Law on evidence 1

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EVIDENCE

I. PRELIMINARY MATTERS

A. Evidence as defined by the Revised Rules on Evidence

Evidence defined: means sanctioned by the Rules of

Court of ascertaining in a judicial proceeding the truth
respecting a matter of fact. (Section 1, Rule 128)

General Rule: The rules of evidence do not apply in the following cases/proceedings:
(Section 4, Rule 1, 1997 Rules of Civil Procedure)
(i) Election cases
(ii) Land registration
(iii) Cadastral proceedings
(iv) Naturalization proceedings
(v) Insolvency proceedings
Exception: By analogy or in a suppletory character whenever practicable and
convenient (Section 4, Rule 1, 1997 Rules of Civil Procedure)

B. Distinguish Evidence from Proof

Evidence is the medium, means, or tool by which a fact is proved or disproved; while
Proof is the effect or result of evidence, the conviction or persuasion of the mind
resulting from a consideration of evidence.

C. Distinguish Factum Probandum from Factum Probans

Evidence signifies relationship between two facts, namely:

(a) factum probandum, which is the fact or proposition in issue which evidence
seeks to prove or disprove
(b) factum probans, which is the evidentiary fact tending to prove the fact in issue

Example:
In an action for collection of a sum of money filed by A against B, the factum probandum is
the existence of the debt while the factum probans is the promissory note signed by B in
favor of A.

D. Classification of Evidence

(i) Object/Real, Documentary and Testimonial evidence

Object/Real Evidence: that which is directly addressed to the senses of the court
and consists of tangible things exhibited or demonstrated in
open court, in an ocular inspection or at a place designated
by the court for its view or observation of an exhibition,
experiment or demonstration
Documentary Evidence: evidence consisting of writings or any material
containing letters, words, numbers, figures, symbols or other
modes of written expressed offered as proof of their contents
Testimonial Evidence: that which is submitted to the court through the testimony or
deposition of a witness consisting of the witness’ perception
of past events or occurrence being recollected by the witness
and communicated to the court; it is a reconstruction of past
events made by a witness through oral testimony, deposition
or any modes of expression or communication
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(ii) Relevant, material and competent evidence

Relevant Evidence: Evidence having any value in reason as tending to prove any
matter probable in any action; logical relation of the
evidentiary fact to the fact in issue
Material Evidence: Evidence directed to prove a fact in issue; it is determined by
whether the fact it intends to prove is in issue or not; as to
whether a fact is in issue or not is in turn determined by the
substantive law, pleadings, pre-trial order, and by the
admissions made by parties; consequently, evidence may be
relevant but may be immaterial in a case
Competent Evidence: Evidence which is not
excluded by the rules, the statute or the Constitution

(iii) Direct and circumstantial evidence

Direct Evidence: that which proves the fact in dispute without the aid
of any inference or presumption
Circumstantial Evidence: indirectly proves a fact in issue through inference form
other established facts as a necessary or probable
consequence
Classification of Circumstantial Evidence:
(1) Antecedent Circumstances – such as moral character, habit, customs,
motive, plan, design
(2) Concomitant Circumstances – such as opportunity, incompatibility, alibi,
subsequent circumstances, flight, concealment, nervousness, despair,
fingerprint, footprint, articles left, blood stains, offer of compromise

(iv) Cumulative and corroborative evidence

Corroborative Evidence: additional evidence of a different kind and character
tending to prove the same point
Cumulative Evidence: additional evidence of the same kind tending to prove the
same point

(v) Primary and secondary evidence

Primary Evidence: that which the law regards as affording the greatest certainty
of the fact in question; referred to in the rules as the best
evidence
Secondary Evidence: that which is inferior to the primary evidence and permitted
by law only when the best evidence is not available; referred
to in the rules as substitutionary evidence

(vi) Positive and negative evidence

Positive Evidence: when witness affirms that a certain state of facts does exist
or a certain event occurred
Negative Evidence: when witness states that a certain event did not occur or a
certain state of facts does not exist

(vii) Expert evidence

(viii) Prima facie evidence and conclusive evidence

Prima facie Evidence: kind of evidence, which, standing alone unrebutted, is
sufficient to support a conclusion
Conclusive Evidence: that class of evidence which the law does not allow to be
contradicted

II. ADMISSIBILITY OF EVIDENCE

A. Distinguish Admissibility from Weight and Sufficiency

In order for evidence to serve its purpose of ascertaining the truth respecting a matter of
fact, it has to pass through the test of admissibility and weight and sufficiency.
Admissibility of evidence refers to the question whether certain pieces of evidence are to be
considered at all. Evidence may be considered by the court if it is relevant and competent.
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It is relevant when it has tendency in reason to prove or disprove a fact in issue. It is

competent when it is excluded by the rules.
Weight and sufficiency of evidence refer to the question of whether the admitted evidence
proves or disproves an issue. It pertains to its tendency to convince or persuade.

B. Elements of Admissibility of Evidence

(1) Relevancy – logical relation of the evidentiary fact to the fact in issue, that is whether
the former tends to establish the probability or improbability of the latter; it is governed by
logic, common sense, and human experience
(2) Competency – pertains to the issue of whether or not the evidence is excluded by the
rules; it is governed by laws or the rules

C. Kinds of Admissibility
(1) Multiple Admissibility
See cases of: Uniwide Sales vs Ikeda
People vs Yatco
(2) Conditional Admissibility
(3) Curative Admissibility
Curative Admissibility or “fighting fire with fire” applies only if the party against
whom the incompetent evidence is erroneously admitted objected to its admission

D. Competency of Evidence
Evidence is competent when it is not excluded by the rules, law or the Constitution
Various Rules of Exclusion:
(A) Exclusionary Rules under the Constitution (Article III, 1987 Constitution)
(1) Right against unreasonable searches and seizures (Section 2)
People vs Marti
Right against unreasonable searches may be invoked only against the State.
The property illegally seized may be used in evidence against the officer
responsible for the illegal seizure.
Exceptions to the requirement of search warrant:
(i) Plain View Doctrine
Limitations:
(a) Prior Justification for Intrusion - such as warrant for another
object, hot pursuit, search incident to lawful arrest, and some
other legitimate reason for being present and connected to a
search directed against the accused
(b) Inadvertent Discovery of Evidence – applies when the police
officer is not searching for evidence against the accused but
inadvertently comes across the incriminating object
People vs Musa
Once the valid portion of the search warrant has been
executed, the plain view doctrine cannot provide any basis
for further search
(c) Illegality must be Immediately Apparent to the police that
the items that they observed may be evidence of a crime,
contraband, or otherwise subject to seizure
People vs Musa
There must be a nexus between the item to be seized and the
criminal behavior of the accused
People vs Salanquit
The container must clearly betray its contents, whether by its
destructive configuration, its transparency, or otherwise its
contents are obvious to an observer.
People vs Bollado
Object is in plain view if it is plainly exposed to sight. Where
the object was inside a closed package, the object itself is not
in plain view and therefore, cannot be seized without a
warrant. However, if the package proclaims its contents,
whether by its distinctive configuration, its transparency, or
its contents are obvious to an observer, then the contents are
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in plain view.
Plain view includes plain feel but the illegality must
immediately be apparent
(ii) Waiver or Consented Search
Case Principle:
People vs Damaso
(iii) Stop and Frisk or Terry Search
(iv) Search Incident to a Lawful Arrest
(v) Search of Moving Vehicles
(vi) Customs Search
(2) Right to privacy and inviolability of communication (Section 3)
See cases of: Zulueta vs CA
Waterous Drug vs NLRC
(3) Right of person under investigation for an offense or Miranda Rights doctrine (Sec
12)
Rights available:
(i) Right to remain silent
(ii) Right to competent and independent counsel
(iii) Right to be informed of such rights
General Rule: rights cannot be waived
Exception: waiver in writing, signed by the accused, in the presence of
counsel
Exception to the exception: right to be informed of such rights cannot be
waived
People vs Baloloy
Right is available only during custodial investigation
RA 7438, People vs del Rosario
Police invitation constitutes custodial investigation
Police line-up not part of custodial investigation as it has not shifted from
investigatory to accusatory stage thus Miranda rights not applicable
People vs Guillermo
Spontaneous statements or those not elicited through questioning by law
enforcement officers but given in ordinary manner are not covered by the
Miranda doctrine
People vs Paynor
Rights refer only to testimonial compulsion
People vs de Guzman, People vs Lamsing
Miranda doctrine do not cover paraffin tests, photographing
(4) Right against self-incrimination (Section 17)
People vs Malimit
The kernel of the right is not against all compulsion but testimonial
compulsion. It does not apply when the evidence sought to be excluded is
not an incriminating statement but an object evidence
Right against self-incrimination does not cover the following:
(i) substance emitted from the body of
the accused such as examination for gonorrhea (US vs Tanting)
(ii) hair samples (Pp vs Rondero)
(iii) DNA samples (Pp vs Vallero, Pp vs Yatar)
(iv) fingerprinting, photographing and paraffin testing (Pp vs Gallarde)
(v) pregnancy test (Villaflor vs Summers)
Right against self-incrimination extends to the following:
(i) compulsion for production of
documents, papers, and chattels (Regala vs Sandiganbayan)
(ii) any attempt to furnish a specimen of the accused’s handwriting in
connection with prosecution for falsification (Beltran vs Samson)
Right may be waived by:
(i) failure to invoke it timely
(ii) taking the witness stand and
voluntary testifies in which case he may be cross-examined and
asked incriminating questions on any matter he testified during
direct examination
People vs Judge Ayson
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While the accused may testify on his own behalf subject to cross-
examination, he may, while testifying, refuse to answer a specific question
the answer to which tends to incriminate him for some crime other than that
for which he is being prosecuted
Question is deemed incriminating if it tends to elicit an answer that would
expose the party/witness to possible criminal liability. Thus, if question
relates to a past criminality for which a witness can no longer be prosecuted
as when it has already prescribed or he has already been acquitted or
convicted, or where he has been granted immunity, the right is not available.
How right may be exercised:
(a) Accused in Criminal Case – accused may refuse to take the stand
altogether and need not wait for an incriminating question to be asked;
reason: the purpose for calling him is precisely to incriminate him
(b) Party in Civil Case or Administrative Case – party may invoke the right as
soon as incriminating question will be asked
Exception:
Civil or administrative case partakes of criminal proceedings, the
party may refuse to take the stand altogether (Pascual vs Medical
Board of Examiners, Cabal vs Kapunan)
(c) Witness in any case – right may be invoked when incriminating question
is propounded
(B) Exclusionary Rules under Special Laws
(1) Anti-Wiretapping Act

Exception to Anti-Wire
Tapping Law - R.A. No.9372
(The Human Security Act)
Section 7 – The provisions of R.A. No.4200 (Anti-Wire
Tapping Law) to the contrary notwithstanding, a police of law enforcement
official and the members of his team may, upon order of the Court of
Appeals, listen to, intercept and record, with the use of any mode, form, kind
or type of electronic or other surveillance equipment or intercepting and
tracking devices, or with the use of any other suitable ways and means for
that purpose, any communication, message, conversation, discussion, or
spoken or written words between members of a judicially declared and
outlawed terrorist organization, association or group of persons or of any
person charged with or suspected of the crime of terrorism or conspiracy to
commit terrorism.
Exception:
Provided, that surveillance,
interception and recording shall not be allowed if the
communications are between:
(i) lawyers and clients
(ii) doctors and patients
(iii) journalist and their sources
(iv) confidential business correspondence
(2) Rape Shield Rule (RA 8505, An Act Providing Assistance and Protection to Rape
Victims)
(3) Sexual Abuse Shield Rule (Rule on Examination of Child Witness)
(4) Laws on Secrecy of Bank Deposits
(i) RA 1465, An Act Prohibiting Disclosure and Inquiry into Bank Deposits
(ii) RA 6426, Foreign Currency Deposits Act of the Philippines
(5) Documentary Stamp Tax Laws (Article 201, NIRC)
(6) Anti-Voyeurism Act
(C) Exclusionary Rules under the Rules of Court
(1) Best Evidence Rule
(2) Parole Evidence Rule
(3) Opinion Rule
(4) Character Evidence Rule
(5) Hearsay Evidence Rule
(6) Rules on Disqualification of Witness
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(7) Rules on Authentication of Documents

(8) Res Inter Alios Acta Rule

III. BEST EVIDENCE RULE

A. Statement of the Rule

When the subject of inquiry is the contents of the document, no evidence shall be admissible
other than the document itself (Section 3, Rule 130, Rules of Court)
B. Scope of the Rule
Applies to all forms of documents containing written expressions, provided the documetn is
offered to prove its contents
C. Document defined – refers to writings or any materials containing letters, words, numbers,
figures, symbols or other modes of written expression such as drawings (Sealer vs Lucas Film
Ltd)

Under the best evidence rule, when the subject of inquiry is the content of the writing/document
(the question is what the document says), the original of the writing/document must be presented.
What is stated in the document cannot be proven by photocopy or oral recollection of a witness.

Republic vs. Imee Marcos-Manotok, et. al., G.R. No.171701, 8 February 2012
This case involves a civil action for recovery of ill-gotten wealth against the heirs of the late
Ferdinant Marcos. To prove that the respondents had interests in various corporations and how
they used dummies in acquiring and operating the businesses, the Republic prensented mere
photocopies f documents, consisting of letters, TSN of proceedings before the PCGG, and affidavit of
witnesses. The Republic did not deny that what should be proved are the contents of these
documents themselves. It is thus imperative to submit the originals that could prove the Republic’s
allegations, without which the Republic could not prove that the respondents collaborated with
former President Marcos and Imelda Marcos and partcipated in the latter’s alleged accumulation of
ill-gotten wealth.

D. What is considered as original for purposes of best evidence rule:

(a) when the contents of which are the subject of inquiry, hence a photocopy may be an original
for purposes of the rule
(b) document is in two or more copies executed at or about the same time with identical
contents, all such copies are equally regarded as originals
People vs Hon. Tan
A triplicate copy produced by the use of carbon is admissible without accounting for the
other copies
(c) when the entry is repeated in the regular course of business, one being copied from another
at or near the time of transaction, all the entries are likewise equally regarded as originals

E. Instances when best evidence rule does not apply and the original writing need not be
produced:
(1) if the purpose is not to prove the contents of the writing but only to show that the document
exists, or has been executed or delivered, in such a case, the oral testimony or other secondary
evidence is enough to prove the existence, issuance or delivery of the writing
People vs Tandoy
A photocopy of the marked peso bill is admissible since what is sought to be proved is the
existence of the marked money and not the contents thereof
Pacifico Arceo vs People
A photocopy of the check is admissible in a criminal prosecution for violation of BP 22
because the gravamen of the offense is the act of issuance of a bum check, thus the subejct of
inquiry is the execution or the existence of the check and not its contents
(2) if the writing or document is merely collateral or is connected in some way to the fact in issue,
otherwise known as “Collateral Fact Rule”
(3) if the purpose is to prove a fact that has an existence that is independent of any writing, even
though that fact has been reduced to or evidenced by a writing,
Mayers vs US
A testimony of a witness given in a committee hearing may be proven by the oral testimony
of someone who heard it although the testimony was recorded, thus the presentation of the
transcript of the witness’ testimony is not indispensable
(4) when the terms or contents of the document are not disputed
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Consolidated Bank and Trust Company vs Del Monte Motorworks

When the terms/contents of a document are not disputed or are admitted by the parties
(5) waiver
Dela Cruz vs Court of Appeals
Despite non-compliance with the requisites for introduction of secondary evidence, a
secondary evidence, if not objected to, becomes admissible and is as credible as the original
(6) if the subject of inquiry is not the contents of the document, but another matter independent
from the contents of the document.
Atienza vs. Board of Medicine and Sioson, G.R. No.177407, 9 February 2011
The subject of inquiry in this case is whether respondent doctors are liable for gross
negligence in removing the right functioning kidney of Editha instead of the left non-
functioning kidney, not the proper anatomical locations of Editha’s kidneys. Thus, it is not
necessary to present the originals of the X-Ray Request Form. Besides, the fact sought to be
established by the admission of these exhibits (x-ray request forms) that her “kidneys wree
both in their proper anatomical locations at the time of the operation, need not be proved as
it is covered by mandatory judicial notice.
Tegimenta Chemical vs. Mary Anne Oco, G.R. No.175369, 27 February 2013
The subject of inquiry is not the payroll sheet of Tegeminta rather, the thrust of this
case is the abundance of evidence present to prove the allegation that Oco abandoned her
job by being on AWOL. Consequently, an employer cannot be legally stumped by a payroll
sheet, but must be able to submit testimonial and other pieces of documentary evidence like
leave forms, office memos, warning letters and notices, to be able to prove that the
employee abandoned her work.

F. Exceptions to Best Evidence Rule:

(1) original is lost, destroyed, or cannot be produced without bad faith on the part of the offeror
De Vera vs. Aquilar
If there are more than one (1) original, all the originals must be accounted for before
secondary evidence may be introduced (De Vera vs. Aguilar)
Country Bankers Insurance vs. Lagman, G.R. No.165487, 13 July 2011
When there are more than one (1) original copy exists, it must appear that all of
them have been lost, destroyed or cannot be produced in court before secondary evidence
can be given of any one. A photocopy may not be used without accounting for the other
originals.
(2) original is in possession of adverse party
Edsa Hotel vs. BF Corporation
The notice to the adverse party may be in the form of (a) a motion for the prduction
of the original (Rule 27); or (b) made in open court in the presence of the adverse party’; or
(c) via subpoena duces tecum, provided the adverse party is given sufficient time to
produce the original.
(3) original is a public record in the custody of a public officer or recorded in a public office which
may be evidenced by a certified true copy thereof
(4) original consists of numerous accounts or voluminous documents
Compania Maritima vs. Allied Free Workers
The voluminous records must be made available/accessible to the adverse party so that the
correctness of the summary of the voluminous records may be tested on cross-examination.

Under the foregoing exceptions, where the original writing is not available for one reason or
another,the next best evidence to prove its contents will be the following secondary evidence in this
order:
(1) copy of the writing
(2) another document reciting its contents
(3) testimony of a witness who has read or knows about it

IV. PAROL EVIDENCE RULE

Statement of the Rule

When the terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and their
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successors in interests, no evidence of such terms other than the contents of the written
agreement.(Section 9, Rule 130)
Purpose of the rule: to give certainty to written agreement, preserve its
reliability and protect its sanctity. This proceeds from the premise that
spoken words are admittedly unrelaible given the frailty of human memory,
unlike written contract which speaks of uniform language.

The term “parol” means something “oral”, but for purposes of the rule, it means extraneous
evidence or evidence aliunde, either oral or written, which is outside of the written contract
between the parties.

Parol evidence rule becomes opeative when the issues in the litigation are the terms of the written
agreement.

Parol evidence rule presupposes the existence of a written agreement which is sought to be
modified, altered or varied by extraneous evidence, that is, evidence other than the written
agreement itself. The introduction of evidence which tends to vary the terms of the written
agreement is barred, because whatever is not found in the written agreement is considered waived
and abandoned.(Yu Tek vs. Gonzales)

INSTANCES WHERE PAROL EVIDENCE RULE DOES NOT APPLY:

(1) when the document in dispute is not a contract, like a mere receipt, since the rule presupposes a
written agreement (Cruz vs. Court of Appeals);
(2) when at least one of the parties to the case is not a party to the written agreement, since the rule
applies only to suits between parties to the written contract and their successors-in-interest
(Lechugas vs. Court of Appeals).
This is premised on the basic rule that only parties are bound by the terms of a contract.
However, while parol evidence rule has no application to a stranger to a contract, a person who
claims to be the beneficiary of an alleged stipulation pour autrui may be considered a party to
the contract and therefore he is precluded from introducing oral evidence to vary the terms of a
written contract. Moreover, to preclude the application of the parol evidence rule, it must be
shown that “at least one of the parties to the suit is not party or privy of a party to the written
instrument in question and does not base a claim on the instrument or assert a right originating
in the instrument or the relation established thereby. A beneficiary of a stipulation pour autrui
obviously bases his claim on the contract. He therefore cannot claim to be a stranger to the
contract and resist the application of the parol evidence rule(Heirs of Mario Pacres vs. Heirs of
Cecilia Ygona, G.R. No.174719, 5 May 2010)
(3) when the prior or contemporaneous agreement is independent from or not inconsistent with the
terms of a written agreement (Robles vs. Lizarraga Hermanos).
(4) where any of the exception to the parol evidence rule applies, in which case a party may present
parol evidence to modify, explain or add to the terms of the written agreement, if he puts in issue
in his pleadings the following:
(i) an intrinsic ambiguity, mistake or imperfection in the written agreement (Palanca
vs. Wilson & Co.,);
(ii) the failure of the written agreement to express the true intent and agreement of the
parties.(Enriquez vs. Ramos; Land Settlement Development Corporation vs.
Garcia);
(iii) the validity of the written agreement, i.e., contracts without consideration or where
consent is vitiated by duress, force and intimidation;
The operation of the parol evidence rule requires the existence of a valid written
agreement. It is, thus, not applicable in a proceeding where the validity of such
agreement is the fact in dispute, such as when the contract may be void for lack of
consideration. Considering that the Deed of Sale has been shown to be void for being
absolutely simulated and for lack of consideration, the heirs of Alfonso are not
precluded from presenting evidence to modify, explain or add to the terms of the
written agreement(Heirs of Ureta vs. Heirs of Ureta, G.R. No.165748, 14
September 2011)
(iv) the existence of other terms agreed to by the parties or their successors-in-interest
after the execution of the written agreement as when , as when the parties
subsequently modified the terms of their original agreement (Canuto vs. Mariano).

Where the adverse party fails to object on time, parol evidence may be admitted by the court to
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vary, alter or modify the terms of a written agreement (Willex Plastic Industries Corp. vs. Court
of Appeals)

DISTINCTION BETWEEN BEST EVIDENCE RULE AND PAROL EVIDENCE RULE:

(i) In the Best Evidence Rule, the question to be answered is - what does the document say?;
while in Parol Evidence Rule, the question is – what have the parties to the contract agreed
upon?
(ii) The Best Evidence Rule establishes a preference for the original over a secondary evidence;
while Parol Evidence Rule is not concerned with primacy of evidence but it presupposes
that the original is available, meaning the Best Evidence Rule has to be complied with;
(iii) The Best Evidence Rule precludes the admission of the secondary evidence if the original
document is available; while the Parol Evidence Rule precludes the admission of evidence
other than the contents of the document to prove the terms of a written agreement;
(iv) The Best Evidence Rule can be invoked by any litigant to an action whether or not said
litigant is a party to the document involved; while the Parol Evidence Rule can be invoked
only against a party to the written agreement and their successors-in-interest;
(v) The Best Evidence Rule applies to all forms of documents; while Parol Evidence Rule applies
only to written contracts and wills.

V. EXTRA-JUDICIAL ADMISSIONS, CONFESSIONS, COMPROMISES AND RES INTER ALIOS ACTA RULE

Kinds of Admissions:
(a) Judicial Admission (Section 4, Rule 129)
(b) Extra-judicial admission (Section 26, Rule 130)

Kinds of Extra-judicial Admission:

(A) Admission by a Party(Admission Against Interest)
Statement of the Rule:
The act, declaration or omission of a party as to any relevant fact maybe
given in evidence against him ( Section 26, Rule 130)
Reason for the Rule is its inherent reliability, for no one would make an adverse admission
against himself if such is not true.

- Refers to an extra-judicial admission and the admission is against the interest of the
admitter. Thus, self-serving admission is not admissible.

- The rule on extra-judicial admission under Section 26, Rule 130 contemplates of a
situation where the declarant is not in court, but someone who had heard/seen the
admission testifies in court as to the admission made by the declarant. In otherwords, the
declarant himself is not the witness, because the moment the declarant comes forward and
testifies and reiterates in court his extra-judicial admission, then such admission becomes a
judicial admission.

- Since the witness is not the declarant himself, the testimony of such witness, insofar as the
admission made by the declarant is concerned, is necessarilly hearsay, considering that the
witness has no personal knowledge as to the truth or falsity of the admission and the
declarant who is not in the witness stand cannot be cross-examined by the party against
whom the admission is offered in evidence.

- But while an extra-judicial admission is necessarilly hearsay, under Section 26, Rule 130,
the same is admissible against the declarant. The reason why an admission - even if
hearsay- is admissible is that, the declarant is not expected to cross-examine himself. In
otherwords, if what makes an extra-judicial admission hearsay is the absence of
oppurtunity of the party against whom the admission is offered to cross-examine the
person who made the extra-judicial admission, then obviously such reason does not exist in
case of an extra-judicial admission since the person who made the adamission is the same
person against whom the admission is offered in evidence.(Estrada vs. Desierto)

- While the extra-judicial admission under Section 26, Rule 130 is not among those
exceptions to the hearsay rule enumerated under Sections 37 to 47 of Rule 130, the
Supreme Court categorically ruled in Estrada vs. Desierto that admission under Section 26,
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Rule 130 is an exception to the hearsay evidence rule.

- While admission under Section 26, Rule 130 and Declaration Against Interest under
Section 38, Rule 130 are both exceptions to hearsay evidence rule, they are distinct from
each other.

DISTINCTIONS BETWEEN ADMISSION UNDER SECTION 26

AND DECLARATION AGAINST INTEREST UNDER SECTION 38
(i) the admission under Section 26 is admissible against the declarant only; while
declaration against interest under Section 38 is admissible not only against the
admmitter but also against third party;
(ii) in admission under Section 26, the declarant need not be dead or unable to testify; while
in declaration against interest under Section 38 applies only if the declarant is dead or
unable to testify;
(iii)an admission under Section 38 may be made at any time even during the trial; while
declaration against interest is made before the controversy arises.

DISTINCTIONS BETWEEN EXTRA-JUDICIAL ADMISSION UNDER SECTION 26

AND JUDICIAL ADMISSION UNDER SECTION 4, RULE 29
(i) A judicial admission is made in the course of a judicial proceeding in the same case;
while an extra-judicial admission is made out of court or in a judicial proceeding
involving a different case other than the case where the admission is introduced in
evidence;
(ii) A judicial admission is binding and conclusive upon the admitter; while an extra-judicial
admission maybe contradicted by the admitter;
(iii)A judicial admission requires no proof and need not be formally offered; while an extra-
judicial admission requires proof and needs to be formally offered in evidence.

(B) Res Inter Alios Acta

Two Branches of Res Inter Alios Acta:
(a) Admission by third party (Res Inter Alios Acta Rule of the First Branch)
Statement of the rule: The rights of a party cannot be prejudiced by an act,
declaration or omission of another. (Section 28, Rule 130)
Reason behind the rule: since the third party-declarant cannot be cross-examined by
the party against whom the act, declaration or omission is offered, due process
demands that the latter shall not be prejudiced by the act, declaration or omission of
the former.

- The “res inter alios acta rule” presupposes an extra-judicial admission, because the
declarant is not the one testifying in court, and therefore he cannot be cross-
examined by the party against whom the declaration is offered in evidence. It
contemplates of a situation where another person (witness) testifies in court as to
the act, declaration or omission made by a party outside of court. The witness is a
person who claims to have heard or known of the extra-judicial admission made by
a party (declarant). If the declarant himself takes the witness stand and reiterates
in court his extra-judicial admission that he made outside of court, his otherwise
extra-judicial admission becomes a judicial admission and, as such, it is admissible
against another party. The reason is obvious – that other party against whom the
admission is offered in evidence has the oppurtunity to cross-examine the declarant
and, therefore, due process is complied with.

EXCEPTIONS TO RES INTER ALIOS ACTA RULE OF THE FIRST BRANCH:

(i) Admission by co-partner/agent/joint-owner/joint-debtor (Sec 29, Rule
130)
Reason for the exception – since partners, co-owners and co-debtors with
respect to each other or agent in relation to his principal, possess identity of
interest and are similarly circumstanced, they are deemed by law as one and
the same party, such that the admission made a partner, joint-owner, joint-
debtor or agent is binding and admissible against the other partners, joint-
owners, joint-debtors or principal, because such admission cannot be
deemed as an admission made by a “third” party (under Section 28, Rule
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130) but an admission made by the party himself, which is admissible under
Section 26, Rule 130.
Requisites for the exception to apply:
(a) there must be an act or declaration made by a partner/joint-
owner/joint-debtor or agent;
(b) the act or declaration must be within the scope of the authority of the
partner/joint-owner/joint-debtor or agent and made during the
existence of the partnership/joint-ownership/joint-debt/agency;
(c) there must be an independent evidence of the existence of the
partnership/joint-ownership/joint-debt/agency.
(ii) Admission by a co-conspirator (Section 30, Rule 130)
Reason for the exception – (same as that of an admission by a partner/joint-
owner/joint-debtor/agent).
Requisites for the exception to apply:
(a) there must be an act or declaration made by a co-conspirator;
(b) the act or declaration must relate to the conspiracy and during the
existence of the conspiracy.
Thus, the extra-judicial admission made by a conspirator after the crime
was consummated is not admissible against the other co-conspirators,
precisely because such admission was not made during the existence of
conspiracy (People vs. Quidato, 297 SCRA 1); and
(c) there must be an independent evidence of the conspiracy other than the
act or declaration made by the confessing conspirator (People vs.
Guittap, G.R. No.144621, 9 May 2003; People vs. Michael Bokingo, G.R.
No.187536, 10 August 2011).
(iii) Admission by Privies (Section 31, Rule 130)
Reason for the exception – since the successor merely steps into the shoes of
the predecessor, they are deemed by law as possessing the same interest
and similarly circumstanced with respect to the property acquired by the
former from the latter, such that the previous admission made by the
predecessor while still holding title to the property is binding and
admissible against the predecessor who is presently holding the title,
because such admission cannot be deemed as an admission by a third party
proscribed under the “res inter alios acta rule”.
Requisites for the exception to apply:
(a) there must be an act, declaration or omission made by a predecessor-in-
interest;
(b) the act, declaration or omission relates to the property and made while
the predecessor (declarant) was still holding title to the property;
Thus, if the act, declaration, or omission was made before the
predecessor (declarant) became the owner of the property (City of
Manila vs. Del Rosario) or after the predecessor had parted with the
ownership of the property to his successor-in-interest (City of Manila
vs. Del Rosario; Gevero vs. IAC), then such act, declaration or omission
is not admissible against the successor.
(c) the title to the property is now being transferred to and presently held
by the successor-in-interest.

(b) Similar Acts or Previous Conduct Rule (Res Inter Alios Acta Rule of the Second
Branch)
Statement of the rule - Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did not do the same or
similar thing at another time.(Section 34, Rule 130)
Reason for the rule: Evidence of similar act s or occurences
compels the defendant to meet allegations that are not mentioned in the complaint,
confuses him in his defense, raises a variety of relevant issues, and diverts the
attention of the court from the issues immediately before it. Hence, the evidentiary
rule guards against practical inconvenience of trying collateral issues and
protracting the trial and prevent surprise or other mischief prejudicial to litigants.
(Cruz vs. Court of Appeals, G.R. No.126713, 27 July 1998).
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While evidence of similar acts or previous conduct is inadmissible to prove that the
person did or did not do the same or similar conduct at another time, it is, however,
admissible to prove:
(i) specific intent;
(ii) knowledge;
(iii) identity;
(iv) plan;
(v) system;
(vi) scheme;
(vii) habit;
(viii) custom;
(ix) usage; and the like (Section 34, Rule 130)

OFFER OF COMPROMISE (Section 27, Rule 130)

A. In Civil Cases – offer of compromise is not an admission of liability and is not admissible
against the offeror.
Reason for the rule: In civil cases, the policy is to encourage compromise.
B. In Criminal Cases – an offer of compromise by the accused may be received in evidence as an
implied admission of guilt.
Exceptions:
(i) in quasi-offenses/criminal negligence cases
(ii) cases allowed by law to be compromised, such as in cases involving criminal
prosecution for violation of the Nstional Internal Revenue Code, where compromise
is allowed under Section 204 thereof.
(iii) A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser
offense;
(iv) Under the “Good Samarita Rule”, that is, an offer to pay or the payment of medical,
hospital or other expenses occassioned by an injury is not admissible in evidence as
proof of civil or criminal liability for the injury.
OTHER FORMS OF OFFER OF COMPROMISE:
(i) Plea for forgiveness made by the accused, or by a member of his family or a third party with
the implied acquiscience or ratification of the accused (Pp vs. De Guzman);
(ii) Offer of marriage made by the accused. But if the offer of marriage was made by a third
party (Muslim Imam) without the involvement of the accused, such offer is not admissible
as implied admission of guilt(People vs. Danny Godoy);
(iii) Offer of payment of money or anything of value, other than for medical or hospital expenses
occassioned by injury;
(iv) Offer of restitution.

VI. HEARSAY EVIDENCE RULE

General Rule: A witness can testify only to those facts which he knows of his personal knowledge,
that is, which are derived from his own perception (Section 36, Rule 130)

Reasons why hearsay evidence is inadmissible (Estrada vs Desierto):

1) Lack of cross-examination, since the witness is not the declarant and the declarant is not in
court
2) Absence of demeanor evidence, since the declarant is not the one testifying in court
3) Absence of an oath, since the declarant is not the one testifying in court (Section 1, Rule
132)

The determination of whether an evidence is hearsay or not depends on the purpose for which the
evidence is offered:
a) Hearsay rule applies if evidence is for the purpose of proving the truth of the
assertion/declaration/statement or otherwise offered for hearsay purposes;
b) If the evidence is offered for non-hearsay purposes, regardless of the truth or falsity of the
assertion/declaration/statement, it is not hearsay and therefore admissible

An evidence is deemed to be offered for non-hearsay purposes if it is offered to prove that a

 Law on evidence 13
Atty. Florence d. lagcao

statement/assertion/declaration was made and such statement/assertion/declaration is relevant

to the case, regardless of its truth or falsity. Meaning to say, such statement/assertion/declaration
is INDEPENDENTLY RELEVANT TO THE CASE.

An assertion/declaration/statement is independently relevant to the case, regardless of its truth or

falsity, when:
a) Such assertion/declaration/statement is the very fact in issue in the case, e.g. prosecutions
for the crimes of libel, oral defamation, threats; or
b) Such assertion/declaration/statement is a circumstantial evidence of a fact in issue, such as:
a. The mental state, emotions, knowledge, belief, intention, ill-will, bias of teh declarant;
b. Physical condition, such as illness of the declarant;
c. The mental condition/state of mind of the listener;
d. Statement showing credibility of a witness, e.g. prior inconsistent staement;
e. Statement which may establish/identify the date, place, and person in question

Cross-examination is necessary to determine the qualities of a witness by testing his:

a) Veracity – sincerity or willingenss to tell the truth, that is, whether the witness had any
reason to lie;
b) Competency – ability to tell the truth, which depends on three (3) factors:
i. observation - the ability to perceive the event (perception)
- the question here is “did the witness perceive what he describes,
and did he perceive accurately?”
ii. memory - the ability to retain what is perceived
- the question here is “has the witness retained an accurate
impression of his perception?”
iii. transmission - the ability to transmit his recollection of the event (narration)
- the question here is “does his language convey that impression
accurately?”

Hence, in order to encourage the witness to do his best with respect to each of these factors, and to
expose inaccuracies which may enter in, the witness shall ideally be required to testify:
a) under oath;
b) in the personal presence of the trier of fact (demeanor evidence); and
c) under cross-examination.

The rule against the hearsay is designed to insure compliance with these ideal condtions and when
one of them is absent, the hearsay objection becomes pertinent.

The rule against hearsay evidence is to preserve the right of the parties to cross-examine the
original persons who have knowledge of the transaction or event.

EXCEPTIONS TO HEARSAY:
A) DYING DECLARATION (Section 38, Rule 130)
Reasons for admissibility (Pp vs Cerilla, G.R. No. 177147, 28 November 2007):
a) necessity – the declarant’s death renders it impossible his taking the witness stand
and it often happens that there is no other equally satisfactory proof of the crime.
Allowing admission of a dying declaration, therefore, prevents a failure of justice.
b) trustworthiness – no person aware of his impending death would make a careless
and false accusation. Point of death is so solemn and awful equal to an oath.
Requisites:
(Pp vs Cerilla, G.R. No. 177147, 28 November 2007; People vs. Salafranca, G.R.
No.173476, 22 February 2012; People vs. Dejillo, G.R. No.185005, 10 December 2012):
1) The declaration must concern the cause and surrounding circumstances of the declarant’s
death (not other person’s death), which refers not only to the facts of the assault itself, but
also to matters both before and after the assault having a direct causal connection with it.
Thus, statements indicating deliberation and willfulness in the attack, indicating the
reason or motive for the killing, justifying the killing, or indicating the absence of cause
for the act are admissible
2) At the time the declaration was made, the declarant must be under the consciousness of an
impending death.
The rule is that, a fixed belief in inevitable and imminent death must be entertained by
 EVIDENCE AT YOUR FINGERTIPS 14
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the declarant. It is the belief in impending death and not the rapid succession of death
in point of fact that renders the dying declaration admissible. The test is whether the
declarant has abandoned all hopes of survival and looked at death as certainly
impending. But take note of the ratification doctrine, which states that “a statement
made under circumstances which would not render it admissible as a dying declaration
becomes admissible as such if approved or repeated by the declarant after he had
abandoned all hope of recovery.” In Pp vs Babiera (52 Phil 97), although the statement
in itself is inadmissible as an ante mortem declaration, in as much as there is nothing to
show that at the time he made it, Severino Haro knew or firmly believed that he was at
the point of death, nevertheless, after having ratified its contents a week later when he
was near death as a result of his wounds, said declaration is admissible as a part of that
which he made ante mortem.
3) The declarant is competent as a witness.
Where the declarant would not have been a competent witness had he surived, the
proferred declarations will not be admissible. Accordingly, declaration made by a child
too young to be a competent witness or by an insane incapable of understanding his
own statements are not admissible. However, the presumption is that, delcarant would
have been competent. (Geraldo and Ariate vs People, G.R. No. 173608, 20 November
2008)
4) The declaration must be offered in any case where the declarant’s death is the subject of
inquiry (Geraldo and Ariate vs People. G.R. No. 173608, 20 November 2008).
Note: The ruling in People vs Cerilla, where the Supreme Court held that the declaration
must be offered in a criminal case for homicide, murder or parricide in which the
declarant is a victim, is of doubtful accuracy because Section 37, Rule 130 expressly
provides that dying declaration may be received in any case where the declarant’s death
is the subject of inquiry as evidence of the cause and surrounding circumstances of such
death.

Doctrine of Completeness in relation to dying declaration

(Pp vs De Joya, G.R. No. 75028, 8 November 1991)
- Under this doctrine, a dying declaration must be complete in itself. To be complete, it does
not mean that the declarant must recite everything; it is enough that it be a full expression
of all that the declarant intended to say as conveying his meaning in respect of such fact.
- Reason for the rule: since the declarant was prevented by death or other circumstance
from saying all that he wished to say, what he did say might have qualified by the
statements which he was prevented from making. That incomplete declaration is not
therefore entitled to the presumption of truthfulness which constitutes the basis upon
which dying declarations are received.

B) DECLARATION AGAINST INTEREST (Section 38, Rule 130)

Basis/Reasons for exception:
a) Trustworthiness – no person would make a statement adverse to himself unless it is true
b) Necessity – the declarant is already dead or unable to testify; allowing it prevents a
failure of justice
Requisites:
1) The declarant is deceased or unable to testify because he is mentally incapacitated or
physically incompetent.
But mere absence of the declarant is not enough. The proponent must serious effort to
produce the declarant (Fuentes vs CA)
2) At the time the declaration was made, it was against the interest of the declarant (Parel
vs Prudencio)

C) ACT OR DECLARATION ABOUT PEDIGREE (Section 39, Rule 130)

Reasons for exception:
a) Trustworthiness/reliability
b) Necessity

Pedigree refers to relationship, family genealogoy, birth, marriage, death the date when
and place where these facts occured and names of relatives

Requisites:
1) The declarant must be dead or unable to testify
 Law on evidence 15
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2) The pedigree is in issue or is relevant thereto

3) The person whose pedigree is in question must be related to the declarant by birth or
marriage
4) The declaration must be made before the controversy, i.e. ante litem motam, not only
before commencement of suit, but before any controversy has arisen thereon
5) The relationship between the declarant and the person whose pedigree is in question must
be shown by evidence other than such declaration.

This contemplates of a situation where the party claiming (claimant) seeks recovery
against a relative common to both claimant and declarant, the relationship of the
declarant to the common relative may not be proved by the declaration itself.

This applies where the subject of the declaration is the relationship (pedigree) of a
relative vis-a-vis another relative

Example: In an action to establish the status as an illegitimate daughter, the

claimant may introduce in evidence an act or declaration made by her purported
uncles who, by act or declaration, acknowledged the claimant as an illegitimate
daughter of their brother. Here, independent evidence of pedigree is necessary
before the act or declaration of the child’s purported uncles can be admitted as an
exception to hearsay

An exception to the requirement of independent evidence of pedigree is where the

subject of the declaration is the declarant’s own relationsihp to the claimant. Here, the
claimant seeks to establish his relationship to the declarant through the declarant’s
own declaration.
Case showing exception: (Tison vs CA)
The niece/nephew (claimants) sought to establish their relationship to their aunt
through the aunt’s own declaration, in support of their claim over a portion of the
estate of the aunt which they claim to have inherited. Here, there is no need for
independent evidence of pedigree other than the aunt’s own declaration.

D) FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE (Section 40, Rule 130)

Reasons for the Exception:
(i) trustworthiness/realibity - since pedigree involves matters known by family members
who are in the best position to know the facts; they are expression of persons who must
know the truth.
(ii) necessity - it is the best evidence that the nature of the case admits and to
prevent miscarriage of justice.

Two (2) parts:

(Jison vs. Court of Appeals)
(i) testimony of a family member; and
(ii) “family possessions”.

Requisites:
(People vs. Alegrado)
(i) there must be a controversy in respect to pedigree of any of family members;
(ii) there must be a reputation or a tradition regarding the pedigree of such family member
which existed prior to the controversy;
(iii)the witness testifying as such reputation or tradition must be a member of the same
family as the person whose pedigree is in question.

DISTINCTIONS BETWEEN ACT OR DECLARATION ABOUT PEDIGREE (Section 39)

and FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE (Section 40)
In Section 39, the declarant is dead or unable to testify, and the witness, who may be a
family member or not, testifies as to the act or declaration made by the declarant about the
pedigree of a family member; while Section 40, does not involve a deceased declarant or a
declarant who is unable to testify, but a witness, who must be a family member, testifying as
 EVIDENCE AT YOUR FINGERTIPS 16
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to the family reputation or tradition regarding the pedigree of another family member.

E. COMMON REPUTATION (Section 41, Rule 130)

Covers two (2) subjects:
(i) matters of public or general interest more than thirty (30) years old; and
(ii) marriage or moral character.
Unlike pedigree (Sections 39 and 40), general reputation of marriage or non-
marriage may proceed from persons who are not members of the family, in view of
the public interest that is taken in the questions involving marital relations (In Re:
Mallari).
IN RE: Atty. Florencio Mallari
The Filipino citizenship of a lawyer (Atty. Florencio Mallari), whose license was
revoked upon finding that he is not a Filipino as his parents were allegedly both
chinese nationals, was established by the witnesses who belonged to the same
community all of whom testified that Ana, the mother of Esteban (Florencio’s father)
was unmarried and a Tagalog and, therefore, a Filipino.

F. RES GESTAE (Section 42, Rule 130)

Reason for the Exception: its trustworthiness, given the absence of the
oppurtunity to concoct/fabricate since the statement was made spontaneously.
Two (2) Forms of Res Gestae:
(i) Spontaneous statement
Statement of the rule - Statements made by a person while a
startling occurence is taking place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in evidence as part of the res
gestae. X x x(Section 42, first part, Rule 130)

It refers to those exclamations and statements made by either the participants, the
victim or spectator to a crime immediately before, during and after the commission
of the crime, when the circumstances are such that the statements were made as
spontaneous reaction or utterance inspired by excitement of the occassion and
there was no oppurtunity for the declarant to deliberate and fabricate a false
statement(People vs. Esoy, G.R. No.185894, 7 April 2010)

The spontaneous statement was made during the startling occurence, or

immediately prior or subsequent thereto. If the statement was not spontaneous, it
is not admissible as res gestae(Talidano vs. Falcon Maritime & Allied Services)

The test is the absence of the oppurtunity to concoct or fabricate.

DBP Pool vs. Radio Mindanao Network
This involves an insurance claim against an insurance company, who invoked as a
defense the “excepted risk clause” of the policy, contending that the fire was caused
by rebellion which is an “excepted risk”. It was held that the testimonies of the
investigators that the fire was caused by CPP-NPA rebels based on testimonies of
some by-standers are not admissible as part of res gestae, in view of the strong
possibility that the interview was not made spontaneously and before the by-
standers had the time to contrive or influenced by other factors, like exchange of
information, speculation, or idle talk.

For this exception to apply, the declarant must himself be competent to testify had
he been presented in court, so that if the declarant made a statement not on his own
personal knowledge but based on what he heard from another, the testimony of the
witness who heard the statement uttered by the declarant is not admissible as part
of res gestae. (BAR 2011)

(ii) Verbal Acts

Statement of the rule – Statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part of the res gestae.
(Section 42, second part, Rule 130)

G. ENTRIES IN THE COURSE OF BUSINESS

Statement of the rule: Entries made at, or near the time of the transactions to which
 Law on evidence 17
Atty. Florence d. lagcao

they refer, by a person deceased, or unable to testify, who was in the position to know the
facts therein stated, maybe received as prima facie evidence, if such person made the
entries in his professional capacity or in the performance of duty and in the ordinary or
regular course of business or duty(Section 43, Rule 130).
Reasons for the Exception:
(i) trustworthiness - as the entries were made in the ordinary course
of business, then they are presumed to be accurate.
(ii) Necessity - as the entries were made in the ordinary course of business by
person in his professional capacity or in the performance of duty, such entries are
deemed by law as the best evidence available and since the entrant is dead or
unable to testify, allowing the admission of such entries as evidence prevents a
failure of justice.
Requisites:
(i) The person who made the entry must be dead or unable to testify;
Canque vs. Court of Appeals
To prove the fact of delivery of certain construction materials, SOCOR adduced in
evidence its Book of Collectible Accounts as testified to by its book keeper. The
Supreme Court ruled that the Book of Collectible Accounts is not admissible as
entries in the course of business because:
(a) the entrant, who is the book keeper herself, is not dead or unable to
testify, as she in fact had testified; and
(b) the witness-entrant-book keeper admitted to having no knowledge of
the entries, which were based on the billings furnished her by the project
engineer;
Northwest Airlines vs. Chiong
While there is no necessity to bring into court all the employees who individually
made the entries in the Passenger Manifest and Passenger Name Record, it is
sufficient that the person who supervised them while they are making the entries
testify that the entries were prepared under his supervision and that the entries
were regularly entered in the course of business.
(ii) the entries were made at or near the time of the transaction to which they refer;
(ii) the entrant was in a position to know the facts stated in the entries;
(iii) the entries were made in his professional capacity or in a performance of a duty;
(iv) the entries were made in the ordinary or regular course of business or duty.

Failure to prove the existence of all the foregoing evidence renders the evidence
inadmissible under hearsay evidence rule (Patula vs. People, G.R. No.164457, 11 April
2012)

H. ENTRIES IN OFFICIAL RECORDS

Statement of the rule: Entries in official records made in the performance of his
dutyby a public officer of the Philippines, or by a person in the performance of a duty
especially enjoined by law, are prima facie evidence of the facts therein stated(Section 44,
Rule 130)
Reason for the Exception: its trusworthiness, based on the presumption of regularity
in the performance of official duty
Requisites:
(i) the entry was made by a public officer, or by a person especially
enjoined by law to do so;
Examples of persons enjoined by law to make report:
(a) persons authorized by law to solemnized marriage, because they are required
by law to submit copies of marriage contract to the Local Civil Registrar of the
place where the marriage was solemnized(Family Code);
(b) Ship Captains, because they are required by law to keep a “logbook” where to
record all incidents occurring on board the vessel and all decisions that he
adopted (Article 612, Code of Commerce)
(ii) the entry must be made by a public officer in the performance of his duties, or by such
other person in the performance of a duty especially enjoined by law; and
(iii)that the public officer or other person had sufficient knowledge of the facts therein stated,
 EVIDENCE AT YOUR FINGERTIPS 18
2013 Bar Pre-Week Notes

which must have been acquired by him personally or through official information, i.e., it must
come from one under a legal duty to submit the same.
Barcelon Roxas Securities, Inc. vs. BIR
To prove service of the required Notice of Assessment, BIR presented a BIR Record Book,
containing lists of taxpayers’ names, nature and amount of tax, the registry number and
date of mailing of the Notice of Assessment, as testified to by the records custodian. It was
ruled that the BIR Record Book is not admissible as entries in official records because:
(a) the entries made were not based on the personal knowledge of the records custodian;
and
(b) the records custodian did not attest to the fact that she acquired the reports from
persons under a legal duty to submit the same.
People vs. San Gabriel
A stabbing incident occurred and an eyewitness reported to the police station where the
police on duty recorded the incident in the police blotter (advance information sheet). The
accused argued that he should be acquitted, since he is not the one named in the police
blotter but another person. It was ruled that the police blotter is not admissible as entries
in official business, considering that:
(a) the police officer who recorded the incident in the police blotter had no personal
knowledge of the facts therein stated; and
(b) the facts stated in the police blotter were not obtained by the police officer through
“official information”, since the eyewitness who reported the incident is not a person
especially enjoined by law to make such report.
Malayan Insurance Company vs. Alberto and Reyes, G.R. No.194320, 1 February 2012.
The police report is not admissible under entries in official records, as the on-spot
investigator does not appear to have sufficient personal knowledge of the facts stated in the
report.

I. COMMERCIAL LISTS AND THE LIKE

Statement of the rule: Evidence of statements of matters of interest to persons engaged in
an occupation contained in a list, register, periodical, or other published compilation is
admissible as tending toprove the truth of any relevant matter so stated if that compilation
is published for use by persons engaged in that occupation and is generally used and relied
upon by them therein(Section 45, Rule 130)
Reason for the Exception: its trustworthiness, it being generally used and relied upon by
persons engaged in an occupation.

Requisites:
(i) it is a statement of matters of interest to persons engaged in an occupation;
(ii) such statement is contained in the list, register, periodical or other published
compilation;
(iii)such compilation is published for the use of persons engaged in that occupation; and
(iv)it is generally used and relied upon by persons in the same occupation.

PNOC Shipping and Transport vs. Court of Appeals

This arose from a collision between two (2) vessels resulting in the damage and sinking of
one of the colliding vessels. The owner of the sinking vessel sued for damages, representing
the “replacement value” of the boat and its equipment. To prove the “replacement value”,
the plaintiff presented its general manager to testify on some “price quotations” provided
by various suppliers. It was held that the “price quotations” are not admissible as
commercial lists, because they were issued personally to the plaintiff who requested for
them from dealers of similar equipment. These are not published in any lists, register,
periodical or other compilation on the relevant subject matter. Moreover, they are not
“standard handbooks or periodicals, containing date of everyday professional need and
relied upon in the work of the occupation”. They are merely letters responding to the
queries of plaintiff’s manager.

J. LEARNED TREATIES
Statement of the rule: a published treatise, periodical or pamphlet on a subject of history,
law, science or art is admissible as tending to prove the truth of the matter stated therein.
(Section 46, Rule 130)
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Atty. Florence d. lagcao

Reason for the Exception: trustworthiness, it being based on the works of experts.

Published treatise, periodicals or pamphlets on the subject of history, law, science or art are
admissible if:
(i) the court takes judicial notice of them; or
(ii) a witness expert on the subject testifies that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his profession or calling as expert in the subject.

K. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

Statement of the rule – the testimony or deposition of a witness deceased or unable to
testify, given in a former case or proceedings, judicial or administrative, involving the same
parties and subject matter, maybe given in evidence against the adverse party who had the
opportunity to cross-examine him.(Section 47, Rule 130)
Reasons for the Exception-
(i) Necessity – since the witness/deponent is already dead and unable to testify, allowing
its admission as evidence prevents a failure of justice.
(ii) Trustworthiness – since the adverse party had the opportunity to cross-examine the
witness/deponent.

Requisites:
(i) the witness/deponent is dead;
Tan vs. Court of Appeals
The Supreme Court ruled that subsequent failure or refusal to appear at the present
case or hostility since testifying at the first trial does not amount to inability to
testify, but such inability proceeding from a grave cause, almost amounting to death,
as when the witness is old and has lost the power of speech. Here, the witness in
question were available. Only, they refused to testify. No other person that
prevented them is cited.Certainly, they do not come within the purview of those
“unable to testify”.
(ii) his testimony or deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same interests;
Manliclic vs. Calaunan
The TSNs of the testimonies of the witnesses in the criminal case (who are now
unavailable to testify in the civil case) are not admissible , considering that the
employer was not a party to the criminal case and had no opportunity to cross-
examine these witnesses.
(iii) the former case involved the same subject matter as that in the present case, although on
a different cause of action;
(iv) the former case involved the same issue involved in the present case;
(v) the adverse party had the opportunity to cross-examine the witness/deponent.

L. ADMISSION AGAINST INTEREST

Statement of the rule – An act, declaration or omission of a party as to any relevant fact may
be given in evidence against him.(Section 26, Rule 130)
Reasons for the Exception:
(i) trustworthiness – no person would make a statement adverse to himself unless he
believes it to be true.
(ii) the requirement of cross-examination does not apply, since the declarant is not
expected to cross-examine himself.

While not one of those enumerated under the Rules of Court as exceptions to hearsay
evidence rule, admission against interest under Section 26, Rule 130 was declared by the
Supreme Court as an exception to hearsay in the case of Estrada vs. Desierto.

M. HEARSAY EXCEPTION IN CHILD ABUSE

CASE (Sec 28, Rules in the Examination of Child
Witness)
Statement of the rule - A statement made by a child witness describing any act or attempted
act of child abuse, not otherwise admissible under the hearsay rule, maybe admitted in
evidence in any criminal or non-criminal proceeding, subject to the following rules:
(a) before such hearsay statement maybe admitted, its proponent shall make
 EVIDENCE AT YOUR FINGERTIPS 20
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known to the adverse party the intention to offer such statement and its
particulars to provide him a fair opportunity to object.
(b) if the child is available, the court shall, upon motion of the adverse party,
require the child to be present at the presentation of the hearsay
evidence/statement for cross-examination.
(c) if the child is unavailable, the fact of such circumstance must be proved by
the proponent. But his hearsay testimony shall be admitted only if
corroborated by other admissible evidence.

The child witness shall be considered unavailable under the following situations:
(i) is deceased, suffers from physical infirmity, lack of memory, mental illness, or will
be exposed to severe psychological injury; or
(ii) is absent from the hearing and the proponent of his statement has been unable to
procure his attendance by process or other reasonable means.

Factors to consider in ruling on the admissibility of such hearsay statement:

(a) whether there is a motive to lie;
(b) the general character of the declarant child;
(c) whether more than one (1) person heard the statement;
(d) whether the statement was spontaneous;
(e) the timing of the statement and the relationship between the declarant child and the
witness;
(f) cross-examination could not show the lack of knowledge of the declarant child;
(g) the possibility of faulty recollection of the declarant child is remote; and
(h) the circumstances surrounding the statement are such that there is no reason to
suppose the declarant child misrepresented the involvement of the accused.

N. IN PROCEEDINGS INVOLVING WRIT OF AMPARO

Gen. Avelino Razon, et al. vs. Mary Jean Tagitis, et al.
Given the unique evidentiary difficulties presented by “enforced disappearances cases”, the
fair and proper rule is to consider any evidence otherwise inadmissible under our usual
rules to be admissible if it is consistent with the admissible evidence adduced. In other
words, we reduced our rules to the most basic test of reason- i.e., to the relevance of the
evidence to the issue at hand and its consistency with all other pieces of evidence adduced.
Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.
Accordingly, the Supreme Court held it duly established that Col. Kasim informed the
respondent and her friends, based on the informant’s letter, that Tagitis, reputedly a
liason for the JI and who had been under surveillance since January 2007, was in “good
hands” and under custodial investigation for complicity with the JI after he was seen talking
to one Omar Patik and a certain “Santos” of Bulacan,a “Balik-Islam” charged with terrorism.
This despite the fact that the “informant’s letter” was allegedly already destroyed and the
probative value thereof was not based on the personal knowledge of the witnesses but on
the knowledge of some other person not on the witness stand (the informant).

VII. TESTIMONIAL EVIDENCE

Testimonial evidence – consists of a witness’ perception of past events as recollected and
communicated by him orally or in such other forms of communication. It is a re-construction of
past events made by a witness.

General rule: the testimony of a witness must be given orally (Section 1, Rule 132).
Exceptions:(Section 1, Rule 132)
(i) when witness is incapacitated to speak;
(ii) when questions call for a different mode of answer;
(iii) where the rules allow testimony to be given in affidavit form (such as in cases governed by
the Rules on Summary Procedure)

QUALIFICATIONS OF A WITNESS:
(i) can perceive (observation acquired from personal knowledge)
(ii) and in perceiving, he can make known his perception to others (memory and
communication)
(iii) he must take an oath or affirmation
(iv) must not possess any of the disqualifications imposed by law or the rules.
 Law on evidence 21
Atty. Florence d. lagcao

The following are NOT grounds for disqualification of a witness:

(a) religious belief;
(b) political affiliation;
(c) interest in the outcome of the case;
(d) conviction of a crime, except:
(i) a person convicted of the crimes of falsification, perjury or false testimony is
disqualified from being a witness in a Will. Thus, he is disqualified from testifying in a
probate proceedings;
(ii) a person convicted of any crime involving moral turpitude is disqualified from being a
state witness. Thus, he cannot testify as a state witness in a criminal case filed against
him and his other co-accused.

DISQUALIFICATIONS OF A WITNESS:
(A) Disqualification by reason of mental incapacity or insanity(Section 21, Rule 130)
A person incapable of making known his perception to others is disqualified as a witness,
provided the incapacity or insanity must exist at the time of his production for examination.

Incapacity/insanity at the time of observation of the event that the witness is asked to
testify does not disqualify the witness from testifying so long as he is competent at the time
of his production as a witness, but it affects his credibility.

(B) Disqualification by reason of immaturity(Section 21, Rule 130)

Refers to children whose mental maturity is such as to render them:
(i) incapable of perceiving the facts respecting which they are examined; and
(ii) of relating them truthfully.

But under the Rules on the Examination of a Child Witness (A.M. No.00-07-SC), every child
is presumed competent. Thus, the party who alleges the contrary must prove that the child
witness is disqualified by reason of his mental immaturity.

(C) Disqualification by reason of marriage, otherwise known as “marital disqualification

rule” or “spousal immunity” (Section 22, Rule 130)
Purposes of the rule:
(a) preserve marital relations and promote domestic peace;
(b) prevent perjury.

Requisites:
(i) must be legally married;
Alvarez vs. Ramirez
Even if the spouses are still legally married but their relationship is already strained,
the marital disqualification rule or spousal immunity does not apply, and therefore,
the wife may testify against his husband. The reason for this rule is that, when the
spouses are already estranged, there is no more domestic peace to preserve.
(ii) the witness-spouse could either be a party to the case or not, but the other spouse must
be a party;
(iii)the testimony may be for or against the party-spouse; and
(iv)the testimony is offered during the marriage, not before and not after its dissolution.

Applies to any case/action/proceedings and covers testimonial, object or documentary

evidence. Thus, either spouse may not be compelled to produce documents or object
evidence may be incriminate the other.

The marital disqualification rule or spousal immunity ceases upon dissolution of the
marriage either by death or other grounds.

Exceptions to Marital Disqualification Rule or Spousal Immunity:

(i) in a civil case by one spouses against the other; and
(ii) in a criminal case involving a crime committed by one spouse against the witness-
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spouse, or against the direct descendants or ascendants of the witness-spouse.

(D) Disqualification by Reason of Death or Insanity, otherwise known as the “Dead Man
Statute” or “Survivorship Disqualification Rule” (Section 23, Rule 130)
Purpose of the rule:
(i) to avoid perjury, since the other party is already dead, the temptation on the party of the
surviving party to resort to falsehood is high;
(ii) to level playing field, as the dead party is no longer around to tell his own tale and refute
that of the surviving party.

Requisites:
(i) the defendant in the case is the executor, administrator or a representative of the deceased
or person of unsound mind;
Guererro vs. St. Claire Realty, et al.
The Dead Man Statute does not apply and, therefore, a witness may testify on a fact
which took place prior to the death of the deceased, considering that the defendants
in the case were sued in their personal and individual capacity as buyers of the lot in
question, and not as representatives of the deceased from whom they purchased the
subject lot.
(ii) the suit is upon a claim by the plaintiff against the estate of the deceased person or of
unsound mind.
Conversely, if the estate of the deceased person or the person of unsound mind is
the claimant or counter-claimant, the rule does not apply.
Tongco vs. Vianzon
Dead Man Statute or Survivorship Disqualification Rule does not apply, since the
plaintiff or claimant is the estate of the deceased husband as represented by the
executor and the case for recovery of property is filed against the widow.
Razon vs. IAC
Dead Man Statute or Survivorship Disqualification Rule does not apply, since the
plaintiff or claimant in the case is the estate of the deceased person and the case is
filed against the defendant to recover the shares of stocks belonging to the deceased
now being represented by his estate.
Goni vs. Court of Appeals
Dead Man Statute or Survivorship Disqualification Rule does not apply, because the
witness testified to substantiate the counterclaim of the estate of the deceased
against the plaintiff in the case. Thus, insofar as the counterclaim is concerned, the
estate of the deceased person is deemed to be the claimant, although it is the
defending party insofar as the complaint of the plaintiff is concerned.
(iii) the witness is the plaintiff or the assignor of that party-plaintiff, or a person in whose
behalf the case is prosecuted. If the witness is somebody else, the rule does not apply.
Guerrero vs. Saint Claire Realty
Dead Man Statute or Survivorship Disqualification rule does not apply, since the
witness is an ordinary witness, not the plaintiff nor the assignor of the plaintiff nor
the person in whose behalf the case is prosecuted.
Lichauco vs. Atlantic Gulf
Dead Man Statute or Survivorship Disqualification Rule does not apply, since the
plaintiff is a Corporation and the witness, although officer of the Corporation, is not
the plaintiff itself.

Other important principles relative to Dead Man Statute or Survivorship

Disqualification Rule:
(a) Objection based on Dead Man Statute or Survivorship Disqualification Rule is
deemed waived by failure to object timely or by cross-examining the witness on the
matter otherwise inadmissible under the rule. (Abraham vs. Recto-Kasten)
(b) The rule does not apply if the matter subject of the testimony of an otherwise
disqualified witness refers to a transaction or event entered into by the deceased
through an agent and the agent is still alive. The reason for this rule being that,
since the agent has personal knowledge of the transaction having entered into the
same on behalf of the principal, the agent can very well protect the interest of his
principal who is now deceased, and therefore, the estate of the deceased cannot be
deemed to be at a disadvantage as the agent can always controvert whatever
falsehood the surviving party may peddle in the court about the transaction in
 Law on evidence 23
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question. (Goni vs. Court of Appeals)

(c) The disqualification covers testimony regarding facts that occurred or transpired
prior to the death of the deceased against whose estate the case is filed; it does not
apply if the witness would testify that a certain fact or event did not occur.
(Mendezona vs. Vda De Goitia)

(E) Disqualification by Reason of Privilege Communication (Section 24, Rule 130)

Purpose/s of the rule:
(i) to encourage full disclosure of information necessary for effective performance of
duties/obligations;
(ii) to preserve and protect confidential information.

General Principles Common To All Kinds of Privilege Communications:

(I) Who may assert/invoke the privilege?
(i) Being personal in nature, this can only be claimed by the “holder” of the privilege,
that is, the person whose interest or relationship is sought to be protected ((i.e.
communicating spouse, client, patient, penitent);
(ii) In case the “holder” is absent when the testimony is sought, the court or other
party may assert although the privilege is personal;
(iii) the persons to whom the privilege communication was transmitted (the
recipient spouse, lawyer, physician, priest), provided the “holder” is alive and has
not waived the privilege.
(II) The privilege communication rule survives the death of the “holder”.
(III) The privilege communication rule cannot be invoked to perpetrate crime or injustice.

Privileged Communication:
(A) Marital Privilege Communication
Requisites:
(a) spouses must be legally married.
(b) the case involves communication, oral or written, made during the marriage.
(c) the communication was made confidentially.
Pp vs. Carlos
The letter of the wife addressed to the husband which was seized by the police was
held to be admissible in evidence, because a confidential information which fell to
the hands of a stranger, whether legally or illegally, ceases to be confidential.
Exceptions to the Marital Privilege Communication Rule:
(i) civil case by one against the other;
(ii) criminal case committed by one against the other or
the latter’s direct ascendants/descendants.

(B) Attorney-Client Privilege Communication Rule

Requisites:
(a) there must be a communication made by client to the attorney or an advice given
by the attorney to a client;
(b) the communication or advice must have been given in confidence.
Barton vs. Leyte Asphalt & Mineral Oil
a letter of a client sent to his lawyer which eventually found its way to the
hands of the adverse party was held to be admissible in evidence, because a
confidential information which fell to the hands of a stranger, whether
legally or illegally, ceases to be confidential.
(c) The communication or advice must have been given either in the
course of professional employment or with a view of professional employment
respecting past acts or crimes.
Pp vs. Sandiganbayan
the testimony of the lawyer pertaining to the information relayed to him by
his client about the details of an on-going crime was held to be not covered
by the attorney-client privilege communication rule, as this rule applies only
to information respecting past acts or crimes, not present or future
crimes.
Important Principles relative to Lawyer-Client Privilege Communication Rule:
(i) identity of a client is not privilege, except if disclosure of identity would implicate
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2013 Bar Pre-Week Notes

the client to the very activity for which the lawyer is engaged by the client (Regala
vs. Sandiganbayan).
(ii) the privilege is waived by failure to seasonably object or by cross-examining the
witness precisely on the matter otherwise covered by the confidentiality rule
(Orient Insurance vs. Revilla).

(C) Physician-Patient Privilege Communication Rule

Requisites:
(i) the person against whom the privilege is claimed is a person authorized to practice
medicine, surgery or obstetrics.
Krohn vs. Court of Appeals
the husband was not disqualified from testifying on the psychiatric
evaluation report prepared by his wife’s physician who examined her,
because the husband is not a person authorized to practice medicine,
surgery or obstetrics.
(ii) the information which cannot be disclosed refers to:
(a) any advice given to patient;
(b) any treatment given to patient; or
(c) any information acquired in attending to the patient,
provided the advice, treatment or information was made or acquired in a professional
capacity and necessary to enable him to act in such capacity.
Professional capacity means that the physician, surgeon or obstetrician
attends to the patient for either curative or preventive treatment. Thus,
“autopsy” not covered and only the tenor of the advice, treatment or
information is prohibited from being disclosed, not the fact of consultation
(Lim vs. Court of Appeals)
(iii) the information sought to be disclosed would tend to blacken the
reputation of the patient.
(iv) the privilege is claimed or invoked only in civil cases or special proceedings, for the
rule does not apply in criminal cases.

Related Provisions under Rule 28 of the 1997 Rules of Civil Procedure

(Mental and Physical Examination)
(a) Section 3. Report of findings.
If requested by the party examined, the party causing the examination to be
made shall deliver to him a copy of a detailed written report to the
examining physician setting out his findings and conclusions. After such
request and delivery, the party causing the examination to be made shall be
entitled upon request to receive from the party examined of like report of
any examination, previously or thereafter made, of the same mental or
physical condition. If the party examined refuses to deliver such report, the
court on motion and notice may make an order requiring delivery on such
terms as are just, and if the physician fails or refuses to make such report the
court may exclude his testimony if offered at the trial.
(b) Section 4. Waiver of Privilege.
By requesting and obtaining a report of the examination so ordered or by
taking the deposition of the examiner, the party examined waives any
privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has
examined or may thereafter examine him in respect of the same mental or
physical examination.

(D) Priest-Penitent Privilege Communication Rule

Requisites:
(i) there must be a confession made to or advice given by a priest or minister in his
professional character in the course of a discipline enjoined by the church to which
he belongs;
(ii) the priest/minister must be duly ordained or consecrated by his sect.

(E) Privilege Communication Rule by Reason of Public Office

Requisites:
(i) there must be a communication made to the public officer in official
 Law on evidence 25
Atty. Florence d. lagcao

confidence;
(ii) the public interest would suffer by the disclosure of such information;
(iii) the disqualification attaches during the officer’s term or office or even
afterwards.

(F) Testimonial Privilege (Section 25, Rule 130)

No person may be compelled to testify against his parents, other direct ascendants,
children or other direct descendants.
Related provision under Article 215 of the Family Code:
No descendant shall be compelled, in a criminal case, to testify against his parents
and grandparents, except when such testimony is indispensable in a crime against
the descendant or by one parent against the other

Either under Section 25, Rule 130 of the Rules of Court or under Article 215 of the
Family Code, testimonial privilege is not a “disqualification” rule but only a privilege
not to be compelled to testify as a witness. Thus, if the holder of the privilege
wishes to testify, the party against whom his testimony is offered in evidence cannot
object.

VIII. OPINION RULE

Generally, opinion of a witness is not admissible (Section 48, Rule 130).

Reason - cases should be decided based on facts.

Exceptions to the general rule:

(i) Expert opinion - the opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess maybe received in evidence
(Section 49, Rule 130);
(ii) Opinion of ordinary witness:
(a) the opinion of a witness for which proper basis is given may be received in evidence
regarding –
(1) the identity of a person about whom he has adequate knowledge;
(2) a handwriting with which he has sufficient familiarity; and
(3) the mental sanity of a person with whom he is sufficiently acquainted.
(b) the witness may also testify on his impressions of the emotion, behavior,
condition or appearance of a person.

IX. CHARACTER EVIDENCE:

Generally, evidence of a person’s character is not admissible (Section 51, Rule 130). Reason - cases
should be decided based on the acts or omissions complained of, and not on the character or
personalities of the parties involved.

Exceptions to the general rule:

(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral
trait involved in the offense charged;
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is
pertinent to the moral trait involved in the offense charged;
(3) The good or bad moral character of the offended party may be proved if it tends to
establish in any reasonable degree the probability of the offense charged.

Correlate this with the “Rape Shield Rule” under R.A. No.8505 otherwise known as “Rape
Victim Assistance and Protection Act of 1998”, which provides that “In prosecution for rape,
evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation
shall not be admitted unless, and only to the extent that the court finds that such evidence is
material and relevant to the case”
(b) In Civil Cases:
Evidence of the moral character of party in a civil case is admissible only when pertinent to
the issue of character involved in the case.
(c) Evidence of good character of a witness:
 EVIDENCE AT YOUR FINGERTIPS 26
2013 Bar Pre-Week Notes

Evidence of the good character of a witness is not admissible until such character has been
impeached (Section 14, Rule 132).
Reason – the good character of a witness is presumed.

X. PRESENTATION OF EVIDENCE:
(A) Order in the examination of an individual witness (Section 4, Rule 132):
(i) direct examination by the proponent;
(ii) cross-examination by the opponent;
(iii) Re-direct examination by the proponent;
(iv) Re-cross examination by the proponent.
(B) Recalling a witness – after the examination of a witness by both
sides has been concluded, the witness cannot be recalled without leave of
court. The court will grant or withhold leave as the interest of justice may
require (Section 9, Rule 132).
(C) Objectionable questions:
(i) Leading question – a question which suggests to the
witness the answer which the examiner desires is not allowed
(Section10, Rule 132).
Exceptions: A leading question maybe allowed-
(1) On cross-examination;
(2) On preliminary matters;
(3) when there is difficulty in getting direct and intelligible
answer from a witness who is ignorant, or a child of tender years, or is feeble
mind, or deaf-mute;
(4) of an unwilling or hostile witness;
(5) of an adverse party- witness.
(ii) Misleading question – a question which assumes as true
a fact not yet testified to by the witness, or contrary to that which
he has previously stated is not allowed.
(D) Impeachment of adverse party’s witness (Section 11, Rule 132):
A witness may be impeached by the party against whom he was called by:
(i) contradictory evidence;
(ii) evidence that his general reputation for truth, honesty, or integrity is bad; or
(iii) evidence that he has made at other times statements inconsistent with his
present testimony.

A witness may not be impeached by evidence of particular wrongful act, except that the
witness may be proved to have been convicted of an offense by:
(i) by the examination of the witness regarding the fact of prior conviction; or
(ii) by the record of the court decision convicting him of an offense.
(E) Requisites for impeaching the witness of the adverse party by evidence of inconsistent
statement:
(i) the statement must be related to him, with the circumstances of the times and places
and the persons present;
(ii) the witness must be asked whether he made such statements;
(iii) and if admits that he did so, then he must be allowed to explain the inconsistency
between his prior statement and his present testimony(Section 13, Rule 132).
(F) A party may not impeach his own witness (Section 12, Rule 132).
Reason: by calling the witness to the stand, the proponent vouches to the credibility and
honesty of his witness.
Exceptions: (Section 12, Rule 132)
(i) if the witness is hostile or unwilling; or
(ii) if the witness is the adverse party or the officer, director, managing agent of a c
orporation or partnership or association which is an adverse party.

XI. OFFER AND OBJECTION

The court shall consider no evidence which has not been formally offered. The purpose for which
the evidence is offered must be specified (Section 24, Rule 132). If the purpose is not specified,
the evidence must be excluded (Uniwide Sales vs. Titan-Ikeda).

Exception:
As long as the evidence has been properly identified by testimony duly recorded and incorporated
 Law on evidence 27
Atty. Florence d. lagcao

in the records of the case, the evidence may still be considered by the court even if not formally
offered (Pp vs. Libnao).

Reasons why the purpose must be specified:

(i) To enable the adverse party to make intelligent objection to the formal offer;
(ii) To enable the court to rule properly on the objection, since an evidence maybe
admissible for one purpose but inadmissible for another purpose under the principle of
multiple admissibility (Uniwide Sales vs. Titan-Ikeda).

Time to make a formal offer of evidence (Section 35, Rule 132) – the time to make a formal
offer depends on the kind of evidence being formally offered:
(1) If evidence consists of oral testimony of witnesses – the offer must be made at the time the witness
is called to testify.
Query: What is the effect if the witness was allowed to testify without the
proponent making a formal offer of the proposed testimony but the adverse
party did not also object thereto before the witness was able to testify and
complete his testimony?
Answer: The testimony is admissible as the adverse party was deemed to have
waived his right to the objection.
Concepcion Catuira vs. CA
Facts: Catuira was charged with two (2) counts of Estafa for issuing bouncing
checks. During the trial, the prosecution presented the private complainant who
completed her testimony without a formal offer having been made. As soon as the
prosecution rested its case, the accused filed a Demurrer to Evidence on the ground
that the testimony of the witness is inadmissible in evidence for lack of formal offer.
Ruling:
(i) The reason for requiring that evidence be formally offered is to enable the court
to rule intelligently on the objection to the questions asked.
(ii) As a general rule, the proponent must show its relevancy, materiality and
competency. Where the proponent offers evidence deemed by counsel of the
adverse party to be inadmissible for any reason, the latter may object to its
admission. But this is a mere privilege which can be waived. Necessarily, the
objection must be made at the earliest opportunity, lest silence where there is
opportunity to speak may operate as a waiver of the objection.
(iii) While it is true that the prosecution failed to offer the questioned
testimony when private complainant was called to the witness stand, the accused
waived this procedural error by failing to object at the appropriate time, i.e., when
the ground for objection became reasonably manifest the moment with witness was
called to testify without any prior offer having been made by the proponent.
(2) Object/documentary evidence – the formal offer must be made after the presentation of a party’s
testimonial evidence or witnesses.
Such offer must be done orally, unless allowed by the court to be made in writing.

Time to make objection (Section 36, Rule 132) – It depends on the kind of evidence being
objected to:
(1) If oral testimony:
(i) objection to evidence offered orally must be made immediately after the offer is made
(Catuira vs. CA)
(ii)objection to question propounded in the course of the oral examination of a witness shall
be made as soon as the grounds therefore shall become reasonably manifest.
(2) If object/documentary evidence:
(i) objection to object/documentary evidence offered orally shall be made immediately
after the offer is made;
(ii) objection to object/documentary evidence offered in writing shall be made three (3)
days after notice of the offer, unless a different period is allowed by the court.

Query: What is the effect if an inadmissible object/documentary evidence was

objected to at the time it was introduced, identified and marked as exhibit but not
objected to when formally offered?
Anwer: The evidence otherwise inadmissible must be admitted/considered
(Interpacific Transit, Inc. vs. Aviles).
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2013 Bar Pre-Week Notes

Reason: Objection to object/documentary evidence must be made at the time

it is formally offered, not earlier. Objection prior to formal offer is pre-mature. The
identification of the object/documentary evidence before it is marked as an exhibit
does not constitute formal offer. Objection to the identification and marking is not
equivalent to objection to the object/documentary evidence when it is formally
offered. What really matters is the objection made at the time it is formally offered
as an evidence.

Query: What is the effect if an inadmissible object/documentary evidence was not

objected to during its introduction, identification and marking but was objected to
during the formal offer? Does the failure to object during the introduction,
identification and marking constitute a waiver of the privilege to object resulting in
the evidence otherwise inadmissible becoming admissible.
Answer: The object/documentary evidence must be excluded (Macasiray vs.
People of the Philippines).
Reason: Since objection to object/documentary evidence must be made only
after the offer is made and not at any other time, no waiver of the privilege to object
shall take place by the failure to object when the object/documentary evidence was
marked, identified and introduced during the trial, obviously because it was not the
proper time to make objection.

Query: What must an adverse party do when it becomes reasonably

apparent in the course of the examination of a witness that the questions being
propounded are of the same class as those to which objection has been made,
whether sustained or overruled by the court?
Answer: It shall not be necessary to repeat the objection, but it is sufficient to
record a continuing objection to such class of questions (Section 37, Rule 132)

Query: When must the court make a ruling on the objection?

Answer: It must be given immediately after the objection is raised, unless the
court desires to take reasonable time to inform itself on the question
presented(Section 38, Rule 132)

Query: May the court suspend the ruling by simply stating that the
“objection is noted” or that the objection “will be considered when the court
resolves the case on the merits”?
Answer: No, the reservation or holding in abeyance of a ruling on an
objection is disadvantageous and prejudicial to the party interposing the objection.
Without the definite ruling, the party objecting would be left in the dark as to what
proper course of action to take under the circumstances.

Query: What is the remedy of the proponent if his proposed evidence is

excluded by the court?
Answer: The proponent may resort to “Tender of Excluded Evidence”
otherwise known as “Offer of Proof” (Section 40, Rule 132) in the following
manner:
(i) if the
excluded evidence is
object/documentary – by attaching it
to making it part of the records of the
case;
(ii) if the
excluded evidence is testimonial – by
stating for the record the name and
other personal circumstances of the
witness and the substance of the
proposed testimony.
XII. AUTHENTICATION AND PROOF OF DOCUMENTS:
For purposes of their presentation in evidence, documents are either public or private.

The following are Public Documents: (Section 19, Rule 132)

(i) written official acts or records of official acts of sovereign authorities, official
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bodies/tribunals and public officers of the Philippines or foreign country;

(ii) documents acknowledged before a notary public, except wills and testament;
(iii) public records of private documents kept in the Philippines.

A Private Document is one not falling under any of the foregoing enumerations of public
documents.

Query: What is the probative value of public documents as evidence?

Answer:
(i) documents consisting of entries in public records made in the performance of a
duty by a public officer are prima facie evidence of the facts stated therein;
(ii) all other public documents are evidence, even against a third person, of the fact
which gave rise to their execution and of the date of the latter.

Query: How may a public document be proved in court?

Answer: It depends on the kind of public document sought to be proved –
(a) If it consists of written official acts or records of official acts, it may
be proved:
(a) by its official publication, whether the public document is kept in
the Philippines or abroad; or
(b) if it is kept in the Philippines, by its certified true copy, duly
attested by the legal custodian thereof; or
(c) if it is kept outside of the Philippines, by its certified true copy
duly attested by the legal custodian and must be accompanied by a
certification issued by the Philippine Consular Officer stationed in the
country where the document is kept that the custodian is legally authorized
and is in custody thereof.

Query: What must an attestation of a

copy of a public document state/contain?
Answer: The attestation must state in
substance that the copy is a correct copy of the original
(Section 25, Rule 132)

Query: What must a consular certification state/contain?

Answer: It must state that the officer
who attested a certified true copy of a public document is an
authorized legal custodian and that he has the legal custody
of the original public document.

Query: What kind of public document,

kept outside of the Philippines, needs to be accompanied
with a consular certification if sought to be proved by its
certified true copy duly attested by its legal custodian?
Answer: By express provision of
Section 24, Rule 132, only those public documents consisting
of written official acts or records of official acts of sovereign
authority/official bodies/public officers as mentioned in
Section 19(a) of Rule 132 need to be accompanied with
consular certification that the officer who attested the
certified true copy thereof is authorized legal custodian and
that he has the legal custody of the original document (Heirs
of Arcilla vs. Teodoro).

(b) If it consists of document acknowledged before a notary public, it may be

presented in evidence without further proof, considering that the certificate of
acknowledgement is prima facie evidence of its due execution (Section 30, Rule
132).

(c) If it consists of public records, kept in the Philippines, of some private

documents, it may be proved:
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2013 Bar Pre-Week Notes

(a) by the original record; or

(b) by a copy thereof attested by the legal custodian of the record,
with an appropriate certificate that such officer has the custody(Section 27,
Rule 132).

Query: How may a private document be proved?

Answer: It depends on the purpose of the offer:
(a) if the private document is offered to be authentic, its due execution
and authenticity must be proved either:
(1) by anyone who saw the document executed or written; or
(2) by evidence of the genuineness of the signature or
handwriting of the maker (Section 22, Rule 132), to wit:
(a) by any witness who believes it to be the
handwriting of such person because he has seen the person write;
(b) by any witness who has seen writings
purporting to be those of such person upon which the witness has
acted or been charged, and has thus acquired knowledge of the
handwriting of such person;
(c) by comparison, made by the court or a witness,
with:
(i) writings admitted or treated as genuine by the party
against whom the evidence is offered; or
(ii) writings proved to be genuine to the satisfaction of the
judge.

Instances where private document may be received in evidence without authentication:

(i) In case of an ancient document, that is, a private document more than thirty (30) years old,
produced from a custody in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of suspicion (Section 21, Rule 132);
(ii) where the private document is not offered as an authentic document, in which case it only
needs to be identified as that which it is claimed to be (Section 20, Rule 132).

Query: What is the rule if a document offered in evidence is written in an unofficial

language (neither in English nor in Filipino)?
Answer: The document is inadmissible in evidence, unless accompanied by a translation into
Filipino or English ( Section 33, Rule 132).

XIII. WEIGHT AND SUFFICIENCY OF EVIDENCE

Hierarchy of Evidence:
(1) proof beyond reasonable doubt – applied in criminal cases
(2) preponderance of evidence – applied in civil cases
(3) substantial evidence – applied in administrative cases and in proceedings involving Writ of
Amparo(Section 17, Amparo Rule)

Query: What is the evidentiary weight of an extra-judicial confession?

Answer: It is not sufficient to convict the accused, unless corroborated by evidence of corpus
delicti (Section 3, Rule 133)

Query: What needs to be corroborated by corpus delicti, the extra-judicial

confession itself or the testimony of the person who heard the extra-judicial
confession?
Answer: What must be corroborated is the extrajudicial confession and not
the testimony of the person to whom the confession was made, and the
corroborative evidence required is not the testimony of another person who also
heard the confession but the evidence of corpus delicti (People vs. Lorenzo).

Query: Is it required that all elements of the crime charged must be

established by independent evidence apart from the extrajudicial confession?
Answer: Section 3, Rule 133 of the Rules of Court does not mean that every element of the
crime charged must be clearly established by independent evidence apart from the
confession. It means merely that there should be some evidence tending to show the
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commission of the crime apart from the confession. Otherwise, the utility of the
confession as a species of proof would vanish if it were necessary, in addition to the
confession, to adduce other evidence sufficient o justify a conviction independently
of such confession. In other words, the other evidence need not , independently of
the confession, establish the corpus delicti beyond reasonable doubt (People vs.
Lorenzo).

Query: Is circumstantial evidence sufficient for conviction?

Answer: Yes, circumstantial evidence is sufficient for conviction if the following requisites
are present:
(i) there must be more than one circumstance;
(ii) the facts from which the inferences are derived are proven; and
(iii)the combination of all circumstances is such as to
produce a conviction beyond reasonable doubt.

PRINCIPLES RELEVANT IN DETERMINING WEIGHT AND SUFFICIENCY OF EVIDENCE:

(i) Equipoise Rule – where the evidence on an issue of fact is in issue or there is doubt on which
side the evidence preponderates, the party having the burden of proof loses.
Hence, if the inculpatory facts and circumstances are capable of two (2) or more
explanations, one of which is consistent with innocence and the other consistent
with guilt, the former should prevail, for then the evidence does not suffice to
produce a conviction (Abarquez vs. People).
(ii) Actor’s Rule - where the testimonies of witnesses on one and the same factual issue are
inconsistent with each other, the testimony of the witness whose action is more
connected to the point at issue should be given more credence. Thus, as
between the carpenter and the tenant, the latter should be given more credence,
being more closely connected to the point at issue, that is, whether the
improvements are found on the litigated lot. For while a carpenter would not
concern himself with the title of the property, a lessee would normally look into
the title of the property leased, including its precise location and boundaries
(Heirs of Vicente Reyes vs. Court of Appeals).

XIV. ELECTRONIC EVIDENCE RULE

(A) Applicable to:
(a) civil actions/proceedings
(b) quasi-judicial and administrative cases
(c) criminal actions (Amendment took effect on October 14, 2002)

(B) Definition of Terms:

(a) Electronic data message – refers to information generated, sent, received pr stored by
electronic, optical or similar means.
(b) Electronic document - refers to information or representation of information, data, figures,
symbols or other modes of written expression ,described or however represented, by which a
right is established or an obligation extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents or any print-out or output, readable by
sight or other means, which accurately reflects the electronic data message or electronic
document.
NPC vs. Codilla
The operative fact that makes a document electronic is that it is completely
processed electronically. Thus, a manually signed print-out of a computer-
generated document cannot be considered as electronic document, precisely
because not all the data found therein are processed electronically.
MCC Sales vs. S-Sangyung -
The intention of the framers in enacting the “Electronic Commerce Act” is to
promote and treat a paperless writing as functional equivalent of a paper-based
document. Thus, an ordinary facsimile transmission which involves a paper-based
information or data, which is scanned, sent through telephone line, and reprinted at
the receiving cannot be considered as “electronic document”, because it involves a
paper-based original information as sent and a paper-based facsimile copy as
received.
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2013 Bar Pre-Week Notes

(c) Ephemeral electronic communication - refers to telephone conversations, text messages, chat
room sessions, streaming audio, streaming video, and other electronic forms of communication
the evidence of which is not recorded or retained.

(C) Requisites for admissibility of an electronic document:

(a) it must be relevant
(b) it must be competent (not excluded by the rules).
Thus, it must comply with the Best Evidence Rule, the rule on Authentication, and other
rules of exclusions.
(c) It must be formally offered in evidence.

(D) Electronic document in relation to Best Evidence Rule

For purposes of the Best Evidence Rule, when the contents of an electronic document are
the subject of inquiry, the original must be presented.

(E) The original of an electronic document

An electronic document shall be regarded as the equivalent of an original document under
the Best Evidence Rule if it is a print-out or output readable by sight or other means, shown
to reflect the date accurately(Section 1, Rule 4). Thus, as it is now, there is no longer any
need to present to the court the diskette containing electronic data.

(F) A copy of an electronic document maybe regarded as equivalent of the original –

(a) when a document is in two or more copies executed at or about the same time with
identical contents; or
(b) it is a counterpart produced by:
(i) the same impression as the original; or
(ii) from the same matrix; or
(iii) by mechanical or electronic re-recording; or
(iv) by chemical reproduction; or
(v) by other equivalent techniques which accurately produces the original.
Exceptions:
(a) a genuine issue is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the
original
(G) Authentication of electronic document:
Authentication is required only if the electronic document is private and is offered as
authentic, by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have
signed the same;
(b) by evidence that other appropriate security procedures or devices as maybe
authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document;
(c) by other evidence showing its integrity and reliability to the satisfaction of the
judge.