseparty’s custody or control

FACTS WHICH MUST BE SHOWN BY THE PARTYOFFERING SECONDARY EVIDENCE:

1) The adverse party’s custody or control of theoriginal document.

2) That reasonable notice was given to theadverse party who has the custody or controlof the document

3) Satisfactory proof of its existence

4) Failure or refusal by the adverse party toproduce it in court.

No particular form of notice is required, as long as itfairly apprises the other party as to what papers aredesired.

Even an oral demand in open court for production ata reasonable time thereafter will suffice.

Notice must be given to the adverse party, or hisattorney, even if the document is in the actualpossession of a third party.

Where receipt of the original of a letter isacknowledged on a carbon copy thereof, there is noneed for a notice to the other party to produce theoriginal of the latter.

It should be observed that the duplicate copy, ifcomplete, is itself an original copy and the only pointin issue is the receipt of the basic original copythereof.

The justified refusal or failure of the adverse party toproduce the document does not give rise to thepresumption of suppression of evidence or create anunfavorable inference against him. It authorizes theintroduction of secondary evidence.

Under this rule, the production of the originaldocument is procured by mere notice to adverseparty and the requirements for such notice must becomplied with as a condition precedent for thesubsequent introduction of secondary evidence bythe proponent.

Where the nature of the action is in itself a notice, aswhere it is for the recovery or annulment ofdocuments wrongfully obtained or withheld by theother party, no notice to produce said document isrequired.

Section 7. Evidence admissible when originaldocuments is a public record

Such document may be evidenced by an officialpublication thereof or by a copy attested by theofficer having the legal custody of the record , andin case of an authorized public record of a privatewriting, the same may also be proved by a copythereof attested by the legal keeper of the record.

Section 8. Party who calls for document notbound to offer it.

Production of papers or documents upon the trial,pursuant to a notice duly served, does not make suchpapers or documents evidence. It is not until the partywho demanded the production of the papers examinethem and offers them in evidence that they assumethe status of evidentiary matter.

3. Parol Evidence Rule

Section 9. Evidence of written agreements

GENERAL RULE: When the terms of an agreement

have been reduced to writing, it is to be consideredas containing all the terms agreed upon and therecan be, between the parties and their successors ininterest, no evidence of such terms other than thecontents of the written agreement.

EXCEPTION: aparty may present evidence tomodify, explain or add to the terms of the writtenagreement if he puts in issue in his pleading any ofthe following:


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

(b) The failure of the written agreement toexpress the true intent and agreement of theparties thereto;

(c) The validity of the written agreement; or(d) The existence of other terms agreed to bythe parties or their successors in interestafter the execution of the written agreement.

The term “agreement” includes wills.

The parol evidence rule is based upon theconsideration that when the parties have reducedtheir agreement on a particular matter into writing, alltheir previous and contemporaneous agreements onthe matter are merged therein, hence evidence of aprior or contemporaneous verbal agreement isgenerally not admissible to vary, contradict, or defeatthe operation of a valid document.

PAROL EVIDENCE – any evidence aliunde, whetheroral or written, which is intended or tends to vary orcontradict a complete and enforceable agreementembodied in a document.

Formerly, even if there was a written agreement on aparticular subject matter, the parol evidence ruledid not apply to or bar evidence of a collateralagreement between the same parties on the sameor related subject matter, in the ff instances:

1) Where the collateral agreement is not

inconsistent with the terms of the writtencontract

2) Where the collateral agreement has notbeen integrated in and is independent of thewritten contract as where it is suppletory tothe original contract

3) where the collateral agreement issubsequent to or novatory of the writtencontract; and

4) Where the collateral agreement constitutes acondition precedent which determineswhether the written contract may becomeoperative or effective, but this exception shall

not apply to a condition subsequent notstated in the agreement.

Parol evidence rule does not apply, and may notproperly be invoked by either party to the litigationagainst the other, where at least one party to thesuit is not a party or privy to the writteninstrument in question and does not base a claimor assert a right originating in the instrument orthe relation established thereby.

PAROL EVIDENCERULE

BEST EVIDENCERULE

It presupposes that theoriginal document isavailable in court

Contemplates thesituation wherein theoriginal writing is not

available and/or thereis a dispute as towhether said writing isthe original.

Prohibits the varying ofthe terms of a writtenagreement

Prohibits theintroduction ofsubstitutionaryevidence in lieu of theoriginal documentregardless of whetheror not it varies thecontents of the original

With the exception ofthe wills, the parolevidence rule appliesonly to documentswhich are contractualin nature

Applies to all kinds ofwritings

Can be invoked onlywhen the controversyis between the partiesto the writtenagreement, theirprivies, or any partydirectly affectedthereby (this is toprevent fraudulent

operation of theinstrument upon therights of strangers)

It can be invoked byany party to an actionregardless of whetheror not such party hasparticipated in thewriting involved.

In order that the parol evidence may be admissible,the mistake or imperfection of the document, or itsfailure to express the true intent and agreement ofthe parties, or the validity of the agreement must beput in issue by the pleadings. Where the plaintifffailed to allege any such fact in his complaint, hecannot introduce parol evidence thereon.

If the defendant invoked such fact in his answer,

parol evidence may be introduced as such fact is nowput in issue.

Even if such defenses were not raised in thepleadings, but the parol evidence is not objected to,such objection is deemed waived. Such mistake orimperfection must be proved by clear and convincingevidence.

When no timely objection or protest is made to theadmission of parol evidence in respect to a contract


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relative to real estate and when the motion to strikeout said evidence came too late; and if the otherparty against whom such evidence was presentedcross-examined the witnesses who testified inrespect to the contract, said party will be understood

to have waived the benefits of the law. Parolevidence under those facts is competent andadmissible.

An intrinsic ambiguity in the written agreement is nowrequired to be put in issue in the pleading in orderthat parol evidence therein may be admitted.

The “mistake” under the first exception refers to amistake of fact which is mutual to the parties wherethe innocent party was imposed upon by unfairdealing of the other.

“Imperfection” includes an inaccurate statement inthe agreement, or incompleteness in the writing, orthe presence of inconsistent provisions therein. As amatter of substantive law, when one party wasmistaken and the other knew that the instrument didnot state their real agreement but concealed the factfrom the former, the instrument may be reformed.

The purpose of the second exception is to enablethe court to ascertain the true intention of the partiesor the true nature of the transaction between theparties.

As earlier stated, it now includes a latent or intrinsic

ambiguity in the writing. There is latent ambiguitywhen the writing on its face appears clear andunambiguous but there are collateral matters orcircumstances which make the meaning uncertain, orwhere a writing admits of two constructions both ofwhich are in harmony with the language used.

Example of latent ambiguity is when the documentsrefers to a particular person but such name pertainsto many persons with same name.

PATENT OR EXTRINSIC AMBIGUITY - is suchambiguity which is apparent on the face of the writing

itself and requires something to be added in order toascertain the meaning of the words used. In thiscase, parol evidence is not admissible, otherwise thecourt would be creating a contract between theparties.

INTERMEDIATE AMBIGUITY – situation where anambiguity partakes of the nature of both patent andlatent. In this, the words are seemingly clear and witha settled meaning, is actually equivocal and admits oftwo interpretations. Here, parol evidence is

admissible to clarify the ambiguity provided that thematter is put in issue by the pleader. Example:Dollars, tons and ounces

NOTE: False description does not vitiate a document

if the subject is sufficiently identified. The incorrectdescription shall be rejected as surplusage while thecorrect and complete description standing alone shallsustain the validity of the writing.

No express trust concerning an immovable or anyinterest therein may be proved by parol evidence.

Rules governing the admissibility of parolevidence to explain ambiguity

1) Where the instrument itself seem to be clearand certain on its face, and the ambiguityarises from extrinsic or collateral matter, theambiguity may be helped by parole evidence(Latent ambiguity)

2) Where the ambiguity consists in the use ofequivocal words designing the person orsubject-matter, parole evidence of collateralor extrinsic matter may be introduced for thepurpose of aiding the court in arriving at themeaning of the language used (Intermediateambiguity)

3) Where the ambiguity is such that a perusal ofthe instrument shows plainly that somethingmore must be added before the reader can

determine what of several things is meant,the rule is inflexible that parol evidencecannot be admitted to supply the deficiency.

To justify the reformation of a written instrumentupon the ground of mistake, the concurrence ofthree things is necessary:

1. Mistake should be of fact – does notcorrectly express the intention of the partiesapplies only to a mistake of facts

2. Mistake should be mutual or common to

both parties to the instrument –Reformation is then given because mistake ismutual. The parties must have come to anactual oral agreement before they haveattempted to reduce it in writing,

3. The mistake should be alleged andproved by clear and convincing evidence

When the operation of the contract is made todepend upon the occurrence of an event, which for


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that reason is a condition precedent, such may beestablished parol evidence. This is not varying theterms of the written contract by extrinsic agreementfor the simple reason that there is no contract inexistence; there is nothing to which to apply the

excluding rule.

Due execution of a writing may proved by parolevidence because what the rule prohibits is varyingthe terms of the writing by parol evidence.

To determine whether or not the subject of anoral agreement is separate and distinct from thesubject of a writing: it is essential to ascertain firstwhat is the whole subject intended by the parties tobe covered by such writing. This question may bedetermined from the contract itself, in the light of thesubject matter with which it deals and of thecircumstances standing its execution. The next stepis to ascertain the subject of the oral agreementoffered to be proved. Then a comparison should bemade between the writing and the oral negotiationand from that comparison it may be seen whether ornot the subject of the writing is separate and distinctfrom that of the oral negotiation. Parol evidence isadmitted if the subject of the oral negotiation is not soclosely connected with the subject of the writing.

The prohibition does NOT apply when the intent is toshow that there is no meeting of the minds or there isno perfected contract.

This rule has no application to conditions orstipulations which are antecedent to the existence ofthe contract and on the faith of which the supposedcontract is executed.

Where the provisions of a written contract areambiguous and there is sufficient evidence showingthe existence of other agreements collateral thereto,parol evidence is admissible to prove the realagreement of the parties.

4. Interpretation of Documents

Section 10. Interpretation of a writing accordingto its legal meaning

The language of a writing is to be interpretedaccording to the legal meaning it bears in the place ofthe execution unless the parties intended otherwise.

Section 11. Instrument construed so as to giveeffect to all provisions

In the construction of an instrument where there areseveral provisions or particulars such a constructionis, if possible, to be adopted as will give effect to all.

Section 12. Interpretation according to intention;

general and particular provisions

In the construction of an instrument, the intention ofthe parties is to be pursued and when a general anda particular provisions are inconsistent, the latter isparamount to the former. So a particular intent willcontrol a general one that is inconsistent with it.

Section 13. Interpretation according tocircumstances

For the proper construction of an instrument, thecircumstances under which it was made, includingthe situation of the object thereof and of the parties toit, may be shown, so that the judge may be placed inthe position of those whose language he is tointerpret.

Section 14. Peculiar signification of terms

The terms of a writing are presumed to have beenused in their primary and general acceptation, butevidence is admissible to show that they have been alocal, technical, or otherwise peculiar signification,and were so used and understood in the particularinstance, in which case the agreement must beconstrued accordingly

Section 15. Written words control printed

When an instrument consists partly of written wordsand partly of a printed form, and the two areinconsistent, the former controls the latter.

Section 16. Experts and interpreters to be used inexplaining certain writings

When the characters in which an instrument is writtenare difficult to be deciphered, or the language is notunderstood by the court, the evidence of persons

skilled in deciphering the characters, or whounderstand the language, is admissible to declare thecharacters or the meaning of the language.

Section 17. Of two constructions, which preferred

When the terms of an agreement have been intendedin a different sense by the different parties to it, thatsense is to prevail against either party in which hesupposed the other understood it, and when differentconstructions of a provision are otherwise equally


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proper, that it is to be taken which is the mostfavorable to the party in whose favor the provisionwas made.

Section 18. Construc tion in favor of natural right

When an instrument is equally susceptible of twointerpretations, one in favor of natural rights and theother against it, the former is to be adopted.

Section 19. Interpretation according to usage

An instrument may be construed according to usage,in order to determine its true character.

The laws in force at the time the contract was mademust govern its interpretation and application.

The clear terms of the contract should not be subjectto interpretations.

QUALIFICATION OF WITNESSES

C. Testimonial Evidence

Section 20. Witness; their qualifications –

WITNESS – reference to a person who testifies in acase or gives evidence before a judicial tribunal

COMPETENCY OF A WITNESS – is the legal fitness

or ability of a witness to be heard on the trial of acause.

GENERAL RULE: When a witness takes the stand totestify, the law, on grounds of public policy, presumesthat he is competent. The court cannot reject thewitness if there is not proof of his incompetency.

The burden is upon the party objecting to thecompetency of a witness to establish the grounds ofincompetency.

It is the judge who has the decision as to the

competency of the witness.

NOTE: The objection to the competency of a witnessmust be made before he has given any testimony if aparty knows before the trial that the witness isincompetent, and if the incompetency appears on thetrial, the objection must be interpreted as soon as itbecomes apparent.

NOTE: When the incompetency of a witness is onlypartial, the objection need not be raised until he is

asked to testify to those matters as to which he isincapacitated.

The testimony of the interested witness, whilerightfully subjected to careful scrutiny, should not be

rejected on the ground of bias alone.

NOTE: The interest of the witness affects only hiscredibility but not his competency.

When an attorney is a witness to his client, except asto merely formal matters, such as the attestation orcustody of an instrument and the like, he shouldleave the trial of the case to other counsel. Exceptwhen essential to the ends of justice, a lawyer shouldavoid testifying in court in behalf of his client.

It is objectionable for a judge to be a witness on thesame trial. However, the trial judge is competentwhen his testimony concerns merely formal orpreliminary matters about which there is no dispute,as where he testifies in a perjury prosecution that thedefendant gave testimony before him in anotherproceeding in another court.

Persons who have been convicted of perjury iscannot be discharged as a witness for thegovernment when he is a co-accused in a criminalcase. The same goes for witnesses to a will.

Upon the timely objection to the incompetency of awitness being raised, it is the duty of the court to

make such examination as will satisfy him as to thecompetency or incompetency of the witness to testifyin the case, and thereupon, to rule on the objectionaccordingly.

NOTE: The failure to object to the competency of awitness is tantamount to a waiver and once theevidence is admitted the same shall stay in therecords and be judge according to its merits; the

judge has no right to discard it solely for the reasonthat it could have been excluded had it been objectedto.

Acts of a par ty ent it led to object that can beconsidered as waiver of an objection:

1) where the party fails to raise the objectionwhen the witness testifies, though at thattime the party knows of his incompetency;

2) where one party who might have made theobjection calls the witness in support of hisown case.

Section 21. Disqualification by reason of mentalincapacity or immaturity


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THE FOLLOWING CANNOT BE WITNESSES:1) Those whose mental conditions, at the time

of their production for examination, is suchthat they are incapable of intelligently making

known their perception to others;2) Children whose mental maturity is such as torender them incapable of perceiving the factsrespecting which they are examined andrelating to them truthfully.

The qualifications and disqualifications of witnessesare determined as of the time the said witnesses areproduced for examination in court or at the taking oftheir depositions.

With respect to children of tender years, theircompetence at the time of the occurrence to betestified to should be taken into account, especially ifsuch event took place long before their production aswitnesses.

UNSOUND MIND - any mental aberration, whetherorganic or functional, or induced by drugs orhypnosis.

Unsoundness of mind does not per se render awitness incompetent, one may be medically insanebut in law capable of giving competent testimony.

GENERAL RULE: Lunatic or a person affected withinsanity is admissible as a witness if he has sufficient

understanding to apprehend the obligation of an oathand is capable of giving a correct account of thematters which he has seen or heard with respect tothe questions at issue.

EXCEPTION: If the witness is a lawful inmate of anasylum for the insane, he will not be presumed to becompetent and before he can testify his competencyshould be made to appear by the party offering him.This is because the insanity is presumed to continueas a mental state, if it has once existed, until thecontrary is shown.

Idiots are incompetent witnesses. They may beclassed as insane persons. An idiot, being one whohas no understanding of his nativity, the lawpresumes that he will never attain any.

However, it is not prudent to admit the interpretationof a teacher if he cannot understand properly thesigns given by the deaf-mute who was not even hisstudent.

Drunkenness does not per se disqualify a witnessfrom testifying. The point of inquiry is the moment ofexamination.

A witness is not rendered incompetent by the fact

that he was under the influence of a drug at the timeof the occurrence as to which he testifies, or at thetime of giving his testimony.

Deaf-mutes are competent witnesses when: 1. they can understand and appreciate the

sanctity of an oath;2. can comprehend facts they are going to

testify to; and3. can communicate their ideas through a

qualified interpreter.

In the case of a child witness, the court indetermining his competency must consider hiscapacity:

(a) at the time the fact to be testified to occurredsuch that he could received correctimpressions thereof

(b) to comprehend the obligation of an oath and(c) to relate those facts truly at the time he is

offered as a witness. The court should takeinto account his capacity for observation,recollection and communication.

A child who witnessed the crime when he was 11years old and testified thereto when he was already15, is a competent witness.

The intelligence of the child is the test of hiscompetency and not his age.

The court, not the judge as an individual, is to besatisfied of the competency of the child

Section 22. Disqualification by reason of marriage

This is called the “spousal immunity”. This isdifferent from marital privilege.

Basis

The rule forbidding one spouse to testify for oragainst the other is based on principles which aredeemed important to preserve the marriage relationas one of full confidence and affection, and that thisis regarded as more important to the public welfarethan that the exigencies of the lawsuits shouldauthorize domestic peace to be disregarded for thesake of ferreting out facts within the knowledge ofstrangers.

When Rule Applicable


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The rule applies to any form of testimony; therefore itprotects against using the spouse-witness’sadmission or against compelling him to producedocuments.

In order that this will apply, it is necessary that themarriage is valid and existing as of the time of theoffer of testimony and that the other spouse is aparty to the action.

The privilege to object to testimony concerning anti-marital facts may be claimed only when thespouse for or against whom the testimony of theother is offered as a party to the case.

After the death or the divorce of one spouse, theprivilege ceases, for the reason ceases.

The prosecuting attorney has no right to call a wife asa witness or to attempt to draw from her statementsthat the accused had married her for the purpose ofsuppressing her testimony.

The wife is competent to testify for the otherdefendant if the case against his husband as a partywas dismissed.

No unfavorable inference may be drawn from the factthat a party spouse invokes the privilege to preventthe witness-spouse from testifying against him or her

EXCEPTION TO THE RULE:

1. that the case in which the husband or thewife is called to testify is a civil case institutedby one against the other

2. it is a criminal case for a crime committed byone against the other.

Reason for the ExceptionThe reason for the exception is that the identity of theinterest of person disappears and the consequentdanger of perjury based on that identity is non-existent. And in such a situation, the security andconfidence of private life which the law aims atprotecting will be nothing but ideals which, through

their absence, merely leave a void in the unhappyhome.

This can be waived just like any other objectionto the competency of other witnesses. Can bewaived through failure to interpose timely objection orby calling the other spouse as a witness

Where the accused husband in his testimony imputedthe commission of the crime to his wife, he is deemed

to have waived his objection to the latter’s testimonyin rebuttal.

In a prosecution of the husband for the rape of theirdaughter, the wife is not disqualified to testify for the

prosecution since the crime may be considered ashaving been committed against the wife and theconjugal harmony sought to be protected by this ruleno loner exists.

The exception to the marital disqualification rule wasapplied where the wife was the complainant in a caseagainst her husband for falsification of her signaturein a deed of sale involving their conjugal property.

Where the wife is a co-defendant in a suit chargingher and her husband with collusive fraud, she cannotbe called as an adverse party witness as this willviolate the disqualification rule.

Section 23. Disqualification by reason of death orinsanity of adverse party

This section is called THE SURVIVORSHIPDISQUALIFICATION RULE OR DEAD MANSTATUTE.

It constitutes only a partial disqualification as thewitness is not completely disqualified but is onlyprohibited from testifying on the matters thereinspecified, unlike the marital disqualification rule whichis complete and absolute disqualification.

NOTE: This applies to both civil and criminal cases

REQUISITES FOR THE APPLICATION OF THISRULE:

1. the witness offered for examination is aparty plaintiff, or the assignor of saidparty, or a person in whose behalf a caseis prosecuted.

- Such plaintiff must be the real party ininterest. This disqualification does not applywhere a counterclaim has been interposedby the defendant as the plaintiff would

thereby be testifying in his defense. Thesame is true where the deceased contractedwith the plaintiff through an agent and saidagent is alive and can testify, but thetestimony of the plaintiff should be limited toacts performed by the agent.

- The term “assignor” of a party meansassignor of a cause of action which hasarisen, and not the assignor of a rightassigned before any cause of action hasarisen


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- A witness may testify against an estate,provided he is not a party, or an assignor of aparty, or a person in whose behalf the suit isinstituted. Interest in the outcome of the suit,per se, seemingly, does not disqualify a

witness from testifying

2. the case is against the executor oradministrator or other representative of aperson deceased or of unsound mind

- The term “representative of a deceasedperson” has been interpreted to include notonly the executor or administrator of adeceased person, but also the person whohas succeeded to the right of the deceased,whether by purchase or descent or operationof law.

- It is necessary that the said defendant isbeing sued and defends in suchrepresentative capacity and not in hisindividual capacity. Even if the propertieshave been judicially adjudicated to the heirs,they are still protected under this rule againstsuch prohibited testimony as they areconsidered as the representatives of thedeceased.

- The rule applies regardless of whether thedeceased died before or alter the suit againsthim is filed provided he is already dead atthe time the testimony is sought to be given

3. the case is upon a claim or demand

against the estate of such person who isdeceased or of unsound mind

- The rule does not apply where it isadministrator who brings an action to recoverproperty allegedly belonging to the estate orthe action is by the heirs of a deceasedplaintiff who were substituted for the latter.

- This is restricted to debts or demandsenforceable by personal actions upon whichmoney judgments can be rendered.

- An action for damages for breach ofagreement to devise property for servicesrendered is a claim against an estate; hence

the plaintiff is not a competent witness.- Estate of a deceased person includes all

properties, real and personal, belonging tothe deceased person.

4. The testimony to be given is on matter offact occurring before the death, of suchdeceased person or before such personbecame of unsound mind.

- This includes any matter of fact which bearsupon a transaction or communication

between the witness and the decedent, eventhough without the presence or participationof the latter.

- Negative testimony, that the fact did notoccur during the life time of the deceased, is

not covered by the prohibition.- Testimony on the present possession by the

witness of a written instrument signed by thedeceased is also not covered by theprohibition, as such fact exists even after thedecedent’s demise.

- the parties plaintiff to an action is notrendered incompetent to testify to fraudulenttransactions of the deceased, as the rule isnot designed to shield wrongdoers. Butbefore admitting the testimony of partiesplaintiff in this kind of action, the court shouldcompel such parties to clearly establish thealleged fraudulent acts.

In land registration case instituted by the decedent’srepresentatives, this prohibition does not apply as theoppositors are considered defendants and maytherefore, testify against the petitioner. Thisprohibition does not also apply in cadastral casessince there is no plaintiff or defendants therein.

Since the purpose of this rule is to discourage perjuryand protect the estate from fictitious claims, theprohibition does not apply even if all the 4 requisitesabove are present, where the testimony is offered toprove a claim less than what is established under a

written document or is intended to prove a fraudulenttransaction of the deceased, provided such fraud isfirst established by evidence aliunde.

PurposeThis is designed to close the lips of the party asplaintiff when the death has closed the lips of theparty defendant. If the purpose of the oral testimonyis to prove a lesser claim than what might bewarranted by clear evidence, to avoid prejudice to theestate of the deceased, the law has certainly noreason for its application.

When Deemed WaivedThe disqualification under this rule is waived if thedefendant does not timely object to the admission ofsuch evidence or testifies on the prohibited matters orcross-examines thereon.

If the case is brought against the partnership of thedeceased, the witness is still credible because thetestimony is not against the deceased nor his estate.


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Section 24. Disqualification by reason ofprivileged communication

THE FOLLOWING PERSONS CANNOT TESTIFY AS TO MATTERS LEARNED IN CONFIDENCE IN

THE FF CASES:

1. The husband or the wife, during or after themarriage, cannot be examined without theconsent of the other as to anycommunication received in confidence byone from the other during the marriageexcept in a civil case by one against theother, or in a criminal case for a crimecommitted by one against the other or thelatter’s direct descendants or ascendants

2. An attorney cannot, without the consent ofhis client, be examined as to anycommunication made by the client to him, orhis advice given thereon in the course of, orwith a view to, professional employment, norcan an attorney’s secretary, stenographer, orclerk be examined, without the consent of theclient and his employer, concerning any factthe knowledge of which has been acquired insuch capacity.

3. A person author ized to practice medicine,surgery or obstetrics cannot in a civil case,without the consent of the patient, beexamined as to any evidence or treatment

given by him or any information which hemay have acquired in attending such patientin a professional capacity, which informationwas necessary to enable him to act in thatcapacity, and which would blacken thereputation of the patient.

4. A minister or priest cannot, without theconsent of the patient, be examined as toany advice or treatment given by him or anyinformation which he may have acquired inattending such patient in a professionalcapacity, which information was necessary to

enable him to act in that capacity, and whichwould blacken the reputation of the patient.

5. A public officer cannot be examined duringhis term of office or afterwards, as tocommunications made to him in officialconfidence, when the court finds that thepublic interest would suffer by the disclosure.

Objections under the disqualification rules can beinvoked only by the persons protected thereunder

and may be waived by said persons in the samemanner, either expressly or impliedly.

Marital Privilege

REQUISITES FOR MARITAL PRIVILEGE TO APPLY:1) there was a valid marital relation2) the privilege is invoked with respect to a

confidential communication between thespouses during said marriage

3) the spouse against whom such evidence isbeing offered has not given his or her to suchtestimony

NOTE: The privilege cannot be claimed with respectto communications made prior to the marriage of thespouse

The privilege on principle applies to any form ofconfident disclosure. Usually this will be acommunication in words but it may also includeconduct.

Marital communications are presumed to beconfidential but the presumption may be overcome byproof that they were not intended to be private.

Since the confidential nature of the communication isthe basis of the privilege, the same cannot beinvoked where it was not intended to be kept inconfidence by the spouse who received the

same, as in the case of a dying declaration of thehusband to his wife as to who was his assailant,which communications was obviously intended to bereported to the authorities.

The privilege is lost if the communication isoverheard or comes into the hands of a thirdparty, whether legally or not, by reason of the factthat while the spouse is covered by the prohibition,such third party is not and, consequently, can testifythereon. It is necessary, however, that there was nocollusion with or voluntary disclosure by eitherspouse to the third person, otherwise the latter

becomes an agent of the spouse and would therebybe covered by the prohibition.

EXCEPTIONS TO MARITAL PRIVILEGE:1. that the case in which the husband or the

wife is called to be examined is not a civilcase instituted by one against the other

2. that it is not a criminal case for a crimecommitted by one against the other

DISQUALIFICATION MARITAL PRIVILEGE


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TIFF (are

BY REASON OFMARRIAGE

Can be invoked only ifone of the spouses is aparty to the action,

Can be claimed whetheror not the spouse is aparty to the action.

Applies only if themarriage is existing atthe time the testimony isoffered

Can be claimed evenafter the marriage hasbeen dissolved

Constitutes a totalprohibition against thespouse of the witness

Applies only toconfidentialcommunicationsbetween the spouse

The privilege in principle, belongs to thecommunicating spouse not to the other one.

Even if the communication between the spouse who

is a party to the action can still prevent the otherspouse from testifying against him under the maritaldisqualification rule

Even if the spouse who is a party to the action doesnot object to the other testifying therein, thus waivingthe marital disqualification, he can still prevent thedisclosure by said spouse-witness of confidentialcommunications covered by the privilege.

Conspiracy between spouses to commit a crime isnot covered by the privilege since it is not theintention of the law to protect the commission of acrime.

This does not apply when spouses are livingseparately and there is an active hostility. But if thereis a chance to reconcile, then this privilege will apply.

At torney-Client Pri vi lege

REQUISITES:1) there is an attorney and client relation2) The privilege is invoked with respect to a

confidential communication between them inthe course of professional employment

3) The client has not given his consent to the

attorney’s testimony.

Basis: public policy

The client owns the privilege and therefore he alonecan invoke it.

For the privilege to apply, the attorney must havebeen consulted in hi s professional capacity, evenif no fee has been paid therefore. However, if thecommunications were not made for the purpose of

creating that relationship, they will not be covered bythe privilege even if thereafter the lawyer becomesthe counsel of the party in a case involving saidstatements

The test is whether the communications are made toan attorney with a view of obtaining professionalassistance or advice.

Communications to an attorney are not privilegedwhere they are voluntary made after he has refusedto accept employment.

There is NO privilege communication in cases whereabstract legal opinions are sought and obtained ongeneral questions of law, either civil or criminal, insuch cases, no facts are or need be disclosedimplicating the client, and so there is nothing of aconfidential character to conceal.

The communications covered by the privilege includeverbal statements and documents or papersentrusted to the attorney, and of facts learned by theattorney through the act or agency of his client.

Confidential relations made in reliance upon thesupposed relation of attorney and client, whether theparty assuming to act as such is an attorney or not,are excluded by the court.

Sidewalk advice from attorney upon legal question forwhich no compensation is asked or expected and

none given except a luncheon, should not beregarded as privileged communications

NOTE: The privilege is applicable to counsel deoficio.

Even in cases where the consent of the client isobtained, it is his duty to ask first to be relieved andhave another attorney take his place before testifyingso that he may be cross-examined and not leave hisclient without proper representation.

An attorney who becomes a subscribing witness to

his client’s will, may testify to the attendingcircumstances of the execution of his client’s will forby requesting his attorney to become a subscribingwitness to the will, the testator waives privilege as tohis attorney’s testimony concerning testamentarycommunications.

Communication made by a client to an attorney as apublic officer to enable him to act in his capacity isnot privilege.


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The privilege DOES NOT apply when the action wasbrought by the client against the attorney.

THE PRIVILEGE DOES NOT APPLY TOCOMMUNICATIONS WHICH ARE:

1. intended to be made public2. intended to be communicated to others3. intended for an unlawful purpose4. received from third person not acting in

behalf or as agent of the client5. made in the presence of third parties who are

strangers to the attorney-client relationship

The period to be considered is that date when theprivileged communication was made by the client tothe attorney in relation to either a crime committed inthe past or with respect to a crime intended to becommitted in the future

Professional communications continues even afterthe relation of client and attorney is terminated

Communications regarding a crime alreadycommitted made by the offender to an attorney,consulted as such, are privileged communications

Contemplated criminal acts are not covered.

The privilege DOES NOT attach when the attorney isa conspirator.

The privilege DOES NOT apply when all the attorney

has to do it to either affirm or deny the secretrevealed by the client to the court.

Physician-Patient Privilege

PurposeThis privilege is intended to facilitate and make safe,full and confidential disclosure by patient tophysician of all facts, circumstances, and symptoms,untrammeled by apprehension of their subsequentand enforced disclosure and publication on thewitness stand, to the end that the physician may form

a correct opinion, and be enabled safely andefficaciously to treat his patient.

REQUISITES:1) the physician is authorized to practice

medicine, surgery, or obstetrics2) the information was acquired or the advice or

treatment was given by him in hisprofessional capacity for the purpose oftreating and curing the patient.

3) The information, advice or treatment, ifrevealed, would blacken the reputation of thepatient

4) the privilege is invoked in a civil case,whether patient is a party or not

It is not necessary that the physician-patientrelationship was created through the voluntary act ofthe patient. For example the treatment may havebeen given at the behest of another, the patient beingin extremis

The privilege extends to all forms of communicationsas well as to the professional observations andexaminations of the patient

THE PRIVILEGE DOES NOT APPLY WHERE:1) the communication was not given in

confidence2) the communication is irrelevant to the

professional employment3) the communication was made for an unlawful

purpose, as when it is intended for thecommission or concealment of a crime

4) the information was intended to be madepublic

5) there was a waiver of the privilege either byprovisions of contract or law

The rule does not apply to mere causalinformation stated by the witness because suchinformation is not necessary for the treatment of the

patient.

If the physician confined himself merely to theascertainment of the nature and character of theinjury for the purpose of reporting them to thedefendant, physician may testify.

The burden of proving that such relation does notexist is upon the person objecting it.

Death of the patient does not extinguish the relation.

Under Rule 28 of the Rules of Court, the results of

the physical and mental examination of a person,when ordered by the court, are intended to be madepublic, hence they can be divulged in that proceedingand cannot be objected to on the ground of privilege

Result of autopsies or post mortem examinations aregenerally intended to be divulged in court, aside fromthe fact the doctor’s services were not for purposes ofmedical treatment


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An example of a waiver of the privilege by provisionof law is found in Section 4 of said Rule 28 underwhich if the party examined obtains a report on saidexamination or takes the deposition of the examiner,he thereby waives any privilege regarding any other

examination of said physical or mental conditionconducted or to be conducted on him by any otherphysician.

Waiver of the privilege by contract may be found instipulations in life insurance policies.

The disqualification due to privilege communicationsbetween ministers or priests and penitents requirethat the same were made pursuant to a religious dutyenjoined in the course of discipline of the sect ordenomination to which they belong and must beconfidential and penitential in character. Example:under seal of the confessional

Privileged communications to Public Officers

REQUISITES:1) that it was made to the public officer in official

confidence2) that public interest would suffer by the

disclosure of such communication, as in thecase of State secrets.

Where no public interest will be prejudiced, this rulewill not apply.

PUBLIC INTEREST – something in which thecommunity at large has some pecuniary interest bywhich their legal rights or liabilities are affected.

Other instances of Privilege

Under RA 53 as amended by RA 1477, thepublisher, editor or duly accredited reporter of anynewspaper, magazine or periodical of generalcirculation cannot be compelled to reveal the sourceof any news report or information appearing in said

publication which was related in confidence to himunless the court or a House or committee ofCongress finds that such revelation is demanded bythe Security of the State.

Art. 233 of the Labor Code provides that allinformation and statements made at conciliationproceedings shall be treated as privilegedcommunications and shall not be used as evidence inthe National Labor Relations Commission, andconciliators and similar officials shall not testify in any

court or body regarding any matter taken up at theconciliation proceedings conducted by them.

Voters are cannot be compelled to revealtheir bets

Trade Secrets will be covered by thisprivilege

Prosecutor is not to be compelled to disposethe identity of the informer unless the informer isalready known to the accused and when the identityof the informer is vital.

GENERAL RULE: Bank deposits may not bedisclosed

EXCEPTION:1. authorized by depositor2. Impeachment under the Constitution3. Upon order of the court in case of bribery or

deriliction of duty4. When the subject matter is the deposits5. Anti-graft cases

2. Testimonial Privilege

Section 25. Parental and fil ial Privilege

This section is an expanded amendment of theformer provision found in Section 20 (e), a

disqualification by reason of relationship which, inturn, was reproduced from Art. 315 of the Civil Code.

It was not correctly a rule of disqualification, as thedescendant was not incompetent or disqualified totestify against his ascendants, but was actually aprivilege to testify, hence it was referred to as “filialprivilege”.

However, under the Family Code, the descendantmay be compelled to testify against his parents andgrandparents, if such testimony is indispensable inprosecuting a crime against the descendant by one

parent against the other (Art. 215).

Under the present formulation, both parental and filialprivileges are granted to any person, which privilegesagainst compulsory testimony he can invoke in anycase against any of his parents, direct ascendants,children or direct descendants.

Reason for the RuleThe reason for the rule is to preserve “familycohesion” deploring the lack of this provision under


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former laws as doing violence to the most sacredsentiments between members of the same family.”

NOTE: The privilege may now be invoked in both civiland criminal cases.

3. Admissions and Confessions

Section 26. Admission of a party

ADMISSION - any statement of fact made by a partyagainst his interest or unfavorable to the conclusionfor which he contends or is inconsistent with the factsalleged by him.

It is a voluntary acknowledgment in express terms orby implication, by a party interest or by another bywhose statement he is legally bound, against hisinterest, of the existence or truth of a fact in disputematerial to the issue (Francisco).

EXPRESS ADMISSIONS are those made in definite,certain and unequivocal language.

Example: Action for personal injuries caused by acollision between P’s carriage and D’s automobile. Dwas not in the automobile when the accidentoccurred. D’s son was driving the automobile, havingtaken it without express permission from D. Beforetrial D told P’s husband that he had bought theautomobile for the pleasure of his family and for

business; that members of the family might take itwithout asking; and that so far as the liabilityextended (D) was responsible. On the bases of thisexpress admission, verdict was rendered for P.Likewise, defendant duly executes and signs adocument before a notary public stating therein thathis wife is the true and absolute owner of the landswhich are the subject matter of the litigation. Saiddocument is an express admission that defendant isnot the owner of the land, and admissible againsthim.

IMPLIED ADMISSIONS are those which may be

inferred from the acts, declarations or omission of aparty. Therefore, an admission may be implied fromconduct, statement of silence of a party.

Examples: The payment of interest of a debt is animplied admission of the existence of the deb