up 2009 remedial law (evidence).pdf

REVIEWER IN REMEDIAL LAW Table of Contents

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EVIDENCE

Chapter I: GENERAL PROVISIONSA. DefinitionB. ScopeC. Admissibility V. RelevancyD. Competence

Chapter II: WHICH OF THE FACTSDO NOT NEED PROOFA. Judicial NoticeB. Judicial Admissions

Chapter III: WHO MUST PROVETHESE FACTS THAT NEED TO BEPROVEN?A. Burden of ProofB. Presumptions

Chapter IV: WHAT DEGREE OFPROOF IS NEEDED?A. Weight and sufficiency of

evidence1. Preponderance of Evidence

(Civil Cases)2. Proof Beyond Reasonable

Doubt (Criminal Cases)3. Substantial Evidence

(Administrative Cases)B. Quantum of Evidence

1. Confessions2. Circumstantial Evidence3. Interpretation of Documents4. Evidence on Motion

Chapter V: WHAT AVAILABLEEVIDENCE IS ADMISSIBLE TOPROVE THESE FACTS?A. Testimonial

1. Which witnesses are subjectto objection for competence?

2. Which witnesses will testifyon privileged matters and towhat extent does the privilegecover?

3. What testimony is subject to aclaim of privilege and bywhom?

4. What evidence is hearsay andupon what proposition, if it ishearsay, can it be broughtwithin any exception?a. Dying declarationb. Declaration against

interestc. Act or declaration about

pedigreed. Family reputation or

tradition regardingpedigree [rule 130, sec.40]

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e. Common reputation [rule130, sec. 41]

f. Part of res gestae [rule130, sec. 42]

g. Entries in the course ofbusiness [rule 130, sec.43; rule 8, rules onelectronic evidence (ree)]

h. Entries in official recordsi. Commercial list and the

likej. Learned treatisesk. Testimony or deposition at

a former proceeding5. What testimony involves

opinions and how canobjections thereto be met? )

6. When is character evidenceadmissible?

7. Recalling a witness to thestand (recalling witnesses

8. Adverse party as witness(impeachment of adverseparty’s witness

9. Excluding witnesses fromcourtroom (exclusion andseparation of witnesses

10. May parol evidence be given?B. Documentary

1. What documents requireauthentication and by whom?a. Public documents [rule

132, sec. 19])b. Private documentsc. Impeachment of judicial

recordd. Alterations [rule 132, sec.

31]e. Seal [rule 132, sec. 32]f. Documents written in an

unofficial language [rule132, sec. 33]

2. Do documents comply withbest evidence rule? [rule 130,sec. 3]a. Best evidenceb. Secondary evidence

C. ObjectD. Circumstantial evidenceE. Extrajudicial admissions

1. Self-serving declarations2. Admission by silence3. Compromise4. Res inter alios acta5. Exceptions to res inter alios

actaa. Partner’s/agent’s

admission; [rule 130,

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b. Co-conspiratorsadmission; [rule 130, sec.30]

F. Electronic evidence1. What evidence is covered by

the ree? (r2,s1; r11, ss1-2,ree)

2. When and to what extentadmissible? (r3,s2, ree)

3. Evidentiary weight ofelectronic evidence (r7, ss1-2)

4. The hearsay rule and thebusiness records exception(r9, ss1-2)

Chapter VI: HOW DO I PRESENTAND OFFER THE EVIDENCE ATTRIAL?A. Order of Proof

1. Manner of Examination2. Mode of Answering3. Exceptions in General4. Record of Proceedings5. Transcript6. Rights and Obligations7. Order of Examination

B. Form of Questions1. Leading and Misleading

QuestionsC. Offer of Evidence

1. Offer of Evidence2. When to Make Offer

D. Objections1. When Repetition of Objection

is Unnecessary2. Ruling on the Objection3. Motion to Strike

E. Tender of Excluded EvidenceF. Electronic Examination of

WitnessG. Examination of a Child Witness

1. Scope and Applicability2. Child Witness3. Exclusion of the Public

During the Child'sExamination

4. Alternative Modes of GivingTestimony

5. When to Take the Child'sTestimony

6. Provisions for Ease of Child inTestifying

7. Hearsay Exception in ChildAbuse Cases

8. Sexual Abuse Shield Rule9. Other Protective Measures

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REVIEWER IN REMEDIAL LAW Chapter I: General Provisions

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EvidenceFACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

Prof. Theodore O. TeFACULTY EDITOR

ACADEMICS COMMITTEE

Samantha PoblacionDIRECTOR FOR ACADEMICS

EDITOR-IN-CHIEF

Rania JoyaDEPUTY DIRECTOR FOR ACADEMICS

LAYOUT HEAD

REMEDIAL LAW

Bryan San JuanSUBJECT EDITOR

EVIDENCE

Glaisa PoLEAD WRITER

LECTURES

Edel CruzHEAD

--------

Kae GuerreroPRINTING AND DISTRIBUTION

--------

Leo ZuluetaLOGO, COVER AND TEMPLATE DESIGN

Chapter I:General Provisions

A. DEFINITIONB. SCOPEC. CLASSIFICATIOND. ADMISSIBILITY V. RELEVANCYE. COMPETENCE

A. Definition The means, sanctioned by these rules,

of ascertaining in a judicial proceeding,the truth respecting a matter of fact.[Rule 128, Sec. 1]

B. Scope General Rule: Rules of evidence shall be

the same in all courts and in all trialsand hearings

Exception: If otherwise provided by:1) Law;2) ROC.

C. Admissibility v. Relevancy(Asked 3x)

ADMISSIBILITY – Evidence that is bothrelevant and competent. [Rule 128, Sec.3]

RELEVANCY – Evidence has such arelation to the fact in issue as to inducebelief of its existence or non-existence.[Rule 128, Sec. 4]

General rule: Evidence on collateralmatters (matters other than the factin issue and which are offered as abasis for inference as to theexistence or non-existence of thefacts in issue) is NOT allowed.

Exception: When it tends in anyreasonable degree to establish theim/probability of fact in issue.

MATERIALITY – Evidence directed toprove a fact in issue as determined bythe rules of substantive law andpleading

D. Competence Evidence not excluded by law or ROC. Exclusionary rules:

1) Constitutional:a) Unreasonable searches and

seizures; privacy ofcommunication andcorrespondence. [Art. 3, Sec 2 &3, Consti]

b) Miranda Rights; right toCounsel, prohibition on torture,force, violence, threat,intimidation or other meanswhich vitiate the free will;prohibition of secret detentionplaces, solitary, incommunicado.[Art. 3, Sec. 12, Consti]

c) No person shall be compelled tobe a witness against himself.[Art. 3, Sec. 17, Consti]

2) Statutory:a) Lack of documentary stamp tax

to documents required to haveone makes such documentinadmissible as evidence incourt until the requisite stamp/sshall have been affixed theretoand cancelled. [Sec. 201, NIRC]

b) Any communication obtained bya person, not being authorizedby all the parties to any privatecommunication, by tapping anywire/cable or using any otherdevice/arrangement to secretlyoverhear/intercept/record suchinformation by using any device,shall not be admissible inevidence in any judicial/quasi-judicial/legislative/administrative hearing orinvestigation. [Sec. 1 & 4 RA4200 (Wire-Tapping Act)]

c) Rules on Electronic Evidence[Rule 9, Sec. 1]

REVIEWER IN REMEDIAL LAW Chapter II: Which of the Facts Do Not Need Proof

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Chapter II:Which of the FactsDo Not Need Proof

A. JUDICIAL NOTICEB. JUDICIAL ADMISSIONS

A. Judicial Notice(Asked 2x)

WHEN MANDATORY [Rule 129, Sec. 1]

1) Existence and territorial extent ofstates;

2) Their political history;3) Their forms of government;4) Their symbols of nationality;5) The law of nations;6) Admiralty and maritime courts of

the world and their seals;7) Political constitution and history of

the Philippines;8) Official acts of the legislative,

executive and judicial departmentsof the Philippines

Courts cannot take judicial notice offoreign laws. [Yao-Kee v. Sy-Gonzales(1988)

General rule: Courts are not mandatedto take judicial notice of municipalordinances. [City of Manila v. Garcia(1967)]

Exception: If the charter of theconcerned city provides for such judicialnotice.

General rule: Courts cannot takejudicial notice of the contents/recordsof other cases even if both cases mayhave been tried or are pending beforethe same judge. [Prieto v. Arroyo (1965)]

Exception: The case clearly referred toor the original or part of the records ofthe case are actually withdrawn fromthe archives of that case and admittedas part of the record of the case pendingwhen: [Tabuena v. CA (1991)]a) There is no objection from adverse

party even with his knowledgethereof;

b) It is at the request or with theconsent of the parties.

9) Laws of nature;10) Measure of time;11) Geographical divisions.

WHEN DISCRETIONARY [Rule 129, Sec.2]1) Matters of public knowledge;2) Matters capable of unquestionable

demonstration;3) Matters which ought to be known to

judges because of their judicialfunctions.

WHEN HEARING IS NECESSARY [Rule129, Sec. 3]1) During the trial: The court may

announce its intention to takejudicial notice of any matter andallow the parties to be heard thereonon its own initiative or on request ofa party.

2) After the trial and before judgment oron appeal: The court may announceits intention to take judicial notice ofany matter that is decisive of amaterial issue in the case and allowthe parties to be heard thereon onits own initiative or on request of aparty.

B. Judicial Admissions

Admissions, verbal or written, made bythe party in the course of theproceedings in the same case. Itrequires no proof. [Rule 129, Sec. 4]

Judicial admission may be contradictedonly by showing that:It was made through palpable mistake;No such admission was made.

An original complaint, after beingamended, loses its character as ajudicial admission, which would haverequired no proof. It becomes merely anextra-judicial admission requiring aformal offer in order to be admissible.[Torres v. CA (1984)]

An admission which constitutes a“deliberate, clear and unequivocal”statement; made as it was in the courseof judicial proceedings, qualifies as ajudicial admission.

A party who judicially admits a factcannot later challenge that fact asjudicial admissions are a waiver ofproof; production of evidence isdispensed with. [Alfelor v. Halasan(2006]

REVIEWER IN REMEDIAL LAW Chapter III: Who Must Prove These Facts That Need to Be Proven?

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Chapter III:Who Must Prove These Facts

That Need to Be Proven?

A. BURDEN OF PROOFB. PRESUMPTIONS

A. Burden of Proof

Duty of a party to present evidence onthe facts in issue necessary to establishhis claim/defense by the amountrequired by law. [Rule 131, Sec. 1]

The test for determining where theburden of proof lies is to ask whichparty to an action/suit will fail if heoffers no evidence competent to showthe facts averred as the basis for therelief he seeks to obtain, and basedon the result of an inquiry, which partywould be successful if he offers noevidence. [Republic v. Vda. De Neri(2004)]

General rule: All facts in issue andrelevant facts must be proven byevidence.

Exception: [Republic v. Vda. De Neri(2004)]1) Allegations contained in the

complaint/answer immaterial to theissues;

2) Facts which are admitted or whichare not denied in the answer,provided they have been sufficientlyalleged;

3) Those which are the subject of anagreed statement of facts betweenthe parties, as well as thoseadmitted by the party in the courseof the proceedings in the same case;

4) Facts which are the subject ofjudicial notice;

5) Facts which are legally presumed;6) Facts peculiarly within the

knowledge of the opposite party.

B. Presumptions

CONCLUSIVE PRESUMPTIONS [Rule131, Sec. 2]

1) Whenever a party by his owndeclaration/act/omission, has ledanother to believe a particular thingto be true and act upon such belief,he cannot in any litigation arising out ofsuch declaration/act/omission bepermitted to falsify it.

2) The tenant is not permitted to denythe title of his landlord at the time of

the commencement of the relation oflandlord and tenant between them.

DISPUTABLE PRESUMPTIONS [Rule131, Sec. 3]

1) Person is innocent of a crime orwrong;

2) Unlawful act is done with anunlawful intent;

3) Person intends the ordinaryconsequences of his voluntary act;

4) Person takes ordinary care of hisconcerns;

5) Evidence willfully suppressed wouldbe adverse if produced;

6) Money paid by one to another wasdue to the latter;

7) Thing delivered by one to anotherbelonged to the latter;

8) Obligation delivered up to the debtorhas been paid;

9) Prior rents or installments had beenpaid when a receipt for the later onesis produced;

10) A person found in possession of athing taken in the doing of a recentwrongful act is the taker and doer ofthe whole act; otherwise, that thingswhich a person possesses or exercisesacts of ownership over, are owned byhim;

11) Person in possession of an order onhimself for the payment of the moneyor the delivery of anything has paidthe money or delivered the thingaccordingly;

12) Person acting in public office wasregularly appointed or elected to it;

13) Official duty has been regularlyperformed;

14) A court or judge acting as such,whether in the Philippines orelsewhere, was acting in the lawfulexercise of jurisdiction;

15) All the matters within an issueraised in a case were laid before thecourt and passed upon by it; allmatters within an issue raised in adispute submitted for arbitrationwere laid before arbitrators andpassed upon by them;

16) Private transactions have been fairand regular;

17) Ordinary course of business hasbeen followed;

18) There was a sufficient considerationfor a contract;

19) Negotiable instrument was given orindorsed for a sufficientconsideration;

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20) An indorsement of negotiableinstrument was made before theinstrument was overdue and at theplace where the instrument is dated;

21) A writing is truly dated;22) Letter duly directed and mailed was

received in the regular course of themail;

23) Presumptions concerning absence:24) Acquiescence resulted from a belief

that the thing acquiesced in wasconformable to the law/fact;

25) Things have happened according tothe ordinary course of nature andordinary nature habits of life;

26) Persons acting as copartners haveentered into a contract of co-partnership;

27) A man and woman deportingthemselves as husband and wifehave entered into a lawful contract ofmarriage;

28) Presumptions governing children ofwomen who contracted anothermarriage within 300 days aftertermination of her former marriage (inthe absence of proof to the contrary):

When Child was Born PresumptionBefore 180 days afterthe solemnization ofthe subsequentmarriage

Considered to havebeen conceived duringthe former marriage,provided it be bornwithin 300 days afterthe termination of theformer marriage

After 180 daysfollowing thecelebration of thesubsequent marriage

Considered to havebeen conceived duringthe subsequentmarriage, even thoughit be born within the300 days after thetermination of theformer marriage.

29) A thing once proved to existcontinues as long as is usual withthings of the nature;

30) The law has been obeyed;31) A printed/published book, purporting

to be printed/published by publicauthority, was so printed/published;

32) A printed/published book, purportingto contain reports of cases adjudgedin tribunals of the country where thebook is published, contains correctreports of such cases;

33) A trustee or other person whose dutyit was to convey real property to aparticular person has actuallyconveyed it to him when suchpresumption is necessary to perfect

the title of such person or hissuccessor in interest;

34) Presumptions regarding survivorship:(Applicable for all purposes exceptsuccession)

When 2 persons perish in the same calamity, 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 andthe age of the sexes:

Situation Person presumedto have survived

Both < 15 y/o The olderBoth > 60 y/o The youngerOne < 15 y/o,the other > 60 y/o

The one <15

Both > 15 and < 60 y/o,of different sexes

The male

Both > 15 and <60 y/o,of the same sex

The older

One < 15 or > 60 y/o, andthe other between thoseages

The one betweenthose ages

35) As between 2 or more persons called tosucceed each other: If there is a doubtas to which of them died first,whoever alleges the death of oneprior to the other, shall prove thesame. In the absence of proof, theyshall be considered to have died at thesame time.

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Chapter IV:What Degree of Proof Is Needed?

A. WEIGHT AND SUFFICIENCY OFEVIDENCE1. PREPONDERANCE OF EVIDENCE

(CIVIL CASES)

2. PROOF BEYOND REASONABLE DOUBT(CRIMINAL CASES)

3. SUBSTANTIAL EVIDENCE(ADMINISTRATIVE CASES)

B. QUANTUM OF EVIDENCE1. CONFESSIONS2. CIRCUMSTANTIAL EVIDENCE3. INTERPRETATION OF DOCUMENTS4. EVIDENCE ON MOTION

A. Weight and Sufficiency ofEvidence

1. PREPONDERANCE OF EVIDENCE (CIVILCASES) [Rule 133, Sec. 1]

The evidence adduced by one sideis, as a whole, superior to or hasgreater weight than that of theother.

Where the evidence presented byone side is insufficient to ascertainthe claim, there is no preponderanceof evidence. [Habagat Grill v. DMCUrban (2005)]

In determining preponderance, thecourt may consider:1) All the facts and circumstances of

the case;2) The witnesses’ manner of testifying;3) Their intelligence;4) Their means and opportunity of

knowing the facts to which theytestify;

5) The im/probability of theirtestimony;

6) Their interest or want of interest;7) Personal credibility so far as the

same may legitimately appear uponthe trial;

8) Number of witnesses (althoughpreponderance is not necessarilyequated with the number ofwitnesses).

2. PROOF BEYOND REASONABLE DOUBT(CRIMINAL CASES) [Rule 133, Sec. 2]

That degree of proof which producesconviction in an unprejudiced mind.

It does not mean such a degree of proofas, excluding the possibility of error,produces absolute certainty.

Only moral certainty is required –that degree of proof which producesconviction in an unprejudiced mind.

General rule: Findings of the judge whotried the case and heard the witnessesare not to be disturbed on appeal,unless there are substantial facts andcircumstances which have beenoverlooked and which, if properlyconsidered, might affect the result.[People v. Cabrera (1990)]

Exception: The rule does not applywhen the issue revolved on theidentification of the accused orcredibility of witness and one judgeheard the testimony and a differentjudge penned the decision. [People v.Escalante (1984); People v. CA (2000)]

Rationale: The latter judge is not in abetter position than the appellate courtsto make the determination.

The number of witnesses should not inand by itself determine the weight ofevidence. However, the numerical factormay be considered in case of conflictingtestimonies. [Caluna v. Vicente (1951)]

Inconsistencies/contradictions ondetails do not materially impair thecredibility of such witness, but on thecontrary are indications of veracityrather than prevarication. [People v.Vinas (1968)]

The doctrine of falsus in uno, falsus inomnibus is not absolute. The court mayaccept or reject portions of the witness’testimony depending on the inherentcredibility thereof or the corroborativeevidence in the case. [People v. Baao(1986)]

Insofar as the civil aspect of the case isconcerned, the prosecution or theprivate complainant is burdened toadduce preponderance of evidence orsuperior weight of evidence.

Although the evidence adduced by theplaintiff is stronger than that presentedby the defendant, he is not entitled to ajudgment if his evidence is not sufficientto sustain his cause of action.

The plaintiff must rely on the strengthof his own evidence and not upon theweakness of that of the defendants’.[Quinto v. Andres (2005)]

3. SUBSTANTIAL EVIDENCE(ADMINISTRATIVE CASES) [Rule 133,Sec. 5]

The amount of relevant evidence whicha reasonable mind might accept asadequate to support a conclusion.

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B. Quantum of Evidence

1. CONFESSIONS [Rule 130, Sec. 33; Rule115 (e); Art. 3, Sec. 17, Consti]

A categorical acknowledgment of guiltmade by an accused in a criminal casewithout any exculpatory statement orexplanation.

If the accused admits having committedthe act in question but alleges ajustification therefore, the same ismerely an admission. [US v. Tolosa]

The operative act in determiningwhether the right against self-incrimination has been violated is whenthe police investigation is:

no longer a general inquiry intoan unsolved crime

but has begun to focus on aparticular suspect who has beentaken into custody by the police

to carry out a process ofinterrogation that lends itself toeliciting incriminatory statementsand not the signing by the suspectof his supposed extrajudicialconfession. [People v. Compil (1995)]

Any confession, including a re-enactment without admonition of theright to silence and to counsel, andwithout counsel chosen by the accusedis inadmissible in evidence. [People v.Yip Wai Ming (1996)]

EXTRAJUDICIAL CONFESSIONS [Rule 133,Sec. 3] General rule: An extra-judicial

confession made by an accused, is not asufficient ground for conviction.

Exception: When corroborated byevidence of the actual commission of aparticular crime (corpus delicti).

2. CIRCUMSTANTIAL EVIDENCE [Rule 133,Sec. 4]

Requisites for circumstantial evidenceto be sufficient for conviction:1) There is more than 1 circumstance;2) The facts from which the inferences

are derived are proven;3) The combination of all the

circumstances is such as to producea conviction beyond reasonabledoubt.

Under the RPC, one cannot be convictedof treason by means of circumstantialevidence. [Art. 114, RPC]

3. INTERPRETATION OF DOCUMENTS[Rule 130]

Interpretation of a writing according tothe legal meaning it bears in theplace of execution, unless partiesintended otherwise.

Instrument construed so as to giveeffect to all provisions.

Parties’ intention is to be pursued inconstruction of instrument.

In the inconsistency betweengeneral and particular provision, thelatter prevails.

Particular intent controls generalone inconsistent with it.

The circumstances under which aninstrument was made, including thesituation of the subject thereof and ofthe parties to it, may be shown, so thatthe judge may be placed in the positionof those whose language he is tointerpret.

The terms of a writing are presumed tohave been used in their primary andgeneral acceptation, but evidence isadmissible to show that they have alocal/technical/peculiar significationand were so used and understood in theparticular instance, in which case theagreement must be construedaccordingly.

When there is inconsistency betweenwritten words and printed words, theformer controls over the latter.

Experts and interpreters to be used inexplaining writings that are difficult tobe deciphered, or where the language isnot understood by the court.

When the terms of an agreement havebeen intended in a different sense bythe different parties to it, that sense isto prevail against either party in whichhe supposed the other understood it.

And when different constructions ofa provision are otherwise equallyproper, that is to be taken which isthe most favorable to the party inwhose favor the provision is made.

Construction in favor of natural right. Interpretation according to usage to

determine instrument’s true character.

4. EVIDENCE ON MOTION [Rule 133, Sec. 7] The Court may hear the matter on

affidavits or depositions presented bythe respective parties

but the court may direct that the matterbe heard wholly or partly on oraltestimony or depositions.

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Chapter V:What Available Evidence Is

Admissible to Prove These Facts?

A. TESTIMONIAL1. WHICH WITNESSES ARE SUBJECT TO

OBJECTION FOR COMPETENCE?2. WHICH WITNESSES WILL TESTIFY ON

PRIVILEGED MATTERS AND TO WHATEXTENT DOES THE PRIVILEGECOVER?

3. WHAT TESTIMONY IS SUBJECT TO ACLAIM OF PRIVILEGE AND BY WHOM?

4. WHAT EVIDENCE IS HEARSAY ANDUPON WHAT PROPOSITION, IF IT ISHEARSAY, CAN IT BE BROUGHTWITHIN ANY EXCEPTION?

5. WHAT TESTIMONY INVOLVESOPINIONS AND HOW CANOBJECTIONS THERETO BE MET? )A. DYING DECLARATIONB. DECLARATION AGAINST INTERESTC. ACT OR DECLARATION ABOUT

PEDIGREED. FAMILY REPUTATION OR

TRADITION REGARDINGPEDIGREE [RULE 130, SEC. 40]

E. COMMON REPUTATION [RULE 130,SEC. 41]

F. PART OF RES GESTAE [RULE 130,SEC. 42]

G. ENTRIES IN THE COURSE OFBUSINESS [RULE 130, SEC. 43;RULE 8, RULES ON ELECTRONICEVIDENCE (REE)]

H. ENTRIES IN OFFICIAL RECORDSI. COMMERCIAL LIST AND THE LIKEJ. LEARNED TREATISESK. TESTIMONY OR DEPOSITION AT A

FORMER PROCEEDING6. WHEN IS CHARACTER EVIDENCE

ADMISSIBLE?7. RECALLING A WITNESS TO THE STAND

(RECALLING WITNESSES8. ADVERSE PARTY AS WITNESS

(IMPEACHMENT OF ADVERSE PARTY’SWITNESS

9. EXCLUDING WITNESSES FROMCOURTROOM (EXCLUSION ANDSEPARATION OF WITNESSES

10. MAY PAROL EVIDENCE BE GIVEN?B. DOCUMENTARY

1. WHAT DOCUMENTS REQUIREAUTHENTICATION AND BY WHOM?A. PUBLIC DOCUMENTS [RULE 132,

SEC. 19])B. PRIVATE DOCUMENTSC. IMPEACHMENT OF JUDICIAL

RECORDD. ALTERATIONS [RULE 132, SEC. 31]E. SEAL [RULE 132, SEC. 32]F. DOCUMENTS WRITTEN IN AN

UNOFFICIAL LANGUAGE [RULE132, SEC. 33]

2. DO DOCUMENTS COMPLY WITH BESTEVIDENCE RULE? [RULE 130, SEC. 3]

A. BEST EVIDENCEB. SECONDARY EVIDENCE

C. OBJECTD. CIRCUMSTANTIAL EVIDENCEE. EXTRAJUDICIAL ADMISSIONS

1. ADMISSION BY SILENCE2. COMPROMISE3. RES INTER ALIOS ACTA4. EXCEPTIONS TO RES INTER ALIOS

ACTAA. PARTNER’S/AGENT’S ADMISSION;

[RULE 130,B. CO-CONSPIRATORS ADMISSION;

[RULE 130, SEC. 30]F. ELECTRONIC EVIDENCE

1. WHAT EVIDENCE IS COVERED BY THEREE? (R2,S1; R11, SS1-2, REE)

2. WHEN AND TO WHAT EXTENTADMISSIBLE? (R3,S2, REE)

3. EVIDENTIARY WEIGHT OFELECTRONIC EVIDENCE (R7, SS1-2)

4. THE HEARSAY RULE AND THEBUSINESS RECORDS EXCEPTION (R9,SS1-2)

A. Testimonial

1. WHICH WITNESSES ARE SUBJECT TOOBJECTION FOR COMPETENCE?

All persons who can perceive, and,perceiving, can make their knownperception to others, may be witnesses.

Religious/political belief, interest in theoutcome of the case, or conviction of acrime unless otherwise provided by law,shall not be ground for disqualification.[Rule 130, Sec. 20]

2. WHICH WITNESSES WILL TESTIFY ONPRIVILEGED MATTERS AND TO WHATEXTENT DOES THE PRIVILEGE COVER?(Asked 5x)

a. Disqualification by reason of mentalincapacity or immaturity [Rule 130, Sec.21]

A mental retardate is not for this reasonalone disqualified from being a witness.[People v. Salomon (1993)]

Every child is presumed qualified to bea witness.

However, the court shall conduct acompetency examination of a child,motu propio or on motion of a party,when it finds that substantial doubtexists regarding the ability of the childto perceive, remember, communicate,distinguish truth from falsehood, orappreciate the duty to tell the truth incourt. [Sec. 6, AM 00-4-07-SC (ChildWitness Rule)]


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Requisites of competency of a child aswitness: [People vs. Mendoza (1996)]1) Capacity of observation;2) Capacity of recollection;3) Capacity of communication.

b. Disqualification by reason of marriage[Rule 130, Sec. 22]

General rule: During their marriage,neither the husband nor the wife maytestify for or against the other withoutthe consent of the affected spouse.

Exception:a) In a civil case by one against the

other;b) In a criminal case for a crime

committed by one against the otheror the latter's directdescendants/ascendants.

Purpose: Privilege to prevent testimonyby other spouse based on an aversion touse judicial compulsion in a litigation toplace spouses in an opposing posturethat may weaken or destroy theirmarriage. [People v. Francisco]

This privilege is also given to a spouseto prevent the other from testifying inhis favor. [People v. Franciso]

c. Disqualification by reason of death orinsanity of adverse party [Rule 130, Sec.23]

“Dead Man’s Statute” or “SurvivorshipRule”

General rule:a. Parties or assignors of parties to a

case, or personsb. in whose behalf a case is

prosecuted,c. against an executor/administrator

or other representative of a deceasedperson, or against a person ofunsound mind,

d. upon a claim/demand against theestate of such deceased person oragainst such person of unsoundmind,

e. cannot testify as to any matter offact

f. occurring before the death of suchdeceased person or before suchperson became of unsound mind.

Exception:

The survivor may testify against theestate of the deceased where thelatter was guilty of fraud whichfraud was established by evidenceother than the testimony of thesurvivor. [Ong Chua v. Carr]

He may also testify where he wasthe one sued by the decedent’sestate since the action then is notagainst the estate. [Tongco v.Vianzon]

He may likewise testify where theestate had filed a counterclaimagainst him or where the estatecross-examined him as to mattersoccurring during the lifetime of thedeceased. [Goñi v. CA]

Purpose: To guard against thetemptation to give false testimony onthe part of the surviving party and toput the parties to the suit upon terms ofequality in regard to opportunity toproduce evidence.

d. Disqualification by reason of privilegedcommunication

1) Marital privilege; [Rule 130, Sec.24(a)]

Purpose: Privilege for confidentialcommunications justified on theground that it promotes maritalharmony.

General rule: Husband or the wife,during or after the marriage, cannotbe examined without the consent ofthe other as to any communicationreceived in confidence by one fromthe other during the marriage

Exception:a) In a civil case by one against the

other;b) In a criminal case for a crime

committed by one against theother or the latter's directdescendants/ascendants.

A widow of a victim allegedlymurdered may testify as to herhusband’s dying declaration as tohow he died the since the same wasnot intended to be confidential. [USv. Antipolo]

Marital disqualification[Rule 130, Sec. 22]

Marital privilege [Rule130, Sec. 24]

Broader since it preventsall adverse testimonybetween spouses and notmerely disclosure ofconfidentialcommunications and mayeven cover mattersoccurring prior to themarriage

Limited to those madeduring the course ofthe marriage

One spouse should be aparty to the case

Where neither spouseis a party, this is thedisqualifying rule


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2) Attorney-client privilege; [Rule 130,Sec. 24(b)]

General rule: The attorney-clientprivilege may not be invoked torefuse to divulge the identity of theclient.

Exception: [Regala v.Sandiganbayan (1996)]a) When a strong probability exists

that revealing the name wouldimplicate that person in the verysame activity for which hesought the lawyer’s advice;

b) When disclosure would open theclient to liability;

c) When the name would furnishthe only link that would form thechain of testimony necessary toconvict.

3) Physician-patient privilege; [Rule130, Sec. 24(c)]

Covers any advice or treatmentgiven by a physician or anyinformation which he may haveacquired in attending such patientin a professional capacity, whichinformation was necessary to enablehim to act in capacity, and whichwould blacken the reputation of thepatient.

The privilege belongs to the patient,not the physician so that the lattercannot claim it if the patientabandons it. [Bautista]

This does not apply when the doctoris presented as an expert witnessand only hypothetical problems werepresented to him. [Lim v. CA (1992)]

4) Priest-penitent privilege; [Rule 130,Sec. 24(d)]

Covers any confession made to orany advice given by a priest orminister

in his professional character in the course of discipline enjoined

by the church to which he belongs.

5) Public officer privilege; [Rule 130,Sec. 24(e)]

A public officer cannot be examinedduring his term of office orafterwards,

as to communications made to himin official confidence,

when the court finds that the publicinterest would suffer by thedisclosure.

3. WHAT TESTIMONY IS SUBJECT TO ACLAIM OF PRIVILEGE AND BY WHOM?(R130, s25)

Parental and filial privilege. [Rule 130,Sec. 25]

A person cannot be compelled totestify against his parents, otherdirect ascendants, children or otherdirect descendants.

4. WHAT EVIDENCE IS HEARSAY ANDUPON WHAT PROPOSITION, IF IT ISHEARSAY, CAN IT BE BROUGHTWITHIN ANY EXCEPTION? (R130,SS36-47) (Asked 2x)

HEARSAY - Any evidence the probativevalue of which is not based on thepersonal knowledge of the witness buton the knowledge of some other personnot on the witness stand.

Rationale: The party against whomsuch hearsay evidence is presented isdeprived of his right and opportunity tocross-examine the persons to whom thestatements or writings are attributed.

General rule: A witness can testify onlyas to those facts which he knows of hispersonal knowledge. PERSONAL KNOWLEDGE – Those

derived from his own perception. Witnesses can testify only with regard

to facts of which they have personalknowledge.

The testimony of a witness regarding astatement made by another person, ifintended to establish the truth of thefacts asserted in the statement isclearly hearsay evidence.

It is otherwise if the purpose is merelyto establish the fact that thestatement was made, or the tenor ofsuch statement. [People v. Cusi(1965)]

The testimony of a witness on theconfession made to him by theaccused is not hearsay.

He is testifying to a fact which heknows of his personal knowledge (wastestifying to the fact that the accusedtold him that he stabbed the victim)and not to the truth of the statementof the accused. [People v. Gaddi(1989)]

Newspaper clippings or factspublished in the newspapers arehearsay and have no evidentiary valueunless substantiated by persons withpersonal knowledge of said facts.[People v. Aguel (1980)]


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Doctrine of Independently RelevantStatements

Statements or writings attributed to aperson who is not on the witness standare being offered NOT to prove the truthof the facts stated therein but only toprove that such were actually made.

It is not covered by the hearsay rule.[People v. Cusi] (1965)

Independent of WON the facts statedare true, they are relevant since theyare the facts in issue or arecircumstantial evidence of the facts inissue.

WON the statement made is true isimmaterial. What is sought to be provedis the fact that such statement wasmade.

Exceptions: (Asked 7x)

a. Dying Declaration [Rule 130, Sec. 37] “Antemortem statement” or

“statement in articulo mortis”.

Requisites: [People v. Macandog(2001)]1) Declaration was made under

the consciousness of animpending death;

2) Declaration refers to causeand surroundingcircumstances of suchdeath;

3) Declaration refers to factsthe person is competent totestify to;

4) Declaration is offered in anycase wherein his death isthe subject of inquiry.

However, the law does not requirethe declarant to state explicitly aperception of the inevitability ofdeath.

The foreboding may be gleaned fromsurrounding circumstances, such asthe nature of the declarant’s injuryand conduct that would justify aconclusion that there wasconsciousness of impending death.[People v. Latayada (2004)]

The intervening time from themaking of the declaration up to theactual death of the declarant isimmaterial as long as thedeclaration was made under theconsciousness of an impendingdeath. [US v. Mallari]

b. Declaration against interest [Rule 130,Sec. 38] Made by a person deceased, or

unable to testify, against theinterest of the declarant.

INABILITY TO TESTIFY – Theperson is dead, mentallyincapacitated or physicallyincompetent. Mere absence fromthe jurisdiction does not makehim ipso facto unavailable.[Fuentes vs. CA (1996)]

Subject of declaration/act: Thefact asserted was at the time it wasmade so far contrary todeclarant's own interest that areasonable man in his positionwould not have made thedeclaration unless he believed it tobe true.

The declaration should be againsthimself or his successors in interestand against 3rd persons.

c. Act or declaration about pedigree [Rule130, Sec. 39] Relationship, family genealogy,

birth, marriage, death, the dateswhen and the places where thesefast occurred, and the names of therelatives.

It also embraces facts of familyhistory intimately connected withpedigree.

The rules do not require any specificdegree of relationship but the weightto which such act/declaration isentitled may be affected by thedegree of relationship.

The requirement that there be otherproof than the declarations of thedeclarant as to the relationship doesnot apply where it is sought to reachthe estate of the declarant himselfand not merely to establish a rightthrough his declarations to theproperty or some member of thefamily. [Tison v. CA]

Requisites for admissibility:[Mendoza v. CA (1991)]1) The declarant is dead or unable

to testify.2) The pedigree must be in issue.3) The declarant must be a relative

of the person whose pedigree isin issue.

4) The declaration must be madebefore the controversy arose.

5) The relationship between the


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declarant and the person whosepedigree is in question must beshown by evidence other thansuch declaration.

d. Family reputation or tradition regardingpedigree [Rule 130, Sec. 40] The exception refers to

reputations/traditions existing in afamily previous to the controversy,in respect to the pedigree of any oneof its members.

It may be received in evidence if thewitness testifying thereon be also amember of the family, either byconsanguinity or affinity.

Documentary evidence allowedunder the exception: Entries infamily bibles or other family books,charts, engravings on rings, familyportraits and the like.

This enumeration, by ejusdemgeneris, is limited to objects whichare commonly known as "familypossessions," or those articles whichrepresent, in effect, a family's jointstatement of its belief as to thepedigree of a person.

These have been described asobjects "openly exhibited and wellknown to the family," or those"which, if preserved in a family, maybe regarded as giving a familytradition." [Jison v. CA (98)]

A person’s statement as to his dateof birth and age, as he learned ofthese from his parents or relatives,is an ante litem motam declarationof a family tradition. [Gravador v.Mamigo (1967)]

Such statement (as to his age)prevails over the mere opinion ofthe trial judge. [US v. Agadas (36PHIL 246)]

However, such statement (as toage) cannot generally prevailover the secondary statement ofhis father. [US v. Evangelista]

e. Common reputation [Rule 130, Sec. 41] Admissible evidences under this

exception:1) Common reputation existing

previous to the controversy,respecting facts of public orgeneral interest more than 30years old, or respecting marriageor moral character; COMMON REPUTATION –

The general or substantially

undivided reputationalthough it need not beunanimous. It is the definiteopinion of the community inwhich the fact to be proved isknown or exists.

CHARACTER – The inherentqualities of a person.

REPUTATION - The opinionof a person by others.

2) Monuments and inscriptions inpublic places as evidence ofcommon reputation.

f. Part of res gestae [Rule 130, Sec. 42] Statements admissible as part of the

res gestae:1) Statements made by a person

while a starting occurrence istaking place or immediately prioror subsequent thereto, withrespect to the circumstancesthereof.

2) Statements accompanying anequivocal act material to theissue, and giving it a legalsignificance.

A dying declaration can be madeonly by the victim after the attackwhile a statement as part of the resgestae may be that of the killerhimself after or during the killing.[People v. Reyes]

Where the elements of both arepresent, the statement may beadmitted both as a dying declarationand as part of the res gestae. [Peoplev. Balbas (1983)]

Notes taken regarding a transactionby a person who is not a partythereto and who has not beenrequested to take down such notesare not part of the res gestae.[Borromeo v. CA (1976)]

g. Entries in the course of business [Rule130, Sec. 43; Rule 8, Rules on ElectronicEvidence (REE)] The entry must have been made at

or near the time of transactions towhich they refer.

The entry should have been madeby a person deceased, or unable totestify, who was in a position toknow the facts therein stated.

Such entry is treated as prima facieevidence, if the person who madethe entries did so in his professionalcapacity or in the performance ofduty and in the ordinary or regular


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course of business/duty. If the entrant is available as a

witness, the entries will not beadmitted as an exception to thehearsay rule but they maynevertheless be availed of by saidentrant as a memorandum torefresh his memory while testifyingon the transactions reflectedtherein. [Cang Yui v. Gardner]

h. Entries in official records The entries must be made at or near

the time of transactions to whichthey refer, and by a persondeceased, or unable to testify, whowas in a position to know the factstherein stated.

The entrant must have personalknowledge of the facts stated by himor such facts acquired by him fromreports made by persons under alegal duty to submit the same.[Salmon, Dexter & Co. v. Wijangco]

Such record is prima facie evidence,if the person made the entries in hisprofessional capacity or in theperformance of duty and in theordinary or regular course ofbusiness or duty

The report submitted by a policeofficer in the performance of hisduties on the basis of his ownpersonal observation of the factsreported, may properly beconstituted as an exception. [Caltexv. Africa (1966)]

Entries in a police blotter are notconclusive proof of the truth of suchentries. [People vs. Cabuang (1993)]

Baptismal certificates or parochialrecords of baptism are not officialrecords. [Fortus v. Novero (1968)]

i. Commercial list and the like

Requisites:b) Such statements are contained

in a listc) The compilation is published for

use by persons engaged in thatoccupation

d) It is generally used and reliedupon by them

j. Learned treatises

Requisites:1) on a subject of

history/law/science/art2) court takes judicial notice of it

or3) a witness expert in the subject

testifies that the writer of thestatement in thetreatise/periodical/pamphlet isrecognized in hisprofession/calling as expert inthe subject.

k. Testimony or deposition at a formerproceeding The prior testimony must have been

made by a witness deceased orunable to testify, in a formercase/proceeding (judicial oradministrative) involving the sameparties and subject matter. UNABLE TO TESTIFY – An

inability proceeding from agrave cause almost amountingto death as when the witness isold and has lost the power ofspeech. [Tan v. CA (1967)]

The prior testimony may be given inevidence against the adverse partywho had the opportunity to cross-examine the witness.

Child Rule as a Special Exception[Sec. 28, AM 00-4-07-SC]

1) Hearsay testimony of a childdescribing any act or attempted actof sexual abuse may now beadmitted in any criminal proceedingsubject to certain prerequisites andthe adverse party’s right to cross-examine.

2) The admissibility of such hearsaystatements shall be determined bythe court in light of specifiedsubjective and objectiveconsiderations which providesufficient indicia or reliability of thechild witness.

5. WHAT TESTIMONY INVOLVESOPINIONS AND HOW CAN OBJECTIONSTHERETO BE MET? (OPINION RULE)

General rule: The opinion of a witnessis not admissible. [Rule 130, Sec. 48]

Exception:a) Expert witness: On a matter

requiring specialknowledge/skill/experience/training which he shown to possess.[Rule 130, Sec. 49]

There is no precise requirementas to the mode in whichskill/experience shall have beenacquired.


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Scientific study and training arenot always essential to thecompetency of a witness as anexpert.

Knowledge acquired by doing isno less valuable than thatacquired by study. [Dilag Co. v.Merced (1949)]

Polygraph test has not as yetattained scientific acceptance asa reliable and accurate means ofascertaining truth or deception.[People vs. Adoviso (1999)]

b) Ordinary witness: If proper basis isgiven, and regarding: [Rule 130, Sec.50]

Identity of a person about whomhe has adequate knowledge;

Handwriting with which he hassufficient familiarity;

Mental sanity of a person withwhom he is sufficientlyacquainted;

Impressions of theemotion/behavior/condition/appearance of a person.

6. WHEN IS CHARACTER EVIDENCEADMISSIBLE? (CHARACTER [Rule 130,Sec. 51; Rule 132, Sec. 14])

General rule: Character evidence is notadmissible.

Exception:1) In criminal cases:

a) Accused – May prove his goodmoral character which ispertinent to the moral traitinvolved in the offense charged.

b) Prosecution – May not prove thebad moral character of theaccused, except in rebuttal.

c) Offended Party – His/her good orbad moral character may beproved if it tends to establish inany reasonable degree theim/probability of the offensecharged.

2) In civil cases:

Moral character is admissibleonly when pertinent to the issueof character involved in the case.[Rule 130, Sec. 51]

Evidence of the witness’ goodcharacter is not admissible untilsuch character has beenimpeached. [Rule 130, Sec. 14]

While evidence of another crimeis, as a rule, not admissible, it isadmissible when it is otherwise

relevant, as when it tends toidentify defendant as theperpetrator and tends to show ispresence at the scene of thecrime or in the vicinity of thecrime at the time charged, orwhen it is evidence of acircumstance connected with thecrime. [People vs. Irang (1937)]

7. RECALLING A WITNESS TO THE STAND(RECALLING WITNESSES [RULE 132,SEC. 9])

After both sides have concluded theexamination of a witness, he cannot berecalled without leave of court.

Examples of grounds for recalling awitness: [People v. Rivera (1991)]Particularly identified material points

were not covered in the cross-examination;

Particularly described vital documentswere not presented to the witness;

The cross-examination was conductedin so inept a manner as to result in avirtual absence thereof.

8. ADVERSE PARTY AS WITNESS(IMPEACHMENT OF ADVERSE PARTY’SWITNESS [RULE 132, SEC. 11])

How done:1) By contradictory evidence;2) By evidence that his general

reputation for truth, honesty orintegrity is bad;

3) By evidence that he has made atother times statements inconsistentwith his present testimony.

Evidence of particular wrongful acts isnot allowed except that it may be shownby the examination of the witness, orthe record of the judgment, that he hasbeen convicted of an offense.

IMPEACHMENT OF OWN WITNESS[Rule 132, Sec. 12]

General rule: The party producing awitness is not allowed to impeach thelatter’s credibility.

Exception:1) Unwilling or hostile witness.

Impeachment may be made bythe party presenting the hostileor unwilling witness in allrespects as if he had been calledby the adverse party, except byevidence of bad character.

He may also be impeached and


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cross-examined by the adverseparty, but such cross-examination must only be on thesubject matter of hisexamination-in-chief.

2) Witness is an adverse party or anofficer/director or managing agent ofa public/private corporation or of apartnership/association which is anadverse party.

9. EXCLUDING WITNESSES FROMCOURTROOM (EXCLUSION ANDSEPARATION OF WITNESSES [RULE132, SEC. 15])

The judge may exclude from the courtany witness who is not underexamination at that time so that he maynot hear the testimony of otherwitnesses.

The judge may also have the witnessesseparated and prevented fromconversing with each other until allhave been examined.

If a witness remains present in thehearing despite the court’s order that allother witnesses leave the court room,the discretion to admit/reject thetestimony of such witness will lie withinthe court’s discretion. [People v. Sandal]

10. MAY PAROL EVIDENCE BE GIVEN?

Any evidence aliunde, whether oral orwritten, which is intended or tends tovary or contradict a complete andenforceable agreement embodied in adocument.

General rule:

When the terms of an agreement(including wills) have been reducedto writing,

it is considered as containing all theterms agreed upon and there canbe, between the parties and theirsuccessors in interest,

no evidence of such terms otherthan the contents of the writtenagreement.

Exception: A party may presentevidence to modify, explain or add tothe terms of written agreement if heputs in issue in his pleading:a) An intrinsic ambiguity, mistake or

imperfection in the writtenagreement;

Mistake here refers to a mistakeof fact mutual to the parties orwhere the innocent party was

imposed upon by unfair dealingof the other.

Imperfection includes aninaccurate statement in theagreement or incompleteness inthe writing or the presence ofinconsistent provisions therein.

b) The failure of the written agreementto express the true intent andagreement of the parties thereto;

c) The validity of the writtenagreement;

d) The existence of other terms agreedto by the parties or their successorsin interest after the execution of thewritten agreement.

It does not apply either when 3rdparties are involved. [Lechugas v. CA(1986)]

Parol Evidence Rule Best Evidence RulePresupposes that theoriginal document isavailable in court

Contemplates thesituation wherein theoriginal writing is notavailable 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 WON itvaries the contents ofthe original

Applies only todocuments contractualin nature (Exception:wills)

Applies to all kinds ofdocuments

Can be invoked onlywhen the controversyis between the partiesto the writtenagreement, their priviesor any party directlyaffected thereby

Can be invoked by anyparty to an actionregardless of WONsuch partyparticipated in thewriting involved

B. Documentary

1. WHAT DOCUMENTS REQUIREAUTHENTICATION AND BY WHOM?

a. PUBLIC DOCUMENTS [Rule 132, Sec.19]) Public documents generally include

notarial documents and are admissible in evidence without

the necessity of preliminary proof asto its authenticity and dueexecution. [Antillon v. Barcellon]1) Written official acts of the

sovereign authority, official


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bodies and tribunals, and publicofficers, whether of thePhilippines or of a foreigncountry.

2) Records of official acts of thesovereign authority, officialbodies and tribunals, and publicofficers, whether of thePhilippines or of a foreigncountry.

How to prove public records [Rule132, Sec. 24]

1) By an official publication thereof;2) By a copy attested by the officer

having the legal custody of therecord, or by his deputy, andaccompanied:

If the record is not kept in thePhilippines, with a certificatethat such officer has thecustody.

If the record is in a foreigncountry, the certificate may bemade by a secretary of theembassy/legation, consul-general, consul, vice-consul,consular agent or any officer inthe foreign service of thePhilippines stationed in theforeign country in which therecord is kept, andauthenticated by the seal of hisoffice.

Translations of foreignjudgments must be made by anofficial court interpreter of thePhilippines or foreigngovernments or by a competentand accurate translator. [PacificAsia Shipping v. NLRC, (1988)]

How to prove notarial documents(except last wills and testaments)[RULE 132, SEC. 30] The document may be presented

in evidence without furtherproof, the certificate ofacknowledgment being primafacie evidence of the execution ofthe instrument or documentinvolved.

Such notarized documents areevidence, even against 3rdpersons, of the facts which gaverise to their execution and of thedate of execution. [Rule 132, Sec.23]

How to prove Public Records (kept inthe Philippines) of PrivateDocuments required by law to beentered therein [Rule 132, Sec. 27]

By the original record, or a copythereof, attested by the legalcustodian of the record, with anappropriate certificate that suchofficer has the custody.

Such records are evidence, evenagainst 3rd persons, of the factswhich gave rise to theirexecution and of the date ofexecution. [Rule 132, Sec. 23]

Only baptismal certificatesissued by the priests during theSpanish regime are consideredpublic documents. [Adriano v. DeJesus]o While the birth certificate is

primary evidence of avictim’s age in a case ofstatutory rape, in theabsence of such evidence,

o the victim’s minority may beproved by otherdocumentary evidence suchas her baptismal certificateor other authentic records.[People v. Llandelar (2001)]

Contents of attestation [Rule 132,Sec. 25]

The attestation must state thatthe copy is a correct copy of theoriginal or a specific partthereof, as the case may be.

The attestation must be underthe official seal of the attestingofficer, if there be any, or if he bethe clerk of a court having aseal, under the seal of suchcourt.

A mere copy of the foreign publicdocument, without theattestation and the certificate, isnot admissible in evidence toprove foreign law. [WildvalleyShipping v. CA (2000)]

Irremovability of record [Rule 132,Sec. 26]

Any public record, an official copy ofwhich is admissible in evidence,must not be removed from the officein which it is kept,

except upon order of a court wherethe inspection of the record isessential to the just determinationof a pending case.


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Probative value [Rule 132, Sec. 23]

Documents consisting of entries inpublic records made in theperformance of duty by a publicofficer are prima facie evidence ofthe facts therein stated.

Proof of lack of record [Rule 132,Sec. 28] A written statement signed by

an officer having the custody ofan official record or by hisdeputy

that after diligent search, norecord or entry of a specifiedtenor is found to exist in therecords of his office,

accompanied by a certificatethat such officer has thecustody, is admissible to provethat the records of his officecontain no such record or entry.

b. PRIVATE DOCUMENTS ; How to prove if document is offered

as authentic [RULE 132, SEC. 20]

Its due execution andauthenticity must be provedeither:o By anyone who saw the

document executed/written;o By evidence of the

genuineness of thesignature/handwriting of themaker.

Any other private documentneed only be identified as thatwhich it is claimed to be.

AUTHENTIC DOCUMENT RULE– If all the following requisiteshave been met, no otherevidence of its authenticity isrequired: [Rule 132, Sec. 21]o The private document is

more than 30 years old;o It is produced from a custody

in which it would naturallybe found if genuine;

o It is unblemished by anyalterations or circumstancesof suspicion.

Proving genuineness of handwriting[Rule 132, Sec. 22]

It may be proved by any witnesswho believes it to be thehandwriting of such personbecause:

a) He has seen the person write;b) He has seen writing purporting

to be his upon which the witnesshas acted or been charged, andhas thus acquired knowledge ofthe handwriting of such person.

This constitutes an exception tothe opinion rule. [Rule 130, Sec.48 and 50]o Evidence respecting the

handwriting may also begiven by a comparison madeby the witness or the court,

o with writings admitted ortreated as genuine by theparty against whom theevidence is offered, or provedto be genuine to thesatisfaction of the judge.

Rule 132, Sec. 22 merelyenumerates the methods ofproving handwriting, but doesnot give preference or priority toa particular method. [Lopez v.CA (1978)]

Expert evidence may also beadmitted to prove thegenuineness of the handwriting.[Rule 130, Sec. 49]

How to prove if document is offeredas authentic [Rule 132, sec. 20]

The document need only beidentified as that which it isclaimed to be.

c. IMPEACHMENT OF JUDICIAL RECORD[Rule 132, Sec. 29] Impeachment is done using

evidence of:1) Want of jurisdiction in the court

or judicial officer;2) Collusion between the parties;3) Fraud in the party offering the

record, in respect to theproceedings.

d. ALTERATIONS [Rule 132, Sec. 31] The party producing a document as

genuine, which has been alteredand appears to have been alteredafter its execution, in a part materialto the question in dispute, mustaccount for the alteration.

Failure to do so would result in theinadmissibility of evidence.

Such party may show that thealteration was made:1) By another;2) Without his concurrence;3) With the consent of the parties

affected by it;


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4) Properly or innocently made;5) Without changing the meaning

or language of the instrument.

e. SEAL [Rule 132, Sec. 32] There shall be no difference between

sealed and unsealed privatedocuments insofar as theiradmissibility as evidence isconcerned.

f. DOCUMENTS WRITTEN IN ANUNOFFICIAL LANGUAGE [Rule 132,Sec. 33] These documents are not admissible

unless accompanied by a translationinto English or Filipino.

Parties or their attorneys aredirected to have the translationprepared before trial.

2. DO DOCUMENTS COMPLY WITH BESTEVIDENCE RULE? [Rule 130, Sec. 3]

a. Best Evidence (Asked 2x) General rule: When the subject of

inquiry is the contents of adocument, no evidence shall beadmissible other than the originaldocument itself.

Exception:a) When the original has been lost

or destroyed, or cannot beproduced in court, without badfaith on the offeror’s part;

b) When the original is in custodyor under control of party againstwhom evidence is offered, andlatter fails to produce it afterreasonable notice;

c) When the original consists ofnumerous accounts or otherdocuments which cannot beexamined in court without greatloss of time, and the fact soughtto be established from them isonly the general result of thewhole;

d) When the original is a publicrecord in the custody of a publicofficer or is recorded in a publicoffice.

Original of a document [Rule 130,Sec. 4]a) One the contents of which are

the subject of inquiry.b) When a document is in 2 or

more copies executed at or aboutthe same time, with identicalcontents, all such copies are

equally regarded as originals.c) When an entry is repeated in the

regular course of business, onebeing copied from anotherat/near the time of thetransaction, all the entries arelikewise equally regarded asoriginals.

Affidavits and depositions areconsidered not the best evidence,hence not admissible if theaffiants/deponents are available aswitnesses. [Regalado]

Carbon copies are deemed duplicateoriginals. [People vs. Tan (1959)]

The BER does not apply when theissue is only as to WON suchdocument was actually executed orin the circumstances relevant to itsexecution. [People v. Tandoy (1990)]

b. Secondary Evidence Original document is unavailable

(lost, destroyed or cannot beproduced in court);

The offeror, upon proof of itsexecution/existence and causeof its unavailability, without badfaith on his part, may prove itscontents by (in order): [Rule 130,Sec. 5]1) A copy;2) A recital of its contents in

some authentic document;3) The testimony of witnesses.

Original document is in adverseparty’s custody/control. [Rule 130,Sec. 6]

If after reasonable notice is givento the adverse party

to produce the document andafter satisfactory proof of theexistence of the document ismade, he fails to produce thedocument,

secondary evidence may bepresented.

Original document is a publicrecord. [Rule 130, Sec. 7]

Its contents may be proved by acertified copy issued by thepublic officer in custody thereof.

The offeror of secondary evidence isburdened to prove: [Lee v. People(2004)]1) The loss or destruction of the

original without bad faith on thepart of the proponent/offerorwhich can be shown bycircumstantial evidence of


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routine practices of destructionof documents;

2) The proponent must prove by afair preponderance of evidenceas to raise a reasonableinference of the loss ordestruction of the original copy;

3) It must be shown that a diligentand bona fide but unsuccessfulsearch has been made for thedocument in the proper place orplaces.

4) If the document is one in whichother persons are alsointerested, and which has beenplaced in the hands of acustodian for safekeeping, thecustodian must be required tomake a search and thefruitlessness of such searchmust be shown, beforesecondary evidence can beadmitted.

Where the original is in the custodyof the adverse party, it is notnecessary that it be in the actualpossession of the adverse party. Itis enough that the circumstancesshow that the writing is in hispossession or under his control.[Villa Rey Transit v. Ferrer (1968)]

The voluminous character of thedocument must be establishedbefore evidence other than theoriginal may be introduced.[Maritima v. Allied Free Workers(1977)]

When the original is outside thejurisdiction of the court, as when itis in a foreign country, secondaryevidence is admissible. [PNB v. Olila]

A party who calls for the productionof a document and inspects it is notobliged to offer it as evidence. [Rule130, Sec. 8]

C. Object

Those addressed to the senses of thecourt. [Rule 130, Sec. 1]

Includes the anatomy of a person or ofany substance taken therefrom. [US v.Tan Teng]

General rule: When object is relevant tothe fact in issue, it may be exhibited to,examined or viewed by the court. [Rule130, Sec. 1]

Exception: Court may refuse exhibitionof object evidence and rely ontestimonial alone if:

1) Its exhibition is contrary to publicpolicy, morals or decency;

2) It would result in delays,inconvenience, unnecessaryexpenses, out of proportion to theevidentiary value of such object;[People v. Tavera]

3) The evidence would be confusing ormisleading. [People v. Saavedra]

D. Circumstantial Evidence [Rule 133,Sec. 4]

Requisites for circumstantial evidenceto be sufficient for conviction:1) There is more than 1 circumstance;2) The facts from which the inferences

are derived are proven;3) The combination of all the

circumstances is such as to producea conviction beyond reasonabledoubt.

Under the RPC, one cannot be convictedof treason by means of circumstantialevidence. [Art. 114, RPC]

E. Extrajudicial Admissions

Any statement of fact made by a partyagainst his interest or unfavorable tothe conclusion for which he contends oris inconsistent with the facts alleged byhim.

Types:1) Verbal or written;2) Express or tacit;3) JUDICIAL – One made in connection

with a judicial proceeding in whichit is offered;EXTRAJUDICIAL – Any admissionother than judicial (e.g. Rule 130,Sec 26 and 32).

General rule: Any act/declaration/omission of a party as to a relevant factmay be given in evidence against him.[Rule 130, Sec. 26]

Admission ConfessionMerely a statement offact

Involves anacknowledgement ofguilt/liability

Maybe express or tacit

Flight from justice isan admission byconduct andcircumstantialevidence ofconsciousness of guilt.[US v. Sarikala]

Must be express

The silence of anaccused under custodyor his failure to denystatements by anotherimplicating him in acrime cannot beconsidered as a tacit


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confession of hisparticipation in thecommission of thecrime. [People v. Alegre(1979)]

Maybe made by 3rdparties, and in certaincases, admissibleagainst a party

Can be made only bythe party himself andare admissible againsthis co-accused in someinstances

Admission Self-serving testimonyMade against theinterest of the personwho admitted

Made in favor of theinterest of the personmaking the statementMade in anticipation offuture litigation

Admissible in evidenceAdmissible not onlyagainst the party whomade it or hissuccessors-in-interest, but alsoagainst 3rd persons.[Viacrucis v. CA (1986)]

Not admissible inevidence

1. SELF-SERVING DECLARATIONS

Requisites1) The statement was made extra-

judicially;2) The statement is in favor of the

declarant’s interest;3) The statement was made in

anticipation of future litigation

2. ADMISSION BY SILENCE [Rule 130, Sec.32]

An act/declaration made in thepresence and within thehearing/observation of a party

who does/says nothing when the act/declaration is such as

naturally to call for action/comment ifnot true,

and when proper and possible for himto do so, may be given in evidenceagainst him.

The rule does not apply if thestatements adverse to the party weremade in the course of an officialinvestigation. [US v. De la Cruz]

3. COMPROMISE [Rule 130, Sec. 27 Civil cases – An offer of compromise is

not an admission of any liability, and isnot admissible against the offeror.

Criminal cases – An offer of compromiseby the accused may be received inevidence as an implied admission ofguilt.

Exception:

In cases involving quasi-offenses(criminal negligence);

Those allowed by law to becompromised.

An offer to pay or the payment ofmedical, hospital or other expensesoccasioned by an injury is notadmissible in evidence as proof ofcivil/criminal liability for the injury.

A plea of guilty later withdrawn, or anunaccepted offer of a plea of guilty tolesser offense, is not admissible inevidence against the accused who madethe plea/offer.

In cases of public crimes,

the accused is permitted to showthat the offer was not made under aconsciousness of guilt

but merely to avoid theinconvenience of imprisonment offor some other reason

which would justify a claim by theaccused that the offer was not intruth an admission of his guilt or anattempt to avoid the legalconsequences which wouldordinarily ensue therefrom. [Peoplevs. Godoy (1995)]

A plea of forgiveness may be consideredas analogous to an attempt tocompromise. [People vs. De Guzman(1996)]

An offer to compromise does not requirethat a criminal complaint be first filedbefore the offer can be received asevidence against the offeror. [People vs.Yparriguirre (1997)]

4. RES INTER ALIOS ACTA [Rule 130, Sec.28]

The rights of a party cannot beprejudiced by anact/declaration/omission of another.(1st branch of the res inter alios actarule)

Only the admissions of a party-litigantare admissible as substantive evidence.Those of non-party witnesses may beadmitted for impeachment purposesonly.

Extra-judicial statements of an accusedimplicating a co-accused may not beutilized against the latter.

Exception: [People v. Raquel (1996)]a) The co-accused impliedly acquiesced

in or adopted the confession by notquestioning its truthfulness;

b) The accused persons voluntarilyand independently executedidentical confessions without


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collusion and without contradictionby the others present;

c) The accused admitted the facts afterbeing apprised of the confession;

d) If they are charged as co-conspirators of the crime which wasconfessed by 1 of the accused andthe confession is used only as acorroborating evidence;

e) The confession is used ascircumstantial evidence to show theprobability of participation by theco-conspirator;

f) The confessant testified for his co-defendant;

g) The co-conspirator’s extra-judicialconfession is corroborated by otherevidence on record.

5. EXCEPTIONS TO RES INTER ALIOSACTA

a) Partner’s/agent’s admission; [Rule 130,Sec. 29]

Requisites:a) The act/declaration must be

within the scope of the authorityof the partner/agent.

b) The act/declaration must havebeen made during the existenceof the partnership/agency.

c) The partnership or agency mustbe shown by evidence other thanthe act or declaration.

This rule applies to theact/declaration of a joint owner,joint debtor or other person jointlyinterested with the party.

Statements made after apartnership has been dissolved donot fall within this exception.

b) Co-conspirators admission; [Rule 130,Sec. 30]

Requisites:a) The act/declaration must relate

to the conspiracy;b) It must have been made during

the existence of the conspiracy;c) The conspiracy must be shown

by evidence other than suchact/declaration.

The existence of the conspiracy maybe inferred from the acts of theaccused. [People v. Belen (1963)]

Where there is no independentevidence of the alleged conspiracy,

the extra-judicial confession of anaccused cannot be used against hisco-accused as the res inter alios ruleapplies both to extra-judicialconfessions and admissions. [Peoplev. Alegre (1976)]

This rule in Rule 130, Sec. 30applies only to extra-judicialstatements, not to testimony givenon the stand. [People v. Serrano(1959)]

c) Admission by privies. [Rule 130, Sec. 31] Where one derives title to property

from another, theact/declaration/omission of thelatter, while holding the title, inrelation to the property, is evidenceagainst the former.

Requisites: [People v. Du]a) There exists a relation of privity

between the party and thedeclarant; Privity in estate may have

arisen by succession, actsmortis causa or acts intervivos. [Alpuerto v. PerezPastor]

b) Admission was made bydeclarant as predecessor-in-interest while holding title toproperty;

c) Admission is in relation to theproperty.

F. Electronic Evidence

1. WHAT EVIDENCE IS COVERED BY THEREE? (R2,S1; R11, SS1-2, REE)

a) Electronic document – information or the representation of

information, data, figures, symbolsor other modes of writtenexpression,

described or however represented,by which a right is established or anobligation extinguished, or by whicha fact may be proved and affirmed,

which is received, recorded,transmitted, stored processed,retrieved or produced electronically.

It includes digitally signeddocuments and any print-out oroutput, readable by sight or othermeans, which accurately reflects theelectronic data message orelectronic document.


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For purposes of these Rules, theterm “electronic document” may beused interchangeably with electronicdata message”.

b) Electronic data message - informationgenerated, sent, received or stored byelectronic, optical or similar means.

c) Audio recordingd) Photograph Video recordinge) Ephemeral evidence - telephone

conversations, text messages, chatroomsessions, streaming audio, streamingvideo, and other electronic forms ofcommunication the evidence of which isnot recorded or retained.

2. WHEN AND TO WHAT EXTENTADMISSIBLE? (R3,S2, REE)

An electronic document is admissible inevidence if it complies with the rules onadmissibility prescribed by the Rules ofCourt and related laws and isauthenticated in the manner prescribedby these Rules.

a) Privileged Communication (R3,s3, REE) The confidential character of a

privileged communications is notsolely on the ground that it is in theform of an electronic document.

b) Functional equivalence (R3, s1, REE) Whenever a rule of evidence refers to

the term of writing, document,record, instrument, memorandumor any other form of writing, suchterm shall be deemed to include anelectronic document as defined inthese Rules.

c) Authentication (R5, ss1-3; R11, ss1-2,REE) The person seeking to introduce an

electronic document in any legalproceeding has the burden ofproving its authenticity in themanner provided in this Rule.

Before any private electronicdocument offered as authentic isreceived in evidence, its authenticitymust be proved by any of thefollowing means:a. by evidence that it had been

digitally signed by the personpurported to have signed thesame;

b. by evidence that otherappropriate securityprocedures or devices as may

be authorized by the SupremeCourt or by law forauthentication of electronicdocuments were applied to thedocument; or

c. by other evidence showing itsintegrity and reliability to thesatisfaction of the judge.

A document electronically notarizedin accordance with the rulespromulgated by the Supreme Courtshall be considered as a publicdocument and proved as a notarialdocument under the Rules ofCourt.

d) Best Evidence Rules (R4, ss1-2, REE) An electronic document shall be

regarded as the equivalent of anoriginal document under the BestEvidence Rule if it is a printout oroutput readable by sight or othermeans, shown to reflect the dataaccurately.

When a document is in two or morecopies executed at or about thesame time with identical contents,

or is a counterpart produced bythe same impression as theoriginal, or from the samematrix, or

by mechanical or electronic re-recording, or by chemicalreproduction, or by otherequivalent techniques

which accurately reproduces theoriginal, such copies orduplicates shall be regarded asthe equivalent of the original.

Notwithstanding the foregoing,copies or duplicates shall not beadmissible to the same extent as theoriginal if:a. a genuine question is raised as

to the authenticity of theoriginal; or

b. in the circumstances it would beunjust or inequitable to admit acopy in lieu of the original.

3. EVIDENTIARY WEIGHT OF ELECTRONICEVIDENCE (R7, SS1-2)

In assessing the evidentiary weight ofan electronic document, the followingfactors may be considered:a. The reliability of the manner or

method in which it was generated,


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stored or communicated, includingbut not limited to

input and output procedures,

controls, tests and checks foraccuracy and reliability of theelectronic data message ordocument,

in the light of all thecircumstances as well as anyrelevant agreement;

b. The reliability of the manner inwhich its originator was identified;

c. The integrity of the information andcommunication system in which it isrecorded or stored, including butnot limited to the hardware andcomputer programs or softwareused as well as programmingerrors;

d. The familiarity of the witness or theperson who made the entry with thecommunication and informationsystem;

e. The nature and quality of theinformation which went into thecommunication and informationsystem upon which the electronicdata message or electronicdocument was based; or

f. Other factors which the court mayconsider as affecting the accuracy orintegrity of the electronic documentor electronic data message.

In any dispute involving the integrity ofthe information and communicationsystem in which an electronic documentor electronic data message is recordedor stored, the court may consider,among others, the following factors:a. Whether the information and

communication system or othersimilar device was operated in amanner that did not affect theintegrity of the electronic document,and there are no other reasonablegrounds to doubt the integrity of theinformation and communicationsystem;

b. Whether the electronic documentwas recorded or stored by a party tothe proceedings with interestadverse to that of the party using it;or

c. Whether the electronic documentwas recorded or stored in the usualand ordinary course of business bya person who is not a party tot heproceedings and who did not actunder the control of the party usingit.

Text messages have been classified as“ephemeral electroniccommunication” under Section 1(k),Rule 2 of the Rules on ElectronicEvidence, and “shall be proven by thetestimony of a person who was a partyto the same or has personal knowledgethereof.” [Vidallon-Magtolis v. Salud(2005)]

4. THE HEARSAY RULE AND THEBUSINESS RECORDS EXCEPTION (R9,SS1-2)

All matters relating to the admissibilityand evidentiary weight of an electronicdocument may be established by anaffidavit stating facts of direct personalknowledge of the affiant or based onauthentic records.

The affidavit must affirmatively showthe competence of the affiant to testifyon the matters contained therein.

The affiant shall be made to affirm thecontents of the affidavit in open courtand may be cross-examined as a matterof right by the adverse party.

REVIEWER IN REMEDIAL LAW Chapter VI: How Do I Present and Offer the Evidence at Trial?

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Chapter VI:How Do I Present and Offer the

Evidence at Trial?

A. ORDER OF PROOF1. MANNER OF EXAMINATION2. MODE OF ANSWERING3. EXCEPTIONS IN GENERAL4. RECORD OF PROCEEDINGS5. TRANSCRIPT6. RIGHTS AND OBLIGATIONS7. ORDER OF EXAMINATION

B. FORM OF QUESTIONS1. LEADING AND MISLEADINGQUESTIONS

C. OFFER OF EVIDENCE1. OFFER OF EVIDENCE2. WHEN TO MAKE OFFER

D. OBJECTIONS1. WHEN REPETITION OF OBJECTION IS

UNNECESSARY2. RULING ON THE OBJECTION3. MOTION TO STRIKE

E. TENDER OF EXCLUDED EVIDENCEF. ELECTRONIC EXAMINATION OF WITNESSG. EXAMINATION OF A CHILD WITNESS

1. SCOPE AND APPLICABILITY2. CHILD WITNESS3. EXCLUSION OF THE PUBLIC DURING

THE CHILD'S EXAMINATION4. ALTERNATIVE MODES OF GIVING

TESTIMONY5. WHEN TO TAKE THE CHILD'S

TESTIMONY6. PROVISIONS FOR EASE OF CHILD IN

TESTIFYING7. HEARSAY EXCEPTION IN CHILD

ABUSE CASES8. SEXUAL ABUSE SHIELD RULE9. OTHER PROTECTIVE MEASURES

A. Order of Proof

1. MANNER OF EXAMINATION [Rule 132,Sec. 1]

In open court; Under oath/affirmation.

2. MODE OF ANSWERING

General rule: Oral answers. Exception:

1. Witness is incapacitated to speak;2. Question calls for a different mode

of answer. The testimony of the witness should be

elicited by questions of counsel. But thecourt may itself propound questionseither on the direct or crossexamination of the witness. [People v.Moreno (1988)]

3. EXCEPTIONS IN GENERAL

a) Testimony of witness in civil cases maybe given by depositions. [Rule 23 and24]

b) Depositions or conditional examinationsare allowed in criminal cases. [Rule 119and 123] Mere presentation of the affidavits of

prosecution witnesses subject tocross-examination is not allowed bythe ROC. [People v. Estenzo (1976)]

c) Affidavits are allowed in cases coveredby Rule on Summary Procedure

Although affidavits of witnesses areallowed/admissible under the Rule onSummary Procedure, these may nothave any probative value. [Heirs ofSabanpan v. Comorposa, (2003)]

4. RECORD OF PROCEEDINGS [Rule 132,Sec. 2]

The entire proceedings of a trial/hearingshould be recorded, including:

The questions propounded to awitness and his answer thereto;

Statements made by the judge orany of theparties/counsels/witnesses withreference to the case.

5. TRANSCRIPT

TSN shall be made by the officialstenographer/ stenotypist/recorder. Heshall certify it as correct, and it shall bedeemed prima facie a correct statementof the proceedings.

That a judge did not hear a case doesnot necessarily render him lesscompetent in assessing the credibility ofwitnesses. He can rely on the TSN oftheir testimony and calibrate them inaccordance with their conformity tocommon experience, knowledge andobservation of ordinary men. Suchreliance does not violate substantiveand procedural due process of law.[People v. Cadley (2004)]

6. RIGHTS AND OBLIGATIONS [Rule 132,Sec. 3]

Obligation of a witness: To answerquestions, although his answer maytend to establish a claim against him.

Rights of a witness:a) To be protected from irrelevant,

improper, or insulting questions,


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and from harsh or insultingdemeanor;

b) Not to be detained longer than theinterests of justice require;

c) Not to be examined except only as tomatters pertinent to the issue;

d) Not to give an answer which willtend to subject him to a penalty foran offense, unless otherwiseprovided by law;

“Unless provided by law” refersto immunity statutes such asthose which the witness isgranted immunity from criminalprosecution for offensesadmitted (e.g. Sec. 8, RA 1379).

e) Not to give an answer which willtend to degrade his reputation,unless it to be the very fact at issueor to a fact from which the fact inissue would be presumed. But awitness must answer to the fact ofhis previous final conviction for anoffense.

7. ORDER OF EXAMINATION [Rule 132,Sec. 4]

DIRECT EXAMINATION[Rule 132, Sec. 5]

Examination-in-chief of a witness by theparty presenting him, on the facts relevantto the issue.

RE-DIRECT EXAMINATION[Rule 132, Sec. 7]

When conducted: After the cross-examination of the witness has beenconcluded.

Why conducted: To explain or supplementhis answers given during the cross-examination. On re-direct-examination, the court in

its discretion may allow questions onmatters not dealt with during the cross-examination.

RE-CROSS EXAMINATION[Rule 132, Sec. 8]

When conducted: Upon the conclusion of there-direct examination.

Matters covered: The adverse party may re-cross-examine the witness on matters statedin his re-direct examination, and also on suchother matters as may be allowed by the courtin its discretion.

B. Form of Questions

1. LEADING AND MISLEADING QUESTIONS[Rule 132, Sec. 10]

MISLEADING QUESTIONS – Questionsthat assume as true a fact not yettestified to by the witness, or contraryto that which he has previously stated.They are not allowed.

LEADING QUESTIONS – Questions thatsuggest to the witness the answer whichthe examining party desires.

General rule: Leading questions are notallowed.

Exception:a) On cross examination;b) On preliminary matters;c) When there is a difficulty is getting

direct and intelligible answers froma witness who is ignorant, or a childof tender years, or is of feeble mind,or a deaf-mute;

d) On an unwilling or hostile witness;

A witness may be consideredhostile only when declared bythe court, upon adequateshowing of his: [Rule 132, Sec.12]o Adverse interest;o Unjustified reluctance to

testify;o His having misled the party

into calling him to thewitness stand.

e) On a witness who is an adverse partyor an officer/director or managingagent of a public/privatecorporation or of apartnership/association which is anadverse party.

C. Offer of Evidence(Asked 3x)

1. OFFER OF EVIDENCE [Rule 132, Sec. 34]

Purpose: For evidence to be consideredby the court.

In making the offer, the purpose forwhich the evidence is offered must bespecified, because such evidence maybe admissible for several purposesunder the doctrine of multipleadmissibility.

The rule may be relaxed, provided theevidence must have duly identified bytestimony duly recorded and they musthave been incorporated in the records ofthe case. [Vda. De Orate v. CA (1995)]


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2. WHEN TO MAKE OFFER [Rule 132, Sec.35]

Kind of evidence When to offerTestimonial At the time the witness is

called to testifyDocumentaryand Object

After the presentation of aparty’s testimonial evidence

Offer shall be done orally unless allowed by thecourt to be done in writing.

Absence of an offer is a defect which iswaived when a party fails to object whenthe ground became reasonablyapparent, as when the witness is calledto testify without any prior offer.[Catuira v. CA (1994)]

The defect caused by the absence offormal offer of exhibits can be cured bythe identification of the exhibits bytestimony duly recorded and theincorporation of the said exhibits in therecords of the case. [People v. Mate(1981)]

D. Objections

What to object to When to objectTestimonial evidence Immediately after offer

is madeQuestion propoundedin the course of oralexamination

As soon as thegrounds becomereasonably apparent

Offer done in writing Within 3 days afternotice of the offer,unless a differentperiod is allowed bythe court

The grounds for objectionmust be specified in any case.

1. WHEN REPETITION OF OBJECTION ISUNNECESSARY [Rule 132, Sec. 37]

When it becomes reasonably apparentin the course of the examination of awitness that the questions beingpropounded are of the same class asthose to which objection has beenmade, whether such objection wassustained or overruled.

It shall be sufficient for the adverseparty to record his continuing objectionto such class of questions.

A court may, motu proprio, treat theobjection as a continuing one. [Keller v.Ellerman & Bucknall Steamship]

2. RULING ON THE OBJECTION [Rule 132,Sec. 38]

It should be given immediately after theobjection is made, unless the courtdesires to take a reasonable time toinform itself on the question presented.

But the ruling shall always be madeduring the trial and at such time as willgive the party against whom it is madean opportunity to meet the situationpresented by the ruling.

The reason for sustaining or overrulingan objection need not be stated.However, if the objection is based ontwo or more grounds, a rulingsustaining the objection on one or someof them must specify the ground/srelied upon.

Reservation of a ruling by the court onan objection to the admissibility ofevidence, without subsequentlyexcluding the same, amounts to adenial of an objection. [People v. Tavera]

3. MOTION TO STRIKE [Rule 132, Sec. 39]

The court may sustain an objection andorder the answer given to be stricken offthe record

should a witness answer the questionbefore the adverse party had theopportunity to voice fully its objectionand such objection is found to bemeritorious.

The court may also, upon motion, orderthe striking out of answers, which areincompetent, irrelevant or otherwiseimproper.

E. Tender of Excluded Evidence(R132, s40)

Kind of evidence How to tender the evidenceDocumentary Offeror may have the same

attached or made part ofthe record

Testimonial Offeror may state for therecord the name and otherpersonal circumstances ofthe witness and thesubstance of the proposedtestimony

Documents marked as exhibits duringthe hearing but which were not formallyoffered in evidence cannot beconsidered as evidence nor shall theyhave evidentiary value. [Vda. De Floresv. WCC (1977)]


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Identification ofdocumentary evidence

Formal offer ofexhibit

Done in the course ofthe trial and isaccompanied by themarking of theevidence

That a document hasbeen identified doesnot mean that it willbe offered

Done onlywhen theparty restshis/hercase

[Interpacific Transit v. Aviles (1990)]

F. Electronic Examination ofWitnesses(R10, s1, REE)

After summarily hearing the partiespursuant to Rule 9 of these Rules, thecourt may authorize the presentation oftestimonial evidence by electronicmeans.

Before so authorizing, the court shalldetermine the necessity for suchpresentation and prescribe terms andconditions as may be necessary underthe circumstance, including theprotection of the rights of the partiesand witnesses concerned.

G. Examination of a Child Witness

1. SCOPE AND APPLICABILITY

It shall govern the examination of childwitnesses who are victims of crime,accused of a crime, and witnesses tocrime. It shall apply in all criminalproceedings and non-criminalproceedings involving child witnesses.[Sec. 1]

The ROC provisions on deposition,conditional examination of witnessesand evidence shall be appliedsuppletorily. [Sec. 32]

2. CHILD WITNESS

a) Any person who at the time of givingtestimony is < 18 years;

b) In child abuse cases, a child includesone over 18 years but is found by thecourt as unable to fully take care ofhimself or protect himself fromabuse/neglect/cruelty/exploitation/discrimination because of aphysical/mental disability or condition.

Every child is presumed qualified to bea witness. To rebut the presumption ofcompetence enjoyed by a child, theburden of proof lies on the party

challenging his competence. [Sec. 6(b)] When the court finds that substantial

doubt exists regarding the ability of thechild to perceive/remember/communicate, distinguish truth fromfalsehood, or appreciate the duty to tellthe truth in court, a competency examshall be conducted.

The age of the child by itself is not asufficient basis for a competencyexamination. [Sec. 6(a)]

The court has the duty ofcontinuously assessing thecompetence of the child throughouthis testimony. [Sec. 6(f)]

3. EXCLUSION OF THE PUBLIC DURINGTHE CHILD’S EXAMINATION

To protect the right to the child’sprivacy;

If the court determines on the recordthat requiring the child to testify inopen court would cause psychologicalharm to him, hinder the ascertainmentof truth, or result in his inability toeffectively communicate due toembarrassment/fear/timidity.

4. ALTERNATIVE MODES OF GIVINGTESTIMONY

a) Live-link television testimony, incriminal cases where the child is avictim or a witness. [Sec. 25] The court may order that the

testimony of the child be taken bylive-link television

if there is a substantial likelihoodthat the child would suffer traumafrom testifying in the presence of theaccused, his counsel or theprosecutor.

The trauma must be of a kind whichwould impair thecompleteness/truthfulness of thechild’s testimony.

If it is necessary for the child toidentify the accused at trial,

the court may allow the child toenter the courtroom for the limitedpurpose of identifying the accused,or the court may allow the child toidentify the accused by observingthe image of the latter on atelevision monitor.

b) Screens, one-way mirrors and otherdevices to shield child from accused.[Sec. 26]


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c) Videotaped deposition. [Sec. 27] If the court finds that the child will

not be able to testify in open courtat trial, it shall issue an order thatthe deposition of the child be takenand preserved by videotape.

The rights of the accused duringtrial, especially the right to counseland to confront and cross-examinethe child, shall not be violatedduring the deposition.

5. WHEN TO TAKE THE CHILD’STESTIMONY

The court may order that the testimonyof the child should be taken during atime of day when the child is well-rested. [Sec. 14]

6. PROVISIONS FOR EASE OF CHILD INTESTIFYING

a) Interpreter for child. [Sec. 9]b) Facilitator to pose questions to child.

[Sec. 10]c) Support persons. [Sec. 11] A child testifying at a judicial

proceeding or making a deposition shallhave the right to be accompanied by 1or 2 persons of his own choosing toprovide him emotional support.

d) Waiting area for child witnesses that isseparate from waiting areas used byother persons. [Sec. 12]

e) Courtroom environment is made a morecomfortable environment for the child.[Sec. 13]

f) Recess during testimony: The child maybe allowed reasonable periods of reliefwhile undergoing direct, cross, re-direct,and re-cross examinations as often asnecessary depending on hisdevelopmental level. [Sec. 15]

g) Testimonial aids: use of dolls,anatomically-correct dolls, puppets,drawings, mannequins, or any otherappropriate demonstrative device toassist him in his testimony. [Sec. 16]

h) Emotional security item: Whiletestifying, a child shall be allowed tohave an item of his own choosing suchas a blanket/toy/doll. [Sec. 17]

i) Conduct in questioning the witness: Thecourt shall exercise control over thequestioning of children so as to: [Sec.19]

Facilitate the ascertainment of thetruth;

Ensure that questions are stated in

a form appropriate to the child’sdevelopmental level;

Protect children from harassment orundue embarrassment;

Avoid waste of time. The court may allow the child

witness to testify in a narrativeform.

j) Weight given to testimony of childwitness: His testimony, if credible byitself, shall be sufficient to support afinding of fact/conclusion/judgmentsubject to the standard of proofrequired in criminal and non-criminalcases. [Sec. 22]

7. HEARSAY EXCEPTION IN CHILD ABUSECASES [Sec. 28]

Before the hearsay statement may beadmitted, its proponent shall makeknown to the adverse party theintention to offer such statement and itsparticulars to provide him a fairopportunity to object.

If the child is available, the courtshall require the child to be presentat the presentation of the hearsaystatement for cross-examination bythe adverse party.

If the child is unavailable, the fact ofunavailability must be proved by theproponent and his hearsaytestimony shall be admitted only ifcorroborated by other admissibleevidence.

8. SEXUAL ABUSE SHIELD RULE [Sec. 30]

General rule: The following evidenceare inadmissible in any criminalproceeding involving alleged childsexual abuse:1) Evidence offered to prove that the

alleged victim engaged in othersexual behavior;

2) Evidence offered to prove the sexualpredisposition of the alleged victim.

Exception: Evidence of specificinstances of sexual behavior by thealleged victim to prove that a personother than the accused was the sourceof semen, injury or other physicalevidence shall be admissible.

9. OTHER PROTECTIVE MEASURES

Video/audio tapes that are part of thecourt record may be viewed only byparties, their counsel, their expert


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witness and the guardian ad litem. But they cannot divulge the tape (or any

portion thereof) to any other person,except as necessary for the trial.

The court may issue additional orders toprotect the child’s privacy.

Publication (or causing it) in any formatany identifying information of a childwho is or is alleged to be avictim/accused of a crime or a witnessthereof, or an immediate family of thechild, shall be liable for contempt ofcourt.

A child has a right at any courtproceeding not to testify regardingpersonal identifying information thatcould endanger his physical safety orhis family.

However, the court may require thechild to testify regarding personalidentifying information in the interest ofjustice.

The records of a youthful offender shallbe considered as privileged and may notbe disclosed in/directly to anyone forany purpose whatsoever. Exception: If he has been charged

and the court acquits him, ordismisses the case or commits himto an institution and subsequentlyreleases him pursuant to Chap. 3,PD 603:1) To determine if he may have his

sentence suspended (under Art.192, PD 603);

2) To determine if he may begranted probation (under PD968);

3) To enforce his civil liability, ifsaid liability has been imposedin the criminal action.

- end of Evidence -

- end of Remedial Law -