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RULE 128
Relevant Principles
General Provisions – Concepts
Rule 128
Section 1: Evidence defined - Evidence is the means, sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
- Region of evidence lies exclusively between moral certainty as its perfect extreme and moral possibility as
its most imperfect extreme.
- It does not look for more than the first, and it will not act on less than the last.
- The whole object is to produce those convictions which spring spontaneously from the suggestions of the
intuition, as embodied in the conclusions of the reasoning or comparative faculty of the mind.

Adversary System - self-interest of each party to the litigation will produce the evidence and competing arguments
necessary for the trier to make a fair and rational decision.
- Basic element of remedial law is the adversary system.
- Responsibility of bringing a suit for shaping the issues, and for producing evidence rests almost entirely
upon parties to the controversy.
- Court takes almost no active part. It does not do its own investigation. Rarely asks questions.
Essence of Evidence
- “Evidence” has 3 legitimate meanings: (Gulson)
1. Science of proof or the fundamental, natural principle which regulate the art of proving.
2. Art of proof or the rules and methods employed in the application of that science to practice
3. Physical means or agencies by which that art is carried into effect
- Thayer
- Term of forensic procedure and imports something put forward in a court of justice.
- Original sense
- Evidence is that from which causes the state of being evident or plain.
- Legal acceptation
- Evidence includes all the means by which any alleged matter of fact, the truth of which is submitted
to investigation, is established or disproved.
- Rule of evidence - principle expressing the mode and manner of proving the facts and
circumstances upon which a party relies to establish a fact in dispute in judicial procedure.
- Makes clear or ascertains the trust of the very fact or point in issue, either on one side or
the other.
- Evidence is fundamentally something proffered to establish an alleged or disputed fact.
- Rule of evidence is dependent on rules of selectivity and exclusion.
Factum probans and Factum probandum
Factum probans - evidentiary fact which establishes the proposition.
- Example: John Doe committed murder > Evidentiary fact may be offered that JD left the victim’s
house shortly after murder.
Factum probandum - ultimate fact or proposition to be established.
- Example: ^to prove as proposition, evidentiary fact may be offered that JD’s shoes fit the track left
near the house by the murderer. Also, as a proposition, may be evidenced by the statement of a
witness on stand who has placed the shoe in the tracks.
Fact - a fact is that which exists either in the world of matter or in that of mind.
- As a reality of nature, existing or perceptible in the present or the past, and having its seat either in matter or
in mind.
- Fundamental concept of fact is of a thing existing or being true.
- Not limited to what is tangible or in any way the object of sense,
- Things invisible (mere thoughts, intentions, fancies of the mind) when conceived of as existing or as being
true, are conceived of as facts.
- Question of whether a thing be a fact or not, is the question of whether it is, whether it exists, whether it
be true.
- Viable pleading > must aver sufficient ultimate facts rather than evidentiary facts.
Ultimate facts - principal, determinative, constitutive facts upon the existence of which the cause of action rests.
- Does not refer to details of probative matter or particulars of evidence which establish the material elements.
- Facts that constitute a cause of action.
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- Pleading must contain allegations of ultimate facts, so that court may ascertain whether, assuming
the allegations to be true, pleading states a cause of action.
- Fact is essential if it cannot be stricken out without leaving the statement of the cause of action
insufficient.
- Important and substantial facts which either directly form the basis of the primary right and duty, or which
directly make up wrongful acts or omissions of the defendant.
Evidentiary facts - those which tend to prove or establish the ultimate facts.
- Facts which are necessary for determination of the ultimate facts; they are premises upon which conclusions
of ultimate facts are based.
- Ultimate facts will be tested during trial by evidentiary facts.
Claim; issue
- Issue is the proposition to be maintained or controverted.
- By common law, issue is formed by the parties themselves through their attorneys, court having nothing to
do with the progress of their altercation except to see that it is conducted in the forms of law and it always
consists of a single proposition precisely and distinctly stated.
- Evidence offered must correspond with the allegations, and be confined to the point in issue.
- Arises if party alleges a fact on a pleading and it is disputed by adverse party.
- General issue - it is a general and comprehensive denial of the whole declaration or of the principal part of
it.
- Puts in controversy the material part of the declaration and obliges plaintiff to prove it in each
particular.
- Example:
- Upon plea of not guilty, in trespass quare clausum fregit, plaintiff must prove his
possession by right as against the defendant, unlawful entry of defendant and damages
done by him, if more than nominal damages are claimed.
- Special issue - arises in some later stage of the pleadings and is so called by way of distinction from
general issue.
- Example:
- If defendan specially pleads that plaintiff gave him a license to enter, then no evidence of
the plaintiff’s title or possession, or of defendant’s entry, need be adduced, fct of license
being along in controversy.
Absence of an Issue
- If there is no issue, the civil case before the court is ordinarily ripe for a judgment on the pleadings, or an
immediate judgment of a civil case covered by summary procedure.
- No issue where:
- Answer fails to tender an issue
- Admits the material allegations of the adverse party’s pleading
- Material averment in complaint, other than those as to the amount of unliquidated damages, is
deemed admitted when not specially denied by the adverse party.
- Sec. 10, Rule 8 ROC Manner of Making allegations in pleading
1. Specifying each material allegation of the fact in the complaint, the trust of which the defendant
does not admit, and whenever practicable, setting forth the substance of the matters which he will
rely upon to support his denial
2. Specifying so much of an averment in the complaint is true and material and denying only the
remained
3. Stating that the defendant is without knowledge or information sufficient to form a beleif as to the
trust of a material averment in the complaint, which as the effect of a denial.
- PURPOSE of requiring defendant to make specific denial > make him disclose matters alleged in the
complaint which he intends to disprove at the trial, with the matter which he relied upon to support the
denial.
- Failure to make specific denial > deemed to have admitted all the material averments.
- Neither is there an issue if the court avails of judicial notice of a matter before it, or there is a judicial
admission from a party, or if a party laid the foundation for, or enjoys the benefit of, a presumption.
- Ordinary civil actions
- Plaintiff has burden of proving material allegations of the complaint denied by the defendant, and
defendant has burden of proving material allegations in his case where he sets up a new matter.
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- Facts in issue and relevant facts must be proven by evidence except the following:
1. Allegations contained in the complaint or answer immaterial to the issues
2. Facts admitted or not denied in the answer, provided sufficiently alleged
3. Those which are the subject of an agreed statement of facts between the parties;
as well as those admitted by the party in the course of the proceedings in the
same case
4. Facts which are the subject of judicial notice
5. Facts which are legally presumed
6. Facts peculiarly within the knowledge of the opposite party
- Criminal case
- Plea of accused signals joinder of issues and would be impremissible for an accused to interpose a
counterclaim for damages, primarily on account of the absence of any specific rule in a criminal
proceeding.
- Need to ascertain the truth respecting a matter of fact when a fact is in issue and truth is ascertained by
evidence, in any of its forms or a combination.
Argument from evidence
- Argument is the piercing together of elemental facts for a suggested conclusion.
- Legitimate quality of argumentation is the invocation, by counsel, of ordinary rules of logic and
rhetoric in the combination of assumed facts.
- Effort to establish belief by a course of reasoning.
- Evidence connotes process of presenting assumed facts.
- Object of evidence > establish truth by the use of perceptive and reasoning faculties.
- In critical thinking, argument gives a reason for thinking a claim is true, while a claim offered as a reason for
believing another claim is a premise.
- Claim for which a premise is supposed to give a reason is the conclusion of the argument.
Suspicion and Conjecture
- Suspicion cannot give probative force to testimony which in itself is insufficient to establish or to justify an
inference of a particular fact.
- Settled is the rule that courts cannot rely on speculations, conjectures or guesswork but must depend upon
competent proof and on the basis of the best evidence obtainable under the circumstances.
- Litigations cannot be properly resolved by suppositions, deductions, or even presumptions, with no basis in
evidence, for the truth must have to be determined by the hard rules of admissibility and proof.
Question of fact from a question of law
- Question of fact - consists in assuring himself that a given fact existed in a given place, at a given time.
- Decided by evidence.
- There is question of fact when the doubt or controversy arises as to the truth or falsity of the
alleged facts.
- Query solicits calibration of the whole evidence considering the credibility of witnesses,
existence and relevance of specific surrounding circumstances, relation to each other and
to the whole probabilities of the situation.
- Question of law - consists in assuring himself, that the law has laid down a rule of such or such a nature,
applicable to this individual fact.
- Decided by the text of the law, or when there is no written law, by previous decisions.
- There is question of law when a doubt or difference arises as to what the law is certain state of
facts, and the question does not call for the examination of the probative value of the evidence
presented by the parties-litigants.
Conclusion of fact and Conclusion of law
- Conclusion of fact - inference drawn from the subordinate or evidentiary facts.
- Conclusion of law - proposition not arrived at by any process of natural reasoning from a fact or combination
of facts stated, but by the application of the artificial rules of law to the facts pleaded.
Allegation, evidence, and proof -
Allegation - assertion, declaration, or statement of party to an action, made in a pleading, setting out what he expects
to prove.
- Not an evidence nor proof and court can not rely on speculation.
Statement - person’s oral assertion, written assertion, or non-verbal conduct, if the person intended it as an assertion.
- To prove or disprove contested fact, form of evidence may either be direct or indirect.
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- It is sufficient, if the substance of the issue be proved.
Allegations of matter of substance - may be substantially proved
Allegations of matter of essential description - must be proved with a degree of strictness,
extending in some cases even to literal precision.
Proof - net effect or result of evidence. Outcome of adequate evidence.
- When fact in issue is established, proof is deemed to have been attained.
- Evidence bridges the gap between allegation and proof.
- Proof is the result of sufficient evidence.
- “Whether there is sufficient probability of its truth”
- Whether facts are shown by competent and satisfactory evidence.
- Things established by competent and satisfactory evidence are said to be proved.
- Principal fact - existence or nonexistence is to be proved.
- Proving fact - employed to prove the verity and falsehood of principal fact.
As a general proposition, before factum probans can lead to factum probandum, evidence must be properly
presented, formally offered by the proponent, admitted, and assessed by the evaluator.
Sanctioned by rules
“Rule of Evidence” - mode and manner of proving the competent facts and circumstances on which a party relies to
establish the fact in dispute in judicial procedure.
- No valid waiver can extend to a rule of evidence anchored on public policy.
- Ex. waiver of privilege against disclosure of state secrets is void.
No vested right of property in rules of evidence
- GR: No vested right of property in rules of evidence.
Truth
- 3 conception as to what constitutes “truth”
1. Agreement of thought and reality
2. Eventual verification
3. Consistency of thought with itself
Matter of fact - matter, the existence of which is determined by the sense, or by reasoning based upon the evidence.
Matter of law - matter, truth or falsity of which is determined by establishing the rules of law or by reasoning based
upon them.
- Sec. 1, Rule 138 - evidence is the means of ascertaining the trust of a matter of fact not of a matter of law.
Sources of Evidence > (1) Constitution, (2) Substantive law, and (3) Procedural law
I. 1987 Constitution
A. Constitutional law - study of maintenance of the proper balance between authority as represented by the 3
inherent powers of the State and liberty as guaranteed by the Bill of rights.
1. Constitution - body of rules and maxims in accordance with which the powers of sovereignty are
habitually exercised.
2. Rules of evidence were mostly reflected in Art. 3 on the Bill of Rights, inclusive
B. Governmental interference as precondition to application or invocation of the Bill of Rights
1. Bill of Rights can only be invoked if there is governmental interference, consistent with Yrasuegi v.
PAL:
a) Bill of Rights is not meant to be invoked against acts of private individuals.
b) US SC, in interpreting the 14 amendment, is consistent in saying that the equal protection
erects no shield against private conduct, however discriminatory or wrongful.
c) Private actions, no matter how egregious, cannot violate the equal protection guarantee.
2. People v. Marti - absent any state intrusion through its public officers, private individual may not
seek refuge under Art. 3 of the Constitution
a) May an act of a private individual, allegedly in violation of appellant’s constitutional rights,
be invoked against the State? Negative.
(1) Absence of governmental interference, liberties guaranteed by the Constitution
cannot be invoked against the State.
(2) The constitutional right refers to the immunity of one’s person, whether citizen or
alien, from interference by government, included in which is his residence, his
papers, and other possessions.
(3) BOR in the Constitution is not meant to be invoked against acts of private
individuals.
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3. What the BOR does is to declare some forbidden zones in the private sphere inaccessible to any
power holder.
a) Protection against unreasonable search and seizure cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by government.
4. People v Maqueda - BOR are primarily limitations on government, declaring the rights that exist
without governmental grant, that may not be taken away by government and that government has a
duty to protect, or restrictions on the power of government found not in the particular specific types
of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that
governmental power is not unlimited.
C. Right to Privacy
1. Secs. 2 and 3 of Art. 3 of 1987 Constitution on unreasonable searches and seizures, arrests or
other forms of physical restraint on one’s liberty and privacy of communication and correspondence
also serve as basis for invocation by an individual of the right to privacy as against State intrusion.
D. Unreasonable Search
[Link] of privacy is the right to be left alone.
a) Constitutional guarantee prohibits only unreasonable searches and seizures.
(1) For as long as vehicle is neither searched nor its occupants subjected to a body
search and inspection of vehicle is limited to a visual search, routine checks
cannot be regarded as violative of an individual’s right against unreasonable
searches and seizures.
E. Administrative Search
1. Administrative search appeared to be beyond the context of an “unreasonable” invasion of privacy.
2. Reasonableness is judged by the balancing of the government mandated intrustion on the the
individual’s privacy interest against the promotion of some compelling state interest.
3. Criminal context, reasonableness requires showing of probable cause personally determined by a
judge.
4. RA 10667 Philippine Competition act, SC issued rule on administrative search and inspection
under the PH Competition Act for inspection of business premises and other offices, land and
vehicles used by an entity through an ex parte application for an inspection order by the PH
Competition Commission before the SCC.
F. Unwarranted Inquiry
1. Republic v. Manalo -
a) Attempt to pry on the motive of a Filipino in marrying an alien may face constitutional
challenge under the concept of the right to privacy.
b) The state does not and cannot dictate on the kind of life a couple chooses to lead.
c) Any attempt to regulate their lifestyle would go into the realm of their right right to privacy
and would raise serious constitutional questions.
d) Right to marital privacy allows married couples to structure their marriages in almost any
way they see fit, to live together, or live apart, to have children or no children, to love one
another or not, and so on.
G. Search of government office computer​​
1. Pollo v. Chairperson David -
a) “Right to be left alone”
H. Right to be forgotten
1. General Data Protection Regulation (GDPR), protection of natural persons within the EU and the
EEA, in relation to the processing of personal data, was acknowledged as a fundamental right.
2. Right to erasure in Art. 17 GDPR:
a) The data subject shall have the right to obtain from the controller the erasure of personal
data concerning him or her without undue delay and the controller shall have the
obligation to erase personal data without undue delay where one of the following grounds
applies:
(1) the personal data are no longer necessary in relation to the purposes for which
they were collected or otherwise processed;
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(2) the data subject withdraws consent on which the processing is based according
to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other
legal ground for the processing;
(3) the data subject objects to the processing pursuant to Article 21(1) and there are
no overriding legitimate grounds for the processing, or the data subject objects to
the processing pursuant to Article 21(2);
(4) the personal data have been unlawfully processed;
(5) the personal data have to be erased for compliance with a legal obligation in
Union or Member State law to which the controller is subject;
(6) the personal data have been collected in relation to the offer of information
society services referred to in Article 8(1).
b) Where the controller has made the personal data public and is obliged pursuant to
paragraph 1 to erase the personal data, the controller, taking account of available
technology and the cost of implementation, shall take reasonable steps, including
technical measures, to inform controllers which are processing the personal data that the
data subject has requested the erasure by such controllers of any links to, or copy or
replication of, those personal data.
c) Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:
(1) for exercising the right of freedom of expression and information;
(2) for compliance with a legal obligation which requires processing by Union or
Member State law to which the controller is subject or for the performance of a
task carried out in the public interest or in the exercise of official authority vested
in the controller;
(3) for reasons of public interest in the area of public health in accordance with
points (h) and (i) of Article 9(2) as well as Article 9(3);
(4) for archiving purposes in the public interest, scientific or historical research
purposes or statistical purposes in accordance with Article 89(1) in so far as the
right referred to in paragraph 1 is likely to render impossible or seriously impair
the achievement of the objectives of that processing; or
(5) for the establishment, exercise or defence of legal claims.
3. Right of an individual against obsolete digital information can subordinate economic interest of the
operator of the search engine.
I. Private individual vs. private individual
1. If situation is between priv indiv v. priv indiv, transgressor may be subjected to other causes of
action outside of the 1987 Constitution.
a) Violation of BOR as a constitutional guarantee can be done only by public officials. Almost
all these liberties are also guaranteed by Art. 32 CC making private violations actionable
even if violation does not have a constitutional consequence such as applicability of
exclusionary rule.
2. Waterous Drug v. NLRC -
a) A transgressor of liberty can also be confronted with a criminal indictment for qualified
trespass to dwelling, other forms of trespass, grave, light, or other light threats, grave,
light, or other similar coercions, discovering secrets through seizure of correspondences,
and revelation of industrial secrets.
J. Privacy of communication and correspondence
1. Another form of search is State invasion of communication and correspondence under Art. III,
Sec. III Consti. Exclusionary rule applies.
2. While excluded evidence may be inadmissible against the accused, there is cogent reason to
subscribe to the view advanced by a respected jurist of the PH SC that evidence secured as a
consequence of breach of these funda rights may be utilized to pin public officer for offense of
illegal search and eavesdropping.
II. Substantive law - part of law which creates, defines and regulates rights, as opposed to “adjective or remedial law”
which prescribes method of enforcing the rights or obtaining the redress for their invasion.
A. RA 9165
1. Chain of Custody -
a) Sec. 21:
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(1) Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to
the PDEA Forensic Laboratory for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination results, which shall be done under
oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours
after the receipt of the subject item/s: Provided, That when the volume of the dangerous
drugs, plant sources of dangerous drugs, and controlled precursors and essential
chemicals does not allow the completion of testing within the time frame, a partial
laboratory examination report shall be provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic laboratory: Provided, however, That
a final certification shall be issued on the completed forensic laboratory examination on
the same within the next twenty-four (24) hours;
(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours,
conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous
drugs, plant sources of dangerous drugs, and controlled precursors and essential
chemicals, including the instruments/paraphernalia and/or laboratory equipment, and
through the PDEA shall within twenty-four (24) hours thereafter proceed with the
destruction or burning of the same, in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the DOJ, civil society groups and any elected public
official. The Board shall draw up the guidelines on the manner of proper disposition and
destruction of such item/s which shall be borne by the offender: Provided, That those
item/s of lawful commerce, as determined by the Board, shall be donated, used or
recycled for legitimate purposes: Provided, further, That a representative sample, duly
weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or burning
of the subject item/s which, together with the representative sample/s in the custody of the
PDEA, shall be submitted to the court having jurisdiction over the case. In all instances,
the representative sample/s shall be kept to a minimum quantity as determined by the
Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to personally
observe all of the above proceedings and his/her presence shall not constitute an
admission of guilt. In case the said offender or accused refuses or fails to appoint a
representative after due notice in writing to the accused or his/her counsel within
seventy-two (72) hours before the actual burning or destruction of the evidence in
question, the Secretary of Justice shall appoint a member of the public attorney's office to
represent the former;

(7) After the promulgation and judgment in the criminal case wherein the
representative sample/s was presented as evidence in court, the trial
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prosecutor shall inform the Board of the final termination of the case
and, in turn, shall request the court for leave to turn over the said
representative sample/s to the PDEA for proper disposition and
destruction within twenty-four (24) hours from receipt of the same; and
2. People v. Bintaib -
a) Matter of substantive law cannot be brushed aside as a simple technicality.
b) Crafted to address potential police abuses by narrowing the window of opportunity for
tampering with evidence.
3. Sec. 1(b) of the DD board regulation 2002, defined chain of custody:
a) the duly recorded authorized movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory equipment of each stage,
from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of seized
item shall include the identity and signature of the person who held temporary custody of
the seized item, the date and time when such transfer of custody were made in the course
of safekeeping and use in court as evidence, and the final disposition
4. Sec. 21 RA 9165 amended by Sec. 1 RA 10640
a) (1) The apprehending team having initial custody and control of the dangerous drugs,
controlled precursors and essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure and confiscation, conduct a physical
inventory of the seized items and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a representative of the
National Prosecution Service or the media who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever
is practicable, in case of warrantless seizures: Provided, finally, That non-compliance of
these requirements under justifiable grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures and custody over said items.
b) (3) A certification of the forensic laboratory examination results, which shall be done by
the forensic laboratory examiner, shall be issued immediately upon the receipt of the
subject item/s: Provided, That when the volume of dangerous drugs, plant sources of
dangerous drugs, and controlled precursors and essential chemicals does not allow the
completion of testing within the time frame, a partial laboratory examination report shall be
provisionally issued stating therein the quantities of dangerous drugs still to be examined
by the forensic laboratory: Provided, however, That a final certification shall be issued
immediately upon completion of the said examination and certification;
5. Sec. 21(a) IRR RA 9165
a) ​(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the place where the search warrant is
served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures ; Provided, further,
that non-compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items;
6. People v. Alvarado -
B. RA 11055
1. PhilSys shall be established to provide a valid proof of identity for all citizens and resident aliens as
a means of simplifying public and private transactions.
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2. Individual’s record in PhilSys shall be considered as an official and sufficient proof of identity.
C. RA 8353 - Anti-Rape law
1. Presumptions - any physical overt act manifesting resistance against the act of rape in any degree
from the OP or where OP is so situated as to render her/him incapable of giving valid consent, may
be accepted as evidence in the prosecution of the acts punished under Art. 266-A.
2. RA 8505 > rape shield protection for the complainant in connection with the charge of rape.
a) Evidence of complainant’s past sexual conduct, opinion thereof or his/her reputation shall
not be admitted unless, and only to the extent that the court finds, such evidence is
material and relevant to the case.
3. American jurisdiction,
a) Courts, in the past, admitted evidence of the victim’s character for chastity.
4. Enactment of rape shield laws, reforms range from barring all evidence of victim’s character for
chastity to merely requiring a preliminary hearing to screen out inadmissible evidence on the issue.
a) Federal Rule of Evidence 412 lies between extremes. Reversing traditional preference for
proof of character by reputation bars reputation and opinion evidence of victim’s past
sexual conduct, but permits evidence of specific incidents if certain substantive and
procedural conditions are met.
b) Subject to exceptions, the victim’s sexual behaviour or predisposition is generally not
admissible under Rule 412 of Federal Rules of Evidence.
5. RA 9262
a) Sec. 44 > Rule of Confidentiality in violence cases against women and children:
(1) All records pertaining to cases of violence against women and their children
including those in the barangay shall be confidential and all public officers and
employees and public or private clinics to hospitals shall respect the right to
privacy of the victim. Whoever publishes or causes to be published, in any
format, the name, address, telephone number, school, business address,
employer, or other identifying information of a victim or an immediate family
member, without the latter's consent, shall be liable to the contempt power of the
court.
D. RA 9372 - HSA
1. Sec. 7 - surveillance of suspects and interception and recording of communications which can be
permitted by the CA:
a) The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary
notwithstanding, a police or law enforcement official and the members of his team may,
upon written 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.
Provided, That surveillance, interception and recording of communications between
lawyers and clients, doctors and patients, journalists and their sources and confidential
business correspondence shall not be authorized.
2. An exception to the principle of territoriality, there can be an extraterritorial application of RA 9372
under Sec. 58 of the law.
E. RA 8792 - Electronic Commerce Act.
1. Law accorded validity to an electronic data message, electronic document, electronic signature,
and the electronic contract, based on preconditions.
2. Sec. 2 of Rules on Electronic Evidence, rule on admissibility of electronic document or electronic
data messaged in Rule 3, and offered or used in evidence was originally restricted to civil
actions and proceedings as well as quasi-judicial and administrative cases.
a) Later also criminal cases by virtue of AM No. 01-7-01
3. Access Devices Regulation Act and Anti Bullying Act > regulate access and use of the internet.
4. Data Privacy Act > to protect fundamental human right of privacy, communication while ensuring
free flow of information to promote innovation and growth.
F. Cybercrime Prevention
 10
1. Offenses against the confidentiality, integrity, and availability of computer data and systems,
computer-related and content-related offenses.
2. Disini v. Sec. of Justice > Challegned several provisions
a) Cybercrime law > regulate access to and use of cyberspace.
b)
G. Rule on Cybercrime Warrants
1. AM 17-11-03
a) Pertained to 1 set of standards concerning only the search, seizure, examination and
related processes set forth in the Cybercrime Prevention Act and provisions did not spell
out any other procedure of litigating criminal, civil actions or special proceedings.
b) Tackled venue of criminal actions
(1) Where to file application for warrant
(2) Incidents related to warrant when criminal action is instituted
(3) How applicant will be examined
(4) Effective period of warrants
(5) Extraterritorial service of warrants
(6) Preservation, interception, search, seizure, and examination of computer data,
including custody and destruction of computer data
III. Procedural Rule
A. All systems of law has 2 parts: Substantive and Procedure.
1. Evidence is part of the law of Procedure.
2. Estipona v. Lobrigo - assailed constitutionality of Sec. 23 of RA 9165 (enjoined plea bargaining in
drug cases) and also addressed nature of rule-making power of SC.
a) Sec. 5(5) Art. VIII of 1987 Constitution -
(1) Power to promulgate rules of pleading, practice and procedure was granted by
the Constitution to the Court to enhance its independence because without
independence and integrity, courts will lose that popular trust so essential to the
maintenance of their vigor as champions of justice.
(2) Constitution continuously vested this power to the Court for it enhances its
independence.
3. Bustos v. Lucero - rules of evidence were considered as procedural in character rather than
substantive.
a) Substantive law creates substantive rights.
(1) Substantive law > part of law which creates, defines, and regulates rights, or
which regulates the rights and duties which give rise to a cause of action.
(a) Part of law which courts are established to administer.
(2) Remedial law > prescribed method of enforcing rights or obtains redress for their
invasion.
4. Criminal law -
a) Substantive law > declares what acts are crimes and prescribed the punishment for
committing them.
b) Procedural law > provides or regulates the steps by which one who commits a crime is to
be punished.
(1) Preliminary Investigation is eminently and essentially remedial. It is the first step
in a criminal prosecution.
5. Evidence - mode and manner of proving the competent facts and circumstances on which a party
relies to establish the fact in dispute in judicial proceedings.
B. Revised guidelines for Continuous Trial of Criminal Cases
1. Evidentiary norms were subsumed such as:
a) Stipulations between the parties shall entail the active participation of the court.
b) Prosecution’s evidence shall be the sole basis for resolution of the Petition for Bail and
presentation of evidence-in-chief cannot be suspended pending resolution of Pet for Bail
or MR.
c) Sworn statements as source of testimony without prejudice to additional direct and cross
examinations.
2. Oral testimony is the norm for eyewitnesses for criminal proceedings before 2nd level courts,
Sandiganbayan and CTA.
 11
C. Precautionary Hold Departure Order (AM 18-07-05-SC)
1. PHDO - order in writing issued by the proper RTC, upon evaluation of probable cause and at the
initiative of the Prosecutor OR NBI, commanding the Bureau of Immigration to enjoin any
attempt by a person suspected of a crime to depart from the PH.
a) Issued ex parte for crimes with a minimum of at least 6 years and 1 days or when the
offender is a foreigner regardless of the imposable penalty, and after evaluation of high
probability of respondent’s departure.
2. Genuino v. Hon. De Lima - Right to Travel Sec. 6, Art. 3 1987 Consti
a) DOJ Circular regarding HDOs, Watchlist Orders, and Allow Departure Orders were
declared unconstitutional. (absence of a valid law)
D. State power over rules of evidence
1. So long as legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a
party a fair opportunity to make his defense and to submit all the facts to the jury to be
weighed by them, upon evidence legitimately bearing upon them, it is difficult to perceive how its
acts can be assailed upon constitutional grounds.
2. Criminal law > branch of public substantive law when it defined crimes and provided penalties but
RPC also incorporated rules of evidence.
a) Treason:
(1) No person shall be convicted of treason unless on the testimony of 2 witnesses
at least to the same overt act or on confession of the accused in open court.
(2) Conviction may not be predicated from circumstantial evidence or extra-judicial
confession of accused.
(3) Between 2 kinds of treason:
(a) By levying war against the PH
(b) Adherence to the enemy (2 witness rule does not apply)
b) Rebellion, Insurrection or coup d’etat
(1) Art. 135 RPC > shifted burden to the accused who has to disprove the State’s
perception of his control of these crimes against public order.
(2) Command of unknown leaders, any person who in fact directed the others, spoke
for them, signed receipts and other documents issued in their name, or
performed similar acts on behalf of the rebels, shall be deemed a leader.
c) Illegal Assemblies
(1) Art. 146 RPC, if a person attends unlawful congregation with an unlicensed
firearm, 2 inferences can be drawn therefrom: (1) assembly is illicit and (2)
person armed with unlicensed firearm is the leader or organizer.
3. Statutes declaring what shall be presumptive or prima facie of any fact have been held by the
weight of authority to be constitutional and valid, unqualifiedly in civil cases, and in criminal cases
with certain qualifications.
E. Liberal Interpretation of Rules on Evidence
1. General policy, ROC shall be liberally construed to promote their objective of securing a just,
speedy, and inexpensive disposition of every action and proceeding.
a) Procedural rules > designed to facilitate the attainment of justice, and courts must avoid
strict and rigid application which would result in technicalities that tend to frustrate rather
than promote substantial justice.
2. If procedure to be followed in exercise of jurisdiction is not specified by law or ROC, any suitable
process or mode of proceeding may be adopted which appears conformable to the spirit of the law
or rules.
3. Purpose of procedural rules > afford litigant every opportunity to present evidence in their
behalf in order that substantial justice is achieved.
a) Litigations are primarily for the search of the trust, and liberal interpretation of rules by
which both parties are given fullest opportunity to adduce proofs is the best way to
ferret out such truth.
4. Courts can, by appropriate means, do all thins necessary to preserve and maintain every quality
needful to make the judiciary an effective institution of Government.
a) Also have inherent power to preserve their integrity, maintain dignity and insure
effectiveness in administration of justice.
F. Drug cases: Strict and liberal approach
 12
1. People v. Romy Lim - strict adherence Chain of Custody rule
a) Strict adherence to mandatory requirements of Sec. 21(1) RA 9165, may be excused as
long as integrity and evidentiary rule of confiscated items are properly preserved and
fidelity to the rule applies not just on arrest and/or seizure by reason of a legitimate buy
bust but also on those lawfully made in air or sea port, local or international package/
parcel/ mail, or those by virtue of a consented search, stop and frisk, search incident to a
lawful arrest, or application of plain view doctrine where time is of the essence and
arrest and/or seizure is/are not planned, arranged, or scheduled in advance.
Principal Classification of Evidence
- As to form, 3 types: (1) Object or Real; (2) Documentary; (3) Testimonial
- Instruments of Evidence - to the media through which the evidence of facts, either disputed or required to to be
proved, is conveyed to the mind of a judicial tribunal.
- 3 kinds:
1. Witnesses - persons who inform the tribunal respecting facts.
2. Real Evidence - evidence from things
3. Documents - evidence supplied by material substances, on which the existence of things is
recorded by conventional marks or symbols.
A. Real Evidence - evidence of the thing or object which is produced in court or evidence furnished by things. (Sec. 1
Rule 130 and Sec. 35 Rule 132)
a. Evidence gained by the immediate perception of the judicial tribunal or other seeker of truth or is reported to
the tribunal or other inquirer by another person.
i. Real evidence - evidence of which any object belonging to the class of things is the source,
persons also being included, in respect of such properties as belonging to them in common things.
ii. Real evidence or demonstrative evidence - evidence by direct inspection through the court’s
physical senses of vision, hearing, touch, taste, or smell, or a fact, the existence of which is
perceptible to the senses.
b. Either: (1) Immediate or (2) Reported
i. Immediate - thing comes under the cognizance of our senses.
ii. Reported - its existence is related to us by others.
c. Circumstantial & Testimonial v. Real (Autoptic Proference)
i. Real differs from the 2 in omitting any step of conscious inference or reasoning, and in a
proceeding by direct self-perception or autopsy.
ii. It assumes objectivity of external nature and for the purposes of judicial investigation, a thing
perceived by the tribunal as existing does exist.
d. Black definition
i. Evidence furnished by things themselves, on view or inspection, as distinguished from a description
of them by the mouth of a witness as obtained by a jury when they are taken to view it.
e. If a party fails to produce real evidence, an adverse presumption can normally flow from the omission, which
repercussion may likewise apply to documentary or testimonial evidence.
i. Non-production or suppression by a party of evidence which is within his power to produce and is
material to an issue justifies the inference that it would be unfavorable to him if produced.
ii. Rule is of general application and may be invoked where real or demonstrative evidence is
involved.
f. As an offshoot of the inherent power of the Court, aversion to ocular view may warrant a court order that
permits inspection of the article or thing, if inspection of the real evidence is vital.
i. Every court has certain inherent power, a power which, exercised within reasonable and proper
limits, authorizes it to go beyond its express powers where the interest of justice imperatively
demands such a course.
ii. Sec. 128 Subdivision 5 Code of Civil Procedure -
1. Every court is in general language clothed with full control and power over every person
connected with a judicial proceeding before it, in so far as said proceeding is concerned,
and we fail to see in the action of a court compelling the production of any relevant and
competent testimony which will make clear or tend to make clear the truth as to a disputed
question of fact anything in contravention of either the letter or spirit of subdivision 5.
2. Court in no manner or degree transcended its power or authority in ordering defendant to
allow plaintiff’s expert to examine the machinery and give testimony relative thereto.
g. Autoptic Proference > tribunal’s self-perception, or autopsy, of the thing itself.
 13
i. Demonstrative evidence - typically used to illustrate or explain. Often, this evidence is used to add
clarity or vividness to a witness’s testimony.
ii. Physical evidence > evidence of highest order. It speaks more eloquently than a hundred
witnesses.
B. Documentary Evidence
a. Instruments of evidence 2 general classes; unwritten and written.
i. Unwritten first considered because oral testimony is often the first step in proceeding by
documentary evidence, it being frequently necessary first to establish, in that mode, the
genuineness of the documents to be adduced.
b. Unwritten or Oral evidence - testimony given by witnesses, viva voce, either in open court or before a
magistrate acting under its commission or the authority of law.
i. Legal evidence > NOT confined to human voice or oral testimony.
1. Includes every tangible object capable of making a truthful statement, such evidence
being roughly classified as documentary evidence.
ii. Document - any matter expressed or described upon any substance by means of letters, figures or
marks, or by more than one of the means, intended to be used, or which may be used, for the
purpose of recording that matter.
c. Documentary evidence consists of written instruments offered as proof of their contents.
i. Document may be akin to writing and a document has been defined as any substance having any
matter expressed or described upon it by marks capable of being read or things of paper or
parchment employed solely as a material for bearing words written or printed in form of complete
clauses or sentences expressing connected thought
C. Testimonial Evidence
a. Testimony - evidence given by a competent witness under oath or affirmation.
i. Part of judicial evidence which comes to the tribunal through the medium of witnesses.
1. Ex. by means of verbal statements.
b. Testimonial evidence - testimony in court or the deposition of one who has observed that to which he is
testifying - called a “precipient” witness or of one who, though not observed the facts, is nevertheless
qualified to given an opinion relative to such facts - called an “expert witness”
i. Testimonial evidence is Oral Evidence.
c. Testimony is ORIGINAL > when witness who deposes before the judge on the fact is the identical person
who was present at the time and place in questions, and received by his senses the perceptions which he
now recounts.
i. It may be DERIVED (unoriginal) > when witness does not speak from his own knowledge but recits
what he has been told by another who is supposed to have been present at the time and place in
question, and to have related the facts according to his immediate perceptions.
d. Wigmore -
i. Rules governing testimonial evidence include mainly rules prescribing the qualifications of
witnesses with sundry rules for evidence used to explain away and diminish or to strenghthen and
restore the effect of testimonial evidence.
D. Qualities: Accurate and Complete
a. Testimony ought to possess 2 qualities: Accurate and Complete.
i. To contain nothing but the truth and the whole truth: that is a just representation of all the facts
essential to the case.
b. Testimony may be inaccurate: (1) positive falsehood, witness affirms a fact which did not really happen (2)
negative falsehood, when he denies a fact which really did happen.
i. Testimony is inaccurate by false affirmation or by false negation.
c. Testimony is incomplete, when it does not state some essential fact, which really happened; false by
omission.
d. CIR v. Avon Products -
i. Decision-maker must consider the totality of the evidence presented as he or she decides the case.
ii. “Duty to give reason” to enable affected person to understand how the rule of fairness has been
administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that
decision will be thought through by the decision-maker.
E. Key Concepts of Evidence
a. Relevant evidence - logical nexus of factum probans with factum probandum.
 14
i. Relevant if it has a relation to the fact in issue as to induce belief in its existence or non-existence.
It excludes a collateral matter unless it can establish probability or improbability of the factual issue.
b. Competent evidence - not excluded by law or rule.
c. Material evidence - proves a disputed fact.
d. Admissible evidence - a fusion of relevant and competent evidence.
e. Direct evidence - establishes a disputed fact independently of any reasoning nor inference.
f. Circumstantial evidence (Presumptive Evidence) - indirect evidence or relevant collateral facts.
i. Direct and Circumstantial > Planters v. People
1. Difference = involves the relationship of the fact inferred to the facts that constitute the
offense. The difference does not relate to the probative value of the evidence.
2. Direct > proves a challenged fact without drawing any inference.
3. Circumstantial > indirectly proves a fact in issue, such that the fact-finder must draw an
inference or reason from circumstantial evidence.
ii. Probative value of direct evidence is neither greater than nor superior to circumstantial evidence.
iii. Circumstantial evidence may be so credible to establish a fact from which it may be inferred,
beyond reasonable doubt, that the elements of a crime exist and that the accised is its perpetrator.
1. NO REQUIREMENT in our jurisdiction that only direct evidence may convict.
2. Evidence is always a matter of reasonable inference from any fact that may be proven by
the prosecution provided the inference is logical and beyond reasonable doubt.
g. Cumulative evidence - evidence of the same kind for an identical disputed fact.
i. Evidence of the same kind to the same point.
ii. If a fact is attempted to be prived by the verbal admission of a party, evidence of another verbal
admission of the same fact is cumulative; but evidence of other circumstances, tending to establish
a fact, is not.
h. Corroborative evidence - evidence of a different kind for the same disputed fact.
i. Not a prerequisite to the conviction of the accused.
ii. Truth is established not by the number of witnesses but by the quality of their testimonies.
i. Prima facie evidence - sufficient for a proposition, in default of a contrary proposition.
i. Evidence that is not rebutted or contradicted, making it good and sufficient on its face to establish a
fact constituting a party’s claim or defense.
j. Conclusive evidence - insuperable or incontrovertible evidence.
k. Primary evidence - utmost evidence for a contested fact, ordinarily applied to documentary evidence
through the Best Evidence Rule.
l. Substitutionary evidence - secondary evidence in lieu of primary evidence.
m. Hearsay evidence - derivative evidence since probative value of evidence is dependent on another witness.
i. Repeated statement offered for proving the truth of the declaration.
n. Self-Serving statement - extrajudicial evidence which is urged for admission in court. Excludes a courtroom
declaration.
o. Positive evidence - an assertion of the existence or nonexistence of a disputed fact.
p. Negative evidence - disclaimer of knowledge over a disputed fact.
i. Evidence that an alleged fact did not exist, although weak.
q. Expert evidence - emanates from a testimonial sponsor with special knowledge, skill, experience, or
training.
r. Rebutting evidence - evidence in denial of some affirmative case or fact which the adverse party has
attempted to prove.
s. Sur-Rebuttal evidence - evidence in reply to rebuttal evidence.
t. Additional evidence - incremental evidence after conclusion of a party’s evidence-in-chief.
F. Scope of Evidence
a. Sec. 2, Rule 128 - Rules of evidence shall be the same in all courts and in all trials and hearings, except as
otherwise provided by law or these rules.
i. In all courts of justice and all cases brought before them, relationship between evidentiary fact and
particular proposition sought to be proved is deemed in law to be the same.
ii. Uniformity in the application of the rules on evidence must necessarily be required.
b. Ferrer v. Carganillo - RR on Evidence are specifically applicable to judicial proceedings and in quasi-judicial
proceedings, rules hardly apply except by analogy or in a suppletory character and whenever practicable
and convenient.
G. Administration of Justice -
 15
a. Involves the exercise of judicial function by the court through determination of relevant facts of a controversy
and application of the law to the given facts to resolve the dispute.
b. Ascertaiment of relevant facts is achieved by the reception of evidentiary facts that can gravitate towards
resolution by the judge of the legal squabble from the confluence of facts and evidence.
H. Special rules of Evidence
a. Even administrative agency can exercise quasi-judicial power or administrative adjudication.
i. It is the power to hear and determine or ascertain facts and decide by the application of rules of law
to the ascertained facts in the enforcement and administration of law.
ii. Any power of an administrative agency other than rule-making power but including
licensing.
b. In admin agency’s adjudication of agency proceeding, it can apply special rules of evidence.
i. Sec. 12. Rules of Evidence
I. Substantial evidence
a. Evidence commonly accepted by reasonably prudent men in the conduct of their affairs.
b. In cases filed before administrative or quasi-judicial bodies, fact may be deemed established if it is
supported by substantial evidence or that amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. (Sec. 5, Rule 133 RR EVI)
i. Serves as guide for requisite quantum of evidence in cases before admin agency or quasi-judicial
body, rules of evidence are not specifically applicable.
J. Rule-making power
a. Altho rules of evidence not specifically applicable to admin agency, it can nevertheless adopt rules and
regulations in keeping with the power delegated to it, such as rules of procedure, pleading, evidence, and
practice which have the force and effect of law.
b. To ensure efficacy, 3 copies of every rule adopted by it must be filed with the UP Law Center.
c. Application by the Court of property rules is indispensable for an orderly discharge of judicial power.
K. Excepted cases
a. Saving clause in Sec. 2, Rule 128 is Rule 143 of RR of Court not reiterated in Sec. 4, Rule 1 of Rules of Civil
Procedure
i. Rules shall not apply to land registration cases, cadastral and election cases, naturalization
and insolvency proceedings, and other cases not herein provided for, except by analogy or in
a suppletory character and whenever practicable and convenient.
L. PD 1529
a. Rules of Court are not applicable to, but can only supplement land registration or cadastral proceeding.
b. A proviso adopted as a policy in Sec. 24 BP 129 or Judiciary Reorganization Act
i. Whenever an RTC takes cognizance of juvenile and domestic cases and/or agrarian cases, special
rules of procedure applicable under present laws to such cases shall continue to be applied, unless
subsequently amended by law or rules of court promulgated by the SC.
M. RA 6657
a. Except those falling under the exclusive authority of the Dept. of Agri and DENR, it is the DAR which has
primary jurisdiction to determine and adjudicate agrarian reform matters, and it has exclusive original
jurisdiction over all matters involving implementation of agrarian reform.
i. In exercise of quasi-judicial powers, DAR, DAR Adj Board, Reg and Prov Adjudivators are not
bound by technical rules of procedure and evidence.
ii. Submission of sworn statements or affidavits, before admin agency concerned with agrarian
matters, shall constitute the examination-in-chief of the party or witness.
b. Significance of legal constraint in Rule 143, now Sec. 4, Rule 1
i. Literal adherence to the ROC, which include rules of evidence, is not obligatory in a proceeding in
naturalization. But requirements of ROC with regard to perfection of an appeal in ordinary cases
apply in the same manner and with equal force to appeals from a decision of a CFI in registration
and cadastral proceedings. An appeal bond is necessary in such proceedings.
N. Summary procedure
a. Civil and criminal cases, regular rules in the ROC can respond to the lacuna in resolution of a civil or
criminal case covered by the summary procedure.
i. Sec. 22. Applicability of regular rules - regular procedure in ROC shall apply to the special cases
provided for in a suppletory capacity insofar as they are not inconsistent.
O. Admissibility of Evidence
 16
a. Rules on evidence consist of established precepts for inclusion or exclusion of factum probans towards the
desired factum probandum.
b. Evidence offered must be logically probative of the matter to be proved, and if it is logically probative, it is
legally relevant.
P. Logically Probative - whatever, to the ordinary reasonable mind, is logically probative of a fact in issue, is prima
facie admissible and should not be excluded unless its admission is in conflict with some principle of law or in
violation of some rule of policy.
a. Evidence must relate to and be connected with the transaction it is offered to elucidate and this connection
must be immediate, and not remote or far-fetched.
i. Law requires reasonable and not necessary connection which would exclude all presumptive
evidence.
b. Settled rule in all cases where the competency of evidence is doubtful, to admit it to go the jury, leaving them
to determine as to the weight to which it shall be entitled.
Q. Components -
a. Evidence is admissible if it surpasses the standards of (1) relevancy and (2) competency under Sec. 3,
Rule 128.
i. Evidence is admissible when it is relevant to the issue and is not excluded by the Constitution,
law or these rules.
1. Constitution > Art. III, Secs. 2, 3(1) and (2); 12(1), (2), and (3); and 17.
b. General norm of admissibility in Sec. 3 Rule 128 was expounded by Sec. 4, Rule 128.
i. Evidence must have such a relation to the fact in issue as to induce belief in its existence or
non-existence.
1. Evidence on collateral matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue.
R. Rules of Evidence expect invocation at the proper time
a. For both proposals on admission and rejection of evidence, specific rule of evidence must be aired at the
property time.
b. By contrast, Rule 401 Federal Rules of evidence provided the test for relevant evidence:
i. Evidence is relevant if:
1. It has any tendency to make a fact more or less probable than it would be without the
evidence; and
2. The fact is of consequence in determining the action.
S. Wigmore’s axioms of admissibility
a. Wigmore’s 2 axioms of admissibility are apt:
i. None but facts having rational probative value are admissible and
ii. All facts having rational probative value are admissible unless some specific rule forbids
b. Jones - roots of admissibility and materiality of evidence can be traced from the pleadings of the parties prior
to introduction of evidence.
i. While party is not required to plead his evidence, he must allege the essential ultimate facts to
support his claim, and failure in this regard may preclude the reception of evidence to support an
essential fact with reference to which the pleading is a faulty.
T. Relevancy and competency
a. If relevancy is anchored on logic and human experience or common sense, nay “satisfaction of auxiliary
tests and privileges”
i. Competency is determined by the applicable rules that call for repudiation of evidence due to a
legal proscription.
b. Evidence is admissible if it can rationally influence the mind to a disputed fact and yes, if the process of
persuasion is not legally excluded.
U. Offer and Objection
a. Admissibility is ascertained by court upon offer before it of evidence, in conjunction with any objection
inasmuch as the court is not obliged to assay evidence that is not formally offered.
i. Before evidence can be considered admissible, it must be formally offered by the interested
party at the appropriate opportunity and should surpass an exception from the opponent.
b. Testimonial evidence, formally offered when witness is called to the stand by the lawyer who orally specifies
the gist of witness’s open-court declarations.
c. Documentary and real evidence must also be formally offered after a party’s testimonial evidence to be
accomplished either orally or in writing.
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V. Pre-trial guidelines
a. To abbreviate court proceedings, ensure prompt disposition of case, and decongest court dockets, SC
directed trial judges to expect an immediate oral offer and ruling of evidence in civil cases.
i. “Judge shall make the ruling on the offer of evidence in open court. However, judge has discretion
to allow the offer of evidence in writing in conformity with Sec. 35 Rule 132.”
b. SC Resolution seems to limit application of requirement as to immediate offer of evidence to civil cases,
given silence of the rule on the matter, it is believed that current jurisdiction from high tribunal applies with
equal force to criminal cases, especially when accused is detained or in a special proceeding.
W. Judicial Affidavit Rule
a. Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before:
i. MeTC, MTCC, MTC, MCTC, and Shari’a Circuit Courts but shall not apply to small claims cases.
ii. RTCs and Shari’a District Courts
iii. SDB, CTA, CA, Shari’a Apellate courts
iv. Investigating officers and bodied authorized by SC to receive evidence, including IBP
v. Special courts and quasi-judicial bodies whose rules of procedure are subject to disapproval of the
SC insofar as their existing rules of procedure conotravene provisions of this rule,
b. Sec. 6 to 9 JAR
i. Section 6. Offer of and objections to testimony in judicial affidavit. - The party presenting the judicial
affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the
start of the presentation of the witness. The adverse party may move to disqualify the witness or to
strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall
promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by
placing it in brackets under the initials of an authorized court personnel, without prejudice to a
tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.
ii. Section 7. Examination of the witness on his judicial affidavit. - The adverse party shall have the
right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same.
The party who presents the witness may also examine him as on re-direct. In every case, the court
shall take active part in examining the witness to determine his credibility as well as the truth of his
testimony and to elicit the answers that it needs for resolving the issues.
iii. Section 8. Oral offer of and objections to exhibits. -
1. (a) Upon the termination of the testimony of his last witness, a party shall immediately
make an oral offer of evidence of his documentary or object exhibits, piece by piece, in
their chronological order, stating the purpose or purposes for which he offers the particular
exhibit.
2. (b) After each piece of exhibit is offered, the adverse party shall state the legal ground for
his objection, if any, to its admission, and the court shall immediately make its ruling
respecting that exhibit.
3. (c) Since the documentary or object exhibits form part of the judicial affidavits that
describe and authenticate them, it is sufficient that such exhibits are simply cited by their
markings during the offers, the objections, and the rulings, dispensing with the description
of each exhibit.
iv. Section 9. Application of rule to criminal actions. -
1. (a) This rule shall apply to all criminal actions:
a. (1) Where the maximum of the imposable penalty does not exceed six years;
b. (2) Where the accused agrees to the use of judicial affidavits, irrespective of the
penalty involved; or
c. (3) With respect to the civil aspect of the actions, whatever the penalties involved
are.
2. (b) The prosecution shall submit the judicial affidavits of its witnesses not later than five
days before the pre-trial, serving copies if the same upon the accused. The complainant or
public prosecutor shall attach to the affidavits such documentary or object evidence as he
may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit,
documentary, or object evidence shall be admitted at the trial.
3. (c) If the accused desires to be heard on his defense after receipt of the judicial affidavits
of the prosecution, he shall have the option to submit his judicial affidavit as well as those
of his witnesses to the court within ten days from receipt of such affidavits and serve a
 18
copy of each on the public and private prosecutor, including his documentary and object
evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall
X. Collateral Material
a. Collateral facts - outside the controversy, or are not directly connected with the principal matter or issue in
dispute.
i. These parallel facts, ordinarily equated with circumstantial evidence, are distinct from the principal
fact in question, but tending to establish the existence of that principal fact.
b. If evidence is foreign to fact in issue, or introduces a collateral matter, it is ordinarily forbidden.
c. Collateral matters are not allowed because they draw away the mind of the court from the point in issue, and
excite prejudice and mislead it.
i. Not every collateral matter should be viewed with quizzicla eye since Sec. 4, Rule 128 RR on
Evidence permits introduction if it has a proclivity to establish the likelihood of the fact in
issue.
1. Example: circumstantial evidence or evidence of relevant collateral facts.
ii. Reception of collateral facts can be justified and can diminish objection founded on irrelevance, on
the strength of the doctrine of conditional admissibility.
d. Circumstantial evidence - proof of collateral facts and circumstances from which the existence of main fact
may be inferred according to reason and common experience.
i. Poe Llamanzares v. COMELEC
1. Factual issue is not who the parents are but whether parents are Filipinos.
2. The SolGen offered official statistics from PSA. The statistical probability that any child
born in the PH in that decade is natural born Filipino was 99.83%
a. Petitioner presented census statistics for iloilo from PSA.
3. Commissioner Lim admitted that at the time petitioner was found, majority of the
population in iloilo was Filipino.
4. Other circumstantial evidence of the nationality of petitioner’s parents are the fact that she
was abandoned as an infant in a Roman Catholic Church. Also has typical Filipino
features.
5. ^ probability and evidence on which it is based are admissible under Rule 128, Sec. 4 RR
on Evidence.
Y. Conditional, multiple, curative admissibility
a. If relevant and competent, evidence may be conditional, which connotes tentative or temporary evidence, or
multiple, where it is legally permissible for different aspects or curative, when it is intended to receive
inadmissible evidence from a party to neutralize a previously accepted inadmissible evidence from the other
party.
Z. Conditional admissibility
a. Important to present evidence in logical and chronological order so adverse party can have an inkling of
what may eventually unfold from the proponent of evidence.
i. But may happen that initial evidence may not pass the test of admissibility of the adverse party’s
perception of irrelevance and incompetece.
ii. Evidence out to be permitted for the meantime, albeit lack logical suasion, subject to presentation
of other facts that can establish a crucial point in issue.
b. Necessity for receiving tentative evidence pending subsequent proof - Wigmore
c. Evidence can be admitted on basis of conditional admissibility which presupposes:
i. Element of good faith accorded by the court to a lawyer who introduces evidence that appears to
be, at first blush, immaterial or irrelevant, with
ii. A concomitant statement by counsel of the connecting facts and commitment from counsel to relate
later the ample of the evidence introduced with other facts sought to be established.
d. Failure to launch the link between initiatory and subsequent evidence, and as opposed to the other school of
thought that seemed to suggest that the evidence presented will be stricken from the record irrespective of a
motion, it is believed that adverse party’s counsel should not assume that the evidence will automatically be
disregarded.
i. Rule of exclusion must be invoked by the party who is interested in the rejection of the evidence.
Otherwise, a party who fails to object at the proper time will be deemed to have waived the rule on
evidence.
e. Prats v. Phoenix Insurance
 19
i. It is impossible for a judge of a first instance, in the early stages of development of proof, to know
with certainty whether testimony is relevant or not and whether there is no indication of bad faith on
the part of the attorney offering the evidence, the court may safely accept the testimony upon the
statement of the attorney that the proof offered will be connected later.
AA. Multiple admissibility - if it is admissible for a specific purpose to which it must be confined, and inadmissible to
prove a different fact.
a. Wigmore - so far as an evidentiary fact is offered for a particular purpose, as being material to a certain
issue and relevant to a certain proposition, it must satisfy all the rules applicable to it in that capacity.
i. When an evidentiary fact is offered for 1 purpose, and becomes admissible by satisfying all rules
applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable
to it in some other capacity and because the jury might improperly consider it in the latter capacity.
b. Ramification of multiple admissibility is doctrine of limited admissibility under Rule 105 of Federal Rules
of Evidence.
i. If court admits evidence that is admissible against a party or for a purpose - but not against another
party or for another purpose - court, on timely request, must request, restrict the evidence to its
proper scope and instruct the jury accordingly.
ii. Uniwide v. Titan-Ikeda - specific offer of evidence for a particular purpose is important because
evidence is admissible for one purpose but may not be permitted for another goal.
1. Testimony of Engr. Tablante was offered only to prove that project 1 was indeed
completed. It was not offered to prove the fact of delay.
2. Purpose for which evidence was offered must be specified because evidence may be
admissible for several purposes under doctrine of multiple admissibility, otherwise the
adverse party cannot interpose the proper objection.
3. Evidence submitted for one purpose may not be considered for any other purpose.
c. Purpose for which evidence is offered must be specified beause such evidence may be admissible for
several purpose under doctrine of multiple admissibility or
i. May be admissible for one purpose and not for another, otherwise adverse party cannot interpose
the proper objection.
ii. Evidence submitted for one purpose may not be considered for any other purpose.
BB. Curative admissibility - permits a party to introduce incompetent evidence to equalize the admission by the court of
incompetent evidence presnted by the adverse party.
a. Opening the door rule or invited error rule - admission by the court of incompetent evidence from a party
on a portion of a conversation may authorize other party to inquire as to or even introduce entire
conversation.
b. 3 rules addressing problem posed by Wigmore:
i. American rule - reception of incompetent evidence due to lack of objection from a party does not
authorize the opponent to refute evidence by equally incompetent evidence.
ii. Orthodox English rule - permits party to utilize incompetent evidence following the admission of
the adverse party’s incompetent evidence.
iii. Massachusetts rule - akin to English rule in order to avoid unfair prejudice to the admission of the
other party’s evidence.
CC. Evidence and Weight
a. If admissibility is tested by relevance and competence, weight to be attached to admitted evidence will
depend on judicial appreciation under Rule 133 of RR Evidence and Jurisprudence.
i. Evidence and weight are not synonymous since evidence connotes relationship between logic
and law while weight is a question of gravity of evidence or intrinsic worth of the evidence
that was admitted by the court.
b. Admissibility considers factors such as competence and relevance of submitted evidence.
i. Weight is considered with the persuasive tendency of admitted evidence.
ii. It is contrary to public policy for individuals or parties litigant to determine, by private contract, the
weight or effect that shall be given to particular evidence: determination in this respect is the
function of the trier of facts.
iii. Admissibility > question of whether certain pieces of evidence are to be considered at all.
iv. Probative value > question of whether the admitted evidence proves an issue.
c. Particular item may be admissible but its evidentiary weight depends on judicial evaluation within the
guidelines provided by the rules of evidence.
 20
CHAPTER 2 NOTES
RULE 129: What need not be proved

Three matters which can displace evidence

(1) Judicial notice
(2) Judicial admission
(3) Presumption

● Since the formal introduction of evidence is not required to establish a fact of which judicial notice is taken, it
follows that the introduction of evidence is ordinarily not permitted to prove facts which need not be
proved.

● However, the adverse party is not precluded from presenting evidence to dispute the matter that was judicially
recognized by the court.

JUDICIAL NOTICE
● It is the cognition by the judge of certain facts on the supposition that such facts are within his knowledge. It is
the assumption by a court of a fact without requiring traditional evidentiary support. Judicial notice supersedes
formal proof, yet it carries equal force.

● Doctrine: It would be unreasonable for courts to require formal proof of facts of common knowledge, or facts of
which the courts, owing to their official character, are charged with the knowledge or can readily ascertain.

● Judicial notice takes the place of proof and is equally as persuasive as actual evidence presented.

IT IS INCONCLUSIVE
● Judicial notice is nothing more than a prima facie recognition, leaving the matter still open to controversy.

● A positive ruling on judicial notice may be reversed upon an appellate finding of lack of notoriety.

BASIS FOR JUDICIAL NOTICE

● It may be traced from the civil and the canon law to the effect that what is known by the magistrate need not be
proved. Awareness of the judge of adjudicative facts may either be (a) mandatory or (b) discretionary.
○ Adjudicative facts are facts used by a trier of fact to determine what occurred on the occasion giving rise
to the litigation.

● Whether the judicial notice shall be mandatory or permissive is a question on which it is difficult to lay down any
general rule.

Mandatory

“Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of
nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines,
the official acts of legislative, executive and judicial departments of the National Government of the Philippines, the laws of
nature, the measure of time, and the geographical divisions.”

● Judicial knowledge of public acts from the 3 departments of the Philippine Republic include legislative journals,
opinions of the SOJ, judicial records, adjudication by appellate courts such as Decisions of the SC and CA, but
not decisions of coordinate trial courts or within branches of the same judicial sphere.

Discretionary

“Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or
are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.”

Procedure if hearing is necessary

 21

“Section 3. Judicial notice, when hearing necessary. — During the pre-trial and the trial, the court, motu proprio, or on request
of a party, or upon motion, shall hear the parties on the propriety of taking judicial notice of any matter.

Before judgment or on appeal, the court, motu proprio or upon motion, may take judicial notice of any matter and shall hear the
parties thereon if such matter is decisive of a material issue in the case.”

● “On the propriety of taking” have been added to clarify the purpose of the hearing, which is whether the matter
involved is a proper subject of discretionary judicial notice. The requirement of a hearing is needed so that the
parties can be heard thereon if such matter is decisive of a material issue in the case.

1. Presentation of information
● A hearing may be needed, not for the presentation of evidence, but to afford the parties reasonable
opportunity to present information relevant to the propriety of taking such judicial notice or to the tenor
of the matter to be noticed.
○ On appeal, the court may only take judicial notice of a point that is decisive of a material issue
in the case.

● No evidence is needed in judicial notice.

○ If the judge is unacquainted with such fact, he may refer to any person or to any document or
book of reference for his satisfaction in relation thereto, or may refuse to take judicial notice
unless and until the party calling upon him to take notice produces any document or book of
reference.

2. Presentation of evidence
● In a discretionary judicial notice, a hearing was necessary for the purpose of presenting evidence. Care
must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should
promptly be resolved in the negative.

● Judicial notice is not judicial knowledge. Mere personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not
generally or professionally known, the basis of his action.

Original of the document

● Presentation of the original document is the appropriate option in the event the court opts to utilize judicial notice.
● Judicial notice is taken of the fact that arrests and seizures related to illegal drugs are typically made without a
warrant, hence subject to inquest proceedings. (People v. Romy Lim)

No judicial notice for articles in the website

● Articles may not be well and authoritatively settled and are doubtful or uncertain. Some articles are easily edited
and their sources are unverifiable. Sole reliance thereon is discouraged.

Matters of compulsory judicial notice

1. Existence and territorial extent of states.
● These are generated by public laws and are also matters of general notoriety; and hence the courts do
not require proof of such facts.
● All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised
by the government whose laws they administer, or of its recognition or denial of the sovereignty of a
foreign power, as appearing from the acts of the legislature and executive.

2. Political history
● Courts will take cognizance of matters of general history and historical events which have materially
affected nations, as well as factors which have led to events of general importance.

3. Forms of government
 22
● Principal departments of government and their respective powers and duties, the time of sessions of
congress or of state legislatures or of the privileges of members, and the usual course of proceedings
therein are deemed embraced.
● In case of a rebellion or revolt in a foreign state, the court will assume the former state of affairs as
subsisting until the proper department of the government has recognized the change.

4. Symbols of nationality
● Court not only takes notice of foreign states and sovereigns that have been recognized as such by the
home government of such courts, but also their symbols of authority.

5. Laws of nations
● Laws of foreign countries are not judicially noticed in the absence of enabling law. When foreign law is
involved, it must be alleged and proved.
● Foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take
judicial notice of them.
● Doctrine of processual presumption will govern in default of proof of foreign law, unless the provisions of
the foreign law were subjected to judicial admission.

6. Admiralty and maritime courts of the world and their seals.

7. Political constitution and history of the Philippines

● A chronological record of events is a matter of public knowledge.
● Facts which are not of a general or public interest should not be judicially noticed.

8. Official acts of the legislative, executive, and judicial departments of the Philippines.
● Judicial knowledge of public acts from the 3 departments of the Philippine Republic include legislative
journals, opinions of the SOJ, judicial records, adjudication by appellate courts such as Decisions of the
SC and CA, but not decisions of coordinate trial courts or within branches of the same judicial sphere.

● Anent municipal ordinances, MTCs may and should take judicial notice of municipal ordinances in force
in the municipality in which they sit.
○ RTCs should take judicial notice of said ordinances only when required to do so by statute or
charter, and on appeal for a judgment of MTCs.

● Where the subject is a statewide concern, and the legislature has appropriated the field and declared
the rule, its declaration is binding throughout the state.

9. Laws of nature
● Settled rule: judicial notice will be taken of laws of nature, and facts which occur by reason of the
operation of those laws and in the course of nature.
○ Qualification: the phenomenon must be certain and invariable.
● Example: recurrence of the seasons, events of the calendar, and the coincidence of days of the week
with the days of the month and of the year.

10. Measure of time

● Example: successive weeks in the calendar, the time when the sun rises or sets on a particular day, as
well as the natural conditions of visibility.
● In relation to Article 13, NCC, concerning the meaning of certain time frames and computation of time.

11. Geographical divisions

● Refers to topographical matters or the physical texture of a place or region.
● On the ground of public notoriety and common knowledge, the courts are accustomed to take judicial
notice of geographical features of the country generally and of the locality where they sit, and of many
other similar or analogous facts.

Rules adopted by an admin. Agency; filing with UP Law Center

 23
● The court is obliged to assume cognition of a certified true copy of every rule adopted by an administrative
agency on file with the UP Law Center. (Secs. 7-8, Chap. 2, Book VII, E.O. No. 292)

Discretionary Judicial Notice

1. Public Knowledge
2. Capable of Unquestionable demonstration
3. Ought to be known by judges because of their judicial functions.

● For a matter to be taken judicial notice by the court of law, it must be a subject of common and general
knowledge.
○ A fact is said to be generally recognized or known when its existence or operation is accepted by the
public without qualification or contention.

● Test: Whether the fact involved is so notoriously known as to make it proper to assume its existence
without proof.
○ It is enough that matters are familiarly known to the majority of mankind or those persons familiar with
the particular matter in question.

JUDICIAL POLICY
➔ The doctrine of judicial notice rests on the wisdom and discretion of the courts.
➔ The power is to be exercised by the courts with caution.

JUDICIAL ADMISSION
● An admission is a voluntary acknowledgment made by a party of the existence of a certain fact and is thus
against the interest of the declarant, irrespective of his personal knowledge.
● It relieves the opposing party of any obligation to prove the fact admitted by the adverse party.
● Section 27, Rule 130: the act, declaration, or omission of a party as to a relevant fact may be given in evidence
against him or her.

1. No necessity of personal knowledge of declarant

● With respect to statements made by a party’s agent or servant and offered against the party, the
declarant need not have personal knowledge of the operative facts.

2. Verbal precision is not required

● Rationale: The importance of single words in oral discourse is comparatively less than in writings, and
memory does not retain precise words, except for simple utterances and for a short time.
● The admissibility of a statement does not depend upon the witnesses’ ability to remember the exact
words used. It only affects the weight to be given to the testimony.
● Mere digest or summary is insufficient to establish an oral statement.

To be admissible, it must be self-disserving.

● It must be such that an inference may be fairly drawn from it to the prejudice of the party who makes the
statement or does the act.
● When in favor of the party supplying it, the evidence may be said to be self-serving; otherwise, it is self-harming
or self-disserving.
● How admissions may be contradicted? If it is disputed by the party based on a palpable mistake or that there
was really no such admission from the party.
● Admissions of a party are admissible by virtue of the nature of the adversary process. Admissions are predicated
on an estoppel theory.
○ However, estoppel binds only parties and privies, and not strangers. (Art. 1439, NCC)

Gonzales-Saldana v. Sps. Niamatali: A party who judicially admits a fact cannot later challenge it as judicial admissions are
a waiver of proof; production of evidence is dispensed with. It removes an admitted fact from the field of controversy. The
allegations, statements, or admissions contained in a pleading are conclusive as against the pleader. He who admits cannot
take a position inconsistent with what he pleaded.

How to contest a judicial admission? Upon adequate showing that:

 24
1. Palpable mistake; or
2. If there was no such admission to begin with.

● As a general rule, facts alleged in a party’s pleading are deemed admissions of that party and binding upon it,
but that is not an absolute and inflexible rule.
○ An answer is a mere statement of fact which the party filing it expects to prove, but is not evidence.

Gardner v. CA: If a party invokes an admission made by an adverse party, but cites the admission “out of context,” then the
one making the admission may show that he made no such admission or that his admission was taken out of context.

Ybiernas v. Tanco-Gabaldon: In construing an admission, the court should consider the purpose for which the admission is
used and the surrounding circumstances and statements.

● Evidence aliunde can be presented to show that the admission was made through palpable mistake or upon
adequate showing that there was really no judicial admission.

● A party is not in general prejudiced by self-harming statements under mistake of fact. (ex: money paid under
forgetfulness of facts, which are once within the knowledge of the party paying, may be recovered.)

EXPRESS OR IMPLICIT JUDICIAL ADMISSION IS INSOLUBLE

● While a judicial admission can be contested, a party cannot impugn the admissibility of a stipulation of fact, or
belatedly harp on a perceived defense in the arrest, procedure, and inadmissibility of evidence on appeal, sans
any objection thereto at the appropriate time such as before the plea or upon offer of the evidence.
○ To dwell on the matter would be against the tenets of fair play and equity.

● In RA 9165: Non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and
invalid such seizures of and custody over said items, for as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officers.
○ Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to
reject the evidence offered, he must state in the form of objection. Without such objection, he cannot
raise the question for the first time on appeal.

● When a party consents to the admission of evidence, he cannot thereafter object to its competence, since he will
not be permitted to take inconsistent positions. A failure to object will render admissible an incompetent or
irrelevant evidence, and the court, on its own volition, disregard such evidence.

JUDICIAL ADMISSION DOES NOT REQUIRE EVIDENCE; CONCLUSIVE AND ALL PROOFS TO THE CONTRARY MUST
BE IGNORED
● No evidence is needed to prove the same and it cannot be contradicted unless it is shown to have been made
through palpable mistake or when no such admission was made.

RULE IN CRIMINAL CASES

● An appeal of the whole case is thrown open for review on issues of both fact and law, and the court may even
consider issues which were not raised by the parties as errors.

Should evidence be permitted?

● No. Given the net effect of a party’s judicial admission, and on account of the benefit of a conclusive
presumption, introduction of evidence by the party who claims the advantage of these points will no longer be
consequential. The evidence becomes immaterial as it is pointless to establish an uncontested fact.

● There can be implicit abandonment of the gain of a judicial admission as when evidence is introduced by the
proponent of the complaint on material averments which were not contested by the adverse party by inability to
specifically deny thereto.

JUDICIAL ADMISSION = WAIVER OF PROOF

● A party who judicially admits a fact cannot later challenge the fact since a judicial admission is a waiver of proof;
production of evidence is dispensed with. It removes an admitted fact from the field of controversy.
 25

● An admission made in the pleadings cannot be controverted by the party making such admission and are
conclusive as to such party, and all proofs to the contrary should be ignored, whether objection is interposed by
the party or not.

● Allegations, statements, or admissions contained in a pleading are conclusive as against the pleader.

WAIVER OF THE BENEFIT OF JUDICIAL ADMISSION

● The admissions made by a party, may be waived by the adverse party, expressly or impliedly. In such a case, it is
as if there was no admission made by the party.

ADMISSION OF FACT OR OF TESTIMONY

● A stipulation of facts cannot be contradicted but a stipulation of testimony may be contradicted.
○ An admission is the mere acknowledgment of facts or of circumstances from which the guilt may be
inferred, tending to incriminate the speaker but not sufficient of itself to establish guilt.
○ An admission has been characterized as a little brother of a confession.

WHO CAN REGISTER JUDICIAL ADMISSION

1. Party
● If a party is not represented by counsel, it is obvious that only the party or his duly sanctioned
representative can effect judicial admission.
● Must be made by a real party in interest and not by a mere nominal party. The declarations of a formal
or nominal party to a proceeding are not admissible against the real party thereto.
● Where the practice prevails that actions must be brought in the name of the real party in interest, it is
clear that the admission, in order to be competent, must have been made by the party or by someone
whose interest in the matter in controversy is identified with that of the party.

2. Non-Party
● A prejudicial remark from one who is not a party can be admissible to demonstrate interest in the
outcome of the suot, or as part of the res gestae.
● Statements by one who is not a party to the record may be admitted in evidence on proof that the
declarant has a substantial interest in the result of the litigation.

Theory of adoptive admission (Republic v. Kenrick Dev. Corp.)

● Pursuant to this, an out of court statement by a person who is not a party is attributable to a party through
express or implied adoption.
● A party may, by his words or conduct, voluntarily adopt or ratify another’s statement. Where it appears that a
party clearly assented to or adopted the statements of another, evidence of those statements is admissible
against him.
● By an adoptive admission, a third person’s statement becomes the admission of the party embracing or
espousing it.

Adoptive admission will occur when a party:

1. Expressly agrees to or concurs in an oral statement made by another;
2. Hears a statement and later on essentially repeats it;
3. Utters an acceptable or builds upon the assertion of another;
4. Replies by way of rebuttal to some specific points raised by another but ignore further points which he or she has
heard the other make; or
5. Reads and signs a written statement made by another.

Estrada v. Desierto:
● Adoption of another person’s oral or written statements may occur in either of 2 ways:
1. By conduct manifesting a party’s belief in the truthfulness of the statement; or
2. By a parties’ failure to refute an accusatory statement that a reasonable person would refute under the
same or similar circumstances.
● Either way, the burden of proof is on the proponent of the evidence to demonstrate that the party-opponent intent
to adopt the statement in question.
 26

As to the first mode:

● A party may adopt a statement without knowing its content when the basis of the adoption is the party’s
anticipatory voucher for the declarant’s reliability or knowledge rather than for the truthfulness of a known
statement.
● Test utilized in Oregon Federal Rules of Evidence concerning written statements: Whether the party has utilized
the statement in a manner that indicated agreement with it.

As to the second mode:

● Section 33, Rule 130 refers to extra-judicial admission by stillness as: Section 32. Admission by silence. —
An act or declaration made in the presence and within the hearing or observation of a party who does or says
nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper
and possible for him or her to do so, may be given in evidence against him or her.

Estrada v. Arroyo: The Angara Diary is not an out of court statement. It is part of the pleadings. Petitioner had all the
opportunity to contest the use of the Diary but unfortunately failed to do so. Its use is also not covered by the hearsay rule.
➔ A man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason
that it is fair to presume that they correspond with the truth, and it is his fault if they do not.
➔ The Angara diary contains direct statements of the petitioner which can be categorized as admissions of a party:
proposal for snap elections where he is not a candidate, his statement that he only wanted a five-day period
promised by COS Angelo Reyes, his statements that he would leave by Monday is the second envelope would
be opened, and “pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga.”

Argument: The Angara Diary is not the diary of Estrada, hence not binding upon him.
● This overlooks the doctrine of adoptive submission.
● An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to
treat the party’s reaction as an admission of something stated or implied by the other person.
● In the diary, Angara had to ask Senator Pimentel to advise the petitioner to consider the option of dignified exit or
resignation. Estrada did not object to this option. Petitioner’s silence on this and other related suggestions can be
taken as admission against him.

(Hearsay evidence is when its probative force depends on the competency and credibility of some persons other than the
witness by whom it is sought to produce it.)

Reasons for exclusion of hearsay evidence:

1. Absence of cross-examination
2. Absence of demeanor evidence
3. Absence of oath.

3. Party or counsel? [to the party]

● (Briboneria v. CA) Two basic points:
○ A party should not be compelled to admit facts already admitted by his pleadings; and
○ The request for admission under Section 1, Rule 26, ROC should be to the party himself who
is anticipated to respond thereto, not to his counsel.
● A request for admission is not intended merely to reproduce or reiterate the allegations of the
requesting party’s pleadings but should set forth relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose purpose is to establish said party’s cause of action
or defense.

NOTE: If the party is represented by counsel, the judicial admission can be made by the party’s lawyer, as an agent of the
party-litigant, on the broad idea that a general authority to conduct a trial implies the authority to make an admission.
❖ Section 23, Rule 138 provides that attorneys have authority to bind their clients in any case by any agreement in
relation thereto made in writing, and in taking appeals, and in all matters of ordinary judicial procedure.
❖ THEREFORE, when Rule 26 states that a party shall respond to the request for admission, it should not be
restrictively construed as to mean that a party may not engage the services of counsel to make the response on
his behalf. A contrary conclusion will negate the principles of agency in the Civil Code and Rule 138 of ROC.
 27

PARAMETERS OF LAWYER’S AUTHORITY

➔ General Rule: The authority of an attorney to make admissions is limited to the action in which he is retained.
Admissions made by him on behalf of a client in one case are not binding upon the same client in another suit.
➔ Exception: (1) when the attorney has been expressly authorized to make the admission or (2) the subsequent
litigation is related to the previous controversy.

NOTE: An admission which operates as a waiver or destruction of the client’s cause is beyond the scope of the
attorney’s implied authority.

FORMS OF JUDICIAL ADMISSION

● It may be oral (verbal) or it may be implied from the conduct of the party.
● Precise form is immaterial.
● It can be implicit in a statement or from the conduct of a party, such as negative pregnant.
○ Negative Pregnant: That form of denial which at the same time involves an affirmative implication
favorable to the opposing party. In effect, it is an admission of an averment to which it is directed. It is a
denial pregnant with an admission of the substantial facts in the pleading responded to.

PRE-TRIAL
● Pre-trial conference (Ordinary Procedure); Preliminary Conference (Summary Procedure).
○ In this stage of the proceeding, it is believed that oral judicial admissions from a party or counsel before
the Court will be legally effective as there is no specific requirement that admissions should be in
writing.
● Pre-trial conference (Criminal Case)
○ A verbal judicial admission from the prosecution is valid since the Rules provide that a judicial
admission must be in writing and signed by the accused and counsel.
○ All agreements or admissions made or entered during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel, otherwise, they cannot be used against the accused.
(Sec. 2, Rule 118, ROC)
○ By its language, the rule is mandatory. It is elementary in statutory construction that negative words
and phrases are to be regarded as mandatory while those in the affirmative are merely directory.

NOTE: While Sec. 2 required the written conformity of the accused and counsel for a valid pre-trial agreement, the absence of
an explicit record of consent from the defense is not necessarily inefficacious since the infirmity can be cured by failure to
object to the basic rule in the same provision.

Trial
● In criminal cases - A stipulation of facts entered into by the prosecution and the defense counsel during trial in
open court is automatically reduced into writing and contained in the official transcript of the proceedings had in
court.
○ The conformity of the accused in the form of signature is unnecessary in view of the fact that an
attorney who is employed to manage a party’s conduct of a lawsuit has prima facie authority to make
relevant admissions by pleadings, by oral or written stipulation, which unless allowed to be withdrawn,
are conclusive.
● In civil cases - The strength of a stipulation during trial is dependent on a formal agreement in writing. If the
parties agree upon only on some of the facts in issue, the trial shall be held as to the disputed facts in such order
as the court shall prescribe.
○ The existence of other disputed facts entails reception of evidence.

IMPERMISSIBLE ADMISSIONS
➔ General Rule: The parties and lawyers are generally at liberty to stipulate factual matters during trial of a civil and
a criminal case.
➔ Exceptions: (1) petition for annulment of marriage; (2) legal separation; (3) future support; (4) jurisdiction of the
court; and (5) future legitime. [Art. 2035, NCC]

SUMMATION
 28
● A judicial admission can be established on the pleadings presented by the parties during pre-trial conference, in
the course of a hearing or trial, and other stages of the proceedings such as admissions obtained depositions,
written interrogatories or requests for admission.
● Incidental or casual remarks of counsel cannot be considered as admissions, in the same way that an
expression of individual opinion by counsel during trial does not bind a party.
● Where a party has alleged matter of fact in his pleadings,the pleadings are evidence against him as an
admission of fact so alleged.
● Pleadings are conclusive upon the parties filing them.
● The weight of such admissions as evidence depends upon various circumstances:
○ If the pleading is sworn to and hence is the deliberate and solemn statement of the party, its admissions
may afford evidence against him which is not easily rebutted.
○ If the allegations are made on information and belief, they are still admissible in evidence; this fact only
detracts from the weight of the testimony.
○ If the pleadings are not sworn to, and are drawn by counsel, and the allegations have not been
expressly directed or approved by the party, they may be of little significance, or even be inadmissible.
● The effect of an implicit admission is no different from an explicit recognition of the other party’s pleading.
○ For instance, one who opted to move for judgment on the pleadings is deemed to have admitted the
veracity of the adverse party’s pleading.
○ There can also be an implied admission under Sec. 2 Rule 26 if the party served with the request for
admission fails to react thereto within the period specified in the request.
● Any admission made by a party xxx for the purpose of the pending action only shall not constitute an admission
by him for any other purpose nor may the same be used against him in any other proceeding. (Rule 26, Sec. 3)
● The court may allow the party making an admission xxx whether express or implied to withdraw or amend it xxx”

EFFECT OF AN AMENDED PLEADING

● Amendment is the correction of some error or mistake in a pleading which is before the court.
● The court will swiftly adjudicate the actual merits of the dispute without regard to technicalities when there is
proposal to rectify a pleading or a mistake in the name of a party, as well as an inadequate averment.
● Effects of amendment
○ The amended pleading serves as the replacement of the original pleading which thereafter no longer
forms part of the record.
○ Admissions in the superseded pleading can be received in evidence against the pleader.
○ Claims or defenses alleged therein that were not incorporated in the amended pleading will be deemed
to have been deserted. (Rule 10, Sec. 8)

● Q: Is the admission on a superseded pleading an extra-judicial admission or a judicial admission?

○ YES, according to Jones. The original pleadings can have effect if they are formally offered in evidence.
○ According to Justice Regalado, it appears from the language of Rule 129, Sec. 4 that a superseded
pleading can be the source of a judicial admission.
○ NO, if the allegations are made in unnecessary pleadings. As these cannot be regarded as judicial
admissions, it will not bind the pleader.

PRESUMPTION
● Presumption is an inference of the existence or non-existence of a fact from which courts are permitted to draw
from the proof of other facts. It is a rule of law that courts and judges shall draw a particular inference from a
particular fact, or from particular evidence, unless and until the truth of such inference is disproved.
● While it can displace evidence, the proponent of a presumption must still introduce evidence of the basis of the
presumption, unlike the general nature of a judicial notice and judicial admission.
● Presumptions are aids to reasoning and argumentation, which assume the truth of certain matters for the
purpose of some given inquiry. They operate in advance of argument or evidence, or irrespective of it, by taking
something for granted; by assuming its existence.
● Presumptions are confined to civil cases. Nonetheless, in criminal actions, due process prevents presumptions
from operating to obviate the state’s burden of proving each element of an offense to the requisite standard of
“beyond a reasonable doubt.”

Republic v. Sereno: The Court explained the concept and parameters of a presumption.
 29
● The role of presumption is to relieve the party enjoying the same of the evidential burden to prove the proposition
that he contends for, and to shift the burden of evidence to the adverse party.
● Reasons why presumptions are resorted to: (1) to enable the courts to determine the party who should discharge
the burden of proof and the burden of evidence; and (2) to prevent miscarriage or denial of justice, or to serve a
public need.
 30

CHAPTER 3
RULE 130 – RULES OF ADMISSIBILITY

General view: Source and preservation

· REQUISITES to enable a litigant to produce in court, in the hour of need, any one article of evidence:
(1) That it has begun to exist; and
(2) Such existence has not been terminated, that it has been in his power, and that he has not lost it.

· Two different practical objects requiring different precautions:

(1) Finding the evidence – gained by enquiry or investigation
(2) Preserving the evidence – gained by expedients which vary with the nature of the evidence, whatever be
its nature, as is necessary to establish the claim of the party, justify his title, and lead to a decision agreeable
to right.

Origin of rule admitting real evidence

· The rule admitting real evidence is of ancient origin.
· “Nothing is older or commoner in the administration of law, in all countries, than the submission to the senses of
the tribunal itself, whether the judge or jury, of objects which furnish evidence... many of the things which were
formerly submitted to the inspection of the judges only, have now passed over the jury.” – Prof. Thayer

Inspection in general
· Three channels through which tribunals acquire information upon which to base their decisions:
(1) Witnesses;
(2) Documents; and
(3) Inspection (real evidence) – acquired by the court or jury through the medium of their own senses of
seeing, hearing, smelling, tasting, etc. This class of testimony is entitled to the greatest weight.

OBJECT EVIDENCE
· Physical, object, or demonstrative evidence are those addressed to the senses of the court. When an object
is relevant to the fact in issue, it may be exhibited to, examined, or viewed by the court.

Scope and force of physical evidence

· Demonstrative evidence includes:
(1) Articles or things (animate and inanimate) brought into court;
(2) Equipment in court
(3) Demonstrations by way of comparison or illustration made in the course of trial;
(4) Views by the trier of the fact away from the place of trial but during the course of trial; and
(5) Inspections, experiments, tests and examinations made out of court as the basis for testimony in the trial.

NOTE: physical evidence must be relevant to the disputed fact

Probative value of real evidence

· Real evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses. When
physical evidence runs counter to testimonial evidence, the conclusion as to physical evidence must prevail.
Evidence by inspection is entitled to greatest weight.

Exhibitions and demonstrations of injuries

· Exhibiting a wound or injury is frequently the best evidence of a relevant fact, and thus is commonly allowed.

Maps, drawings and diagrams

· Helpful in aiding the jury to visualize the objects and scenes in the action.

X-rays
· 11 requirements that should be shown before the ex-ray and expert testimony is admitted:
(1) The x-ray equipment must be dependable and in good working condition;
(2) The witness operating and taking the photograph must be qualified;
(3) The operator of the apparatus must be called to satisfy items 1 and 2;
(4) The operator must identify the person who was the subject of the x-ray;
(5) To satisfy item 4, the operator must identify the exact x-ray;
(6) Testify as to the condition of the person in the x-ray;
(7) The x-ray must be interpreted by an expert;
 31
(8) The witness in item 7 must be prepared to produce the x-ray print of original plates for other expert
evaluation.

Photographs
· As a general rule, photographs properly authenticated are admissible under two rules:
(1) To illustrate the testimony of a witness’ and
(2) As “mute,” “silent,” or “dumb” independent photographic witnesses

· “Properly authenticated”
- A photograph is properly authenticated through the photographer’s testimony; or
- By the testimony of any other competent witness who can testify as to its exactness and accuracy

· Binding effect of a picture

- The use of photographs by some of the accused to show their alleged non-participation in the crime is
an admission of the exactness and accuracy thereof. (Sison v. People)

Totality of circumstances test; Impermissible suggestion

· The totality of circumstances test requires a consideration of the following:
(1) Degree of certainty demonstrated by the witness at the moment of identification (initial identification)
- RATIO: The witness may have established certainty because of consistent reinforcement borne by
becoming an experienced narrator. By the time a witness takes the stand, he shall have likely made
narrations to investigators, police or barangay officers, public prosecution, etc.
(2) Length of time between the crime and the identification made by the witness
- Ideally, a prosecution witness must identify the suspect immediately after the incident. People are
less accurate and complete in their eyewitness accounts after a long retention interval than after a short
one.
(3) Witness’ interactions with other individuals involved in the event
- Post-event information cannot only enhance existing memories but also change a witness’ memory and
even cause nonexistent details to become incorporated into a previously acquired memory.
(4) Suggestiveness of the identification procedure undergone by a witness (IMPERMISSIBLE SUGGESTION)
- A police officer may tell a witness that a suspect has been caught and the witness should look at some
photographs or come to view a lineup and make an identification. Even if the policeman does not
explicitly mention a suspect, it is likely that the witness will believe he is being as to identify a good
suspect who will be one of the members of the lineup or set of photos.

- 12 danger signals in People v. Pineda that might indicate erroneous identification:

(1) The witness originally stated that he could not identify anyone;
(2) The identifying witness knew the accused before the crime, but made no accusation against him when
questioned by the police;
(3) A serious discrepancy exists between the identifying witness’ original description and the actual
description of the accused;
(4) Before identifying the accused at the trial, the witness erroneously identified some other person;
(5) Other witnesses to the crime fail to identify the accused;
(6) Before trial, the witness sees the accused but fails to identify him;
(7) Before the commission of the crime, the witness had limited opportunity to see the accused
(8) The witness and the person identified are of different racial groups;
(9) During his original observation of the perpetrator of the crime, the witness was unaware that a crime
was involved;
(10)A considerable time elapsed between the witness’ view of the criminal and his identification of the
accused;
(11)Several persons committed the crime; and
(12)The witness fails to make a positive trial identification.
- The investigators might not have been fair to Rodrigo if they themselves, purposely or unwittingly, fixed in
the mind of Rosita, or at least actively prepared her mind to, the thought that Rodrigo was one of the
robbers. Effectively, this act is no different from coercing a witness in identifying an accused, varying only
with respect to the means used. Either way, the police investigators are the real actors in the identification of
the accused; evidence of identification is effectively created when none really exists.

Bodily inspection or identification

· On a proper showing and under an order of the trial court, an ocular inspection of the body of the accused is
permissible.
 32
· Merely directing the accused to stand up for identification is not compelling him to be a witness against himself.
The constitutional guarantee against self-incrimination applies in case of oral testimony and does not apply
to object evidence.
· Tattoos are at best dubious adornments only and surely are not, under the law, indicia of criminality.
· Identification of a person without the use of sight is legally permissible through the use of other senses
(hearing, smell, or physical structure) – The senses of hearing and smell are reliable when identifying a familiar
person.

The child witness

· Best interest of the child victim or witness
· Trial for identification of the accused can be permitted by:
(1) Live link testimony;
(2) Devices to shield the child from the accused; or
(3) Videotaped deposition under Secs. 25-27 of the Rule on Examination of a Child Witness

Seized drugs
· During the physical inventory and taking of photographs of the seized items, unless the absence of the crucial
witnesses was alleged and justified by the prosecution, the presence of the ff. witnesses is imperative:
(1) any elected public official,
(2) the representative from the media, and
(3) the DOJ representative

· In the event that the presence of the essential witnesses was not obtained, the prosecution must
establish the ff:
(1) Reasons for their absence; and
(2) That earnest efforts had been exerted in securing their presence.

RATIO: If the essential witnesses were absent during physical inventory & photographing of the seized drugs, the
evils of switching, planting or contamination of the evidence create serious lingering doubts as to its integrity and
evidentiary value.

Availability of Rule 27 as a mode of discovery

· A photograph can be the subject of production and inspection under Sec. 1, Rule 27.
· Requisites in order that a party may compel the other party to produce or allow the inspection of
documents or things:
(1) The party must file a motion for the production or inspection of documents of things, showing good cause
therefor;
(2) Notice of the motion must be served to all other parties of the case;
(3) The motion must designate the documents, papers, books, accounts, letters, photographs, objects or
tangible things which the party wished to be produced and inspected;
(4) Such documents, etc., constitute or contain evidence material to any matter involved in the action; and
(5) Such documents, etc. are in the possession, custody or control of the other party.

Modes of recorded confession

· A confession is not required to be in any particular form. It may be oral or written, formal or informal in character.
· However, while not required to be in writing to be admissible in evidence, it is advisable, if not otherwise
recorded by video tape or other means, to reduce the confession to writing & have it read by the defendant.
This will convince the court that it was freely and voluntarily made.

Motion pictures & Videotape

· For a videotape or a motion picture be admissible, there must be a testimony that it portrays accurately what it
claims to show.

Audio recordings
· Requirements for the admissibility of sound recordings:
(1) A showing that the recording device was capable of taking testimony;
(2) A showing that the operator of the device was competent;
(3) Establishing the authenticity and correctness of the recording;
(4) A showing that changes, addition, or deletions have not been made;
(5) A showing of the number of preserving the recording;
(6) Identification of the speakers; and
(7) A showing that the testimony elicited was voluntarily made without any kind of inducement.
 33
Computer records
· Must be relevant & must be identified by a witness who can testify that the records are what they claim to be.
· Digital signature – electronic signature consisting of a transformation of an electronic document or an electronic
date message using an asymmetric or public cryptosystem.

Two forms of an electronic signature:

(1) Distinctive mark, characteristic or sound in electronic form; or
(2) Method or procedure employed by a person with the intention of approving or authenticating an electronic
document.

Experiments and tests

· The results of a test or experiment must show a tendency, capacity, or quality of a certain set of facts to
produce a certain result, instead of attempting to indicate that upon a particular occasion such a result
occurred.
· When tests are not conducted in preparation for a lawsuit, but are for the sole purpose of obtaining scientific
knowledge, the evidence is free from taint of interest or bias and will be admitted with greater latitude.

Scientific evidence in general

· When the question involved does not lie within the range of common experience or common knowledge, but
requires special experience or special knowledge, then the opinions of witnesses skilled in that particular
science, art, or trade to which the question relates are admissible in evidence.
· However, the inquiry must focus solely on principles & methodology, not on the conclusions that they
generate.

Polygraph test (lie detector test)

· This test is based on the premise that a lying subject’s fear of detection sets in motion a series of involuntary
physical responses that can be measured.
· Two main techniques used to elicit involuntary responses:
(1) Relevant-irrelevant test – questions of no moment (such as “Are you over 21?”) are used to measure the
subject’s psychological state while telling the truth. The results from these questions are then compared to
the subject’s answers to relevant questions. If they match, the subject is telling the truth.
(2) Control question technique – a general and vague control is posed to the subject that usually deals with
an illegal activity (such as “Have you ever stolen anything?”). innocent subject respond more fully and
readily to these control questions than to relevant questions about the event in question; while the opposite
is true for guilty subjects.

NOTE: Polygraph has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining
truth or deception. Therefore, much faith and credit should not be vested upon a lie detector test as it is not
conclusive.

Other scientific tests

· Principle of prudence on the right to life
- In questions relating to life, one should err on the side of life. Should there be the slightest iota of doubt,
life should be affirmed.
- In the face of the conflicting claims and findings presented by the parties and considering that the right
to health is inextricably intertwined with the right to life, it is proper to refer to the principle of prudence,
which is the principle relied on by the framers of the 1987 Constitution affecting the right to life.
· Precautionary principle
- Applies in cases involving the environment
- Under this principle, when human activities may lead to threats of serious and irreversible damage to
the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or
diminish that threat.
- This principle seeks to protect the rights of the present generation as well as to enforce
intergenerational responsibility. (Imbong v. Ochoa)

Blood test
· The following are admissible: (1) chemical analysis for blood alcohol content or controlled substance; (2) blood
enzyme test; (3) microscopic hair analysis; (4) fingerprints; (5) ballistics test; (6) vehicular speed as determined
by radar; (7) neuron activation analysis; and (8) bloodhound tracking.

DNA evidence case

 34
· DNA is an organic substance found in a person’s cells which contains his or her genetic code.
· Purpose of DNA – to ascertain whether an association exists between the evidence sample and the reference
sample.
· The courts must consider the ff. in assessing the probative value of DNA evidence:
(1) How the samples were collected;
(2) How they were handled;
(3) The possibility of contamination of the samples;
(4) The procedures followed in analyzing the samples;
(5) Whether the proper standards and procedures were followed in conducting the tests; and
(6) The qualification of the analyst who conducted the tests

Rule on DNA evidence

· On 15 October 2007, the SC promulgated the Rule on DNA Evidence which tackled the admissibility of DNA
evidence to be utilized in civil and criminal cases, inclusive of special proceedings.
· DNA evidence is the totality of the DNA profiles, results and other genetic information directly generated from
DNA testing of biological samples.

Weight of real evidence

· Even as physical evidence was described as the dominant evidence, real evidence is still coeval with
testimonial, documentary, or other varieties of evidence.

Venue for real evidence

· GR: real evidence is brought to the court
XPN: ocular inspection in its situs may be made if it is not physically viable to be brought to the court

Ocular inspection in RA 9165

· The trial court is now mandated to conduct an ocular inspection of the seized drug itself within 72 hours from
the filing of the Information.

Ocular inspection as part of trial; requirements in RA 9165

· Since ocular inspection is part of trial, there must be previous notice to the parties. The absence of the parties
therein will impair the proceeding.

Sensory perception of object evidence

· Acquisition of knowledge by the court of physical evidence can be via reception of:
(1) Testimonial evidence thereon; or
(2) Through its presentation

Testimonial evidence
· The court can rely on testimonial evidence alone if:
(1) The display of the object is repulsive to public policy, morals, or decency, unless it constitutes the very
basis for the criminal or civil action like an obscene picture or exhibit in Art. 201 of the RPC, subject to the
exclusion of the public from the view thereof;
(2) Costly or inconvenient;
(3) Confusion will ensue as when there was a substantial change in the condition of the real evidence; or
(4) Introduction thereof will be superfluous relative to testimonial and documentary evidence that had clearly
portrayed the object as to render the view thereof redundant.

Presentation of the physical evidence

· Object evidence must be properly authenticated or identified and there must be no change in the condition
of the object evidence.

B. DOCUMENTARY EVIDENCE
· Legal evidence is not confined to the human voice or oral testimony; it includes every tangible object
capable of making a truthful statement.

Concept of a document
· A document is a material substance on which the thoughts of men are represented by writing, or any other
species of conventional mark or symbol.
· The term “document” includes the ff.: handwritten or printed or typewritten instruments, inscribed chattels,
photographic or other mechanical reproductions and sound recordings – even though in the case of sound
recordings the inscribed marks may not be visible to the eye and may be read only with the use of mechanical
devices.
 35

NOTE: The writing must be a legally effective and binding document. If the document proves nothing and affirms
nothing, it cannot legally be said to be a writing.

· Two classes of writings:

(1) Public documents
Ø Judicial
- Domestic
- Foreign
Ø Non-judicial
- Domestic
- Foreign
(2) Private documents
Ø Attested
Ø Unattested

Definition of documentary evidence

· The 2019 Revised Rules on Evidence expanded the concept of documentary evidence by the inclusion of
“recordings” and “sounds” in the definition of documentary evidence.

Definition of writings and recordings

· A writing or recording refers to any settling down of letters, words, or numbers, or their equivalent, by virtually
any means.
· Not only a “settling down of inscriptions of letters and numbers” but also “compilation of recording of data”
such as might be produced by a computer, electronic device, or other newly developed machine or technique.
· Rule 1001(a) and (b) of the 2018 Federal Rules of Evidence allows the application of the Best Evidence Rules
to accommodate technological developments.

Definition of photographs – in general

· The 2018 Federal Rules of Evidence extends the traditional Best Evidence Rule by including photographs within
the scope.
· It means “a photographic image or its equivalent stored in any form.”

Still photographs
· GR: Still photographs do not invoke the Best Evidence Rule
XPN: Unless a party is trying to prove the contents of the photographs

X-rays
· X-rays are frequently used at trial to corroborate the testimony of a medical expert regarding the physical
condition of the person x-rayed.
· Where the object of proof is the physical condition of the person x-rayed, the Best Evidence Rule does not
operate to prefer the x-ray over the testimony of the medical expert because the physical condition of the person
in question is not a writing; the Best Evidence is not triggered.

Videotapes and motion pictures

· May raise best evidence questions because the contents of the tape or film may be at issue.

Document with alteration

· Alteration of a document is an act done upon it which change, either materially or immaterially, its language
or meaning.
· Immaterial alteration is one which does not change the legal effect of the document.
· A party presenting a document must explain any alteration during the presentation of the document, not
afterwards.

Theory of indivisibility of the document

· When a writing is presented by a party to the court as evidence of its contents, the whole of the document
must be considered.
· RATIO: To ascertain with certainty its real sense and meaning

NOTE: A party who requests for the production and a perusal of the totality of a document is not duty bound to offer it
as his evidence. However, the party who introduced the document is bound thereby.

Interpretation of documents
 36
· If the language of the document is clear and if it admits of no other meaning, judicial construction need not be
resorted to.

Best evidence rule

· When applied to documentary evidence, the Best Evidence Rule or primary evidence rule assumes production
by the proponent of the superior evidence that can persuade the adverse party and the Court as to the contents
of the document which is the subject of inquisition.
· A party is required to generate the finest evidence to establish the document only if the subject of query is
the contents of the instrument.
· Requisites:
(1) Evidence must come through proper channels (the tribunal must not go on private information, but on legal
evidence)
(2) The evidence must be original and not derivative;
(3) The evidence must have an open, visible, clear connection with the fact to be proved.

The best evidence rule prefers the thing itself rather than evidence about the thing.

The best evidence rule – an overview

· Original evidence is preferred. But if the original is unavailable through no fault of the proponent of the evidence,
secondary evidence may be admitted.
· The best evidence rule does not apply to proving the contents of physical objects or things other than writings,
recordings, or photographs.
· The best evidence rule is restricted to cases where the documents are tendered as operative instruments.

Necessity for the original

· A slight variation of words may mean a great difference in rights and secondary evidence of the contents of a
writing is notoriously fallible.
· The instrument itself is not only more convincing and satisfactory, but also a higher grade of evidence. The
writing is primary evidence and the best evidence of its contents; any proof of a lower grade is secondary
evidence.

Document as real or documentary evidence

· While real evidence is technically a rule of inspection for sensory perception, documentary evidence is a
precept for introduction thereof preparatory to its inspection and more prominently, to establish what is
enclosed therein.
· Thus, if a document is presented to the court but is not projected to prove the contents or tenor thereof, the same
can be offered by a party and judicially treated as object or real evidence.

Falsification and libel; original document rule required

· RATIO: to find, whether or not the crime of falsification was committed, and also, at the same time, to enable
them to determine the degree of each defendant’s liability in the falsification under prosecution.

NOTE: Even though the original of an alleged falsified document is not, or may no longer be produced in court, a
criminal case for falsification may still prosper if the person wishing to establish the contents of said document via
secondary evidence or substitutionary evidence can adequately show that the best or primary evidence – the original
of the document – is not available for any of the causes mentioned in Sec. 3, Rule 130 of the Revised Rules of Court.

SOURCE OF THE ORIGINAL DOCUMENT RULE

Sec. 3, Rule 130 of the 2019 Revised Rules on Evidence is the matrix of the Best Evidence Rule: "Original document must
be produced; exceptions. - When the subject of inquiry is the contents of a document, writing, recording, photograph or other
record, no evidence is admissible other than the original document itself, except in the following cases:

(a) When the original is lost or destroyed, or cannot be produced in court. without bad faith on the part of the
offeror:
(b) When the original is in the custody or under the control of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local
judicial processes or procedures;
(c) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the whole:
(d) When the original is a public record in the custody of a public officer or is recorded in a public officer: and
 37
(e) When the original is not closely-related to a controlling issue."

Apart from the inclusion of an original document which is in a foreign country, as an additional exception in Sec. 3(b) of the
ROE, an original document which is irrelevant to a controlling issue was included as an exception in Section 3(e), Rule
130.

ORIGINAL DOCUMENT BEYOND THE COURT’S JURISDICTION

- If a third person in custody of the original is without the jurisdiction, the American decisions are in conflict and it
impossible to reconcile them.
- In certain Jurisdictions, secondary evidence is admissible on a mere showing of some attempt to obtain
the document. Such an attempt, in some jurisdictions, will be deemed sufficiently established by the showing of
a request to the possessor.
- Other courts will insist on the taking of a deposition. The question of the sufficiency of the showing should
properly be left to the discretion of the trial judge.

COLLATERAL FACTS RULE

- If the contents of the document do not form part of or are merely incidental to the issues in a legal dispute
between the parties, it is futile to insist for the production of the original.
- There is no preferential rule which requires the production of a writing if the fact to be proved is an
independent fact to which the writing is merely collateral or circumstantially relevant.
- The principle which requires the production or a writing to prove its contents, and excludes parol evidence
thereof, has been held to have no application when the inquiry into its contents comes up collaterally at
the trial, and the contents are not directly involved in the controversy. The rule does not come into play when
a party uses a document to prove the existence of an independent fact, as to which the writing is merely
collateral or incidental.

THUS, the "collateral fact rule can ease a party from producing the original since the contents of the writing is not critical to the
proceeding.

COMMITTEE NOTES
RATIONALE FOR THIS AMENDMENT: previous court ruling holding that when the original document is outside the
jurisdiction of the court, as when it is in a foreign country, secondary evidence is admissible. (Note: The Mother Rule
Committee adopted the amendment)

The addition of the words “writing, recording, photograph or other record” in Sec. 3 reflects the expanded definition of
“documentary evidence” in Sec. 2. The XPNs to the Original Document Rule are substantially taken from Rule 1004 of the
URE and Rule 1004 of the FRE and are substantially the same, as the existing Sec. 3, Rule 130 of the Best Evidence rule.

The additional XPN “or the original cannot be obtained” by a judicial process or procedure”, is actually a settled rule in our
jurisdiction. The SC has ruled that when the original is outside the jurisdiction of the court, as when it is in a foreign country,
secondary evidence is admissible.

The proposed XPN, “when the original is not closely-related to a controlling issue” is known in the US as an XPN FOR
“COLLATERAL MATTER” intended to prevent an overly rigid or technical application of the ODR.

It furthers trial efficiency in situations where the original is so tangential that its production would add little or nothing to the
reliability of the fact-finding process. Thus, incidental references by a witness (to road signs, street names, addresses,
license plates, brand names, etc.) will normally be permitted, unless the terms of the writing have particular significance in
litigation.
 38
Since the Best Evidence Rule has a penchant for the original, and a party is normally at the risk of exclusion of second-rate
evidence, it is important to ascertain what is the original of a document from Sec. 4, Rule 130:

“Original of a document” –
(a) An “original” of a document is the document itself or any counterpart intended to have the same effect by a
person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If
data is stored in a computer or similar device, any printout or other output readable by sight or other means,
shown to reflect the data accurately, is an “original”.
(b) A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or
by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or
by chemical reproduction, or by other equivalent techniques which accurately reproduce the original
(c) A “duplicate” is admissible to the same extent as an original unless (1) a genuine question is raised as to the
authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of
the original.

COMMITTEE NOTES

The language of Sec. 4(a) is derived from Rule 1001(3) of the FRE except that the Sub-Committee substituted the word “document
for the words “writing” or “recording”. This does not modify the meaning of the existing rule that “The original of a document is one
the contents of which are the subject of inquiry”.

Even as amended, the term “original” does not necessarily mean the first writing, recording or photograph that was made, but rather
refers to the writing, recording or photograph that is at issue in the litigation. The determination of whether a writing or recording is an
“original” depends upon what it is being offered to prove.

With respect to photographs, following Rule 1001(3) of the FRE, not only the negative but any print therefrom qualifies as an
“original”.

As to the output from a computer, the proposed amendment adopts Sec. 1, Rule 4 of the Rules on Electronic evidence – any printout
readable by sight and shown to reflect accurately the data stored in the computer is an “original”. But it is an “original” only of the
data stored on the computer or diskette.

The definition of “duplicate” in the proposed amendment follows Sec. 2, Rule 4 of the Rules on Electronic Evidence, which was
actually adopted from 100(4) of the FRE. The definition makes duplicates generally admissible in lieu of the originals without showing
the unavailability of the original. The amendment defines “duplicate” to mean a counterpart produced by any reliable modern
mechanical process. The rationale behind the new rule is to eliminate best evidence objections to copies made in clearly reliable
ways, except where the objecting party can offer a good reason to support the production of the original as indicated by the new Sec.
4(c).

The new rule, following the FRE, strikes a balance that preserves a preference for the original while also giving due recognition to the
accuracy of copies produced by modern means. Subpar (c) relating to the XPNs to the rule that a duplicate is admissible to the same
extent as to original is taken from Sec. 2, Rule 4 of the Rules on Electronic evidence except that the Sub-committee decided to use
the term “unjust or inequitable” instead of unfair, which in the view of the members, was quite ambiguous.

- A machine copy of the document can equally be regarded as the original if the contents of the xerox copy is
an issue between the parties, such as modifications of the terms of a contract as written by a party on the
xerox copy itself.
- A signed carbon copy or duplicate executed at the same time as the original is what is known as duplicate
original and it may be introduced in evidence without accounting for the nonproduction of the other copies.
- Entries made in the ordinary course of business, such as ledger sheets under certain circumstances, and
journals are also considered as originals.
- Pleadings filed via fax: NOT considered originals and are at best exact copies.
- A “xerox” copy even if stamped as “certified true copy” is not an authenticated original of such certified true
copy.
 39

ORIGINAL UNDER RA 8792

Sec. 10 of RA 8792 (Electronic Commerce Act), these are also original documents:
(1) Where the law requires information to be presented or retained in its original form, that requirement is met
by an electronic data message or electronic document if:
(a) The integrity of the information from the time when it was first generated in its final form, as an
electronic data message or electronic document is shown by evidence aliunde or otherwise stated;
and
(b) Where it is required that information be presented, that the information is capable of being
displayed to the person to whom it is to be presented
(2) Par. 1 applies whether the requirement is in the form of an obligation or whether the law simply provides
consequences for the information not being presented or retained in its original form
(3) For the purposes of subpar (a) of par. (1):
(a) The criteria for assessing integrity shall be whether the information has remained complete and
unaltered, apart from the addition of any endorsements and any change which arises in the normal
course of communication, storage and display; and
(b) The standard of reliability required shall be assessed in the light of the purpose for which the
information was generated and in the light of all the relevant circumstances.

ORIGINAL OF THE TELEGRAM OR CABLE MESSAGE

- To the question of whether the dispatch sent or received by telegram or cable is the best evidence of the
message depends on the issue to be established.
- The best evidence is the telegram as received by and it is the message delivered for transmission which
serves as the best evidence if the issue is the contents of the telegram sent by the sender.
- To prove the disparity in the message, both telegrams as sent and received by are originals.
- The original in a telegraphic message depends on the circumstance of the case.
GR: if the person sending the telegram takes the initiative and the telegraph company is considered to be his agent, the
telegram as delivered at the end of the line is the original, esp if there is no dispute as to the contents of the telegram.
- HOWEVER, if the person to whom the message is sent takes the risk of transmission, or is the employer of the
telegraph company, the message as delivered to the operator for transmission is considered to be original.
- Where a correspondence is initiated by telegraph, the original of a message sent in reply is the one delivered to
the telegraph company for transmission, and not the one received at the place to which it is sent.
- In an action against a telegraph company for damages for delay in transmitting a message, the message
actually delivered to the person to whom it is addressed is held to be admissible as original evidence.

EFFECT OF NONCOMPLIANCE WITH THE ORIGINAL DOCUMENT RULE

(a) The offeror
- If the party, as the advocate of the contents of the document, does not observe the primary evidence
rule, the evidence which was introduced and formally offered can be excluded upon timely
objection from the adverse party, and the omission to account for the original of the document
will generally lead to an unfavorable conjecture.
- Sec. 3(e), Rule 131 of the 1989 and 2019 Revised Rules on Evidence is explicit about the disputable
presumption that evidence wilfully suppressed would be adverse if produced.

Insular Life Assurance Co., vs Heirs of Alvarez: Strangely, Insular Life failed to adduce the insurance application form - a piece
of evidence that was not only commonsensical, but also one which has always been in its possession and disposal. Given the
basic presumption under our rule, this raises doubts, perhaps not entirely on Insular Life’s good faith, but at the very least, on
the certainty and confidence it has in its own evidence.

(b) The adverse party

- Unlike the preceding rule, no undesirable deduction can be ascribed to a promoter of the original
if the party can hardly account for it, as when the original is in the custody of the adverse party under
Sec. 3(b) of Rule 130.
- At most, such quandary can only authorize the introduction of secondary evidence from the party who
cannot produce the original in the adverse party's control.
 40
SECONDARY EVIDENCE
- Substitutionary evidence or secondary evidence can be used in lieu of the original, if preconditions for
reception are justified by circumstances to supplant the nonproduction of the writing itself.
- Since the Best Evidence Rule requires proof of the content of a writing by the writing itself, it must
necessarily follow, in order to prevent miscarriages of justice, that the content of the writing may be proved
by other means where the writing itself is unavailable, or for some other legitimate reason it is not
possible or feasible to produce it.

LOSS OR DESTRUCTION OF THE ORIGINAL

The proponent of the secondary evidence must comply with the requirements of Sec. 5, Rule 130 of the 1989 with minimal
modification for gender inclusiveness in Sec. 5, Rule 130 of the 2019 Rules: “When original document is unavailable. –
When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his or her part, may prove its contents
by a copy, or by a recital or its contents in some authentic document, or by the testimony of witnesses in the order
stated.”

Loss – connotes inability to retrieve the original of the document. In civil law, it is commonly understood that the thing is
lost when it perishes or goes out of commerce, or disappears in such a way that its existence is unknown or it cannot be
recovered. Inability to produce the original may be equated with inscriptions on immovable objects like monuments or
tombstones.

- To prove the loss/destruction of the original, any competent person can testify on the circumstances thereon
either through direct or circumstantial evidence. But there must be prior proof of high-intensity or diligent
search in order to establish the loss of the original.
- If there are duplicates or counterparts of such original, all of them must be accounted for prior to
presentation of secondary evidence of an original.
- When more than one 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.
- Age may also be proven by such authentic documents as a baptismal certificate and school records only in
the absence of a birth certificate.

ORDER OF PROOF FOR LOST OR DESTROYED ORIGINAL

- While Sec. 5 suggests proof of execution in advance of existence of the original, the proper sequence is to
establish:
(a) The existence of the original first, after which, the promoter of secondary must present proof of
the fact of
(b) Execution of the original
(c) Loss, destruction and the reason therefor sans bad faith on the part of the offeror
(d) Efforts exerted to retrieve the original
(e) Contents of the original by a copy or an authentic document or testimony of witness in the order
stated.

Jones believes this to be the correct order: existence, execution, loss, efforts, and contents, subject to the court’s
discretion as to modification of the progression. The sufficiency of proof offered as a predicate for the admission of an alleged
lost deed lies within the judicial discretion of the court under all circumstances of the particular case.

INTENTIONAL DESTRUCTION OF ORIGINAL

Jones: if the loss or destruction of the instrument is shown to have been intentional, and for the purpose of making it
unavailable at the trial, secondary evidence would be inadmissible. Implied from this rule is the propriety of adducing
secondary evidence to prove the lost or destroyed original, if no bad faith or fraud can be attributed to the party who destroyed
the original.

PROOF OF LOST NOTARIAL OR HOLOGRAPHIC WILL

- There are XPNs to the rule on the series of proof by secondary evidence of an original like the loss of a notarial
will that requires proof by testimony of at least 2 credible witnesses who can adequately establish the contents of
the lost notarial will.
 41
- In the absence of a contest, neither is it proper to prove a lost holographic will by any other mode apart from
evidence that can emanate from an ordinary witness, who knows the handwriting and signature of the testator, or
an expert witness.
- A lost holographic will can be proved by a photocopy thereof (Gan v Yap and Rodelas v Aranza), or even a
mimeographed or carbon copy, or by other similar means, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court.

QUANTUM OF SECONDARY EVIDENCE

- Secondary evidence can be presented to the court in the form of a copy, a recital of the contents of the
original in some authentic document, or by the testimony of witnesses in the specified order.
- The expression that secondary evidence of a document is receivable must not be understood to mean that
conjectural, or any other form of illegal evidence of it, will be received. Secondary evidence must be legitimate
evidence, inferior to the primary solely in respect of its derivative character.

Jones’ two schools of thought to the degree of quality of secondary evidence:

1. English view - advocates the absence of any grade among secondary evidence and there is thus no legal
preference for one kind of secondary evidence over another
2. American rule - suggests the necessity of the best obtainable evidence.

● What serves as the rule of thumb in assaying proof of unavailable writing is reasonable certainty of the
substance of the original as depicted by a copy, or recital of the original in an authentic document, or
from testimonial sponsors.
○ Proof of the contents of an unavailable document should be such as to leave no reasonable doubt as to
the substantial parts of the paper; but while clear and satisfactory proof should be given of the contents
of lost instruments, the prevailing view is that, where secondary evidence is admissible to prove the
contents of documents, the fact to be established should be proved by a fair preponderance of
evidence, and with reasonable certainty.
○ The substance of the document must be proved satisfactorily.
○ However, where the instrument is a muniment of title, public policy demands that the proof of its former
existence, its loss and its contents should be string and convincing. This rule applies in the case of a
lost deed. It has been held that the testimony of one who has heard a deed read some years before and
who can give only a small portion of its contents is insufficient.
○ Secondary evidence is inadmissible to take the place of that which has evidentiary force only by
authority of express statutory enactment – such for example, as a notary public’s certificate of protest –
even though the original document has been lost or destroyed.

ORIGINAL IN ADVERSE PARTY’S CONTROL

The mechanics of the second XPN to the ODR is in Sec. 6: “When original document is in adverse party’s custody or
control. - If the document is in the custody or under the control of the adverse party, he or she must have reasonable
notice to produce it. If after such notice and after satisfactory proof of its existence, he or she fails to produce the
document, secondary evidence may be presented as in the case of its loss.

- If the original is in the care or control of the adverse party, a refusal to yield the original, after reasonable notice
to produce it, will authorize reception of secondary evidence from the party interested in proving the contents of
the original. Obviously, the adverse party cannot be coerced to part with the original in his custody.
- Consequently, if the proponent wants to be certain that the writing is actually produced, he can accomplish this
only by the use of a subpoena duces tecum.
- If the adverse party is willing to show the original of the document pursuant to the notice in Sec. 6, or as a
gesture of liberality, the party who calls for the production of the document can elect not to use it in evidence
consistent with the option in Sec. 9: “Party who calls for document not bound to offer it. - A party who calls
for the production of a document and inspects the same is not obliged to offer it as evidence”,
- But he cannot waive the introduction of the writing and give secondary evidence of its contents.

TIME TO PRODUCE THE ORIGINAL

- Difficult to draw the line as to what constitutes a reasonable period for notice and determination will depend on
the court’s discretion.
 42
- JONES: the giving of notice at the trial satisfies the requirements if the document is shown to be in court in the
possession of the adverse party or his attorney, or it is easy to access. The attorney or party may be compelled
to state whether he has the writing in court. That the document is in court may sometimes be presumed from its
nature and its connection with the case, but of course this presumption may be rebutted by the oath of the
attorney or party.

FORM OF THE NOTICE AND TO WHOM IT SHOULD BE DIRECTED

- The law is also mute as to the form of the notice to produce but the notice is normally directed to the
opponent in the suit.
- An oral and general demand in open court, without the necessity of specifying details, and addressed to the
adverse party or his counsel for the production of the original can suffice but it is of course advisable to serve
a written notice.
- It is immaterial that the original is apparently in the custody of a third party and the notice can be coursed through
the adverse party who may be deemed to have control of the original as aided by a presumption.
- Possession of an attorney is deemed to be the possession of the client. Where the document was last seen in
the hands of the party in interest, though he was not a party to the record, notice served on him was held good.
Notice to the attorney of record of a corporation to produce the company’s records is sufficient. Where the
possession is in some 3rd person, the fact of privity between him and the party must clearly appear, if not, the
person in possession of the document should be served with a subpoena duces tecum.

There are situations that can dispense with the notice:

1. When the nature of the proceedings and the pleadings are such as to notify the party that he is charged with the
possession of the instrument and that its production is necessary
2. Where the action is brought on a written contract which is in the possession of the defendant and which is fully
described in the complaint
3. In a criminal case where the charge itself notifies the defendant of the contents of the document – as in cases
of forgery and larceny
4. If the adverse party has wrongfully or fraudulently obtained possession of the document, where the paper to be
produced is itself a notice, or where the notice is useless (due to the admission by the adverse party of the loss of
the paper or its loss is otherwise proved)
5. Where the adverse party denies possession or knowledge of the writing in question
6. Where he has voluntarily offered to produce it or has admitted that he destroyed it
7. If the writing is a mere memorandum of figures or calculation of amounts if the notice is waived by agreement
between the parties.

Effects of nonproduction by a party after receipt of notice

- After neglect or refusal of the party notified to produce the primary evidence, secondary evidence may
be introduced by the opposite party.
- In such situation, every reasonable intendment will be in favor of the secondary evidence, if it is vague or
uncertain. It is then too late for the party having possession of the primary evidence to use it in rebuttal or to
meet the secondary evidence of the other party with like evidence.
- The contumacy of a party in not producing the document is no ground for rejecting his evidence and on
ground of estoppel, especially since he may be compelled by subpoena duces tecum to produce such paper. If
the paper is produced, it is, of course the best evidence, and an alleged copy cannot be received as evidence
in the first instance on the part of him who has called for the original, although after the introduction of the original
as evidence, it may be shown to be defective or to have been tampered with.

REFUSAL OF THE DEFENDANT TO PRODUCT THE ORIGINAL IN A CRIMINAL CASE

If the original is in the custody of the defendant charged with a crime, can the prosecution present secondary evidence
without the usual notice under Sec. 6?

ANSWER:
Majority opinion is that notice to produce is not imperative and secondary evidence can be utilized upon the premise
that the writing is inaccessible to the prosecution by reason of defendant’s right against self-incrimination, and that the
notice to produce might put undue pressure on defendant’s shoulders.
 43
Minority view believes that notice to produce is still vital and in default thereof, secondary evidence becomes
defective, in order to protect the defendant against the use of false and inferior evidence. This was influenced by
persuasive reasoning that notice to produce places the accused under no duress and to require the note is to his advantage
rather than to his peril.

NUMEROUS ACCOUNTS OR SUMMARIES

“Voluminous document” rule (denominated by Tracy) – 3rd XPN to the Best Evidence Rule which is in Sec. 3(c): “When the
original consists of numerous accounts or other documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the general result of the whole”.

- Since what is legally significant under Sec. 3(c) is only the factum probandum, which is the ultimate fact or fact
sought to be established, it is but logical to suppose that details reflected on capacious documents need not
be accounted for.

To complement Sec. 3(c), Sec. 7 now incorporated a new proviso on summaries as secondary evidence:

“Summaries. - When the contents of documents, records, photographs, or numerous accounts are voluminous and cannot
be examined in court without great loss of time, and the fact sought to be established is only the general result of the
whole, the contents of such evidence may be presented in the form of a chart, summary or calculation.

The originals shall be available for examination or copying, or both, by the adverse party at a reasonable time and place.
The court may order that they be produced in court.”

COMMITTEE NOTES

The proposed amendment intends to maintain the requirements in the existing provision. The language used in the current provision sh
(NOTE: The Mother Rule Committee adopted the amendment)

The new Sec. 7 is taken substantially fro Rule 1006 of the FRE but it retains the requirements in the existing Sec. 3(c) that the records must
be examined without great loss of time, and the fact sought to be established is only the general result of the whole.

Since the SC has already held that in such a case the original records must be made accessible to the adverse party so that the correctn
tested on cross examination, there is really nothing new about the proposed amendment.

- Premised on expediency, a summary or the general result of the examination may be given in evidence by
any person who has examined the documents and who is skilled in such matters, provided the result is
capable of being ascertained by calculation.
- It is essential that the original records or writings be first duly identified and that a sufficient foundation be
laid as to entitle the records or writing themselves to be admitted in evidence.
- Also, the admissibility of the records themselves as evidence must be established, and they must be available to
the opposite party for cross-examination.
- Summaries are particularly well suited for financial accounts and for corporate or business records of a
detailed or complicated character.

Republic v Mupas: SC recognized the prospect of presenting a summary, in lieu of voluminous originals, provided the
proponent must lay the proper foundation for the admission of original documents on which the summary is based and the
adverse party must have access over the original documents. Sec. 3(c) does away with the item-by-item court
identification and authentication of voluminous exhibits which would only be burdensome and tedious for the parties
and the court. A condition precedent to this is that the proponent must prove that the source documents being
summarized are also admissible if presented in court.

In concrete terms, the source documents must be shown to be original, and not secondary. Further, the source
documents must likewise be accessible to the opposing party so that the correctness of the summary of the records
may be tested on cross-examination and/or refuted in pleadings.
 44
In ordinary trial type-proceedings, a proper foundation for the introduction of a summary may be established through the
‘testimony of the person who is responsible for the summary’s preparation, or the person who supervised the preparation of
the summary’.

REASON for these procedural foundations: summary of numerous documents is, in strict terms, hearsay evidence. If the
source of the documents of the summary are non-original, the trial court would commit grave error in giving probative
value to the summary of non-original documents; the evidence admitted would be double hearsay.

ORIGINAL AS PUBLIC RECORD

The 4th XPN to the Best Evidence rule (Sec. 3d, Rule 130): “When the original is a public record in the custody of a
public officer or is recorded in a public office” and is complemented by Sec. 8: “Evidence admissible when original
document is a public record. – When the original of a document is in the custody of a public officer or is recorded in a
public office, its contents may be proved by a certified true copy issued by the public office in custody thereof.”

- Said provisions were intended to abate the risk of loss from removal of records, and were premised on the
absence of any motive from public officers to make false copies.
- It is well settled that church registries of births, marriages and deaths made subsequent to the promulgation of
General Order No. 68 and the passage of Act No. 190 are no longer public writings, nor are they kept by duly
authorized public officials. They are private writings and their authenticity must therefore be proved as are all
other private writings in accordance with the rules of evidence.
- Concept of irremovability of public record in Sec. 26, Rule 132: “Any public record, an official copy of which
is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a
court where the inspection of the record is essential to the just determination of a pending case”.

Pacasum: to ensure a successful prosecution of a defendant in a criminal case for falsification of a public document as
integrated in a public office, it is important for the prosecution to secure the production before the court of the original of the
alleged falsified document via a subpoena in line with the XPN in Sec. 26.
- With reference to competent proof of a public record, Sec. 24 and 27, Rule 132 can be utilized.

PAROL EVIDENCE RULE

- With saving clauses in Sec. 9, Rule 130, now Sec. 10, Rule 130 of the 2019 Revised Rules, expects presentation
of the written covenant betwixt the parties and their successors in interest:

“Evidence of written agreements. – When the terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of the written agreement if he or she
puts in issue in a verified pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the execution
of the written agreement.

The term ‘agreement’ includes wills.”

 45

COMMITTEE NOTES

The Parol Evidence Rule is essentially not a rule of evidence, but a rule of substantive law. The practical application of the
rule has presented many problems. The rule has been described as “a positive menace to the due administration of justice”.

Two crucial defects in the rule:

1. Difficulty of applying it consistently
2. Unfairness and injustices caused by its rigid application.

Broad XPNs to the Parol Evidence, as contained in the present Sec. 9, ie., mistake or imperfection in the written agreement,
or the failure of the written agreement to express the true intent and agreement of the parties thereto, practically “undermine
the law of contract”. However its elimination is too drastic, thus the SubComm decided to retain the rule as presently worded.

The only changes are the addition of the words “or she” for gender inclusiveness and the requirement that the pleading
invoked any of the XPNs to the Parol Evidence Rule be “verified”.

Concept
Parol Evidence Rule - proscribes introduction by parties and their successors in interest of verbal or written extrinsic
evidence that can diverge or amend a legally efficacious and complete written contract.

Application:
- Is limited to writings which are contractual in their nature but only as to essential and substantial parts of
the writing and not those which are merely formal.
- Where a memorandum appearing on a contract is shown to be part of the contract, the entire contract as thus
evidenced is subject to the rule.
- Does not apply if the contract itself is clear.
- Not applicable in a proceeding where the validity of such agreement is the fact in dispute, such as when a
contract may be void for lack of consideration.
- For instance, upon a timely XPN, evidence introduced by a party can be excluded if it is anticipated to
express the propriety of payment of the balance of a loan after the stipulated one-year period to fully
effect payment of the remainder of the monetary obligation. Nonetheless, extrinsic evidence which
tends to aid, confirm or explain a writing rather than alter it, or which assists the court in understanding
and interpreting the language of the writing is permissible.

● As the rule is now more briefly expressed, parol contemporaneous evidence is inadmissible to contradict or vary
the terms of a valid written agreement. The operation of the Parol Evidence Rule requires the existence of a
valid written agreement.
● To withstand challenge, permissible extrinsic evidence to vary the written contract must be clear and
convincing and of such sufficient credibility as to overturn the written agreement.

Persons bound by the rule

- If external evidence emanates from a 3rd person, there is no occasion to speak of the Parol Evidence Rule
since it is applicable only to those parties to the instruments or their privities.
- A stranger to the writing is not affected by the rule since the outsider has had no part in the making of the writing
and should not be prejudiced by matters appearing therein nor should he be precluded from showing the truth
although it tends to vary the written instrument.
- As the PER applies only in controversies involving rights and obligations which arise out of the contract, it
follows that the rule does not apply as between parties or their privies who are on the same side of the contract
and whose interests under the contract are the same.
- Even in respect of a stranger, the writing itself is the best evidence of its contents; and it must, if possible, be
produced.

Rudiments of the rule

Basically, the Extrinsic Evidence Rule traced its roots from the theory of amalgamation or fusion of agreements in a single
document the execution of which is deemed to supersede all negotiations and stipulations concerning the terms and subject
matter of the contract.
 46

- Where the law requires a written instrument, or where parties adopt that mode of contracting, it is a matter of
principle and policy to prevent inferior evidence from being used, either as a substitute for an alteration of
the written contract. XPNs to the rule which excludes parol evidence varying or contradicting a complete and
unequivocal written contract are recognized only when clearly and necessary and proper because of their
natural tendency to invite perjury and fraud and to deprive formal agreements of their uncertainty.

- The rule is founded on experience and created by necessity. It is designed to give certainty to transactions
which have been reduced to writing by protecting the parties against the double veracity of interested witnesses,
and the uncertain memory of disinterested witnesses.
- If the document is not a contract as normally understood in civil law, the PER does NOT apply.
- The GR that parol evidence is inadmissible to contradict, vary, or explain the terms of a writing has no
application where an instrument constituted a mere receipt, not used or designed to embody and set out
terms and conditions of a contract.
- Hence, a receipt being given for the payment of rent due on the lease, parol evidence is admissible to show
that the payment was made by note. This is illustrated in Cruz v CA wherein Justice Isagani Cruz interpreted
an exhibit in a collection suit as a mere receipt, rather than a contract,
- In the same vein, parol evidence is admissible to show that taxes were in fact paid by a person other than the
one named as payer in the tax receipts. And a passbook given by a bank to a depositor is not a written contract,
but like any other form of receipt is open to explanation by evidence aliunde.
- Apart from the requirement of existence and legality of the contract, the instrument must be complete in itself
and the only criterion of the completeness is the document itself.
- A skeleton outline or MOA, falling short of embodying all of the terms of the agreement, must be subject
to parol evidence to prove the real agreement.
- To authorize the admission of parol evidence to complete an agreement, it is essential (acc to some
courts) that the writing appear upon inspection to be an incomplete contract and it is generally
recognized that the parts of the agreement proposed to be proved by parol must not be inconsistent
with or repugnant to the intention of the parties, as shown by the written instrument.

CONTRAST OF THE BEST EVIDENCE AND THE PAROL EVIDENCE RULE

The primary evidence rule and the parol evidence can coexist since the document is not only the best evidence but is
the only evidence of the terms of the agreement between the parties and their successors in interest.

PAROL EVIDENCE RULE BEST EVIDENCE RULE

Presupposes availability of the original document in court The original is either unavailable or an issue exists if the
document is the original

Enjoins deviation from the contractual terms Forbids introduction of secondary evidence irrespective of
its effect on the terms of the document

Applies only to contractual arrangements (XPN: wills) Applies to all types of writings

Pertinent only to a dispute between the parties or privies to Can be invoked by any party regardless of participation on
the instrument the writing

ACCEPTABLE EXTRINSIC EVIDENCE

- External evidence is not entirely foreclosed by the parol evidence and a party can introduce evidence that may
have a tendency to transform, explicate, or append to the terms of the disagreement if any of the XPNs
provided by law is averred by the party interested in pressing for a segregation to the rule.
- If the exemption is not pleaded, a party-plaintiff can hardly introduce evidence thereon over the objection of the
adverse party.
- While the pleading of the plaintiff may be silent on the XPN to the rule, if it is the defendant who asserts the
XPN to the rule as part of his Answer, parol evidence can then be introduced as it is now an issue in the case,
reminiscent of the aphorism in remedial law on the amendment to conform to evidence.
 47
- If no objection is interposed from a party, either party can integrate evidence aliunde albeit their pleadings are
both mute on the XPNs to the Parol Evidence Rule.

INTRINSIC AMBIGUITY
As an initial XPN to the PER, intrinsic ambiguity connotes latent or covert vagueness. The reason for allowing parol
evidence under the latent ambiguity rule is that such evidence does not vary the writing but merely brings out its meaning.
- Jones’ commentaries: the indistinctness can arise if the language of the contract is uncertain or vulnerable to
more than 1 interpretation, or when an indispensable term or condition cannot be ascertained therefrom.
- In other words, the ambiguity does not appear on the instrument but lies hidden in the person or subject
whereof it speaks.
RULE: where the ambiguity is thus disclosed by extrinsic evidence, it may be removed by the same means.
- The theory on which the testimony is allowed is that the instrument does describe the person or subject intended,
and that the extrinsic evidence only enables the court to reject one of the subjects to which the description may
apply, and to determine which is intended.

On the other hand, patent or over ambiguity if objected to by the adverse party, does not sanction introduction of evidence to
supply the lacuna of the contract.
- Otherwise, the court will be creating, and not construing, a contract for the parties by such venture from the
advocate of exterior evidence.
- EX: Parol evidence is not admissible to identify the land where the description in the contract itself is insufficient
to meet the requirements of the statute of frauds; nor may it be introduced in order to make the writing operate
upon land which is not embraced within the descriptive words.
- The patent ambiguity rule does not allow parol evidence to be admitted because to do so would have the effect
of adding to, and therefore varying, the terms of the writing.

INTERMEDIATE AMBIGUITY
- Exists when the words of the writing, although clear and with a settled meaning, still admits of 2 interpretations.
- Has the nature of both latent and patent ambiguities
- May be treated as having a similar effect as latent ambiguity, an XPN to the Parol Evidence Rule.
EX: an apparatus described as one of 6,000-liter capacity since the word ‘capacity’ may be interpreted as working or
producing capacity, parol evidence may be admitted to explain such ambiguity.

INACCURACIES OF DESCRIPTION
Consistent with the maxim Falsa demonstratio non nocet (a false description does not vitiate), the instrument does not become
inoperative by reason of some inaccuracy if sufficient description remains after rejection of the erroneous addition.

MISTAKE
- Defined as some unintentional act, omission, or error arising from ignorance, surprise, imposition or misplaced
confidence. (Black’s Law Dictionary)
- A mistake exists when a person, under some erroneous conviction of law or fact, does, or omits to do some act
which, but for the erroneous conviction, he would not have done or omitted.
- May either refer to a mistake of fact or a mistake of law and it can be mutual.

To justify application of the XPN to the Parol Evidence Rule, it is required that the mistake be factual and mutual to the parties,
or where the innocent party was imposed upon unfair dealing of the other although the mistake is only on one side.
- When one party was mistaken and the other knew or believed that the instrument did not state the real
agreement of the parties, but concealed that fact from the former, the instrument may be reformed.

As opposed to a mistake of law, a gaffe in fact exists when it is not caused by the neglect of a legal duty on the part of the
person making the mistake, and it consists in either an unconscious ignorance or forgetfulness of a fact, past or present,
material to the contract or belief in the present existence of a thing material to the contract which does not exist, or in the past
existence of such thing which has not existed. The mistake is mutual where the parties have a common intention, but it is
induced by a common or mutual mistake.
- EX: Where property is granted to a husband and wife, parol evidence may be introduced to show that the
husband’s name was inserted by mistake, and that it is a separate property.
 48
- EX: A contractor for public work who seeks cancellation of the contract because of mutual mistake as to the
quantity of work to be done may show that, in making his bid, he acted on a mistake caused by an error in the
estimate made by the engineer as to the amount of work to be done.

● Clerical mistakes, typo errors, and the like are, as a general rule, provable by parol under this principle.

IMPERFECTION
- Means defective or incomplete, wanting in some legal or formal requisite, in legal sanction or effectiveness.
- Imprecision of the document was typified in a case where parol evidence was allowed to explain ambiguities in a
deed executed by a guardian on a sale of his ward’s real estate, such ambiguities arising from an insufficient
description of the grantees, and in an omission to give the number of the block in which the lots conveyed were
situated. Upon the same principle, testimony of the writer may be admitted to explain the meaning of a letter
which contains statements that are confusing, ambiguous, and seemingly contradictory.

Borillo v CA: Before parol evidence may be admitted in order to identify, explain or define the subject matter of a writing, it
must first be shown that the writing itself already contains a description sufficient to serve as a foundation for the admission of
such parol evidence; the evidence should also be consistent with the writing. Parol evidence is not permitted to supply a
description, but only to apply it.

FAILURE TO EXPRESS TRUE INTENT

As the second XPN, the court is permitted to ascertain the true objective of the parties.

ART. 1359 of the NCC: reformation of the instrument is the appropriate remedy to a contract where the true intention of the
parties is not expressed in the instrument due to mistake, fraud, inequitable conduct or accident has prevented a meeting of
the minds of the parties, the proper remedy is annulment of the contract and not reformation of the instrument. As between
the clash on verba legis and ratio legis, it is the real intent that prevails over the letter sof the contract.

THUS, parol evidence is suitable to show that a conveyance of real or personal property is actually an equitable mortgage
under Art. 1602 to 1604 of the New Civil Code.

Sps. Sy v De Vera-Navarro: the SC declared that the denomination of the contract between the parties is not necessarily
controlling. Courts are generally inclined to construe a transaction purporting to be a sale as an equitable mortgage, it was
incumbent upon De Vera-Navarro to rebut the petitioners’ testimonies and substantiate their claim.

VALIDITY IMPUGNED
While the terms of a written instrument may not be varied by extrinsic evidence, yet, where testimony is offered, not for the
purpose of varying a writing, but in order to attack or overthrow it, no objection lies to the introduction thereof.
- Thus, a purported contract may be shown not to have had any legal inception because of fraud, want of
consideration, illegalit or other vice which goes to the existence thereof. Extrinsic evidence is admissible for the
purpose of showing that the instrument in suit is a mere sham.
- No instrument is so sacred, when tinctured with illegality, as to raise it above the scrutiny of parol testimony.
- Where the consideration of a contract or security is founded upon the agreement to settle a crine or stifle a public
prosecution, the contract or security is illegal and its illegality may be shown by parol evidence.

Mariano v. CA: The rule making a writing the exclusive evidence of the agreement stated therein is not applicable when the
validity of such agreement is the fact in dispute. Where the validity of the agreement is the issue, parol evidence may be
introduced to establish illegality or fraud.

SUBSEQUENT AGREEMENTS
If the parol evidence is based on the theory of integration, it is absurd to bar introduction of evidence to prove other terms and
conditions reached by the parties after the written contract. Indeed, evidence of supplementary stipulations can not possibly
alter a previous formal covenant.
- The rule which forbids the introduction of extrinsic evidence to affect a written instrument does not exclude parol
proof of “the existence of any distinct, subsequent, oral agreement to rescind or modify any such contract, grant
or disposition of property, provided that such agreement is not invalid under the statute of frauds or otherwise”.
- It does not also purport to exclude negotiations respecting written contracts, unless they are prior to or
contemporaneous with the making of the written instrument.
 49
- In a great variety of cases, the courts have held parol evidence competent to prove or explain a subsequent
modification or discharge.
- Likewise, where a written contract contains no stipulation as to the time of payment, evidence is admissible of a
subsequent parol agreement fixing such time. Even where the contract specifically provides that its terms shall
not be altered except by writing, the modification may be made verbally.

INCREMENTAL SITUATIONS WHICH DO NOT ALTER THE CONTRACT

While there is a written agreement, parol evidence can be introduced by a party if the extrinsic evidence is:
1. Consistent with the terms of the written agreement
2. Independent of the written agreement
3. Novatory of the written contract
4. A condition precedent which determines whether the written contract may become operative or effective, but not to a
condition subsequent not stated in the agreement.

C. TESTIMONIAL EVIDENCE
- Testimony given in court or the deposition by one who has observed that to which he is testifying; or one who,
though he has not observed the facts is nevertheless qualified to give an opinion relative to such facts.
- Testimonial evidence is admissible only upon offer at the appropriate time, ie., at the time the witness is called to
testify in Sec. 35, Rule 132 of the 1989 and 2019 rules.
- The word ‘witness’ is employed to mark 2 different individuals or the same individual in 2 different situations:
1. The one, that of perceiving witness, that is, of one who has seen, or heard, or learned, by his senses, the
fact concerning which he can give information when examined
2. The other, that of a deposing witness, who states in a court of justice the information which he has
acquired.

Witness is a person who testifies in a cause or gives evidence before a judicial tribunal.

ESSENCE
In his analysis of processes of a testimonial assertion, Wigmore recapitulated the elements of a verbal representation into 3
components: (1) observation, (2) recollection, and (3) communication.

Three processes, in the absence of which we cannot conceive testimony:

1. Observation
- Witness must know something (ie. must have observed the affray and received some impressions on the
question)
- External event has in some way or another impressed itself on the witness’ senses
- This impression should adequately represent or correspond to the fact itself as it really existed or exists
2. Recollection
- Witness must have a recollection of these impressions, the result of his observation
- Function is to recall or reproduce the original impressions of observation
- It must fairly correspond with or reproduce the original Knowledge or Observation
3. Communication, or Narration, or Relation
- Witness must communicate this recollection to the tribunal
- Function is to reproduce for the apprehension of the tribunal the Recollected results – themselves already
reproduced from Observation
- Ensure that the story as told shall represent with fair accuracy what the witness once observed and now
recollects
In addition to the rules defining the requirements as to actual knowledge, recollection, and communication, there arise other
rules defining the kinds of incapacity which exclude the witness at the outset without further inquiry. (Wigmore)

Three distinct sorts of incapacity: (Wigmore)

1. There is an incapacity affecting the general mental or moral powers – of which insanity, infancy, dumbness, and the
like, are instances. (organic - affecting mental and moral functions or powers)
- This may affect the witness’ power of knowing or of recollecting or of communicating or of doing all three, and
must be examined with reference to each.
2. There is an incapacity involving a lack of experience or training. (experiential - as involving a lack of sufficient
experience or training)
 50
- This extends to particular topics only, not necessarily to the whole subject of litigation.
3. There is an incapacity arising from an emotional relation to the controversy (eg. from marital relationship or from
pecuniary interest in the subject of the suit). (emotional - involving dominance of untrustworthy motives)
- This incapacity - nowadays recognized to a limited extent only - is supposed to involve an inability to give any
credible testimony on the subject of the particular cause, and, when it exists, affects all three elements alike.

NOTE: There is no reason to insist for the necessity of the power of observation if the witness, though he has not observed the
facts, is nevertheless qualified to give an opinion relative to such facts, like an expert witness who is shown to possess special
knowledge, skill, experience, or training,

FORUM FOR TESTIMONIAL EVIDENCE

- To confine testimonial evidence to a witness’ proclamation before the court, or a body competent to hear it,
appears to be a misnomer.
- If a mode of discovery like the deposition pending action within the framework of Sec. 4, Rule 23 (CivPro) can be
utilized as a court declaration or as an XPN to the hearsay evidence rule following the demise of the deponent or
his unavailability to testify, an extra-judicial statement can qualify as testimonial evidence.
- Any assertion, whether in court or not, may be testimonial evidence. “The use of the phrase ‘testimonial’
evidence must not be understood as applicable exclusively to assertions made on the witness stand. Any
assertion, taken as the basis of an inference to the existence of the matter asserted, is testimony, whether made
in court or not.”
- All statements received under the the XPNs to the hearsay rule are genuinely testimony,
- Commonest class of testimonial evidence: those made on the witness stand.
- The qualifications of a witness are equally essential in the use of the extra-judicial assertions. In practice, the
Court does not always insist on proof of these qualifications beforehand; but many of these rules established for
the hearsay XPNs are nothing more than applications of the rules of testimonial qualifications to extra-judicial
assertions.

For examination of a child witness (as defined in Sec. 4a of the Rule on Examination of a Child Witness): live-link television
testimony of the child witness in a criminal case may be undertaken in a room outside of the courtroom on proper application
of the prosecutor, counsel, or guardian ad litem.

Persons deprived of liberty (such as high-risk inmates or afflicted with highly contagious diseases): can also testify elsewhere
by videoconference technology pursuant to AM 19-05-06-SC, relative to the Guidelines on the Use of Videoconferencing
Technology for the Remote Appearance and Testimony of Certain PDL in Jails and National Penitentiaries.

People v Sergio and Lacanilao: the deposition by written interrogatories of a Filipina, who was detained abroad and about to
face death by firing squad, was treated as akin to a dying declaration under the rules on evidence, for the criminal case
against the accused in the domestic forum who duped the Filipina to act as a drug courier abroad.

San Luis v Hon. Rojas: Deposition discovery rules are to be accorded a broad and liberal treatment and should not be unduly
restricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within
the bounds of law. Otherwise, the advantage of a liberal discovery procedure in ascertaining the truth and expediting the
disposal of litigation would be defeated. There is nothing in the rules on deposition that limits their use in case of oral contract.

In any event, the admissibility of the deposition does not preclude the determination of its probative value at the appropriate
time. The admissibility of evidence should not be equated with weight of evidence. It should depend on its relevance and
competence while the weight of the evidence already admitted and its tendency to convince and persuade.

Depositions are consistent with the principle of promoting just, speedy and inexpensive disposition of every action or
proceeding. These are allowed provided the deposition is taken in accordance with the applicable provisions of the ROC; that
is, with leave of court if the summons has been submitted; and provided, further, that a circumstance for their admissibility
exists.

WITNESS
- A person who gives evidence in a cause before a court and a competent witness is a person who is legally
qualified to do so.
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- A person whose statements and declarations under oath are made an oral examination, or by deposition or
affidavit.
- Also used in the legal sense to describe a person called to be present at some transaction so as to be able to
attest to its having taken place.
- A witness is one who has the ability to observe, record, recollec, and recount as well as an understanding of the
duty to tell the truth.

COMPETENCY
- With reference to witnesses in the law of evidence, is the presence of those characteristics or the absence of
those disabilities, which render a witness legally fit and qualified to give testimony in a court of justice.

Testimonial competency - eligibility of a person to sit on the witness stand and testify.

Competency - fitness of the individual to testify in a legal proceeding.

Competent - implies a legal capacity to testify, and, when applied to evidence in law, means having the legal capacity or fitness
to be heard in court, as distinguished from credibility or sufficiency.

THUS, a witness may be competent although unworthy of belief. Evidence may be competent, although not alone sufficient
even if believed.

OATH
- As a precondition to testimony, oath is essential to the qualification of a witness for it will serve as additional
security afforded by the religious sanction implied in an oath.
- If the oath has not been taken or the affirmation has not been made until part of the testimony has been given,
only that part of the evidence which follows the oath or affirmation is competent.

Perjury - willfully testifying falsely under oath, or its equivalent.

C. Testimonial Evidence
1. Qualification of Witness

Sec. 21, Rule 130 of the 2019 Revised rules on evidence spells out the qualification of witness: “Witnesses; their
qualifications. - All persons who can perceive, and perceiving can make known their perception to others, may be
witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by
law, shall not be a ground for disqualification”.

Legal fitness - anyone who is sensible and aware of a relevant event or incident, and can communicate such awareness,
experience, or observation to others can be a witness.

EXCLUSIVE LIST OF DISQUALIFIED WITNESSES

Marcos v Heirs of Navarro, Jr.: SC reiterated the idea that the exclusionary provisions for disqualification of witnesses are
restrictive. The specific enumeration of disqualified witnesses excludes the operation of causes of disability other than those
mentioned in the Rules. The Rules should not be interpreted to include an XPN not embodied therein.

SEC. 19 – disqualifies those who are mentally incapacitated and children whose tender age or immaturity renders them
incapable of being witnesses.
SEC. 20 – provides for the disqualification based on conflicts of interest or on relationship.
SEC. 21 – provides for disqualification based on privileged communications.
SEC. 15 of Rule 132 – may not be a rule on disqualification of witnesses but states grounds when a witness may be
impeached by the party against whom he was called.

● There is no provision of the Rules disqualifying parties declared in default from taking the witness stand for
non-disqualified parties. The law does not provide default as an XPN.
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● GR: where there are express XPNs these comprise the only limitations on the operation of a statute and no other
XPN will be implied.
● The Rules should not be interpreted to include an XPN not embodied therein.

NOTE: Unlike Rule 601 of the Washington Federal Rules of Evidence and the Oregon Federal Rules of Evidence, which
unmistakably asserts that every person is competent as a witness except as otherwise provided by statute or court rules, the
Revised Rules on Evidence did not incorporate an unequivocal mark for competency of a testimonial sponsor. However, under
Sec. 6 of the Proposed Rule on Examination of a Child Witness, the Child is legally presumed competent to testify, either as a
victim, accused, or as a witness, subject to scrutiny by the court or the adverse party upon challenge to the child’s fitness.

WHEN TESTIMONIAL QUALIFICATION MUST EXIST

- It is the fitness of a witness to perceive and convey his perception to others at the time of his production before
the Court, or at the taking of their depositions, that qualifies a witness to testify.
- The time of utterance of the testimony is the time when the qualifications must exist because it is at that time that
they are needed.
- In the probate of a will, supervening incapacity of the witness or the testator will not prevent allowance of the will
if they were competent at the time of execution and attestation of the will.
- Loss of the perceptive sense after the occurrence of the fact does not affect the admissibility of his testimony.
Hence, a blind man can testify to what he saw prior to his blindness or a deaf man, prior to his deafness. But a
person incapable of perception is pro tanto incapable of testifying.

RELIGIOUS BELIEF OR POLITICAL IDEOLOGY

- Barely disqualifies a witness from testifying
- One who believes in the obligation of an oath is competent as a witness although he is without religious
conviction.
- Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of
showing that by reason of their nature the witness’ credibility is impaired or enhanced.

INTEREST
In general, neither can interest in the outcome of litigation lead to the rejection of the witness’s testimony.

- JONES: to render a witness incompetent under the common-law rule, it is necessary that his interest be some
legal, certain and immediate interest, however minute, either in the event of the cause itself or in the record as an
instrument of evidence in support of his own claims in a subsequent action.
- A mere interest in the question in litigation or a bias arising from such interest is NOT a disqualification.
- The interest must be an actual legal existing interest and not one merely expected or imaginary.
- The test is not the magnitude, but the nature of the interest.
- For the purpose of locus standi before the court, a personal stake or interest in the outcome of litigation can
assume legal resonance.
- In the previous rule, what can extract rejection of testimony from an interested or biased witness is the
Survivorship Disqualification Rule but not a co-defendant who was declared in default and can thus testify for his
non-defaulting co-defendant.

CONVICTION OF A CRIME
- Neither a conviction for a crime can serve as a bar to testimonial evidence except as in cases specified by law.
- Upon proof of conviction, it can nevertheless affect the credibility of the witness.

Bug-atan v People: While Maramara admitted to having been previously convicted, this circumstance does not necessarily
make him or his testimony ipso facto incredible. The determination of the character of a witness is not a prerequisite to belief in
his testimony. A convicted person is not necessarily a liar. After all, conviction of a crime, unless otherwise provided by law,
shall not be a ground for disqualification of witnesses.

- An example of a legal impediment to a convict’s testimony is his perdition for falsification of a document, perjury
or false testimony since the fact of conviction disqualifies the convict from being a witness to a will and,
necessarily, the convict cannot testify in the probate thereof.
 53
Effect of pardon or reversal of the judgment: remove the disability, but the pardon must be absolute. A pardon reaches both
the punishment prescribed for the offense and guilt of the offender. An absolute pardon not only blots out the crime committed,
but removes all disabilities resulting from the conviction.

DISQUALIFIED WITNESSES
Under the 1989 Revised Rules on Evidence, not every witness can testify for or against a party since the witness may be
excluded upon timely objection by reason of:
(a) Mental incapacity
(b) Immaturity
(c) Spousal immunity
(d) Survivorship ineligibility
(e) Privileged communication
(f) Parental and filial privilege

On the other hand, under the 2019 Revised Rules on Evidence, the provision on mental incapacity and immaturity was deleted
while the concept of Survivorship Disqualification Rule was modified and transposed in Sec. 30, Rule 130 of the 2019 Revised
Rules on Evidence, as an XPN to the Hearsay evidence.

- A significant principle on firsthand knowledge was integrated as Sec. 23, Rule 130 of the Revised Rules on
Evidence and there was a separate treatment of Hearsay Evidence Rule in Sec. 37, Rule 130 of the 2019
Revised Rules on Evidence.

Hence, under the 2019 Revised Rules on Evidence, a witness may be disqualified to testify due to:
(a) Want of personal knowledge
(b) Spousal immunity
(c) Privileged communication
(d) Parental and filial privilege
(e) Privileged trade secrets

COMMITTEE NOTES

The deletion of the clause “Except as provided in the next succeeding section” has been necessitated by the elimination of the
next section on “Disqualification by reason of mental incapacity or immaturity.”

The SubComm decided to delete the present Sec. 21 because it is superfluous. The disqualifications mentioned in Sec. 21
follow from the definition in the earlier section of who are competent to be witnesses, to wit, “all persons who can perceive, and
perceiving, can make known their perception to others.”

In Sec. 22, Rule 130 of the 2019 Revised Rules on Evidence, a witness’s testimony is restricted to personal knowledge:
“Testimony confined to personal knowledge. – A witness can testify only to those facts which he or she knows of his
or her personal knowledge; that is, which are derived from his or her own perception.”

COMMITTEE NOTES

Sec. 22 is the old Sec. 36, Rule 140, which has been treated as the hearsay rule by most commentators. This is not entirely
accurate since the hearsay rule should not be confused with the rule limiting testimony to what witnesses can describe on the
basis of first hand knowledge.

NOTE: Section 22, Rule 130, Revised Rules of Court restricted a witness’ testimony to personal knowledge.

SECTION 22. Testimony Confined to Personal Knowledge. — A witness can testify only to those facts which he or she
knows of his or her personal knowledge; that is, which are derived from his or her own perception. (36a)

● Section 22 has been treated as the hearsay rule by most commentators.

 54
● The hearsay rule is confused with the rule limiting the testimony to what witnesses can describe on the basis of
firsthand knowledge.

Distinction, Hearsay Rule and Rule requiring firsthand knowledge.

● Rule more ancient than the hearsay rule: Rule that a witness is qualified to testify to a fact susceptible of
observation only if it appears that he had a reasonable opportunity to observe the fact.

Example:
● A witness testifies that on a certain day, the westbound train came into the station at X on time, and from his
other evidence it appears that he was not in X at the time in question and that he could have spoken only from
conjecture or report of other persons.
○ Proper objection: Want of personal knowledge, not hearsay.
● A witness testifies that his brother told him that he came in on the train and it arrived on time.
○ The objection of want of personal knowledge is inappropriate because the witness purports to speak
from his own knowledge of what his brother said and as to this he presumably had knowledge.
○ If the testimony was offered to show the time of the train’s arrival, the appropriate objection is hearsay.

Other disqualifications, spousal immunity

SECTION 23. Disqualification by Reason of Marriage. — During their marriage, the husband or the wife cannot testify
against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal
case for a crime committed by one against the other or the latter's direct descendants or ascendants. (22a)

● In the amendment, Section 23 applies to testimony against the affected spouse. The disqualification should be
limited to adverse spousal testimony.
● The marital disqualification rule is supposed to foster marital harmony - to prevent a witness spouse from being
placed in a cruel trilemma; to choose between contempt, perjury, and betrayal of his/her loved one.

Philosophy of the anti-marital facts rule, according to Jones

● It is based on the common-law doctrine that husband and wife are but one person, and consequently, that their
interests are identical, and partly upon the ground that public policy demands that those living in the marriage
relation should not be compelled or allowed to betray the mutual trust and confidence which such relation
implies.

Exceptions to the marital disqualification rule: [MTJCS1]

1. Strained relation of the spouses. (Alvarez v. Ramirez)
● Where the marital and domestic relations are so strained that there is no more harmony to be preserved
nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility
fails.
● In such a case, identity of interests disappears and the consequent danger of perjury based on that
identity is non-existent.

2. When an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within the
exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime
committed by one against the other. (Ordono v. Daquigan)

Requisites, marital disqualification rule:

1. There is a valid marriage;
2. The marriage is existing;
3. The other spouse is a party to the action; and
4. The civil or criminal case is not by one against the other or the latter’s direct descendants or ascendants.

NOTE: An objection to the competency of the spouse’s testimony can be waived. (People v. Pasensoy)
● Objections to the competency of a husband and wife to testify in a criminal prosecution against the other may be
waived as in the case of other witnesses generally.
● The objection to the competency of the spouse must be made when he or she is first offered as a witness.
 55

Other exceptions to the marital disqualification rule:

1. Necessity (Ex. Suit by one spouse against a physician for malpractice in treating the other spouse.)
2. Civil or criminal case by a spouse against the other or direct descendants or ascendants of the other spouse.
(Disappearance of identity of interest and the nonexistence of the peril of perjury.)

NOTE: A void marriage (not merely voidable), bigamous marriage, or a state of concubinage cannot prevent admissibility of
evidence. [MTJCS2]

PRIVILEGED COMMUNICATION
● Those whose disclosure upon the witness stand is not compellable, or even allowable, owing to certain
confidential relations existing between the parties.
● The grounds of the exclusion are public policy and necessity.
● Privileged communications are excluded because their disclosure would be inimical to a governmental
interest or to a private relationship that courts and legislatures deem worthy of preserving or fostering.

4 FUNDAMENTAL CONDITIONS ESSENTIAL TO THE EXISTENCE OF PRIVILEGED COMMUNICATIONS

1. The communications must originate in a confidence that will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the
parties.
3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit
thereby gained for the correct disposal of litigation.

Section 24, Rule 130 is unequivocal as to what can be classified as privileged communication:

COMMITTEE NOTES

SECTION 24. Disqualification by Reason of Privileged Communications. — The following persons cannot testify as to
matters learned in confidence in the following cases:

(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as
to any communication received in confidence by one from the other during the marriage except in a civil case
by one against the other, or in a criminal case for a crime committed by one against the other or the latter's
direct descendants or ascendants.

(b) An attorney or person reasonably believed by the client to be licensed to engage in the practice of law cannot,
without the consent of the client, be examined as to any communication made by the client to him or her, or his
or her advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's
secretary, stenographer, or clerk, or other persons assisting the attorney be examined without the consent of
the client and his or her employer, concerning any fact the knowledge of which has been acquired in such
capacity, except in the following cases:

(i) Furtherance of crime or fraud. If the services or advice of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to commit what the client knew or reasonably should have
known to be a crime or fraud;

(ii) Claimants through the same deceased client. As to a communication relevant to an issue between
parties who claim through the same deceased client, regardless of whether the claims are by
testate or intestate or by inter vivos transaction;

(iii) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by
the lawyer to his or her client, or by the client to his or her lawyer;
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(iv) Document attested by the lawyer. As to a communication relevant to an issue concerning

an attested document to which the lawyer is an attesting witness; or

(v) Joint clients. As to a communication relevant to a matter of common interest between

two or more clients if the communication was made by any of them to a lawyer retained
or consulted in common, when offered in an action between any of the clients, unless
they have expressly agreed otherwise.

(c) A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine
or psychotherapy cannot in a civil case, without the consent of the patient, be examined as to any confidential
communication made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional
condition, including alcohol or drug addiction, between the patient and his or her physician or psychotherapist.
This privilege also applies to persons, including members of the patient's family, who have participated in the
diagnosis or treatment of the patient under the direction of the physician or psychotherapist.

A "psychotherapist" is:

(a) A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional
condition, or

(b) A person licensed as a psychologist by the government while similarly engaged.

(d) A minister, priest or person reasonably believed to be so cannot, without the consent of the affected person, be
examined as to any communication or confession made to or any advice given by him or her, in his or her
professional character, in the course of discipline enjoined by the church to which the minister or priest belongs.

(e) A public officer cannot be examined during or after his or her tenure as to communications made to him or her
in official confidence, when the court finds that the public interest would suffer by the disclosure.

The communication shall remain privileged, even in the hands of a third person who may have obtained the information,
provided that the original parties to the communication took reasonable precaution to protect its confidentiality. (24a)

Exceptions to Attorney-Client Privilege:

The sub-committee deemed it best to adopt certain established exceptions enumerated in the proposed Federal Rules of
Evidence 503 which codifies the prevailing common law approach to situations in which the attorney-client privilege is
deemed not to exist even though the standard requisites are met: (a) crime or fraud; (b) claimants through the same client;
(c) breach of duty by lawyer or client; (d) document attested by lawyer; and (e) joint clients.

● Future crime/fraud is covered. (People v. Sandiganbayan)

○ Communications between attorney and client having to do with the clients contemplated criminal acts or
in aid or furtherance thereof are not covered by the cloak of privilege ordinarily existing in reference to
communications between attorney and client.
○ Rationale: Clients are not entitled to use lawyers to help them in pursuing unlawful or fraudulent
objectives. If the privilege were to cloak such activity, the result would be loss of public confidence and
corruption to the profession.

Claimants through a deceased client

● While the attorney-client privilege survives the death of a client, there is no privilege in a will contest or other
case between parties who both claim through that very client.
● Rationale: In will contests and similar litigation, it is not known who stands in the shoes of the deceased client.
○ His communications may be essential to an accurate resolution of competing claims of succession, and
the testator would presumably favor disclosure of the communications in order to dispose of his estate
in accord with his intentions.
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Breach of duty by lawyer or client
● If the lawyer and client become involved in a dispute between themselves concerning the services provided by
the lawyer, the privilege does not apply to them.
● Example: Client alleges breach of duty on the part of the lawyer (i.e. ethical violations). Lawyer sues client for his
fee.

Lawyer as attesting witness

● The privilege does not apply to a communication relevant to an issue concerning an attested document to which
the lawyer is an attesting witness.
● When an attorney serves as an attesting witness, he is not acting as a lawyer and the client’s obvious intent is to
have him available to testify to the matter attested.

Joint clients
● Rationale: Joint clients do not intend their communication to be confidential from each other, and typically their
communications are made in each other’s presence.
○ At the same time the communications are made, joint clients are generally not in a position to know
whether subsequent disclosure in litigation between themselves would be to their benefit or detriment.
● Agreeing to joint representation means that each joint client accepts the risk that another joint client may later
use what she has said to the lawyer.

Physician-patient privilege
● Has a limited application because of the requirement that the information involved “would blacken the reputation
of the patient.”
● There is no compelling reason for such a requirement if the physician-patient privilege is viewed as a good and
necessary one and a patient’s physical condition is considered a private matter.

Expanding the rule to include psychotherapist-patient privilege

● Rationale: The psychotherapist has a special need to maintain confidentiality. His capacity to help his patients is
completely dependent upon their willingness and ability to talk freely. Confidentiality is a condition sine qua
non for a successful psychiatric treatment.
● Matters disclosed in psychotherapy are often more personal and more likely to cause embarrassment than
matters disclosed to a physician, leading some to conclude that the privilege has a constitutional basis in their
right to privacy.

Section 24(d), privilege is extended to priest or minister

● The privilege was expanded to embrace any confidential communication by a person to a minister or priest in his
professional character as a spiritual advisor.

Section 24(e), amending “term” to “tenure.”

● Tenure is broader than term which ordinarily connotes a fixed period.

Last paragraph, rationale

● It is based on Justice Malcolm’s dissenting opinion in Barton v. Leyte Asphalt. It was ruled in that case
that one who overhears the communications, whether with or without the client’s knowledge, is not
within the protection of the privilege.
● In Uy Chico v. Union Life Assurance Society, it was held that communications made by a client to his attorney for
the purpose of being communicated to others are not privileged if they have been so communicated.

Changes
● The new rule expanded the scope of the prohibition to cover a third person, who obtained confidential
information, if the original parties to the communication exercised reasonable precaution to protect the
confidential communication.
● A unique feature of evidentiary privilege is that the right to claim it belongs exclusively to the person or persons
for whom the privilege was created -- that is the holders.

2 Justifications for the recognition of privileges

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1. Utilitarian or instrumental
➔ Privileges are justified because their existence encourages behavior that is socially desirable.
➔ Example: The privilege encourages a full and candid revelation by the client, enabling the lawyer to
provide the appropriate legal advice.

2. Notions of personal autonomy and privacy

➔ Certain intimate relationships, such as those of husband and wife, priest and penitent, and lawyer and
client, should be protected from governmental intrusion and prying.

Other privileges
● Section 24, Rule 130 is not the complete repository of privileged communication.

1. Labor Code of the Philippines

● Article 233 states that information and statements made at conciliation proceedings shall be treated as
privileged communications and shall not be used as evidence in the Commission.
● Conciliators and similar officials shall not testify in any court or body regarding any matters taken upon
at conciliation proceedings conducted by them.

2. Anti-Money Laundering Act

● A covered institution and its officers and employees that communicate a covered or suspicious
transaction to the AMLC are barred from disclosing the fact of such a report to any person. (Sec. 6, RA
9194)

3. Revised Penal code

● Articles 290 to 292 refer to felonies concerning discovering secrets through seizure of correspondence,
revelation of secrets with abuse of office, and revelation of industrial secrets.

4. Republic Act no. 11458

● For journalists.
● It expanded the coverage of exemptions from revelation by journalists of their sources.

Requisites, marital privilege (Sec. 23, Rule 130, Revised Rules on Evidence)
1. A valid marital relation;
2. Confidential message between the spouses during the marriage;
3. Absence of consent from the spouse against whom the testimony is given; and
4. The civil or criminal case is not by one against the other or the latter’s direct ascendants or descendants.

Who can claim the privilege? The logical and consistent approach should be that the privilege is held and may be claimed
only by the spouse or spouses regardless of their relationship to the action.
● Any objection made is deemed to have been made on behalf of the privileged spouse and not for the benefit of a
party to the action.

Waiver
● If only the affected spouse enjoys the privilege, it follows that only the person holding the privilege can waive the
protection against the disclosure of confidential information.

Dichotomy between spousal immunity and marital privilege

Spousal Immunity Marital Privilege

The affected spouse must be a party to the suit. No such condition is required.

Existence of the marriage at the moment of the Can subsist even after dissolution of the marriage, for
testimony is required. it is the policy of the law that neither husband nor wife
shall have any reason to fear that the confidence
which belongs to the most sacred relation of life shall
ever be betrayed in courts of justice.
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Operates as a total prohibition. Partial preclusion of evidence as it related to

confidential communication.

NOTE: These two rules can coexist since both can be invoked by the affected spouse to foil testimony of the other spouse.
➔ Communication is not privileged: the spouse who is a party to the action can still prevent the other spouse from
testifying under the marital disqualification rule.
➔ If the spouse who is a party to the action does not object to the other testifying therein, he can still prevent the
disclosure by the said spouse-witness of confidential communications covered by the privilege.

Coverage of marital privilege

● May well encompass acts of the spouses or conduct in general.
● It has been held that the privilege does not extend to the act of communicating as distinguished from the
communication itself.

Excepted case: If a spouse is the recipient of a dying declaration from the other spouse, the surviving spouse can testify as to
who was the assailant of the deceased spouse since secrecy of such information is far from intended.

➔ United States v. Dalmacio Antipolo: When a person at the point of death as a result of injuries he has suffered
makes a statement regarding the manner in which he received those injuries, the communication so made is in
no sense confidential. Such a communication is made for the express purpose that it may be communicated after
the death of the declarant to the authorities concerned in inquiring into the cause of his death.

➔ People v. Carlos: Where a privileged communication from one spouse to another comes into the hands of a
third party, whether legally or not, without collusion and voluntary disclosure on the part of either spouses, the
privilege is thereby extinguished and the communication becomes inadmissible.

Attorney-Client Privilege
● To maintain the confidence and at every peril to himself, to preserve the secrets of his client.
● Canon 21 of the CPR expects every lawyer to preserve the confidences and secrets of his client even after the
attorney-client relation is terminated.
● Rule 21.01 warrants revelation of the confidences or secrets of his clients only if:
○ Authorized by the client after being informed of the consequences thereof.
○ Required by law.
○ When necessary to collect his fees or to defend himself, his employees, or associates, or by judicial
action.

Basis of the privilege:

➔ Conservation of the secrets of the client is certainly dictated by public policy.
➔ This system was devised so that people in trouble could visit his lawyer, unburden him of his innermost thoughts
and know that his confidences are protected by law from the public eye.

Duration of the privilege is ETERNAL

● It does not cease with the termination of the suit.
● It is not affected by the party’s ceasing to employ the attorney and retaining another, or by any other change of
relation between them, or by the death of the client.
● The seal of the law once fired upon them remains forever unless removed by the party himself in whose favor it
is there placed.

Sanctions
● The counsel can be vulnerable to appropriate disciplinary measures as an erring member of the Bar and criminal
sanctions may be imposed pursuant to the felony of betrayal of trust under Art. 209 of the RPC.

Requisites of atty-client privilege

1. There must be an attorney-client relation, or reasonable belief by the client that a person is licensed to engage in the
practice of law;
2. There must be a confidential communication that transpired in the course of professional employment; and
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3. Absence of consent of both the client and the employer, in the event it is the attorney’s secretary, stenographer, clerk,
or other person assisting the attorney, who is sought to be examined.

NOTE: As a rule of exclusion, the burden of showing that the communication is privileged rests on the one who seeks to have
it eliminated.

NOTE: With the amendment, it must be underscored that the existence of an attorney-client relation is not always a criterion to
the privilege. The client’s belief in the status of the person whom one has consulted is crucial.

Under the Revised Law Student Practice Rule, the privilege extends to a law student who was certified for a limited law
student practice either by the Executive Judge, or the Court Administrator.

What constitutes “practice of law?”

● Practice of law means any activity, in or out of court, which requires the application of law, legal procedure,
knowledge, training and experience. "To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which
device or service requires the use of any degree of legal knowledge or skill." (Cayetano v. Monsod)

Requisites for admission to the Bar

1. Filipino citizenship, subject to the exception in Section 3, Rule 138, Revised Rules of Court;
2. At least 21 years of age;
3. A resident of the Philippines;
4. Good moral character;
5. Academic training;
6. Bar Examination;
7. Oath; and
8. Signature on the Roll of Attorneys.
Professional Employment
● The privilege will only apply if the communication was relayed to counsel with the view of professional
employment.
● The privilege applies to civil and criminal cases, and legal advice in the course of practice of law, either active or
passive.

NOTE: There is professional employment when a client employs an attorney in his capacity as legal adviser, for the purpose of
obtaining from him legal advice and opinion concerning his rights or obligations relative to the subject matter of the
communication.
➔ The test is whether the communications are made to an attorney with a view to obtaining professional assistance
or advice.
➔ For a communication to be said to be made in professional capacity, it is not necessary that the employment
should have been made in connection with a litigation, for professional guidance is as often necessary for
avoiding litigation as for carrying it on.

NOTE: Even as some lawyers are not permitted to engage in the active practice of law, they are prohibited from practicing
private practice or giving professional advice to clients. (Sec. 35, Rule 138)

Third person
● The rule where a third person is present does not apply when the third person is the confidential agent of the
attorney. Thus, a communication in the presence of his secretary, stenographer, or clerk is privileged, and said
persons may not testify with respect thereto.
● If the third person is a confidential agent of the client, the privilege attaches.

CONFIDENTIAL COMMUNICATION
➔ The rule as to privileged communications between attorney and client extends to statements of each to the other.
The term communication imparts not only words uttered, but information conveyed by other means, as by
actions, signs or personal appearance.
➔ It is essential that instruments be brought into existence as a communication to the attorney and it must be of a
confidential character.
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Excepted cases

a) Crime-fraud clause
➔ Since the intention of the rule is to protect communication for a lawful purpose, if the information
conveyed by a client refers to a future crime or if the client and the lawyer acted in conspiracy to
transgress the law, the privilege is not available.
➔ Communications about past crimes are shielded to allow lawyers and clients to communicate freely and
plan legitimate defenses.
➔ The client’s objective is the determinant.

People v. Sandiganbayan: Statements and communications regarding the commission of a crime already committed, made
by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream
of judicial dicta is to the effect that communications between the attorney and client having to do with the client’s contemplated
criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to
communications between attorney and client.

It is well-settled that in order that a communication between a lawyer and his client be privileged, it must be for a lawful
purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching.

b) Claimants through identical deceased client

➔ While the attorney-client privilege survives the death of a client, there is no privilege in a will contest or
other case between parties who both claim through that very client.
➔ Rationale: In will contests and similar litigation, it is not known who stands in the shoes of the deceased
client.
➔ His communications may be essential to an accurate resolution of competing claims of succession, and
the testator would presumably favor disclosure of the communications in order to dispose of his estate
in accord with his intentions.

c) Breach of duty by lawyer or client

➔ The rule on privileged communication cannot extend to a litigation between the attorney and the client.
➔ Certain relational problems between the lawyer and the client can defeat a privilege that is initially
attached.

d) Document attested by the lawyer

➔ In a situation where the lawyer attests a document, the privilege never occurred since the lawyer did not
render professional legal services and the client’s intention was to have him available to testify on the
matter attested.
➔ When a document has been executed and its contents are made accessible to the public, testimony
concerning it is not privileged.

e) Joint clients
➔ Unless the joint clients have expressly agreed, in a litigation involving two individuals who had a fall out
and later became adversaries in litigation, the privilege is lost as to all their statements.

Reasons:
1. When they were joint clients, neither client intended that his communications be shielded from the other.
2. Even though the client secretly communicated with the attorney, the communication would not be
privileged as to the other client because the attorney would have an ethical duty to share it with the
other joint client.

Other exceptions involving the lawyer

a) Where the communication was intended to be made public like a dying declaration, if received from third persons
not acting on behalf or as agents of the client or if made in the presence of third parties who are strangers to the
attorney-client relationship.
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NOTE: Communications to be made public are not confidential and are thus beyond the scope of the privilege.

Waiver
● Since the attorney-client privilege is for the benefit of the client, it may be waived by the client, and the attorney is
bound by the client’s waiver and has no choice thereafter but to testify.
● The attorney has no right to waive the privilege except to the extent that he is authorized to do so on behalf of
the client. The waiver may either be expressed or implied.
● Example: Client waves the benefit of the rule if he himself calls the attorney as a witness in respect of the
privileged communications.

Physician-patient privilege
● The doctor-patient privilege applies to (a) a physician, psychotherapist, or person reasonably believed by the
patient to be authorized to practice medicine or psychotherapy or (b) persons, including members of the patient’s
family, who have participated in the diagnosis or treatment of the patient under the direction of the physician or
psychotherapist.

Guiding principle
● It was intended to encourage the patient and give him security.
● The purpose of the law is to encourage the patient to make full disclosure to the physician of all facts which are
requisite to enable the latter to prescribe and administer proper treatment by removing fear of the publication of
such facts on the witness stand and also to prevent the disclosure of that which may be humiliating,
embarrassing, or degrading to the patient.

Prerequisites:
1. The physician is authorized to practice medicine, or the person consulted is a psychotherapist or one reasonably
believed by the patient to be authorized to practice medicine or psychotherapy;
2. The confidential communication was acquired for diagnosis or treatment of the patient’s physical, mental, or
emotional condition, including alcohol or drug addiction; and
3. The privilege is invoked in a civil case.

First element; authority or reasonable belief

➔ Permission from the appropriate authority to engage in the vocation is unavoidable.
➔ An unlicensed practitioner is not within the statute, but a duly licensed physician is, although he has never
registered his license as required by law.
➔ One who undertakes to effect cures by gymnastic and orthopedic processes cannot be said to be a physician;
ergo, the communication made to them is not privileged.
➔ A dentist is not a physician or surgeon within statutes regulating privileged communications, nor is a druggist or
drug clerk, or a veterinary surgeon.

Second element; confidential communication addressed to medical condition

➔ It is the confidential relation that can trigger the relation.

How long is the duration of the privilege?

● Padilla submits that the same is eternal and it applies even after the death of the patient. The purpose of the law
would be thwarted if death removed the seal of secrecy. After one has gone to his grave, the living are not
permitted to impair his fame and disgrace his memory by dragging to the light communications and disclosures
made under the seal of the statute.
● However, case law suggests that the necessity of continuity of the bond between the patient and the physician
and it follows that the physician is not hampered from testifying as to information respecting a patient which he
acquired either before the relation began or its termination.
● If the physician does not in a professional capacity to treat but for some independent purpose known to the
person examined, no privilege attaches.

Essence of the physician-patient privilege: It applies when the patient is seeking treatment and it clearly covers
communications between the patient and the doctor that are pertinent to diagnosis and treatment.
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NOTE: To create the relation of trust and confidence, actual treatment by the doctor or the physician is not crucial since
any type of communication, advice, or examination of the patient will suffice, and irrespective of the patient’s initiative or
consent like a person in extremis.

Lim v. CA: The physician may be considered to be acting in his professional capacity when he attends to the patient for
curative, preventive, or palliative treatment. Only disclosures which would have been made to the physician to enable him
“safely and efficaciously to treat his patient” are covered by the privilege.

The mere fact of making a communication, as well as the date of a consultation and the number of consultations are therefore
not privileged from disclosure, so long as the subject communicated is not stated.

Chan v. Chan: Medical records of a patient cannot be produced even by discovery procedure prior to trial. To allow it would be
to allow access to evidence that is inadmissible without the patient's consent.

Civil Case
· The (physician-patient) privilege is pertinent only to a civil case regardless of whether the patient is a party
thereto or not.
· In criminal cases, the privilege does not apply for the maintenance of public order and the life and liberty
of the citizens are deemed more important than the purpose for which the privilege was created.
o “The statutory privilege was not conferred to shield a person charged with the murder of another," and it
certainly was not intended to be used as a weapon against one charged with crime.
o Indeed, the public has the right to every man's evidence, and recognition of new privileges should not be
undertaken lightly, and courts should hesitate to continually expand the bounds of privilege law.
Corpse
· To the question of whether a corpse can be equated with the concept of a patient, there are conflicting views on
post-mortem or autopsical information.
o First view, information which has been gained by physicians by observation while attempting
unsuccessfully to resuscitate a patient is privileged.
o Second view, that a corpse cannot be a patient, and that facts which have been disclosed by an autopsy
or post-mortem examination cannot be held to have been acquired by the examining physician in
confidence, and hence that the physician may testify thereto. If, however, the physician who performed
the autopsy was also the attending physician during the life of the decedent, he cannot be permitted
either directly or indirectly to disclose facts which came to his knowledge while he was treating the living
patient.
Waiver
· The object of statutes is not absolutely to disqualify the physician from testifying, but to enable the patient to
secure medical aid without betrayal of confidence.
o The patient may waive objection, and permit the physician to testify. In other words, the privilege is the
privilege of the patient, and not of the physician; and if the patient assents, the court will compel
the physician to answer.
· In the case of an infant, the statute may be waived by his guardian, provided it will operate to his benefit.
· The physician cannot waive the statutory privilege and testify against the wishes of his patient.
· And there is some authority apparently supporting the view that the privilege cannot be waived even by the
patient.

A variety of situations warrant a conclusion that the benefit of the rule of exclusion has been waived by the patient.
o by failing to object to the physician's testimony under the statute.
o When the patient has testified as to the matter in course of his examination in chief, that inquiry may be made
into the whole subject if a part of it has been given by one party.
o However, a party is held not to have waived the benefit of the rule, unless he voluntarily goes into
detail regarding the nature of his injuries, testifying as to what the physician did or said while in
attendance, or as to his communications to the physician.
o Nor is a waiver implied if he did not act voluntarily or with a knowledge of the privilege.
o the patient or his legal representative - calls the physician as a witness with reference to matters covered by
the privilege.
o The patient calls a third person to testify to the privileged matters.
o The patient disclosed to others information he or she had related to in confidence to the therapist
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o The patient makes known to others the substance of the privilege communication.
In insurance cases, there can be waiver by contract, which is not contrary to public policy. Where the benefit of the privilege
has been expressly waived by the insured in a written contract, the waiver is enforceable against any person having or
claiming any interest under any such policy.

The privilege does not apply where:

1. The communication was not given in confidence;
2. The communication is irrelevant to the professional employment;
3. The communication was made for an unlawful purpose, as when it is intended for the commission or
concealment of a crime;
4. The information was intended to be made public; or
5. There was a waiver of the privilege either by provisions of contracts or law.

Priest-penitent rule

Question: Does the penitential relation deserve recognition and countenance?

Ans.: Affirmative.
Rationale: to allow and encourage individuals to fulfill their religious, emotional or other needs by protecting confidential
disclosures to religious practitioners.

Requisites:
a. The communication must have been relayed to a minister, priest or person reasonably believed to be so by the
affected person, consistent with the pious duty enjoined in the course of religious discipline to which the minister
or priest belongs; and
b. The confidential communication or advice was made in a professional character.

· Protected communications are not limited to confessions but include any type of personal counseling which was
intended by the parishioner to be confidential.
· If the minister is consulted as a notary, or as a friend and interpreter, there can be NO privilege.

Public Officers

The privilege only applies to communication to such officers who have the responsibility or duty to investigate or to prevent
public wrongs, and NOT to officials in general.

A witness cannot be compelled to disclose the names of persons by whom and to whom the information had been given for
the discovery of the offense. The privilege exists in favor of communications made by informers to the government.

Requisites

a. It was made to a public officer in official confidence; and

b. Public interest, as determined by the court, would suffer by the disclosure of such communication made during or
after his tenure.

Banco Filipino vs. Monetary Board

· This privilege is intended not for the protection of public officers but for the protection of public interest. Where
there is no public interest that would be prejudiced, this invoked rule will not be applicable.

DFA vs. BCA International Corporation

· The deliberative process privilege exempts material that are “predecisional” and “deliberative,” but requires
disclosure of policy statements and final opinions “that gave the force of law or explain actions that an agency
has already taken.”

· In Strang vs. Collyer, the US District Court reasoned that “disclosure of this type of deliberative material inhibits
open debate and discussion, and has a chilling effect on the free exchange of ideas.”
 65

· Deliberative process privilege may also be invoked in arbitration proceedings under RA 9285.

· Deliberative process privilege contains three policy bases;

1. The privilege protects candid discussions within an agency;
2. It prevents public confusions from premature disclosure of agency opinions before the agency established
final policy; and
3. It protects the integrity of an agency’s decision; the public should not judge officials based on information
they considered prior to issuing their final decisions.

· Future quality of deliberative process can be impaired by undue exposure of the decision-making process to
public scrutiny after the decision is made.
· Accordingly, a proceeding in the arbitral tribunal does defeated, if it is not allowed to be invoked. In the same
manner, not prevent the possibility of the purpose of the privilege being the disclosure of an information covered
by the deliberative process privilege to a court arbitrator will defeat the policy bases and purpose of the
privilege.”

Almonte vs. Vasquez

· “At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing
on military, diplomatic and similar matters.
· This privilege is based upon public interest of such paramount importance as in and of itself transcending the
individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his
legal rights.

· U.S. Supreme Court recognized the right of the President to the confidentiality of his conversations and
correspondence, which it likened to the claim of confidentiality of judicial deliberations.' Said the Court in United
States v. Nixon.

· With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court as follows: In
each case, the showing of necessity which is made will determine how far the court should probe in satisfying
itself that the occasion for invoking the privilege is appropriate. A fortiori, where necessity is dubious, a formal
claim of privilege, made under the circumstances of this case, will have to prevail.

· On the other hand, where the claim of confidentiality does not rest on the need to protect military, diplomatic or
other national security secrets but on a general public interest in the confidentiality of his conversations, courts
have declined to find in the Constitution an absolute privilege of the President against a subpoena considered
essential to the enforcement of criminal laws.

2. TESTIMONIAL PRIVILEGE

In addition to privileged communication in Section 24, Rule 130, there is also Section 25, Rule 130, on parental and filial
privilege, and Section 26, Rule 130, as to privilege relative to trade secrets, of the 2019 Revised Rules on Evidence:

“Section 25. Parental and filial privilege. - No person shall be compelled to testify against his or her parents, other
direct ascendants, children or other direct descendants, except when such testimony is indispensable in a crime
against that person or by one parent against the other.

Section 26. Privilege relating to trade secrets. - A person cannot be compelled to testify about any trade secret,
unless non-disclosure will conceal fraud or otherwise work injustice. When disclosure is directed, the court shall take
such protective measure as the interest of the owner of the trade secret and of the parties and the furtherance of
justice may require."
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COMMITTEE NOTES

The proposed exception in Section 25, Rule 130], "except when such testimony is indispensable in a crime against that
person or by one parent against the other," incorporates Article 215 of the Family Code.

[In Section 26, Rule 130), [c]ourts have long recognized the need to protect trade secrets during litigation, although they
have stopped short of creating an absolute privilege. Instead, courts balance the competing interests and order disclosure
only when necessary in the interest of justice (Mueller & Kirkpatrick, Sec. 5.43). In Air Philippines Corporation vs. Pennswell,
Inc. (G.R. No. 172835, December 13, 2007, 540 SCRA 215), the Supreme Court held that trade secrets are of a privileged
nature, but the privilege is not absolute; the court may compel disclosure where it is indispensable for doing justice. A trade
secret was defined in said case “as a plan or process, tool, mechanism or compound known only to its owner and those of
his employees to whom it is necessary to confide.” The definition was held to extend to "a secret formula or process not
patented, but known only to certain individuals using it in compounding some article of trade having a commercial value."
The Court went on to explain that a trade secret may “consist of any formula, pattern, device or compilation of information
that (1) is used in one's business, and (2) gives the employer an opportunity to obtain an advantage over competitors who
do not possess the information.”

Parental and Filial Privilege

· Section 25, Rule 130 was designed to preserve "family cohesion."425 And as presently worded, both parental
and filial privileges are enjoyed by any person if coerced to testify against any of his or her parents, other direct
ascendants or other direct descendants.

· A step relationship is excluded from the privilege, per Lee vs. Court of Appeals:

But here Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot
apply to them because the rule applies only to direct ascendants and descendants, a family tie connected by a common
ancestry. A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides:

Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend
from him. The latter binds a person with those from whom he descends.

Consequently, Tiu can be compelled to testify against petitioner Emma Lee."

· To blend with Article 215 of the Family Code, no parental or filial privilege can attach if the testimony is
indispensable in a crime against that person, or by one parent against the other.

Trade Secrets

· Trade is essentially the act or business of buying or selling for money, traffic, barter.
· Under the new evidentiary provision on trade secrets, on proper objection, a person cannot be obliged to relay
information, and testify, about trade secrets except when suppression thereof will conceal fraud or will work
injustice. This situation usually covers formulas of manufacture, but may also include price lists and customers'
lists.
· But the privilege is not absolute; the trial court may compel disclosure where it is indispensable for doing justice.
When constrained to reveal trade secrets, the court must utilize measures to protect the owner of the trade
secret and of the parties, as justice may require.

Sereno vs. Committee on Trade and Related Matters of the National Economic and Development Authority

The Court has already declared that the constitutional guarantee of the people's right to information does not cover national
security matters and intelligence information, trade secrets and banking transactions and criminal matters.

Eagleridge Development Corporation vs. Cameron Granville 3 Asset Management

 67
"Indeed, Rule 27 contains the proviso that the documents sought to be produced and inspected must not be privileged against
disclosure. Rule 130, Section 24 describes the types of privileged communication. These are communication between or
involving the following: (a) between husband and wife; (b) between attorney and client; (c) between physician and patient; (d)
between priest and penitent; and (e) public officers and public interest.

Privileged communications under the rules of evidence is premised on an accepted need to protect a trust relationship. It has
not been shown that the parties to the deed of assignment fall under any of the foregoing categories.

This court has previously cited other privileged matters such as the following: '(a) editors may not be compelled to disclose the
source of published news; (b) voters may not be compelled to disclose for whom they voted; (c) trade secrets; (d) information
contained in tax census returns; … (d) deposits' (pursuant to the Secrecy of Bank Deposits Act); (e) national security matters
and intelligence information; and (1) any of these classes of information. Moreover, the privilege is criminal matters.

3. Admissions and Confessions

SECTION 27. Admission of a Party. — The act, declaration or omission of a party as to a relevant fact may be given in
evidence against him or her. (26a)
(Niej)

SECTION 28. Offer of Compromise Not Admissible. — In civil cases, an offer of compromise is not an admission of any
liability, and is not admissible in evidence against the offeror. Neither is evidence of conduct nor statements made in
compromise negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such as proving
bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an
offer of compromise by the accused may be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence
against the accused who made the plea or offer. Neither is any statement made in the course of plea bargaining with the
prosecution, which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, admissible.
An offer to pay, or the payment of medical, hospital or other expenses occasioned by an injury, is not admissible in evidence
as proof of civil or criminal liability for the injury. (27a)
I. In civil cases

(Niej)

II. In criminal cases (p. 399)

Inadmissible Admissible

General Concepts
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· It is inadmissible when compromise is allowed by law 1. Implied admission of guilt in an offer of

1. Plea of guilty later withdrawn compromise
2. Unaccepted offer of a plea of guilty to a lesser a. Except those involving quasi-offenses
offense (criminal negligence) or those allowed by law
3. Statement made in the course of plea bargaining to be compromised
with the prosecution, which does not result in a · Examples
plea of guilty or which results in a plea of guilty i. Violation of an internal
later withdrawn revenue tax when already filed in
· Reasons: court and involving fraud
1. Will not elicit an implied admission of guilt since ii. Quasi-offense of
these developments in the criminal procedure negligence under Article 365 of
are integral portions of plea bargaining. b. Attempt to compromise the criminal case is
2. It was incorporated to recognize humanitarian an implied admission of guilty
acts or charitable responses that should be · Reason: No one would ask
encouraged instead of branding such actuation forgiveness unless he had committed
as indicative of civil or criminal liability for the some wrong. Hence, it is considered
injury. an implied admission.
3. To allow attorneys and defendants to negotiate c. To be admissible, offer must be made under a
freely with the prosecution without concern that, consciousness of guilt, not merely to avoid
if the case ultimately goes to trial, their factual the inconvenience of imprisonment or for
statements will be received as admissions some other reason which would justify a
against the defendant. claim by the accused that the offer to
compromise was not in truth an admission of
his guilt or an attempt to avoid the legal
consequences which would ordinarily ensure
therefrom.

Inadmissibility/Admissibility in Semi-Public Offenses

· Will impede criminal prosecution Þ Implied admission, thus admissible.

1. Adultery or concubinage 1. Offer to compromise for monetary
2. Rape, seduction and acts of lasciviousness consideration and not to marry the victim
a. Marriage will extinguish criminal action or a. Repeated offer of one conspirator
remit the penalty already imposed constitutes a strong indication and an
3. Pardon, consent or condonation by the offended implied admission of guilty of said
party conspirator and co-conspirator.
2. Attempt of the parents of the accused to
settle with the complainant
3. Offer to mary the victim during the
investigation of the rape case

SECTION 29. Admission by Third Party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided. (28)

· Res inter alios acta alteri nocere non debet (p. 401)

o Latin; A transaction between two parties ought not to operate to the peril of another, or things
transacted between strangers do not injure those who are not parties to them.

o General Rule: The admissions of one co-plaintiff or co-defendant are not receivable against another, merely
by virtue of his position as a co-party in the litigation.

§ Reason: It would only not be rightly inconvenient, but also manifestly unjust that a man should be
bound by the acts or mere unauthorized strangers, and if a party ought not to be bound by the acts
of strangers, neither ought their acts or conduct be used as evidence against him.
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§ When applicable: Where there is no evidence that the person so acting, declaring or omitting has
any interest in the subject matter of the admission.

ü To be admissible, it must be because of some privity of title or of obligation, which would

indeed have admitted the statements even had the declarant not been made a co-party.

§ Exceptions: A party can be affected by another in view of the cohesive interest that characterizes
the relationship arising from a vicarious admission of a:

1. Co-partner; S30, R130

2. Agent;
3. Joint-owner, or debtor or one-jointly-interested

4. Conspirator S31, R130

5. Privy S32, R130

o Effect: A party may render the statement of another person admissible against himself by subsequently
adopting them as his own.

§ Deemed to have adopted the statements of another by failure to disclaim responsibility for the
statements.

o Wigmore’s vicarious representation/admission: How do other person’s statements become receivable as

vicarious admissions?

1. Pre-appointment – designate a person whose utterance he assents to beforehand as correct

2. Adoption – assents to a statement already uttered by another person

3. By privity of interest and by agency - other person’s admissions may be equally be available
evidentially

SECTION 30. Admission by Co-Partner or Agent. — The act or declaration of a partner or agent authorized by the party to
make a statement concerning the subject, or within the scope of his or her authority, and during the existence of the
partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence
other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person
jointly interested with the party. (29a)

I. In partnership (p. 406)

· Reason for the rule

o The admissions of one partner are received against another n the ground that they are identified in interest
and that each is agent for the other.

§ As discussed by Jones:

ü The hostility of partners may affect the question of credibility.

ü Admissions are admitted because of the following:

1. Identity in interest

2. Each is agent for the other

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3. Facts and declarations of one during the existence of the partnership, while
transacting its business and within the scope of the business, are evidence against
the other or others.

ü Also admissible are the following:

1. Declaration of a dormant partner, relating to the partnership business, are

admissible against his co-partners; and

2. Statements of a deceased partner are admissible against the survivors.

ü To be admissible, it must appear that:

1. The declarant was acting as a partner about partnership affairs; or

2. The admission was made in relation to matters within the scope of the
partnership.

ü Where each member of the firms makes admissions for himself alone as to a
non-partnership affair, the fact that each has individually made a substantially similar
admission does not render the aggregate admissions competent against the firm.

· Requisites [E-A-E]

o Before the act or declaration of a partner or agent of the party may be given in evidence against such party,
there must be:

1. Evidence aliunde of the partnership or agency apart from the act or declaration;

2. Authority from the party to make a statement on the subject or the act or declaration was within the
scope of the authority; and

3. Existence of the partnership or agency at the time of the act or declaration.

o Juridical bond must be established at the onset by evidence independently of the admission itself and such
admission should have been accomplished during its existence.

o Among other exceptions to the hearsay rule under the 2018 Federal Rules on Evidence is an opposing party’s
statement when made by a person whom the party authorized to make a statement on the subject

II. In agency (p. 408)

· It connotes representation by one person for, and with the consent of, another individual. Hence, whatever is done by
the agent within the scope of his authority is understood to be the principal’s act through the representative, as
through a mere instrument.

o Agent’s declaration is the vicarious declaration of the principal if the agency is express.

o In cases of implied agency, the logical solution is to determine if the agent acts or declares as a
representative within the scope of his authority or to speak for the principal.

III. Joint-owner, or debtor or one-jointly-interested (p. 408)

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· Controlling is the fact of shared interest and not the size of the fractional part.

· The interest must be subsisting at the time of the admission: Admissions of one person cannot be admitted in
evidence against another on the ground of a joint interest in the subject, unless the interest is a subsisting one at the
time of the admission.

SECTION 31. Admission by Conspirator. — The act or declaration of a conspirator in furtherance of the conspiracy and
during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than
such act of declaration. (30a)

IV. Conspirator (p. 409)

· “In furtherance of the conspiracy” – requires that the act or declaration should advance the ends of the conspiracy
rather than simply “relate” to the conspiracy.

o The intent is to require that the statement was made for the purpose of advancing the conspiracy’s objectives.

o As stated by Professors Mueller and Kirkpatrick: “The furtherance requirement provides some assurance that
the statement fits circumstantially the aims apparently motivating the conspirators, which provides some
indication that it can be trusted.”

o It (a) expresses in evidential terms the agency theory underlying the substantive notion of conspiracy and (b)
limits the array of out-of-court statements that fit the exception.

o In criminal law, conspiracy by itself is not a crime and is punishable only in specified instances like treason,
coup d’etat, rebellion or insurrection and sedition. Conspiracy in the aforementioned felonies will only be
considered as a manner of incurring criminal liability.

§ Conspiracy need not be express as it can be inferred from the acts of the accused themselves when
their overt acts indicate a joint purpose and design, concerted action and community of interests.

o Apart from the act or declaration, proof of conspiracy during the subsistence thereof is required in an
extrajudicial admission of a plotter.

· When applicable: only to extrajudicial conduct equivalent to an admission of a confederate during the existence of
the conspiracy. In Preeagido v. Sandiganbayan (G.R. No. 52341-46, 25 November 2005), it was again clarified that
the rule on admission by a conspirator applies only to an extrajudicial act or admission but not during a conspirator’s
testimony during trial.

· Requisites

1. Evidence aliunde of the conspiracy apart from the act or declaration of a conspirator; and

§ The common fraudulent design may be shown by subsequent participation in the fraud and its fruits
with the knowledge of the facts; and where there is proof of a common design to defraud, the
declarations of one participant are admissible against the other, although made in his absence.

§ The extrajudicial admission can only affect the conniver but not the rest of his cohorts since the res
inter alios acta rule applies to both extra-judicial confessions and admissions.

2. An act or declaration of a conspirator in furtherance of, and during the conspiracy.

§ Refers only to extrajudicial conduct equivalent to an admission of a confederate during the existence
of the conspiracy.

§ Applies only to an extra-territorial act or admission but not during a conspirator’s testimony during
trial.
 72
From Singh:

In this case, there is a dearth of proof demonstrating the participation of Salapuddin in a conspiracy to set off a bomb in the
Batasan grounds and thereby kill Congressman Akbar. Not one of the other persons arrested and subjected to custodial
investigation professed that Salapuddin was involved in the plan to set off a bomb in the Batasan grounds.

Mere association with the principals by direct participation, without more, does not suffice. Relationship, association and
companionship do not prove conspiracy. (Salapuddin v. Court of Appeals, G.R. No. 184681, February 25, 2013)

SECTION 32. Admission by Privies. — Where one derives title to property from another, the latter's act, declaration, or
omission, in relation to the property, is evidence against the former if done while the latter was holding the title. (31a)

V. Privy (p. 413(

· A privy in estate is one who derives his title to the property by purchase; one who takes by conveyance.

o Examples: Assignor-assignee, donor-donnee, grantor-grantee, vendor-vendee, decedent-heir, creditor-debtor,

seller-buyer, etc.

· When admissible:

o Admissions or declarations may be competent if made by anyone who is in privy in law, in blood, or in estate
to a party to the proceeding.

§ The statement is received on the theory that the person against whom it operates is identified in
interest with the party to the suit.

o An admission by a predecessor is admissible against the heirs such as a written statement made one month
before his death, by the father of the defendants to the effect that certain lands did not belong to him is
admissible against his heirs.

SECTION 33. Admission by Silence. — An act or declaration made in the presence and within the hearing or observation of
a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and
when proper and possible for him or her to do so, may be given in evidence against him or her. (32a)

Admission by Silence (p. 415)

· Qui tacet consentire videtur aka Rule of Indifference

o Latin, “he who is silent is taken to agree", "silence implies/means consent"

o Failure to deny what is asserted in the presence of a party is an implied admission of the truth of the
statement.

§ The natural instinct of man impels him to resist an unfounded claim xxx and defend himself. It is xxx
against human nature to just remain reticent and say nothing in the face of false accusations.
(People v. Castañeda, G.R. No. 208290, 11 December 2013)

· When applicable:

o Must be of character as naturally to call for a response, and unless the party sought to be charged was in
such a situation that he would probably have replied to them.

o Applies in civil and criminal cases

o Reyes v. Office of the Ombusman, G.R No. 223405, 20 February 2019.

 73
§ Refers to any act or declaration made in the presence and within the hearing [of another], not to a
declaration made in written correspondence.

ü Exception to above? A statement of fact in a verified petition and an accompanying silence

about any contrary fact may be appreciated in more than one context – a declaration
against interest and a judicial admission combined. A declaration against interest is the
best evidence which affords the greatest certainty of the facts in dispute.

· Instances when the rule is not applicable:

1. One who kept silent during custodial investigation due to his right to keep mum

§ Silence during custodial investigation is not admission by silence as he has the right to remain silent
during that stage. (People v. Guillen, G.R. No. 191756, 25 November 2013)

2. No response to a letter was made in the absence of mutual correspondence.

SECTION 34. Confession. — The declaration of an accused acknowledging his or her guilt of the offense charged, or of any
offense necessarily included therein, may be given in evidence against him or her. (33a)

Confession (p. 417)

· Confession is an acknowledgment in express words by the accused in a criminal case of the truth of the main fact
charged, or of some essential part thereof.

o It is more than an admission.

o Admission and confession both imply recognition of a fact, a confession recognizes blameworthiness sans
exculpatory incident nor justification.

o It is merely one species of admission that consists direct acknowledgment of guilt in a criminal charge.

o The confession can be received in evidence against the confessor but such confession can also be
admissible in evidence against his co-accused. This rule was lifted from case law, viz.: in a joint trial where
one implicated the others, upon discharge of a defendant who testifies as a prosecution witness that
included a confession if ratified by a co-accused, in the event of interlocking confessions, or by failure to
deny the confession made by a co-accused immediately after arrest.

· Cases not considered as a confession

o Incriminating conduct cannot be considered as a confession, although it may have strong evidentiary value as
an admission by conduct or as an incriminating circumstance.

o Denials of guilt or explanation of acts – so-called exculpatory statements-though of such character as to

suggest, rather than confess guilt, are not confessions. But they may have evidentiary value as admissions.

o When the accused pleads not guilty but presents exculpatory evidence, his plea shall be deemed withdrawn
and a plea of not guilty shall be entered for him.

§ Not all recognition of penal accountability by the defendant in a criminal case can be equated with a
confession which is understood to refer to an extrajudicial confession only.

o A statement taken down by a reporter and transcribed cannot be admitted as a written confession unless it
has been read or shown to the declarant and acknowledged as correct.

· Admissibility of confessions
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o Voluntary confession – a deliberate act of the accused with full comprehension of its significance, is
admissible evidence of a high order, and is supported by a strong presumption that no person of normal
mind will deliberately and knowingly confess the confession of a crime unless prompted so to do by truth
and conscience.

o The confession must be express, categorical, free from vices of consent, and should be intelligently made
with full cognition of the legal repercussions thereof.

o The test is whether the accused, at the time he made the purported confession is mentally free to confess or
not.

· Presumptions (p. 445)

o A confession is presumed to be voluntary until the contrary is proved and the person who gave the confession
has the burden of proof to overcome the presumption by independent evidence of coercion.
o The prosecution must be able to show that the constitutional requirements safeguarding an accused’s rights
during the

o custodial investigation have been strictly complied with, especially when the extrajudicial confession has been
denounced.
§ Failure to properly inform a suspect of his rights during custodial investigation renders the confession
valueless and inadmissible.

o A confession offered in evidence and not objected to by the defendant is regarded as prima facie voluntary,
and therefore admissible in evidence.

· Form and sufficiency

o May be oral or written, extrajudicial or judicial. In People v. Satorre (G.R. No. 133858, 12 August 2003),
confession may be oral and it can refer to a judicial confession, absent any qualification thereon:

“There is no question as to the admissibility of appellant’s alleged oral extrajudicial confession.

Indeed, as far as admissibility is concerned, Rule 130, Section 3 of the Rules of Court, makes no
distinction, whether the confession is judicial or extrajudicial.”

§ Refusal to put the confession in writing will not affect the force of the oral confession.

Manner Form Requisites for validity

1. Extrajudicial confession – Þ Written 1. Voluntary;

those which are made by a o Section 2(d) of RA 7438
party elsewhere than before a now requires that it 2. With assistance of
magistrate or in court. must be reduced in counsel;
writing and the
formalities. 3. In writing; and
o Need not be a
transcription of the 4. Express.
spoken words of the
declarant if it reports
correctly the substance
of what he said.
 75

o If lost or destroyed,
secondary evidence of
its contents may be
given under the Best
Evidence Rule.

2. Judicial confession – made Þ Oral

before a committing o It may be recorded on
magistrate or in a court in the videotape, sound
due course of legal motion pictures, or tape,
proceeding. provided there is proper
authentication.
o Effects:

§ Not involving capital

offense - culminates
to a finding of guilt,
but the mitigating
circumstance will be
appreciated for the
defendant if he
confessed his guilt to
the offense charged
prior to the
presentation of
evidence for the
prosecution.

§ Involving capital offense

– amounts to a
pronouncement of
fault only after the
introduction of
evidence from the
prosecution indicative
of guilt and the
precise degree of
culpability, without
prejudice to the right
of the accused to
present evidence on
his behalf.

3. Applicable to · There is no requirement for an oath to sustain the efficacy of the

judicial and confession, nor is it subject to a special form and need not be signed.
extrajudical
· Need not be in Q&A form

*A similar acknowledgment of guilt elsewhere can only lead to the eventual

pronouncement of guilt if accompanied by evidence of corpus delicti.
 76

· Constitutional safeguard (p. 421)

o Refers to an extrajudicial confession that normally occurs during custodial investigation of a suspect arrested
for the commission of a felony or offense with a penal sanction.

§ Custodial investigation means any questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant way.

o When an inquiry is conducted by the police officers, they must comply with the procedure and concomitant
injunction in Section, 12, Article III of the 1987 Constitution:

SECTION 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

§ It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to
focus on a particular suspect, the suspect is taken into custody, and the police carries out a
process of interrogations that lend itself to eliciting incriminating statements, that the rule begins to
operate.
o People v. Lauga: An inquiry conducted by barangay tanods, barangay chairman, or a barangay-based
volunteer organization in the nature of a watch group, or “bantay-bayan”, will entail compliance with the
“Miranda Rights.”
§ Pursuant to Section 1(g) of EO No. 209, s. 1987, barangay-based volunteer organizarions in the
nature of watch groups, as in the case of the bantay bayan, are recognized by the local
government unit to perform functions relating to the preservation of peace and order at the
barangay level. Hence, mandated to observe the constitutional safeguard.
§ The Court found that the extrajudicial confession of appellant, which was taken without a counsel by
the bantay bayan, inadmissible in evidence.
· Procedural expectation (p. 424)
o Issues on legality of the arrest must be raied before the plea, and any violation of RA 7438 assumes
execution of an extrajudicial confession during custodial interrogation.
· Statutory protection: RA 7438 (p. 427)
o Salient features of the law include the duty of the investigating officer to provide the suspect with competent
and independent counsel who shall assist the suspect at all times after the suspect’s arrest, detention or
custodial investigation.
§ Not allowed to assist the suspect are the following:
1. Those directly affected by the case;
2. Those charged with conducting the preliminary investigation; or
3. Those charged with the prosecution of crimes.
o Apart from a written custodial investigation report from the investigating officer, and to ensure greater
protection to the suspect, there must be compliance with Section 2 of RA 7438:
(d) Any extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel or in the
latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be
inadmissible as evidence in any proceeding.
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(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be in writing and signed by such person in the
presence of his counsel; otherwise the waiver shall be null and void and of no effect.

o (P. 439) Parameters of Section 2(d) of RA 7438 as to when other persons can be present in lieu of
counsel for the suspect during the extrajudicial confession (as discussed in People v. Ordoño, G.R. No.
132154, 29 June 2000):
§ The enumeration of persons in Section 2(d) does not propose that they appear in the alternative or as
a substitute for counsel without any condition or clause.
§ Two conditions must be met:
1. Counsel of the accused must be absent; and
2. A valid waiver must be executed.
§ Due to the non-availability of practicing lawyers in Santol, La Union and the remoteness of the town
to the next adjoining town of Balaoan, La Union where practicing lawyers could be found, the
Investigating Officer requested the presence of the Parish Priest and the Municpal Mayor of Santol
as well as the relatives of the accused to obviate the possibility of coercion, and to witness the
voluntary execution by the accused of their statements before the police. The Court held that this
did not cure in any way the absence of a awyer during the investigation. In the absence of a valid
waiver, the presence of the requested persons could not stand in lieu of counsel’s presence.
§ Admissions obtained during custodial investigation without the benefit of counsel although reduced
into writing and later signed in the presence of counsel are still flawed under the Constitution.
· Statutory rehabilitation: RA 7309 (An Act Creating a Board of Claims under the Department Of Justice for
Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes, and for Other Purposes)
o The following may file claims for compensation before the Board (Sec. 3):
1. Any person who was unjustly accused, convicted and imprisoned but subsequently released by virtue of
a judgment of acquittal;
2. Any person who was unjustly detained and released without being charged;
3. Any victim of arbitrary or illegal detention by the authorities as defined in the revised penal code under a
final judgement of the court; and
4. Any person who is a victim of violent crimes. For purposes of this act, violent crimes shall include rape
and shall likewise refer to offenses committed with malice which resulted in death or serious physical
and/or psychological injuries, permanent incapacity or disability, insanity, abortion, serious trauma, or
committed with torture, cruelly or barbarity.
o Award ceiling (Sec. 4)
§ For victims of unjust imprisonment or detention, the compensation shall be based on the number
of months of imprisonment or detention and every fraction thereof shall be considered one month;
Provided, however, That in no case shall such compensation exceed One Thousand pesos
(P1,000.00) per month.
§ In all other cases, the maximum amount for which the Board may approve a claim shall not exceed
Ten thousand pesos (P10,000.00) or the amount necessary to reimburse the claimant the
expenses incurred for hospitalization, medical treatment, loss of wage, loss of support or other
expenses directly related to injury, whichever is lower. This is without prejudice to the right of the
claimant to seek other remedies under existing laws.
· Jurisprudential jottings (p. 441)
o The exclusionary rule is limited to evidence obtained by government agents, and liberties under the
Constitution can only be invoked if there is governmental interference.
o The word ‘preferably’ under Section 12(1), Article 3 of the 1987 Constitution does not convey the message
that the choice of a lawyer by a person under custodial investigation is exclusive as to preclude other equally
competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo
of a custodial investigation will be solely in the hands of the who can impede, nay, obstruct the progress of
the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his
interest. This absurd scenario could not have been contemplated by the framers of the charter.
§ At the very least, the suspect should be accorded the opportunity to initially exercise his choice of
lawyer to assist him during custodial investigation, and a mere subsequent appearance of a Public
Attorney, as counsel for the detained person without apparent previous engagement of service,
was considered legally ineffectual.
o A belated assistance to be extended by a lawyer for the suspect’s alleged extra-judicial confession to be
reduced in writing after five days from his arrest was similarly considered inform.
o Absence of the lawyer’s signature on the extrajudicial statement will be of no legal impact for there is no law
requiring the assisting lawyer to affix his signature on the extra-judicial settlement.
 78
o An oral admission made by a suspect during custodial investigation on board a police patrol jeep on the way
to the police station was considered infirm where evidence disclosed that the suspect was not assisted by
counsel at the time.
o A voluntary confession to media is admissible as part of res gestae.

4. Previous Conduct as Evidence

SECTION 35. Similar Acts as Evidence. — Evidence that one did or did not do a certain thing at one time is not admissible
to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific
intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (34a)

Two Branches of the res inter acta rule:

1. First branch: Admission by a third party [Sec. 29, Rule 130]
2. Second branch: Similar acts as evidence [Sec. 35, Rule 130]

Evidence of similar acts

- Specific instances of conduct can be of use to determine a person’s character or trait of a person.
- In case in which the character or trait of a person is an essential element, proof may be made of specific
instances of that person’s conduct.
- Evidence of other crimes, wrongs, or acts is not admissible to provide the character of person
but may however be admissible for other purposes, such as motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident xxx.
- Evidence of the habit of a person or of the routine practice of an organization, when corroborated or not
and regardless of the presence of eyewitness, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or routine practice.
- Character trait for care or skill are inadmissible to prove quality of conduct, and the habit or custom can
only prove conformity to a specific behavior.

RATIONALE

- A man’s mind or conduct is never constant.

- One who commits a crime may be more likely to commit another, yet, logically, one crime does not prove
another, nor tend to prove another, unless there is such a relation between them that proof of one tends to
another.
- It is illegal and manifestly unfair to require a man, who is charged with a specific crime, to prepare a defense
against other crimes that the state may attempt to prove against him, but which are not charged in the
indictment.
- Evidence must be confined to the point in issue and therefore, evidence of collateral offenses must not be
received as substantive evidence.

ADMISSIBILITY

- Reception of evidence of the exception to the rule has no obligatory force. Such evidence “may” be received at
the discretion of the judge to establish specific intent or knowledge, identity, plan, system, scheme, habit, custom
or usage, and the like.

Republic v. Sereno

Previous acts of the respondent were considered reflective and confirmatory of her lack of integrity at the time of her
nomination and appointment as Chief Justice and her inability to possess the continuing requirement of integrity vis-a-vis
Section 34, Rule 130, of the 189 Revised Rules on Evidence.

Bank of Commerce v. Manalo

 79
Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that,
before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of
specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather,
conduct that is semi-automatic in nature. The offering party must allege and prove specific, repetitive conduct that might
constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous
enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently
similar circumstances to outweigh the danger of prejudice and confusion.

In determining whether the examples are numerous enough, and sufficiently regular, the key criteria are adequacy of
sampling and uniformity of response. After all, habit means a course of behavior of a person regularly represented in like
circumstances. It is only when examples offered to establish pattern of conduct or habit are numerous enough to lose an
inference of systematic conduct that examples are admissible. The key criteria are adequacy of sampling and uniformity of
response or ratio of reaction to situations.

There are cases where the course of dealings to be followed is defined by the usage of a particular trade or market or
profession. As expostulated by Justice Benjamin Cardozo of the United States Supreme Court: "Life casts the moulds of
conduct, which will someday become fixed as law. Law preserves the moulds which have taken form and shape from life."
Usage furnishes a standard for the measurement of many of the rights and acts of men. It is also well-settled that parties who
contract on a subject matter concerning which known usage prevail, incorporate such usage by implication into their
agreement, if nothing is said to be contrary fusion.

UNACCEPTED OFFER

- Tender of payment, if refused, does not extinguish obligation unless completed by or followed by consignation of
the sum due, instrument or property.
- The effect of tender without consignation is to exempt the debtor from payment of interest and/or damages.
- (Note: Basically, kapag nag offer na magcomply sa cbilgation tapos ayaw mo pa tanggapin without valid reason,
the law presumes na may compliance na.)

HEARSAY

- Wingnore’s elements for a testimonial assertion:

1) Observation
2) Recollection
3) Communication

- These are basic concepts for a viable verbal representation.

- Knowledge must be founded on personal observation (use of his own senses), not on hearsay (report of others).

- Kinds of incapacity:
1) Organic incapacity- Incapacity affecting the general mental or moral powers (i.e. insanity, infancy,
dumbness)
2) Experiential Incapacity- Incapacity involving lack of experience or training
3) Emotional Incapacity- Incapacity arising from an emotional relation to the controversy. (i.e. pecuniary
interest in the subject matter, marital relationship)

- It is an immemorial rule that a witness can testify only as to his own personal perception or knowledge of the
actual facts or events. His testimony cannot be proof as to the truth of what he learned or heard from others.

OVERVIEW OF HEARSAY

- Hearsay involves a serial repetition: one person, the witness repeats what was said previously by another
person, whom we shall call the declarant.
- Hearsay is an out-of-court statement offered for the truth of the matter asserted.
- A witness must tell what he himself knows, not what he heard from others.
- Can be equated with “second hand evidence”
 80
- Out-of-court statements lack trial safeguards (such as cross-examination, putting witness under oath, etc) and
therefore may be easily fabricated. There is also dangers of error in transmission.

DRAMATIS PERSONAE IN SERIAL REPETITION

- There are two witnesses who are engaged in the at of persuasion which are the: 1) visible witness before the
court, and 2) the invisible witness to whom the assertion is attributed. It is only the former who undergoes the
usual trial safeguards (oath-taking, cross-examination)
- A hearsay operates to nullify the requirement that witnesses should personally appear and testify publicly in
court.
- A classification of a statement as hearsay does not necessarily mean it will be excluded. (Example: extrajudicial
admission)

People v. Mayorga

Nor is there merit to the court’s finding that Edwin’s testimony was hearsay. This is a misinterpretation of the hearsay
rule. It must be pointed out that the statement to him of the accused constitutes an extrajudicial admission. This
admission can be received against the accused since it is not within the purview of the hearsay rule. Wigmore
explains that the hearsay rule is intended to give the parties a right to object to the introduction of a statement not
made under oath and not subject to cross-examination. Its purpose is to afford a party the privilege, if he desires it, of
requiring the declarant to be sworn and subjected to questions. Wigmore then adds that where the evidence offered
are his statements, the purpose does not apply, and so the hearsay rule does not likewise apply, as "he does not
need to cross-examine himself.

CONCEPT OF ASSERTION

- Any assertion, whether in court or not, may be testimonial evidence. Thus, all statements received under the
exceptions to the hearsay rule are genuinely testimony.
- Testimonial evidence must not be understood as applicable exclusively to assertions made on th witness stand.

Rule 801. Definitions That Apply to This Article; Exclusions from

Hearsay

(a) STATEMENT. ‘‘Statement’’ means a person’s oral assertion,

written assertion, or nonverbal conduct, if the person intended it
as an assertion.
(b) DECLARANT. ‘‘Declarant’’ means the person who made the
statement.
(c) HEARSAY. ‘‘Hearsay’’ means a statement that:
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
(d) STATEMENTS THAT ARE NOT HEARSAY. A statement that
meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:
(A) is inconsistent with the declarant’s testimony and
was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is
Offered:
(i) to rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent
improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a

witness when attacked on another ground; or
 81
(C) identifies a person as someone the declarant perceived
Earlier.
(2) An Opposing Party’s Statement. The statement is offered
against an opposing party and:
(A) was made by the party in an individual or representative
capacity;
(B) is one the party manifested that it adopted or believed
to be true;
(C) was made by a person whom the party authorized to
make a statement on the subject;
(D) was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence
or
scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

THE MAKING OF THE STATEMENT A MATERIAL FACT

- When a main fact in issue, or a material evidentiary fact, is what was saif, and not its truth or falsity,
testimony of what was said is original evidence and not hearsay.
- Example: Action for slander; the testimony as regards the making of the alleged statement by a party
who heard the statement is original evidence.
-
ORIGINAL AND DERIVED EVIDENCE

- Original testimony → when the witness who deposes before the judge is the identical person who was present
at the time and place in question and received by his senses the perceptions which he recounts
- Derived/ Inoriginal testimony – When the witness merely recites what he has been told by another, who is
supposed to have been present at the time and place in question.
- The same distinction is applicable to writings; they are either original or copies.

DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENT

- If the secondhand evidence is not an assertion of the truth of what is imparted to the court, but is simply a
depiction of the tenor of the external evidence, it can be judicially permitted if relevant to the fact in issue.

People v. Umapas

Evidence is hearsay when its probative force depends in whole or in part on the competency and credibility of some persons
other than the witness by whom it is sought to produce. However, while the testimony of a witness regarding a statement made
by another person given for the purpose of establishing the truth of the fact asserted in the statement is clearly hearsay
evidence, it is otherwise if the purpose of placing the statement on the record is merely to establish the fact that the statement,
or the tenor of such statement, was made. Regardless of the truth or falsity of a statement, when what is relevant is the
fact that such statement has been made, the hearsay rule does not apply and the statement may be shown. As a
matter of fact, evidence as to the making of the statement is not secondary but primary, for the statement itself may
constitute a fact in issue or is circumstantially relevant as to the existence of such a fact. This is the doctrine of
independently relevant statements. Thus, all these requisites to support a conviction based on circumstantial evidence, not
to mention the dying declaration of the deceased victim herself, are existing in the instant case.

Noted: Other “out-of-court statements” which are admissible

- When a statement made out of court is offered in evidence not for the purpose of establishing the truth of the
matter stated, but merely for the purpose of establishing the fact that the statement was made, the evidence is
admissible. (Ex. Terms of a contract, statements constituting liber or slander)
 82

- Statements which have been made to a person may be proved for the purpose of showing knowledge on his
part, his knowledge of the fact stated being involved by the issues in the case. (Ex. Action for injury/death;
statements disclose knowledge on the part of the victime as the dangerous condition or instrumentality from
which the harm resulted.

Porteria v. People

The testimony of Virgie as to the supposed confession of Marvin may, nonetheless, be admitted as an independently relevant
statement, which proves only the fact that such statement was made. The admission of this testimony does not necessarily
mean that the Court is persuaded. Virgie is competent to testify only as to the substance of what she heard—not the
truth thereof. Her testimony, by itself, is not sufficient proof of its veracity.

DECISIVE FACTOR

- The hearsay stigma attaches when, and only when, the proponent offers evidence of the declarant’s statements
for the purpose of convincing the trier of fact that the statement is true. The question: “Is the declarant’s
statement offered for its truth?”
- If the significance of the statement is solely that it was made, that is, if it does not make any difference whether
the statement is true or false, then the statement is not hearsay.

REASON FOR REJECTION OF HEARSAY

- The author of the original statement does not undergo the ritual of an oath and is therefore not vulnerable to the
penal sanction of an oath.

● OATH
- The absence of the oath is really mostly an incidental factor and not the real basis of weakness. The real basis of
weakness lies in the fact that the absent person, whose assertion is offered to prove the fact he asserts, is not
subject to the testing process of cross-examination to reveal the weaknesses in his perception, his
memory, and his integrity.

● CROSS-EXAMINATION

- The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested asserted of a witness may be best brought to light and
exposed by the test of cross-examination.

● CONFRONTATION

- Supplementary to the chance of cross-examination is the other right of a defendant to confront the witness ina
criminal case.

● MISINTERPRETATION

- The misconstruction to which the evidence is exposed, from the ignorance or inattention of the hearers, or from
criminal motives, is powerful additional objection.

The purpose of all evidence is to get the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement
of another is not the best method of serving this purpose.

FORMS OF HEARSAY EVIDENCE

- Not restricted to oral evidence; may also consist of written evidence or by conduct.
- Example of conduct as hearsay: silence if it has concomitant objective of conveying something to somebody.

PROBATIVE VALUE
 83

- Hearsay evidence is devoid of intrinsic merit, irrespective of any objection from the adverse party. Hearsay
evidence cannot produce probative worth.

People v. Damaso

It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence. But, one should not
be misled into thinking that since these testimonies are admitted as evidence, they now have probative value. Hearsay
evidence, whether objected to or not, cannot be given credence. In People vs. Valero, We emphatically declared that:

The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence
that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any
probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence
should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value.

Tison v. Court of Appeals

Hence, even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of herein
private respondent's failure to object thereto, the same may be admitted and considered as sufficient to prove the facts
therein asserted.

(Note: Yung ruling sa Tison sinabi na hearsay evidence can still elicit probative importance, in contrast sa sinabi sa People v.
Damaso. Pero mas nagaadhere sa Damaso ruling si Peralta)

REASONS FOR EXCEPTIONS TO THE HEARSAY EVIDENCE RULE

- By reason of necessity and trustworthiness.

Principle of Expediency: we may lose the benefit of the evidence entirely unless we accept it uncontested.

1) The person whose assertion is offered may now be dead,or out of jurisdiction, or insane, or otherwise
unavailable for the purpose of testing like the Dying Declaration.
2) The assertion may be such that we cannot expect to get evidence of the same value front he same or other
sources.

Trustworthiness: under certain circumstances, the probability of accuracy and trustworthiness of statement is practically
sufficient, if not quite equivalent to that of statements tested in the conventional manner.

CHANGES

Step-by-step procedure on how to address the question of a hearsay’s admissibility:

1. Determine whether the evidence in question fits the definition of a hearsay. If it fits, the evidence is presumptively
inadmissible.
2. Determine whether there exists an exception to the basic definition of hearsay that allows the admission of the
hearsay.
3. Consider whether a statement may be admissible pursuant to an exception to the exclusionary rule.
4. Determine whether a statement is admissible pursuant to a statute or a rule of procedure.

DEFINITION OF A STATEMENT
- A person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

DEFINITION OF HEARSAY: Two Components

1. Out-of-court statement
- Any statement made outside of the courtroom by any person, including a prior statement made by a witness who
later testified.
 84

2. Offered as an assertion
- Offered in evidence to prove the truth of the matter asserted.
- If the statement is relevant in a manner that does not depend upon the truth of the statement, the statement is
not hearsay.

DECLARANT WHO TESTIFIES

(d) STATEMENTS THAT ARE NOT HEARSAY. A statement that

meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:

(A) is inconsistent with the declarant’s testimony and

was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative

capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it
existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

PRIOR INCONSISTENT STATEMENTS

- Can be used to impeach his credibility.

- A prior inconsistent statement used only to impeach does not violate the hearsay rule because it is not offered
for the truth of the assertion it contains.
- The prior inconsistent statement serves a dual function: 1) impeach the witness and 2) operates as a substantive
evidence.

PRIOR CONSISTENT STATEMENTS

- Admissible as substantive evidence without regard to whether an oath or cross-examination attended the prior
statement.
- When a cross-examiner charges that a witness’ testimony is a “recent fabrication”, a prior consistent statement
may have considerable probative force to rebut this charge. It is imperative, however, that the statement predate
the alleged corrupting influence.

STATEMENTS OF IDENTIFICATION

- Rule 801 (d)(1)(C) provides for the admissibility of the an out-of-court statement of identification made by a
declarant after perceiving the person identified, where the declarant is a witness at the trial at which the
statement of identification is offered. A prior consistent or inconsistent statement is not required.
- Ex. Street identification, or photographic array.
- Identification in the courtroom is frequently more suggestive and less reliable that a prior identification that is
more proximate in time to the operative facts of the case.

BASIS ASSUMPTION TO THE EXCEPTIONS

- While the law allows introduction of exceptions to the hearsay evidence rule, it is on the assumption that a party
will comply with other auxiliary rules of admissibility (e.g. rules of relevancy- must be relevant to the issue at
hand)
 85

EXCEPTIONS TO THE HEARSAY RULE

1989 Rules

1. Dying declaration
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of the res gestae
7. Entries in the course of business
8. Entries in official records commercial lists and the like
9. Learned treatises
10. testimony or deposition ata former proceeding
11. residual exception

2019 rules

Section 38. Dying declaration. -

Section 39. Statement of decedent or person of unsound mind.
Section 40. Declaration against interest.
Section 41. Act or declaration about pedigree.
Section 42. Family reputation or tradition regarding pedigree.
Section 43. Common reputation.
Section 44. Part of the res gestae.
Section 45. Records of regularly conducted business activity.
Section 46. Entries in official records
Section 47. Commercial lists and the like.
Section 48. Learned treatises.
Section 49. Testimony or deposition at a former proceeding.
Section 50. Residual exception.

ANTE MORTEM STATEMENT

Section 38. Dying declaration. - The declaration of a dying person, made under the consciousness of an impending death,
may be received in any case wherein his or her death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death

BASIS
- Special trust may be imposed on deathbed statements.
- The approach of death produces a state of mind in which the utterances are to be taken freed from all ordinary
motives to misstate.

People v. Mercado

As an exception to the hearsay rule, a dying declaration is admissible as evidence because it is "evidence of the highest order
and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation.

REQUISITES:

1. Consciousness by the declarant of his impending death

2. Communication by the declarant of the cause and surrounding circumstances of his looming death
3. Competence of the declarant to testify
4. Declaration is offered in any case relative to declarant;s death as the subject of inquiry.
5. Completeness of the declaration.
 86
- if not all the requisites are present, it may still be considered as part of the res gestae.
- It must be complete as far as it goes. → Check People v. De Joya

People v. De joya

It has been held that a dying declaration to be admissible must be complete in itself. To be complete in itself
does not mean that the declarant must recite everything that constituted the res gestae of the subject of his
statement, but that his statement of any given fact should be a full expression of all that he intended to say as
conveying his meaning in respect of such fact. The doctrine of completeness has also been expressed in the
following terms in Prof. Wigmore's classic work:

The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely apart
of the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of
the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to
include in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains
clearly less than that which the dying person wished to make, the fragmentary statement is not receivable,
because the intended whole is not there, and the whole might be of a very different effect from that of the
fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a
portion of what he might have been able to tell. 4 (Emphasis supplied)

The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is
that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what
he did say might have been 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.

CONSCIOUSNESS OF IMPENDING DEATH

- The declarant must have shown in some way by conduct or language that he knew he was going to die.
- A subsequent change of this expectation of death by the recurrence of a hope of life, does not render
inadmissible a prior declaration made while the consciousness prevailed.
- The belief must be not merely of the possibility of death, nor even of its probability, but of its certainty.
- It is the belief of impending death and not the rapid succession of death, that renders the dying declaration
admissible.

COMMUNICATION OF THE CAUSE AND CIRCUMSTANCES OF DEATH

- The law does not specify the form for a dying declaration.
- Insofar as the substance is concerned, it must concern the facts leading up to or causing or attending the
injurious act which has resulted in the declarant’s death for it is only as to such facts that the supposed necessity
for the statements can exist.
- The Opinion rule has nor application to dying declarations. Since the declarant is deceased, it is no longer
possible to obtain from him by questions anu more detailed data than his statement may contain and hence his
inferences are not in this instance superfluous, but are indispensable.
- Opinion Rule: whenever the witness can state specifically the detailed facts observed by him, inferences to be
drawn from them can equally well be drawn by the jury, so that the witness’ inferences becomes superfluous.

COMPETENCE

- Competence of the declarant to testify is indispensable since the dying declaration is in effect a testimonial
statement. The declarant is vulnerable to impeachment like other witnesses. → See People v. Basay

People v. Basay

2. We harbor very serious doubts about the alleged statement given by Bombie Toting to Sgt. Tabanao and Jaime Saguban
identifying the appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place, the trial court itself
 87
ruled that Bombie was not a competent witness. We agree with such a conclusion, not necessarily because she was only
six (6) years old, but because her condition at the time she supposedly gave her statement made it impossible for her
to have communicated effectively. She suffered the following injuries:

"Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area left to the medial thigh left
through and through, with necrotic transected muscle."

People v. Bautista

In the case at bar, the trial court correctly rejected the ante mortem statement of the victim. Records show that Jose Gagaza,
Jr., the person who allegedly heard the victim's ante mortem statement, was never presented in court to testify on the matter. It
has been held that if the dying declaration was made orally, it may be proved by the testimony of the witness who
heard the same or to whom it was made.

The entry of the same statement in the police blotter alone will not suffice to confer upon it the desired evidentiary weight.
Entries in police blotters are only prima facie evidence of the facts stated therein.

STATEMENT OF DECEDENT OR PERSON OF UNSOUND MIND

Section 39. Statement of decedent or person of unsound mind. - In an action against an executor or administrator or other
representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such
deceased person or against such person of unsound mind, where a party or assignor of a party or a person in whose behalf a
case is prosecuted testifies on a matter of fact occurring before the death of the deceased person or before the person
became of unsound mind, any statement of the deceased or the person of unsound mind, may be received in evidence if the
statement was made upon the personal knowledge of the deceased or the person of unsound mind at a time when the matter
had been recently perceived by him or her and while his or her recollection was clear. Such statement, however, is
inadmissible if made under circumstances indicating its lack of trustworthiness

- Premised on the idea that “if one party to the alleged transaction is precluded from testifying by death, insanity,
or other mental disabilities, the other party isn't entitled to the undue advantage of giving his own uncontradicted
and unexplained account of the transaction”

DECLARATION AGAINST INTEREST

Section 40. Declaration against interest. — The declaration made by a person deceased or unable to testify against the
interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's
own interest that a reasonable person in his or her position would not have made the declaration unless he or she believed it
to be true, may be received in evidence against himself or herself or his or her successors in interest and against third
persons. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

REASON FOR THE RULE

- The necessity of the occasion renders the reception of such evidence advisable and further, that reliability of
such declarations asserts facts which are against his own pecuniary or moral interest.

CHANGES
-Gender inclusiveness
-Expands the traditional pre-rule doctrine to include statements that tend to subject the declarant to criminal punishment
-Statements be “corroborated” to assure reliability

PARAMETERS
-if the declarant is available to testify as a witness. His statement against interest which he now denies would be admissible
against him as a prior inconsistent statement in some instances.

EXTRAJUDICIAL ADMISSION AND A DECLARATION AGAINST INTEREST

 88

-Similarity: adverse nature of the statements to the declarant

Extrajudicial admission Declaration against interest

Section 27, Rule 130 Section 40, Rule 130

can be received against a party or assumes the declarant's demise or

in privity with such party, his unavailability
regardless of the availability or
unavailability of the one who declarant is neither a party nor
asserts a prejudicial declaration. privy to the party in a suit.

Lazaro v. Agustin:

Admissions against interest- made by a party to a litigation or by one in privity with or identified in legal interest with such party,
and are admissible whether or not the declarant is available as a witness.
Declarations against interest- made by a person who is neither a party nor a privity with a party to the suit, these are
secondary evidence, and an exception to the hearsay rule.

Heirs of Franco vs. Court of Appeals- A declaration against interest is the best evidence which affords the greatest certainty of
the facts in dispute. In the same vein, a judicial admission binds the person who makes the same, and absent any showing
that this was made thru palpable mistake, no amount rationalization can offset it.

DECLARATION AGAINST INTEREST AND ENTRIES IN THE COURSE OF BUSINESS

-May furnish evidence of collateral matters which form part of the declaration and which are relevant to the issue, although
such matters in themselves are not against the interest of the declarant.

DECLARATION AGAINST INTEREST AND SELF-SERVING

-A declaration against interest is the opposite of a self-serving declaration which is intended to favor or advance the interest of
the declarant.
Hernandez vs. Court of Appeals- 1) made by a party out of court advocating his interest, and do not include a party's testimony
as a witness in court; 2) inadmissible because the adverse party is not given the opportunity for cross-examination, and their
admission would encourage fabrication of testimony.

BASIS FOR DECLARATION AGAINST INTEREST

-carries a circumstantial guaranty of reliability, because people generally do not make statements that are damaging to their
interests unless they believe they are true.

ELEMENTS:
1. the declarant is dead or unable to testify;
2. the adverse statement is made by the declarant on an actual or real interest who is cognizant thereof;
3. the declarant believed the declaration to be true; and
4. where the statement is one against penal interest which exculpates the accused in a criminal trial, there must be
corroboration tending to guarantee the statement's trustworthiness.

-corroboration for a declaration against penal interest should not be confused with the corroboration rule for substantive crimes
such as treason. The Rule pertains to the introduction of discrete items of evidence, not the substantive elements of an
offense.

FORM OF DECLARATION AGAINST INTEREST

-may be oral or in writing; in printed form

ACT OR DECLARATION ABOUT PEDIGREE

-Exception to the hearsay evidence rule, Rule 803(19) of the 2018 Federal Rules of Evidence authorizes the admission of
reputation evidence when offered to prove a fact of personal or family history.
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-The reputation evidence may be drawn from three sources, namely: (i) from among family members, (ii) from the person's
associates, and (iii) from someone in the community.

Section 41, Rule 130 of the 2019 Revised Rules on Evidence:

“Act or declaration about pedigree. – The act or declaration of a person deceased or unable to testify, in respect to the
pedigree of another person related to him or her by birth, adoption, or marriage or, in the absence thereof, with whose family
he or she was so intimately associated as to be likely to have accurate information concerning his or her pedigree, may be
received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word 'pedigree' includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and the names of the relatives.
It embraces also facts of family history intimately connected with pedigree."

COMMITTEE NOTES
-should be extended to cases where the declarant is related to the subject by “adoption” or “with whose family he was so
intimately related as to be likely to have accurate information concerning his pedigree.”
-Rationale: that he likely had "accurate information”. Such statements are likely to rest on adequate information and to be
truthful.

In addition, Section 42, Rule 130 of the 2019 Revised Rules on Evidence:

“Family reputation or tradition regarding pedigree. – The reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon
be also a member of the family, either by consanguinity, affinity, or adoption. Entries in family bibles or other family books or
charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree.”

COMMITTEE NOTES
The exception relating to family reputation or tradition regarding pedigree should be liberalized to embrace cases where the
witness testifying on the pedigree of a member of a family is related to the latter by “adoption.”

And with respect to local boundaries, customs, reputation general history in the community, marriage, or moral character these
aspects can also be displayed by common reputation in the community under Section 43, Rule 130 of the 2019 Revised
Rules on Evidence:

“Common reputation. — Common reputation existing previous to the controversy, as to boundaries of or customs affecting
lands in the community and reputation as to events of general history important to that community, or respecting marriage or
moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of
common reputation.”

COMMITTEE NOTES
The Sub-committee took note of the fact that, there is a lack of jurisprudence on the present Section 41 of Rule 130
presumably because the phrase "facts of public or general interest is too vague to be of any useful application. Moreover,
the requirement that said facts must be “more than thirty years old" further narrows its application.
Even before the adoption of the federal rules there was a dearth of authority in this area which was attributed by legal
writers to the fact that evidence admissible under his exception could frequently come in under the ancient documents or
business record exception, or could qualify for judicial notice. There is probably even less need for this exception under the
federal rules because of the expansion of the exception for learned treatises in Rule 803(18).

-Bouvier's concise encyclopedia defined pedigree as a succession of degrees from the origin. It is the state of the family as far
as regards the relationship of the different members, their births, marriages, and deaths. This term is applied to persons or
families who trace their origin or descent.

ORIGIN
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-The rule of law admitting hearsay evidence in cases of this sort rests upon the presumption that the declaration, family history,
or family tradition, constituting the evidence offered, comes from persons having competent knowledge in respect to the
subject matter of the declaration, family history, or tradition.
-When it appears that the evidence offered does not come from such a source, this presumption is rebutted, and it becomes
inadmissible.

REQUISITES
Section 41, Rule 130 of the 2019 Revised Rules on Evidence can be received in evidence as an act or declaration about
pedigree if:
(a) the actor or declarant is dead or unable to testify,
(b) the actor or declarant is related to the subject either by birth, adoption, or marriage, or in the absence thereof, with
whose family he or she was so intimately associated as to be likely to have accurate information concerning his or
her pedigree,
(c) proof of relationship between the declarant or actor and the subject is established by evidence other than by such
act or declaration, and
(d) the act or declaration was made ante litem motam, or previous to the controversy.

- Evidence of the act or declaration about pedigree can only emanate from a family member or from one intimately associated
with the family.

- As evidence of family reputation or tradition under Section 42, Rule 130 of the 2019 Revised Rules on Evidence, it is required
that: (a) the witness who testifies is related to the subject either by consanguinity, affinity or adoption, and (b) existence of such
reputation or tradition in the family ante litem motam (spoken before a lawsuit is brought).

- Annotations from Ruling Case Law: tradition must be from persons having such a connection with the party to whom it relates
that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and that they could not
be mistaken.

- the term “pedigree" embraces not only descent and relationship, but also the facts which go to make up pedigree, such as
birth, death, and marriage, when they must be proved for other purposes.

- public interest affects national interest but matters of general interest can only be pertinent to local inhabitants. Reputation on
these aspects must proceed from competent persons who were in a position to have sound sources of information and can
contribute intelligently to the formation of the opinion.

- In lieu of the testimony of witnesses, old maps and old surveys so far as they have been used and resorted to by the
community in dealing with the land, deeds, leases and other private documents as declaratory of the public matters recited in
them, monuments and inscriptions in public places can prove common reputation regarding facts of public or general interest.

- Reputation involves a general estimate of the person by the community as a whole. Rumor is loose talk which the
community has not had an opportunity to evaluate and accept or reject.

- Character refers to the inherent qualities of a person, while reputation is the opinion of him by others; but, under Section 43,
Rule 130 of the 2019 Revised Rules on Evidence, the character of a person is permitted to be established by his common
reputation. The common reputation must be among people who have had an adequate opportunity of observing the person's
conduct.

PART OF THE RES GESTAE

Section 44, Rule 130 of the 2019 Revised Rules on Evidence:

"Part of the res gestae. — Statements made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto, under the stress of excitement caused by the occurrence with respect to the circumstances thereof, may
be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae.”
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-Under Rule 803(2) of the 2018 Federal Rules of Evidence, an excited utterance is also an exception to the hearsay evidence
rule if it was a statement relating to a startling event or condition, made while the declarant was under the stress of excitement
that it caused.

Concept
-Res gestae means the “transaction, thing done, subject matter”
-with reference to hearsay evidence it is rather loosely used to describe declarations, exclamations, acts or conduct of a
participant or witness of the principal transaction in suit, the statements or acts being such as tend to explain or illustrate the
transaction which they accompany and with which they are substantially contemporaneous, and by the immediate influence of
which they are generated.
-As an exception to the hearsay rule, the doctrine of res gestae consists of two parts: an impulsive exclamation and a verbal
act.

BASIS
-a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the
utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already
produced by the external shock.
-The rule of res gestae applies when the declarant himself did not testify; hence, it does not apply where the declarant took the
witness stand to testify.

ELEMENTS
a) Spontaneous exclamation, it requires:

1) There is a startling occurrence as the principal act; 2) there is no opportunity to contrive, and 3) the statement, under the
stress of excitement caused by, and relates to, the occurrence.
b) Verbal act, it requires:
(a) an equivocal principal act,
(b) a statement material to the issue,
(c) the statement must accompany the main act, and
(d) the utterance must provide legal significance or elucidate the act.

When res gestae is juxtaposed with an expression in articulo mortis, they differ in some areas:

(a) A dying declaration can be made only by the victim while a statement as part of the res gestae may be that of the killer
himself after or during the killing or that of a third person.

(b) Dying declarations are made only after878 the homicidal attack

Residual exception in Rule 807

➔ Provides a vehicle for admitting hearsay in situations unanticipated by other exceptions, but involving equal
guarantees of trustworthiness.
➔ Courts should only engage in Rule 807 analysis if it is apparent that no other exception might render hearsay
statements admissible. (US v. Slatten)
➔ Applied only if the statement is not specifically covered by a hearsay exception in Rule 803 & 804.
➔ May be used to admit hearsay statements that are reliable but fail to satisfy precise requirements of one of the
specific requirements
➔ NOT be used to circumvent policies underlying the hearsay rule or specific exceptions.

Elements:
1. Statement must possess circumstantial guarantee of trustworthiness akin to specific hearsay exceptions
2. Statement is offered as evidence of a material fact
3. Statement is more probative on the point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts
4. Admission of the evidence will serve the purpose of the rules and justice
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5. Proponent notifies the opponent of their intention to offer the statement, which details the name and address of
the declarant, sufficiently in advance of the hearing, or pre-trial conference as prelude to trial, for the adverse party’s
fair opportunity to meet the intention

7. Opinion Rule
➔ Operates as a legal bar to the reception of opinion evidence from a witness, subject to the exceptions involving
an expert witness and ordinary witness.

Section 51. General rule. – The opinion of a witness is not admissible, except as indicated in the following sections. (48)

Section 52. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience,
training or education, which he or she is shown to possess, may be received in evidence. (49a)

Section 53. Opinion of ordinary witnesses. – The opinion of a witness, for which proper basis is given, may be received in
evidence regarding –
(a) [T]he identity of a person about whom he or she has adequate knowledge;
(b) A handwriting with which he or she has sufficient familiarity; and
(c) The mental sanity of a person with whom he or she is sufficiently acquainted.

The witness may also testify on his or her impressions of the emotion, behavior, condition or appearance of a person. (50a)

Opinion fact, conclusion

● Opinion - inference or conclusion drawn by a witness from facts, some of which are known to him and others
assumed, or drawn from facts, which, although lending probability to the inference, do not evolve it by a process
of absolutely necessary reasoning.
○ An act of reasoning, or is a fact in which the element of inference is prominent.
● Kalalo v. Luz -
○ Matter of fact - susceptible of exact knowledge
■ Conclusions reached by the trior from shifting testimony, weighing evidence, and passing on
the credit of the witnesses, and does not denote those inferences drawn by the trial court from
the facts ascertained and settled by it.
○ Expression of opinion - not susceptible of exact knowledge
● Mercene v. GSIS -
○ Conclusion of law - legal inference on a question of law made as a result of a factual showing where
no further evidence is required.

Opinion evidence - testimony of a witness, given or offered in trial of an action, that the witness is of the opinion that some
fact pertinent to the case exists or does not exist, offered as proof of the existence or non-existence of the fact.
➢ Opinions declared from the witness stand, as distinguished from those extrajudicially expressed which may or
may not be admissible according as they do or they do not come within 1 or more of the general exception to the
rule against hearsay evidence.
➢ Witness thinks, believes or infers in regard to facts in dispute, as distinguished from his personal knowledge of
the facts themselves.

Reason for Proscription

● What the law expects from a witness is a statement of fact known or perceived by him, not an opinion based on
those facts, for the purpose of evidence.
● Ordinarily, opinion evidence is not admitted, whether it be that of non-expert or expert witnesses on subjects
which are within the common knowledge of men of ordinary education, experience and opportunities for
observation.
● It would be invading peculiar province of courts as trier of facts, when the question for determination involves
matters of common knowledge and experience, to permit a witness to state to the court his opinions as to the
conclusions to be drawn from the concrete facts which he has observed.

Exceptions
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● Basis: Not all matters are within the grasp of ordinary witnesses which entails the participation of a competent
person equipped with requisite study in these special branches of human knowledge. Hence, law permits expert
evidence to fill lacuna in a disputed fact.
● Witness can express opinion if he is either:
○ Expert on technical matters or
○ Ordinary witness on non-technical aspects, if proper basis is laid to the testimony of an ordinary witness
● Certain matters, each of which may seem like an opinion from a layman but is, in a given situation, actually a
statement of fact, and are thus admissible, such as:
○ Shorthand rendering of the facts
○ Summing up
○ Impressions
○ Abstractions
● NO WITNESS may testify to his opinion on a legal matter, unless the matter is what a foreign law is because it is
for the judge to draw legal conclusions.
○ Courts are not precluded from advising itself from other sources as to the law of that country.

Expert evidence
➢ Expert testimony is not necessary merely because the case involves intricate questions of law which may be
difficult to comprehend by the jurors.
➢ Important for the court to resolve first the issue as to whether the subject is one upon which the opinion of an
expert can be received, and also what are the qualifications necessary to entitle the witness to testify as an
expert.

Expert witness
● Experts are persons selected by the court or the parties in a cause, on account of their knowledge or skill, to
examine, estimate, and ascertain things and make a report of their opinions. They are witnesses who are
admitted to testify from a peculiar knowledge of which is requisite or of value in settling the point at issue.
(Bouvier)
● Rule > expert must have made the subject upon which he gives his opinion a matter of particular study, practice,
or observation, and he must have particular and special knowledge.
● NO EXACT STANDARD to determine the degree of skill or knowledge a witness must possess in order that he
may testify as an expert.
● Sufficient following factors be present:
○ Training and education
○ Particular, firsthand familiarity with the fact of the case
○ Presentation of authorities or standards upon which his opinion is based

Expert witness must be qualified

● Qualification can be achieved by study, practice, actual experience or long observation even without a study of
the subject.
● Before one may be allowed to testify as an expert witness, his qualifications must first be established by the party
presenting him.
○ Preliminary question to the determination of witness’s qualification depends on court evaluation upon
examination of the witness himself, or other witnesses, as to his opportunities and means of knowledge
of the subject under inquiry.
● Developing the aptitude of witness as an expert can be abated by adverse party’s admission in judicio in the
course of pretrial conference or trial.

Conditional admissibility
● With consent of parties, judge may receive a witness’s testimony conditionally, subject to the necessary
foundation being supplied later in the trial.
● Unless foundation supplied, judge should grant a motion to strike or order the testimony stricken from the record
on his own motion.

Hypothetical questions - questions which assume a state of facts which has been shown by the evidence of other witnesses
or by the testimony of the expert himself.
● Can be propounded to qualified experts if he has no personal knowledge of the facts.
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● Where his opinion is based on his personal knowledge or observation, and not upon facts in evidence and
assumed to be true for the purposes of opinion testimony, not necessary that question should be
hypothetical in form.
● Jones - expert witnesses may state opinions based upon assumed facts.
○ May be elicited by hypothetical question.
○ There must be in the evidence a sufficient fact predicate to support a hypothetical question and the
answer of the expert.

Nature and scope of the question to an expert

● When an expert testifies in court, he does not act as the judge or jury on the ultimate issue before the court.
○ He has no standing capacity in court different from that of the ordinary fact witness. Not in his province
to act as judge or jury.
● Question requiring a statement of his opinion should be so framed as not to call upon him to determine a
controverted issue or fact or to pass upon preponderance of testimony.
○ Otherwise, question invites him to usurp function of jury and decide upon the credibility of witness and
to weigh evidence.
● Questions propounded to experts should not require answers involving questions of law, morals, or duty,
matter of conjecture or speculation, nor, except on cross examination, should an expert be questioned as to
whether his opinion agrees with or differs from the opinion of other experts.

Cross-examination of the expert witness

● When expert witness is subjected to scrutiny, rules governing cross examination of witnesses generally are
applicable.
○ Great latitude is ordinarily the rule in the cross-examination of such witnesses.
● Party cross-examining expert witness is not confined to the theory on which the adversary has conducted his
examination.
○ He may go into details and may put the case before the expert in all its phases.
● Although on direct examination hypothetical questions must be based on facts which the evidence tends to
prove, no such limit is imposed on cross examination.
○ For the purpose of testing the accuracy and credibility of the expert or value of his opinions, he
may be interrogated as to pertinent hypothetical cases concerning which no evidence has been given.
● The witness may be cross-examined as to his opinion upon imaginary facts, not only to test his skill and
experience and the value of his opinion but also his credibility.

Evidentiary value of expert evidence

Section 5. Weight to be given opinion of expert witness, how determined. – In any case where the opinion of an expert
witness is received in evidence, the court has a wide latitude of discretion in determining the weight to be given to such
opinion, and for that purpose may consider the following:
(a) Whether the opinion is based upon sufficient facts or data;
(b) Whether it is the product of reliable principles and methods;
(c) Whether the witness has applied the principles and methods reliably to the facts of the case; and
(d) Such other factors as the court may deem helpful to make such determination. (n)
Intrinsic weakness of expert testimony - not desirable in any case where jury can get along without it, and only admitted
from necessity, and then only when it is likely to be of some value.
- Evidence of experts is of the very lowest order and most unsatisfactory character.
- Court holds that expert opinion testimony may properly form the subject of a reasonably guarded precautionary
opinion by the court to the jury.

General rule - opinions are to be considered and to receive weight as in view of all the circumstances reasonably attaches to
them.
- Mere fact that opinions of experts vary in respect of a particular subject does not preclude consideration of their
testimony.
- Some instances, expert statements are accorded weight overcoming direct testimony to contrary.
- Positive expert testimony > negative testimony of experts.
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Subjects concerned with expert testimony
- In presentation and evaluation of evidence, sometimes inevitable to explore expert evidence on topics like
handwritten analysis, paraffin test, blood tests, and chemistry tests.

a. Handwriting analysis
➔ Opinion of handwriting expert depends not on his mere statements of whether a writing is genuine or false, but
upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in
and between genuine and false specimens of writing which would ordinarily escape notice or detection from
an unpracticed observer.
➔ Testimony or documentation on handwriting analysis can be dispensed with based on witness’s or court’s
authority to compare specimen signature with an admittedly genuine signature or treated as authentic by court.
◆ Section 22. How genuineness of handwriting proved. – The handwriting of a person may be proved
by any witness who believes it to be the handwriting of such person because he or she has seen the
person write, or has seen writing purporting to be his or hers upon which the witness has acted or been
charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the
handwriting may also be given by a comparison, made by the witness or the court, with writings
admitted or treated as genuine by the party against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge.
➔ Bautista v. Castro - Resort to handwriting experts is not mandatory. They, while probably useful, are not
indispensable in examining or comparing handwriting, this can be done by the COMELEC.
➔ G&M PH v. Cuambot - Finding of forgery does not depend entirely on the testimonies of handwriting experts,
because the judge must conduct an independent examination of the questioned signature to arrive at a
reasonable conclusion as to its authenticity.
➔ Sps. Bernales v. Heirs of Sambaan - examination of handwriting by NBI at private respondent’s request will not
affect the result of the analysis.
◆ It is the court which has the discretion and authority on whether to give probative value to the results of
the examination.
◆ Examination which may properly be undertaken by a non-expert private individual does not certainly
become null and void when the examiner is an expert and/or an officer of the NBI.
◆ Any person, expert or not, either in his private or in his official capacity, may testify in court on matters,
within his personal knowledge, which are relevant to a suit, subject to judicial authority to determine the
credibility of said testimony and weight thereof.
➔ Fact of forgery can only be established by a comparison between the alleged forged signature and the
authentic and genuine signature of the person whose signature is theorized to have been forged.

b. Polygraph
➔ Polygraph/ lie detector - based on premises that a lying subject’s fear of detection sets in motion a series of
involuntary physical responses that can be measured.
◆ Based on theory that individual will undergo physiological changes, capable of being monitored when
he is not telling the truth.
➔ Modern polygraph record number of physical responses:
◆ Galvanic skin responses
◆ Sweating of palms
◆ Blood pressure
◆ Respiration
◆ Change in flow of blood to the tip of index finger
➔ 2 main techniques to elicit involuntary responses:
◆ “Relevant-irrelevant” test - questions of no moment are asked to measure subject’s physiological
state while telling the truth.
● Results compared to answers to relevant questions.
◆ Control question technique - general and vague illegal activity.
● Innocent respond more fully and readily to control questions while the opposite is true for guilty
subjects.

c. Paraffin
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➔ The court rendered paraffin tests to be inconclusive and this was concurred with by the experts. It can only
establish the existence of nitrates alone but cannot determine whether the source of nitrates was the discharge
of a firearm. The existence should only be taken as an indication of a possibility or even probability but not of
infallibility that a person has fired a gun. (Peralta y Zareno v. People)
➔ Paraffin test conducted without the presence of the accused’s lawyer does not violate the right against
self-incrimination which right extends only to testimonial compulsion and not when the body of the accused is
proposed to be examined.
➔ Expert testimony as to the absence of gunpowder burns on the victim was considered to be important in
assessing the defendant’s excuse for the killing.

d. Chemical analysis
➔ In connection with sale of dangerous drug, chemical analysis is not an indispensable prerequisite to the
establishment of whether a certain substance offered in evidence is a prohibited drug.
◆ The ability to recognize the drugs can be acquired without a knowledge of chemistry to such an extent
that testimony of a witness on the point may be entitled to great weight.

Drug cases under RA 9165

➢ Seized illegal drugs constitute the corpus delicti of the illegal sale of dangerous drugs.
○ Identity must be proved beyond reasonable doubt.
○ When there is doubt on its identity, conviction cannot be sustained.
➢ People v. Romy Lim - Fidelity to chain of custody requirements is necessary because narcotics may easily be
mistaken for everyday objects.
○ The physical similarity of narcotics with everyday objects facilitates their adulteration and substitution.
Also makes conducive the planting of evidence.
➢ Mallillin v. People
○ A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are
subject to scientific analysis to determine their composition and nature.
○ In authenticating the same, a standard more stringent than that applied to cases involving objects which
are readily identifiable must be applied.
➢ People v. Holgado
○ Compliance with the chain of custody requirement ensures the integrity of confiscated, seized, and/or
surrendered drugs and/or drug paraphernalia in 4 respects:
■ Nature of the substances or items seized
■ Quantity of the substances or items seized
■ Relation of the substances or items seized to the incident allegedly causing their seizure and
■ Relation of substances or items seized to the person/s alleged to have been in possession or
peddling them.
○ Compliance with the requirement forecloses opportunities for plantain, contaminating, or tampering of
evidence in any manner

e. Blood analysis
➔ Blood analysis, and truth tests by lie detectors, truth serum, hypnosis and the like, Jones remarked that expert
opinion testimony as to the methods and results of blood analysis, blood groupings and analyses of other body
fluids is now widely accepted in evidence.
◆ Expert testimony as to the relationship of blood test findings on the issue of the paternity of a child is
admissible.
◆ However, expert testimony to effect that blood test showed that man could have been the father is
inadmissible because it is evidence of mere possibility and lacking in probative value.
➔ Truth tests by lie detectors, truth serum, hypnosis and the like are generally rejected by the courts on ground that
there is no general scientific recognition of their efficacy.
➔ People v. Cartuano, jr. - blood test would have eliminated all possibility that accused was the father of the child,
if none of the putative father's phenotypes were present in the child’s blood type.
➔ Jones -
◆ Group blood testing cannot show that a man is the father of a particular child, but at best can show only
a possibility that he is.
◆ Uniform Act on Blood Test > establishes conclusive presumption of non-paternity where results of the
tests show the impossibility of alleged paternity.
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➔ DNA Testing - matching snippets of genetic code taken from specific locations along a strand of DNA.
◆ By looking at areas along the DNA where it is known that individual’s genetic codes vary widely, a highly
accurate determination can be made.
➔ People v. Vallejo y Samartino alias Puke
◆ Purpose of DNA testing is to ascertain whether an association exists between the evidence sample and
reference sample.
◆ In assessing probative value of DNA, courts should consider the following data:
● How samples were collected
● How they were handled
● Possibility of contamination
● Procedure followed in analyzing samples
● Whether proper standards and procedures were followed in conducting tests
● Qualification of analyst
➔ Lim v. CA - DNA, being a relatively new science, it has not as yet been accorded official recognition by the
courts. Paternity will still have to be resolved by such conventional evidence as the relevant incriminating acts,
verbal and written, by the putative father.
➔ Probative force of DNA evidence later recognized under AM Noo. 06-11-5-SC
➔ People v. Clemeno - application of statistical probability of DNA evidence as corroborative evidence for
testimonial evidence.
◆ Under the Rules on DNA evidence, if value of probability of paternity is 99.9% or higher, there shall be a
disputable presumption of paternity.

Ordinary witness
● Before a lay witness can affirm his view on the items, the predicate must be laid by the proponent in regard to the
cognition by the witness of the subject-matter like the identity of a person about whom he has adequate
knowledge, sufficient familiarity with a handwriting and mental sanity of a person, as well as the emotion,
behavior, condition or appearance of a person.
○ Non-expert must ALWAYS lay foundation for his opinion by stating the evidential facts upon which he
bases his opinion.
● Opinion testimony of a non-expert witness as to sanity of another CAN NOT be based on facts related to the
witness by 3rd persons nor can such witness express general opinion as to sanity. He must testify from
personal knowledge and observation and not from reputation.
● Mental Health - ordinary witness may give opinion regarding mental sanity of person with whom he is
sufficiently acquainted.
○ However, when the mental disease is to be inferred from an examination and observation of its
symptoms, opinion of an expert is necessary.
● Perception of another’s manner of appearance -
○ Ordinary witness > can express perception of another’s manner of appearance but must be allowed to
give the reason for his opinion.
○ Abstract hypothetical question can hardly be asked of an ordinary witness who must base his opinion
solely upon his personal knowledge, observation or acquaintance with another individual.

8. Character Evidence

Section 54. Character evidence not generally admissible; exceptions. – Evidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(a) In Criminal Cases:

(1) The character of the offended party may be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.

(2) The accused may prove his or her good moral character[,] pertinent to the moral trait involved in the
offense charged. However, the prosecution may not prove his or her bad moral character unless on rebuttal.

(b) In Civil Cases:

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Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of
character involved in the case.

(c) In Criminal and Civil Cases:

Evidence of the good character of a witness is not admissible until such character has been impeached.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be
made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim or
defense, proof may also be made of specific instances of that person’s conduct. (51a; 14, Rule 132)

Concept of Character
● Character - possession by a person of certain qualities of mind or morals, distinguishing him from the others.
○ Combination of properties, qualities, or peculiarities which distinguishes one person from others.
○ Person’s disposition or a general trait such as honesty, temperance or peacefulness.
● Refers to an aspect of individual’s personality that is usually described in evidentiary law as a “propensity”

Habit - person’s regular practice of meeting a particular kind of situation with a specific type of responsive conduct.
● Tendency of a person to exhibit a regular response to a specific stimulus.

Distinctions -
● Character under rule 404 > where form of propensity is general and represents a behavioral inclination.
● Character under rule 406 > form of propensity is specific and connected with an identifiable prompting
circumstance.

Character Reputation

Trait of personality Collective perception of an individual by persons in an identifiable community.

What community at large thinks of that person

Specific means of proving the character of an individual after character evidence is

generally admissible

Rationale
● Propensity rule - prohibits the use of evidence of a person’s propensity to behave in a particular fashion to
prove that the person behaved in that fashion on a particular occasion.
● Character evidence is, in many instances, inadmissible because its probative value is substantially outweighed
by its potential adverse effect on the integrity of the litigation.
● There is risk that jury may conclude that even if there are doubts about liability or guilt, party with bad character
“deserves” to lose.
○ Risk of prejudice is especially high in criminal prosecution in which the government portrays the
accused as a person of unsavory disposition.

Summary
Criminal Case Civil Case
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Prosecution may not at the outset prove bad moral character of Moral character of either party can not be proved
the accused which is pertinent to the moral trait involved in the UNLESS it is pertinent to the issue of character involved
offense charged. in the case.

If the accused, however, in his defense attempts to prove his

good moral character then the prosecution can introduce
evidence of such bad moral character at the rebuttal stage

Good or bad moral character may always be proved by either

party as long as evidence tends to establish probability or
improbability of offense charged.

Bad moral character of witness may always be proved by either party but not evidence of his good character, unless it has
been impeached.

Moral character of the accused and offended party in a criminal case

1. Bad moral character of ACCUSED

Evidence of bad character can not be assailed by prosecution at the inception since it may create an unfair
prejudice against accused who may be convicted not because he is guilty but because of his being a crooked man.

2. Good moral character of ACCUSED

Proof of good moral character strengthens presumption of innocence. This view proceeds upon theory that
person of good character and high reputation is not likely to have committed act charged against him.

If defendant offers no evidence of his good character, no legal presumption can be drawn from such
omission prejudicial to defendant or that his character is bad. However, if he desires to put his character in issue he
has the right to benefit of his previous good character or reputation.

● 2 ways defense introduce evidence of character:

○ When accused, or witness for accused, presents evidence of good character after presentation of
evidence for prosecution or
○ When accused pleads guilty during arraignment but presents an exculpatory cause, such as self
defense, reverse order of trial may proceed through presentation of defendant’s evidence which
can dwell on his good moral character
● Unless and until accused gives evidence of his good character, prosecution may not introduce evidence of his
bad character.
● Broad prohibition includes frequently invoked rule that prosecution may not introduce evidence of other criminal
acts of accused unless evidence is introduced for some other purpose than to suggest that because
defendant is a person of criminal character, it is more probable that he committed crime for which he is on
trial.
○ However, introduction of general good character by accused is unwise because it invites a wide range
of rebuttal evidence from prosecution.
● Accused may often elect to use character evidence where prosecution’s case is largely circumstantial.
○ May serve to establish reasonable doubt that the accused committed the crime.
○ Reasonable doubt may be created by evidence that is unlikely that accused the type of person who
would commit the crime in question.
● Witness may testify that accused is of good character and that he never heard his character questioned and
question of his character was never discussed outside his own family.
● Not always required that affirmative testimony on his reputation be given. Though negative in form, evidence
that character of accused never been denied or doubted or even discussed or spoken among
acquaintances is always admissible and often of highest value.

3. Moral Character of OFFENDED party

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Character of prosecutrix as to chastity may throw light on the probability of her consent or non-consent to
the act charged.

● Prostitute > more probability she consented

● Unchaste character > does not preclude commission of rape against her

In close dispute, as to WON she consented her bad character for chastity may incline the weight of evidence
in favor of the accused.

Current legislation, contemplate a rape shield.

“In prosecution of rape, evidence of complainant’s past sexual conduct, opinion or their reputation shall
not be admitted unless, and only to the extent that the court finds such evidence is material and relevant to the
case.”

❖ CSC v. Belagan - not every good/bad moral character of the offended party may be proved under Sec.
51(a)(3), Rule 130. Only those which would establish the probability or improbability of the offense
charged.
➢ Example: Rape - character for chastity
■ Assault - character for peaceableness or violence
■ Embezzlement - honesty
➢ In one rape case, it was established that the alleged victim was morally loose and apparently
uncaring about her chastity, we found conviction of the accused doubtful.
❖ People v. Manallo - even assuming that the offended party was a girl of loose morals, as claimed by
appellant, it is settled that moral character is immaterial in the prosecution and conviction for rape for
even prostitutes can be rape victims.

Homicide cases - if accused’s theory is that he acted in self-defense, character of deceased for violence, turbulence,
revengefulness, and the like may throw light on the probability of his having been the aggressor and is admissible in
evidence.

- But proof of quarrelsome disposition of deceased must be based on general reputation in the community and not
merely of isolated and specific acts.
- Does not apply in criminal case for murder committed with treachery and premeditation.

Effect of proof of guilt beyond reasonable doubt

● Evidence of good moral character of accused does not prevail over positive evidence showing his guilt.
● People v. Cerelegia - while an accused is allowed to prove his good moral character in relation to the offense
charged, he is not entitled to an acquittal simply because of his previous good moral character and exemplary
conduct if the court believes he is guilty beyond reasonable doubt.

Moral character of a party in a civil case

● Evidence of party’s moral character in a civil case is permissible only if pertinent to the issue of character
involved.
○ Reason: In civil cases, evidence of character has but a remote bearing as proof to show that wrongful
acts have or have not been committed.
● GR: Evidence of good character or reputation is not relevant in the first instance in a civil action or where
reputation of party has not been attacked by evidence of bad character.
○ Law presumes reputation and character of a party to be good until contrary is shown and he can
solely rest on the presumption.

Moral character of a witness in a civil and criminal case

● On account of presumed good faith of a person, it is vain to present, at the inception, evidence of a good moral
character of a witness in civil and criminal cases.
○ Reason: He is presumed to have a good character until the contrary is proved.
● No reason to prolong the trial by receiving evidence pertaining to credibility when truthfulness has not been
questioned.
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● As corollary matter, and except an unwilling, hostile or adverse party’s witness, party may not impeach his own
witness due to express prohibition under Sec. 13, Rule 132 2019 RR on Evidence.
○ It would be unfair that the party would benefit from his witness’s testimony if favorable and reject it if on
the contrary.
○ But where party voluntarily shows evidence to impeach his own witness, he cannot afterward introduce
testimony to show that reputation of his witness for truth and veracity is good.
○ In a civil case, a party cannot put his own character in issue by his own testimony and offer rebuttal
proof of general good character and reputation.
● Adverse party can discredit the witness via contradictory evidence, prior inconsistent statement, or evidence of
bad moral character.
● Impeachment methods (?) -
○ When attacking party impeaches by prior conviction, prior bad acts or reputation evidence showing
untruthful character, party supporting witness is entitled to respond with evidence designed to bolster
witness’s credibility.
○ When attacking party questions witness’s perception, he is not assailing the witness’s character.
○ Bias, prior inconsistent statements, and contradiction - judge must decide if the tenor of impeaching
evidence strikes at the witness’s character for truthfulness.
● While GR is that particular wrongful acts are not allowed to prove moral character, they may be allowed to prove
conduct.
○ After witness’s good character has been impeached in form of evidence of bad character, proponent of
witness can rehabilitate witness’s credibility by introducing evidence of good character.

Character as an Issue
● When character is “in issue” the character is not being offered to prove facts to be inferred from the character
evidence.
○ Character itself is a consequential fact of a party’s burden as mandated by substantive law.
● Where character or a trait of character is an essential element of a crime, claim or defense, character is “in
issue”
● Where character in criminal or civil cases is the issue, it may be proved by reputation, opinion, or specific
conduct.

Medium of proof
a. Reputation - collective opinion of a particular community in regard to a person’s character or trait.
● Person qualifies as a character witness where:
○ He or she is a member of a pertinent community in which person characterized is known
○ Character witness must know reputation of person sought to be characterized
○ Prepared to testify to such reputation within the community
● Limiting scope of the character witness’s testimony is critical because it will define and limit the scope of
cross-examination by opposing counsel.

b. Opinion - more effective in situations where person is not well known within a community or where community is so large
that individual’s reputation is minimally developed.
● Must be offered through testimony of properly qualified character witness who possesses firsthand bases for
his/her opinion.

● Substantial familiarity is necessary.

c. Conduct - specific instances of conduct are available to prove character only when character is an issue because, as a
general proposition, proof of specific instances of conduct has greatest capacity to arouse prejudice, to confuse, to surprise,
and consume unnecessary time.
● Methodology is reserved for situation where character plays pivotal role in litigation.
● Purpose of limiting cross-examination relating to specific instances is to test the qualifications of the character
witness as to the basis for the reputation or opinion testimony.
● Specific instances of conduct inquired to on cross exam only if 2 criteria satisfied:
○ Instance of conduct must be relevant to the pertinent character trait in question
○ Before a cross-exam, opponent of character witness must satisfy the judge that they are proceeding in
good faith in inquiring in the specific event.
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● Cross examiner must have a good faith basis for contention that event actually occurred.
● Specific instances of conduct, where pertinent and supported by demonstration of good faith, may include, acts,
arrests, and conviction.
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RULE 131: BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTION

Introduction

· Every controversy ultimately resolves itself into this, that certain facts or propositions are asserted by one of the
disputant parties, which are denied, or at least not admitted, by the other. Now, where there are no antecedent
grounds for supposing that what is asserted by one party is more probable that what is denied by the other, and
the means of proof are equally accessible to both, the party who asserts the fact or proposition must prove his
assertion, - the burden of proof, or onus probandi, lies upon him; and the party who denies the fact or proposition
need not give any reason or evidence to show the contrary, until his adversary has at least laid some probable
grounds for the belief in it.

RATIO: On all matters which are not the subject of either of intuitive or sensitive knowledge (not susceptible of
demonstration, or are not demonstrated, and not rendered probable by experience or reason), the mind suspends its
assent until proof is adduced.

· A party’s yoke in a legal suit, borne of the adversarial system, commences from the moment his factual assertion
on a pleading or initiatory paper is disputed by the adversary. As a general proposition, the burden of proof exists
only in connection with a fact in issue.

However, even in the absence of a divergent view from the opposing party in connection with a fact as asserted by
the proponent, burden of proof is not entirely foreclosed.

o Example: When a defendant in a civil case covered by the ordinary procedure, as distinguished from the
summary process, is properly declared in default for failure to file the Answer to the Complaint, the
plaintiff is not necessarily relieved of his duty to reveal evidence in the event the Court exercises its
prerogative to require him to present evidence.

On the other hand, the party having the burden of proving a fact is not required to introduce evidence thereof if the
necessary proof is introduced by his adversary; nor is he under obligation to prove that which is not made an issue in
the case by the pleadings.

· A judicial admission from a party does NOT require proof and to discharge the so-called burden of proof on a
factual issue which has been conceded by the adverse party is a pointless exercise in exegesis.

RATIO: A party who judicially admits a fact cannot later challenge the fact as judicial admissions are a waiver of
proof; production of evidence is dispensed with. The allegations, statements or admissions contained in a pleading
are conclusive as against the pleader. A party cannot subsequently take a position contrary to or inconsistent with
what was pleaded.

NOTE: Facts which are admitted expressly or by implication are not in issue.

Nature of burden of proof and burden of evidence

· Proof is the end result of conviction or persuasion produced by the evidence. When we say a thing is “proved”
we mean that we are convinced by the data submitted that the alleged fact is true.

· Burden of proof; Two Separate burdens of proof

1. Burden of producing evidence

2. Burden of persuading the trier of fact that the alleged fact is true

· Natures of burden of proof

1. Substantive; Examples-

Ø In domestic private law – a custom must be proved as a fact, according to the rules of evidence
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Ø In testamentary succession – on account of presumed sanity of every person, the burden of proof
towards insanity is on the shoulders of the opponent to the probate of the will.

2. Procedural; Examples-

Ø A party who initiates a Motion is obliged to fortify his application for relief through supporting affidavits
and other papers if required by the Rules of Court or necessary to prove facts alleged on the Motion.

Ø In a Petition for Bail in a criminal case – the prosecution has the burden to show that evidence of
defendant’s guilt is strong.

NOTE: This rule extends to jurisdictional facts where they are in issue. Thus, the burden of proving the
requisite jurisdictional amount in controversary rests on the party asserting, not the party assailing it.

· Burden of proof & burden of evidence:

The prosecution’s burden of proof does not shift to the defense but remains in the prosecution throughout the trial,
except in case of self-defense. When the prosecution, however, has succeeded in discharging the burden of proof,
the burden of evidence shifts to the accused making it incumbent upon him or her to adduce evidence in order to
meet and nullify, if not to overthrow, that prima facie case.

Burden of proof Burden of evidence

Duty to convince the fact-finder with sufficient evidence Duty to produce evidence to override the adverse party’s evidence
lest a party will incur the ‘risk of non-persuasion’
Also known as the ‘burden of production’ or the ‘burden of going
Also known as the ‘burden of persuasion’ forward’

Remains throughout the trial with the party upon whom Shifts from party to party depending upon the exigencies of the case
it is imposed; does not shift in the course of the trial

Determined by the pleadings filed by the party Determined by the developments at the trial, or by the provisions of
the substantive law or procedural rules which may relieve the party
from presenting evidence on the fact alleged, i.e., presumptions,
judicial notice and admissions

In both civil & criminal cases – the burden of evidence lies with the
party who asserts an affirmative allegation

In both civil & criminal cases – negative allegations need not be

proved except where such negative allegations are essential parts of
the cause of action or defense, are essential ingredients of the
offense in a criminal case or the defenses thereto.

NOTE: Even if the negative allegation is an essential part of the case,

the same need not be proved if it is only for the purpose of denying
the existence of a document which should be properly be in the
custody of the adverse party.
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Concepts

Sec. 1, Rule 131 – “Burden of proof and burden of evidence – Burden of proof is the duty of a party to
present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence
required by law. Burden of proof never shifts.

Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to
establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the
proceedings, depending on the exigencies of the case.”

· The terms “burden of proof” and “burden of evidence” are now defined under the Revised Rules to clarify that
these two concepts are related but different. Thus, “burden of evidence’ simply means that if a party bears the
burden of evidence with respect to a particular fact in issue, he must come forward with some evidence that the
said fact exists; otherwise, the court will decide against him on that issue as a matter of law.

Onus probandi and quantum of evidence

· The proponent and the opponent must discharge the onus probandi. A mere allegation is not evidence and the
party who alleged a fact has the burden of proving it.

Terms

· The “burden of proof” is the “risk of non-persuasion.” It is the burden of persuading the trier of fact of the
elements of a claim or a defense in accordance with the degree of proof mandated by substantive law
(preponderance of evidence, clear and convincing evidence, or beyond reasonable doubt).

· The “burden of evidence” or the “burden of going forward” is the “burden of production” or the “burden of
producing evidence.” It is the burden to come forward with evidence to avoid an adverse resolution by the judge
that would preempt consideration by the trier of fact of the issue.

The plaintiff

- The party interested in the cause of action and the advocate of the complaint.
- It has the initial obligation to present evidence on the facts in issue involved in a civil case. “In civil cases, the
party having the burden of proof must establish his or case by a preponderance of evidence”.
- The party upon whom is cast the burden of proof is obligated to prove his own case; he is not bound to exclude
by proof any possibility that the occurrence in suit might have happened otherwise than as alleged

EX: A sues B for a sum of money. A bases his claim upon a promissory note. B denies the genuineness and due execution of
the note. The issue then is whether the note is genuine and was duly executed by B. The duty which rests upon A to ultimately
establish the issue by the amount of evidence necessary to constitute preponderance of evidence is called the burden of
proof.

ei incumbit probation qui dicit, non qui negat – he who asserts, not he who denies, must prove.

· It is a well-settled rule that if the plaintiff, upon whom rests the burden of proving his cause of action, fails to show
in a satisfactory manner the facts upon which he bases his claim, the defendant is under no obligation to prove
his exception or defense.

PNB v CA: the burden of proof to show payment lies with the debtor. This rule on the duty of the debtor to prove payment
assumes that the debtor does not enjoy the disputable presumption in Sec. 3i, Rule 131 concerning production by the debtor
of the latest receipt for the rent or installment.

GR: one who pleads payment has the burden of proving it. Even where the plaintiff must allege nonpayment, the GR is that
the burden rests on the defendant to prove payment, rather than on the plaintiff to prove nonpayment.

· An adult male is presumed to have normal powers of virility. The burden to prove otherwise rests upon him who
claims the contrary. In a suit to nullify the marriage between spouses because of the husband’s claim that his
wife’s genital organ was too small to permit copulation, the SC declared that impotency should not be presumed.
The presumption is in favor of potency.

The defendant
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- In a civil case, it is also incumbent upon the defendant to present evidence in support of his defense,
counterclaim, cross-claim, and third-party complaint.
- Must show that he is within the purview of the statute if relied upon as a defense

Sec. 1, Rule 8 of CivPro: If a cause of action or defense relied on is based on law, the pertinent provisions thereof and their
applicability to him or her shall be clearly and concisely stated.

PURPOSE (accdg to Regalado): Ensure clarity. It is in line with the rule that a party must set out with clarity right in his
pleading the matters upon which he intends to rely for his defense. The rationale for this new requirement where the defense
is based on legal grounds is the same as the requirement for stating the ultimate facts where the defense is based on factual
grounds.

- The authorities hold that whoever asserts a claim or defense which is negative in form or depends upon a
negative has the burden of establishing the truth of the allegation. (he who affirms must prove; and in cases
involving negative propositions the court seems to have regarded the form of the issue as material)
- Generally, the defendant has no burden except to produce evidence sufficient to create a state of equipoise
between his proof and that of the plaintiff to defeat the latter.
- Stephen: the burden of proof in any proceeding lies at first on that party against whom the judgment of the court
would be given, if no evidence at all were produced on either side, regard being to any presumption which may
appear upon the pleadings.
- Resort to the allegations of the pleadings must be had to determine which of the parties affirms and generally
they are so framed that the plaintiff is the affirmant or the actor who must take the initiative and assume the
burden of proving the ultimate issue since he it is who seeks to invoke the action of the court in behalf of the first
instance.

In an action for tort: the burden is on the plaintiff, in the first instance to prove the defendant’s wrongful conduct, as alleged
by him, his own injury proximately caused thereby, and the damages suffered by him. This includes the burden of proving
negligence in every action where negligence is an essential element of the cause of action, and also the burden of proving
malice where this is an essential element or is relied upon the augment actual damages.

· Bad faith should be established by clear and convincing evidence.

· Settled rule is that the law always presumes good faith. In property law, good faith is always presumed, and upon
him who alleges bad faith on the part of the possessor rests the burden of proof.
· In the absence of any evidence on either side, the plaintiff must fail in his action. An XPN exists where the
defendant, admitting the allegations, sets up an independent defense. In this case the defendant takes the
initiative and becomes the actor – that which he affirms the truth of the plaintiff’s allegations he relives the latter
of the burden of proving them.

In extradition proceedings: the person who is in custody has the burden of showing that he is not the person who has
committed the offense in question.

Equipoise

- If the evidence in a case is evenly balanced, it must be decided against the party who has the burden of proof for
the case is found in exactly the same position at the conclusion as it was at the beginning.
- In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on either side.
Such party must establish his case by a preponderance of evidence, which means that the evidence as a whole
adduced by one side is superior to that of the other.

PEOPLE v BENEMERITO: Equipoise provides that where the evidence of the parties in a criminal case is evenly balanced,
the constitutional presumption of innocence should tilt the scales in favor of the accused. No equipoise if the evidence is not
evenly balanced.

The prosecution

- Must prove the guilt of the accused beyond a speck of reasonable doubt to ensure conviction (constitutional and
statutory presumption of innocence enjoyed by every defendant in a criminal case)

CJ Shaw of Massachusetts (on the trial of Dr. Webster for the murder of Mr. Parkman): Reasonable doubt is that state of
the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition
that they cannot say that they feel in abiding conviction, to a moral certainty, of the truth of the charge. The evidence must
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establish the truth of the fact to a reasonable and moral certainty. It is to be applied not to specific detailed facts but only to the
whole issue.

- Proof beyond reasonable is not always expected of the People in every stage of the criminal actions since only
sufficient or reasonable ground of belief that a crime has been committed and that the accused is probably guilty
thereof will authorize the institution by the public prosecutor of the criminal indictment.
- Only probable cause is needed to justify issuance of the warrant of arrest or search warrant by the judge in a
criminal case.
- To effect a citizen’s arrest sans a warrant of arrest prior to the filing of the corresponding information, it is enough
that the person making the apprehension acted on probable cause to believe, based on personal knowledge of
facts or circumstances, that the person arrested has committed the offense.

Negative allegation

GR: if a criminal charge is predicated on a negative allegation, or that a negative averment is an essential element of a crime,
the prosecution has the burden to prove the charge.

XPN: where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the
knowledge of the accused, the onus probandi rests upon him.

- It is not incumbent upon the prosecution to adduce positive evidence to support a negative averment the truth of
which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the
production of documents or other evidence within the defendant’s knowledge or control.

EX: where a charge is made that a defendant carried on a certain business without a license, the fact that he has a license is a
matter which is peculiarity within his knowledge and he must establish that fact or suffer conviction.

- As a GR, the omission by a party to produce important testimony relating to a fact which he has knowledge, and
which is peculiarly within his own reach and control, raises the presumption, open to explanation, of course, that
the testimony, if produced, would be unfavorable to him. And so the onus probandi is on the party who wishes to
support his case by a particular fact which lies more peculiarly within his knowledge, or of which he is supposed
to be cognizant.

Affirmative defense

- The burden of proving affirmative defenses is upon the defendant.

- Defendant has the burden of proving the fact of exculpation (as in cases of self-defense, proof of provocation,
accidental discharge of firearm, former jeopardy, insanity, lawful possession of dangerous drugs, and the theory
of the consensual carnal knowledge).

SUMMARY

· The party who would be defeated in a civil case if no evidence were given on either side has the burden of proof in
civil cases.
· In criminal cases, burden of proof is generally on the prosecution. In civil cases, the burden of proof is generally on
the plaintiff, with respect to his complaint; on the defendant, with respect to his counterclaim; and on the
cross-claimant, with respect to his cross-claim.
· In proceedings before administrative or quasi-judicial agencies, only substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion will suffice.

EX: it is the employer which has the burden of proof to establish the validity of the dismissal of the employee and failure to do
so inevitably results in a finding that the dismissal is unjustified. (gives flesh and blood to the guaranty of security of tenure
granted the EE by the Constitution and the Labor Code)

Interplay of a presumption, judicial notice and judicial admission

- Among matters which do not require proof include facts that were recognized by the court through judicial notice
and those facts judicially conceded by the adverse party. A presumption can also dislodge the necessity of
evidence on a factual matter.
- Judicial notice and a judicial admission do not require presentation of any evidence while a presumption expects
introduction of evidence for the factual foundation to trigger the presumption.
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- In the case of a presumption, the proponent still has to introduce evidence of the basis of the presumption, that
is, he has to introduce evidence of the existence or nonexistence of the facts from which the court can draw the
inference of the fact in issue.

JONES: before the presumption can be indulged there must be evidence of the basic facts which give it birth, and if the
evidence is conflicting as to the basic facts the jury must first find the basic facts before the assumption of fact can be made.
Presumptions are not admissible, except when the facts from which they are deduced are fully proved.

CONCEPTS

a.) Presumption

- Is an inference of the existence or nonexistence of some fact which courts are required or permitted to draw from
the proof of other facts.
- Inference which common sense, enlightened by human knowledge and experience, draws from the connection,
relation, and coincidence of facts and circumstances with each other.
- Inference required by a rule of law to be drawn as to the existence of one fact from the existence of some other
established basic fact.
- Such rules usually grow out of experience which has demonstrated the natural connection between the basic
and the assumed facts. But sometimes such rules are based on expediency with little relationship to the
probative value of the established fact to support the fact assumed.

CHAMBERLAYNE: presumption as a term which is used to signify that which may be assumed without proof, or taken for
granted. It is the self-evident result of human reason and experience.

Hizon v. People: To avoid any constitutional infirmity, the inference of one from proof of the other must not be arbitrary and
unreasonable. In fine, the presumption must be based on facts and these facts must be part of the crime committed.

● In the case of Hizon, the Supreme Court emphasized that an inference must be based on proof of a fact.

b) Inference

● An inference is a permissible deduction or induction that the trier of fact may draw from facts that are established
according to the rules of evidence.

● An inference is typically based on logic or common human experience, and it is the essential component of
circumstantial proof.

NOTE: Since a presumption must be anchored on a fact, it can not arise from a mere inference or from another presumption.
Also, under the last paragraph of Section 4, Rule 133 of the Revised Rules, an inference can not be based on another
inference.

● Fundamental characteristic of a presumption as distinguished from inference: A presumption affects the

duty of producing further testimony, not merely the weight of that already produced.

COLLISION OF PRESUMPTIONS

● Section 5, Rule 131 referred to presumptions in civil actions and proceedings.

“In all civil actions and proceedings not otherwise provided for by the law or these Rules, a presumption imposes
on the party against whom it is directed the burden of going forward with evidence to rebut or meet the
presumption.”
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● Under its second paragraph, it addressed the problem of inconsistent presumptions and the neutralizing effect of
coeval inferences:

“If presumptions are inconsistent, the presumption that is founded upon weightier considerations of policy
shall apply. If considerations of policy are of equal weight, neither presumption applies.”

NOTE: The proposed amendment clarifies that presumptions should affect only the burden of evidence or production. This
“bursting bubble” approach to presumptions says that a presumption disappears where sufficient counterproof is introduced.

The second paragraph of the amendment is taken from the Uniform Rules on Evidence. In People v. Godoy, the Supreme
Court has held that in case of conflicting presumptions, it is necessary to examine the basis for each presumption and
determine what logical or social basis exists for each presumption, and then determine which should be regarded as the more
important and entitled to prevail over the other.

Eugenio v. CA: Once certain facts are proven, from which a disputable presumption arises against the adverse party, the
burden of evidence to overcome the presumption shifts to the latter.

Republic vs. Sereno: Once the plaintiff or complainant has established his case by prima facie evidence, the burden of
evidence shifts to the defendant or respondent, who in turn, has the burden to establish his defense.

➔ Prima Facie Evidence: Evidence which is good and sufficient on its face. It is evidence which, if unexplained or
uncontradicted, is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted
by other evidence.

➔ In cases involving the requirement of filing the SALN, a certification duly issued by the official custodian that no
SALN is on file in the custodian’s office constitutes prima facie proof of non-filing of the SALN. Such certification
satisfies the burden of proof and shifts the burden to the government employee to prove otherwise.

NOTE: Two conflicting presumptions cannot at the same time arise from the same set of facts. When two presumptions
conflict, the stronger one will prevail. The relative weight of conflicting presumptions is for the court to decide.

● Presumptions do not change the burden of proof in its primary sense. A disputable presumption of law, being
sufficient to establish a prima facie case upon the point involved, shifts the burden of proof in its secondary
sense of proceeding with evidence.

PURPOSE OF PRESUMPTIONS

➔ They are aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of
some given inquiry. They may be grounded on general experience, or probability of any kind, or merely policy
and convenience.

➔ They operate in advance of argument or evidence, or irrespective of it, by taking something for granted, by
assuming its existence.

KINDS OF PRESUMPTIONS
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(According to Chief Justice Moran)

1. Presumption juris or of law.

2. Presumption hominis or of fact.

NOTE: According to Best, there is a third kind of presumption. That is “mixed presumptions” or presumptions of mixed law and
fact.

● Presumption juris: a deduction which the law expressly directs to be made from particular facts. It need not be
pleaded nor proved if the facts on which it is based is duly averred and established.

○ Example: Article 1756 of the NCC states that in a contract of carriage, it is presumed that the common
carrier was at fault or was negligent when a passenger dies or is injured. (The court need not even
make an express finding of fault or negligence on the part of the common carrier.)

● Presumption hominis: a deduction which reason draws from the facts proved without an express direction of
law to that effect.

CONSTITUTIONALITY OF PRESUMPTIONS

● The validity of laws establishing presumptions in criminal cases is a settled matter.

● The legislature has the power to provide that proof of certain facts can constitute prima facie evidence of the
guilt of the accused and then shift the burden of proof to the accused provided that there is rational connection
between the facts proved and the ultimate fact presumed.

● To avoid constitutional infirmity, the inference of one form proof of the other must not be arbitrary and
unreasonable. The presumption must be based on facts and these facts must be part of the crime when
committed.

PRESUMED CONSTITUTIONALITY OF A LAW

● Presumption: The legislature intended to enact a valid, sensible, and just law and one which operates no further
than may be necessary to effectuate the specific purpose of the law.

EFFECTS OF A PRESUMPTION

1. Thayer’s view or Bursting Bubble Theory

➔ When a presumption arises after the establishment of the basic facts, its only procedural effect is to shift
the burden of producing evidence to the opponent.

➔ The opponent must meet the shifted burden, but he does not bear the ultimate burden of convincing the
trier of fact of the nonexistence of the presumed fact.

➔ The only effect of a presumption is to shift the burden of producing evidence with regard to the
presumed fact. If the evidence is produced, the presumption disappears.

2. Morgan’s view or Pennsylvania Rule

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➔ Treats the presumption as placing upon the opponent not only the burden of meeting the risk of a
directed verdict against him by introducing evidence to rebut the presumption, but in addition, the
burden of persuasion to overcome it with that quality of proof which the situation requires.

JONES’ VIEW:

● While other authors state that there is a discrepancy between a presumption of law and a presumption of fact,
there is actually no disparity in the mind of Jones.

● He considered the true presumptions as generally divided into two classes: conclusive and disputable.

Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to
believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration,
act or omission, be permitted to falsify it:

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord
and tenant between them. (3a

Conclusive presumption of cognition of the law

Art. 3, New Civil Code - conclusive presumption of knowledge of the law in Article 3 of the New Civil Code. Indeed, ignorance
of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat.

But mistake upon a doubtful or difficult question of law may be the basis of good faith in paragraph 3, Article 526 of the New
Civil Code, 116 and it can serve as a defense except in crimes which are mala prohibita.

Conclusive accuracy of the enrolled bill

Under the "enrolled bill doctrine," the signing of a bill by the Speaker of the House and the Senate President and the
certification of the Secretaries of both Houses of Congress that it was passed is conclusive not only as to its provisions but
also as to its due enactment.

Conclusiveness of judgment

Under the rule of conclusiveness of judgment, a variant of res judicata, matters settled in that final order already assumed
binding and conclusive effect on the parties and successors in interest in the same case, and can no longer be disturbed or
relitigated in any future lawsuit between them.

Concepts

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any
contrary proof however strong. It denotes what is more properly considered a rule of substantive law as opposed to an
evidentiary, procedural device. For example, when the law declares that a child less than seven years is incapable of
committing a felony, such a rule forecloses the legal questions involved.

Conclusive or absolute presumptions of law are rules determining the quantity of evidence requisite for the support of any
particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. In this connection, the trend
of modern authorities, both commentators and courts, is to treat so called conclusive presumptions of law as rules of
substantive law, and not as presumptions at all.

Disputable presumptions are those presumptions which may be disputed, opposed, refuted or rebutted. Such presumptions
continue until overcome by proof to the contrary or by some stronger presumption. A rebuttable presumption is an inference
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that the law requires the trier of fact to make where the prerequisite base facts have been established and where no contrary
evidence has been produced.

Estoppel

Estoppel is a bar which precludes a person from denying or asserting anything to the contrary of that which has, in
contemplation of law, been established as the truth, either by the acts of judicial or legislative officers or by his own deed or
representation, either express or implied. It concludes the truth in order to prevent fraud and falsehood, and imposes silence
on a party only when in conscience and honesty he should not be allowed to speak.

The principle of estoppel would step in to prevent one party from going back upon his own acts and representation to the
prejudice of the other party who relied upon them. But a party who had no knowledge of nor gave consent to a transaction may
not be estopped by it.

Basis of estoppel

The doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith and justice, and its purpose is to
forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and
who reasonably relied thereon.

Elements of estoppel

In relation to the party sought to be estopped:

1) a clear conduct amounting to false representation or concealment of material facts or, at least, calculated to
convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently
attempts to assert;

2) an intent or, at least, an expectation, that this conduct shall influence, or be acted upon by, the other party; and

3) the knowledge, actual or constructive, by him of the real facts.

With respect to the party claiming estoppel:

1) lack of knowledge or of the means of knowledge of the truth as to the facts in question;

2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and

3) action or inaction based thereon of such character as to change his position or status calculated to cause him
injury or prejudice.

The principle of estoppel does not generally operate against the Government for the acts of its agents.

Landlord-tenant relation

The second angle of a conclusive presumption is that which transpires between a landlord and a tenant.

A person who rents a property from another is not permitted to deny the latter's title at the time the lease begun. As a
tenant, he knows fully well that the land or property he rents is not his. It is a familiar rule in the law of landlord and tenant that
one who as tenant has entered into the possession of land under the permission of his landlord will not be permitted to prove,
while in such possession, that his landlord had no title. The relation of landlord and tenant having once been established, all
who may succeed the tenant, immediately or remotely, are affected thereby; the succeeding tenant is as much affected by the
acts and acknowledgments of his predecessor as though they were his own.

In Geminiano vs. Court of Appeals, it was emphasized that estoppel applies even though the lessor had no title at the time
of the relation of lessor and lessee was created and may be asserted not only by the original lessor but also by those who
succeed to his title.
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If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the
presumption will not apply. Hence, the tenant may show that the landlord's title has expired or been conveyed to another or
himself; and he is not estopped to deny a claim for rent if he has been ousted or evicted by title paramount.

DISPUTABLE PRESUMPTIONS (Sec. 3, Rule 131)

· A disputable presumption in Section 3, Rule 131 can be sufficient by itself to maintain the proposition affirmed unless
refuted by the adverse party against whole the inference is invoked.

· In other words, the presumption subsists until it is overcome by:

a. evidence or
b. some stronger presumption.

(a) That a person is innocent of crime or wrong

· Presumption of innocence

· In civil cases, the defendant is presumed to be innocent of the wrong charged until the contrary is proved by
preponderance of evidence.

· The presumption includes that of good faith, fair dealing, and honesty.

· Where two alternatives or probabilities arise from the evidence, that which is compatible with the presumption of
innocence will be adopted.

(b) That an unlawful act was done with an unlawful intent

· Presumption of unlawful intent from an unlawful act

· Criminal intent and the will to commit a crime are always presumed to exist on the part of the person who executes
an act which the law punishes unless the contrary shall appear.

(c) That a person intends the ordinary consequences of his or her voluntary act

· Presumed intention of consequences from a voluntary act

· Borne of the theory of proximate cause, if the felonious act that results is different from the intended crime, there is
still criminal liability:
a. If the former is a logical and natural outcome of the latter and
b. if there is no efficient intervening cause.

· Jones: With respect to consequences of acts intended, men of sound mind are presumed to intend the natural and
necessary consequences of such acts which they intentionally perform.

· Greenleaf: A sane man is conclusively presumed to contemplate the natural and probable consequences of his own
acts.

(d) That a person takes ordinary care of his or her concerns

· Presumed exercise of case

· It is presumed that every person will take ordinary care of his concerns, without prejudice to the court’s vigilance for
the exercise of protection to those who can hardly look after themselves by reason of moral dependence, ignorance,
indigence, mental weakness, tender are or other handicap.

· The presumption proceeds from the broader one that all men at properly, lawfully, and rightfully until the contrary is
proved.

(e) That evidence willfully suppressed would be adverse if produced

· Obstinate suppression of evidence

· Section 3(e) is an extension of presumed malice.

· Before the presumption may arise, it is necessary that:

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a. The evidence is material,
b. The party had the opportunity to produce and present the evidence, and
c. The evidence is available only to such party.

· It is inapplicable where the evidence was at the disposal of both the defense and the prosecution and would have the
same weight against one party as against the other or if the testimony of the witness not produced would only be
corroborative

· Original Document Rule: The unjustified non-production of the original can give rise to the presumption of
suppression of evidence.

· Force of the presumption: The presumption cannot be regarded as equivalent to an affirmative proof of the facts on
which the other party stands although it may incline the preponderance of evidence in cases in which the evidence is
closely balanced.

· Fabrication and spoliation of evidence: When a party resorts to falsehood or fraud in order to strengthen his
evidence, it is presumed that he knows perfectly well that his cause is groundless. This presumption affects the whole
mass of evidence presented by such part.

Payment of money, delivery of a thing or obligation, and production of latest receipt

· Presumptions in Sections (f), (g), (h), and (i) are intertwined for they refer to conduct indicative of payment not just
fulfillment of a prestation or realization of the purposes for which they were constituted.
· As defined in Article 1232 of the NCC, payment means not only the delivery of money but also the performance, in
any other manner, of an obligation. It is a juridical act which is voluntary, licit, and made with the intent to extinguish
an obligation.

(e) That money paid by one to another was due to the latter

· Money paid

· Obligation has been discharged: While the payment of a debt, except under special circumstances is ordinary not
presumed, the courts have recognized an exception where a long period of time, customarily twenty years, is shown
to have elapsed since the indebtedness accrued, without recognition by the debtor within that time. Justified by public
policy.

DELIVERED THING

- Where a person is shown to be in possession of property, such possession is presumed to be rightful.

- Ratio: Rightful owners are not likely to permit their property to remain in continued possession of others.
- Possession is prima facie proof of title.
- In Philippine substantive law, actual possession under claim of ownership raises a disputable presumption of
ownership. Therefore, to recover the property, the true owner must resort to judicial process.
- The possession must be actual and not constructive.
- The possession must be hostile in its inception, and exclusive; and it must continue uninterruptedly under a claim
of right x x x.
- Sec. 47 of P.D. No. 1529: No title to registered land in derogation of the title of the registered owner shall be
acquired by prescription or adverse possession.
- GR: Title to property is indefeasible
- XPN: Laches can bar recovery of property.

DELIVERED OBLIGATION

- In the ordinary course of business, an obligation delivered up to the debtor is presumed to have been paid.
- Corollary, possession of the creditor of the document acknowledging indebtedness raises the presumption that
the debt is not yet paid.
- It shifts the burden of overcoming the presumption to the other party.
- Example of where the presumption was overcame: the creditor sent the instrument of indebtedness to the debtor
for the sole purpose of collecting the account and not for the debtor to keep the instrument.
- NCC related provisions:
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Article 1176. The receipt of the principal by the creditor without reservation with respect to the interest, shall give rise
to the presumption that said interest has been paid.

The receipt of a later installment of a debt without reservation as to prior installments, shall likewise raise the
presumption that such installments have been paid. (1110a)

Article 1271. The delivery of a private document evidencing a credit, made voluntarily by the creditor to the debtor,
implies the renunciation of the action which the former had against the latter.

If in order to nullify this waiver it should be claimed to be inofficious, the debtor and his heirs may uphold it by proving
that the delivery of the document was made in virtue of payment of the debt. (1188)

Article 1272. Whenever the private document in which the debt appears is found in the possession of the debtor, it
shall be presumed that the creditor delivered it voluntarily, unless the contrary is proved. (1189)

CURRENT RECEIPT

- Production by the proponent of the latest receipt will give rise to the assumption of payment of previous rent or
installment, unless the prior installment is payable in a separate contract.

PRESUMED DOER OF THE THING AND ASSUMPTION OF OWNERSHIP

- Criminal law: when a property stolen is found in possession of a person who is unable to give satisfactory
explanation of his possession, he may be deemed to have committed the crime of theft of said property.
- Ratio: Men who come honestly into the possession of property have no difficulty in explaining the method by
which they came into such possession.
- If there is evidence of violence or intimidation, the crime is robbery.

PRESUMPTION OF REGULARITY

- In the absence of proof to the contrary, it is proper to indulge a presumption that in their business and social
relations all persons act honestly.
- Even in the absence of a written appointment to a public office, a presumption arises that the public officer was
duly appointed or equipped with the requisite qualification.
- Ratio: It would cause great inconvenience if, in the first instance, strict proof were required of appointment or
election to office.
- Ratio: For the purpose of strengthening the infirmity of evidence and upholding transactions intimately connected
with the public peace and security of private property.
- Rule on the Writ of Amparo: cannot invoke the presumption that official duty has been regularly performed to
evade responsibility or liability.
- The same presumption applies in judicial proceedings in order to ensure expediency. This is why there is also a
presumption that all matters within an issue have bene tackled by a court or arbitrator.
- In cases under RA 9165:

à Non-compliance with the procedural safeguards would not necessarily void the seizure as long as there is justifiable
ground for it and the integrity and evidentiary value of the seized items are properly preserved.

à The Chain of Custody Rule is a matter of substantive law.

People v. Macaspac citing People v. Cabiles

The direct account of law enforcement officers enjoy the presumption of regularity in the performance of their duties.
It should be noted that unless there is clear and convincing evidence that the police officers were inspired by any
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improper motive or did not properly perform their duty, their testimonies on the operation deserve full faith and credit.
Thus, unless the presumption is rebutted, it becomes conclusive x x x

- Presumption of regularity as applied in private transactions:

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place
where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(z) That persons acting as copartners have entered into a contract of co-partnership;
(ff) That the law has been obeyed;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually
conveyed it to him or her when such presumption is necessary to perfect the title of such person or his or her
successor in interest;

New Civil Code

Article 1354. Although the cause is not stated in the contract, it is presumed that it exists and is lawful, unless the
debtor proves the contrary. (1277)

Negotiable Instruments Law

Sec. 24. Presumption of consideration. - Every negotiable instrument is deemed prima facie to have been issued
for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for
value.

Sec. 11. Date, presumption as to. - Where the instrument or an acceptance or any indorsement thereon is dated,
such date is deemed prima facie to be the true date of the making, drawing, acceptance, or indorsement, as the case
may be.

Sec. 45. Time of indorsement; presumption. - Except where an indorsement bears date after the maturity of the
instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue.

Barrameda v. Castillo

"there must be clear proof of compliance with the postal regulations governing the sending and receipt of the notice x
xx“

Presumption of absence and death as against continuity of life or existing state of a thing

o Prior to, and for validity of, a subsequent marriage, it is imperative for the spouse present to institute a summary
proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse (Article 41, NCC). This provision was designed to protect the present spouse
from the felony of bigamy under Article 349 of the Revised Penal Code since the judicial declaration of
presumptive death will establish good faith of the present spouse in contracting a subsequent marriage.

o Manuel v. People- 1) The phrase 'or before the absent spouse has been declared presumptively dead by means of
a judgment rendered on the proceedings' in Article 349 of the Revised Penal Code was not an aggroupment of
empty or useless words; 2) The requirement of judicial declaration is also for the benefit of the State. Under
Article II, Section 12 of the Constitution, the 'State shall protect and strengthen the family as a basic autonomous
social institution; 3)
On marriage, the parties (two willing spouses and an approving State) assume new relations to each other and the
State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to
innocent parties and to society, are so serious that the law may well take means calculated to ensure the
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procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent
spouse after the lapse of the period provided for under the law.

o In a situation of ordinary absence under the first two subparagraphs of Section 3(w), Rule 131 of the
Revised Rules on Evidence, the absentee is presumed to have died at the end of each corresponding
period but in qualified absence involving the three instances of peril, the absentee is presumed to have
died at the start of the four-year period.

o There is an inference of continuity of life or existence of an individual in Section 3(ee), Rule 131 of the
Revised Rules on Evidence.

o When a person is shown to have been living at a given time, the continuance of life will be presumed
unless the contrary is proved or is to be inferred from the nature and circumstances of the case.

o Bagaporo vs. People reiterated the doctrine in the case of Manuel v. People

Acquiescence

o There is acquiescence where a principal, with knowledge of all the facts, adopts the acts of his agent,
although his acts were contrary to his duties and instructions; and if the principal, after being informed of
what his agent has done, does not dissent or give notice of disapproval within a reasonable time, he will
be presumed to have acquiesced in what the agent has done.

o Spouses Hanopol v. Shoemart, Inc.- Petitioners failed to explain their failure to question or take action
regarding any discrepancies in the Statement of Account (SOA) they received so they are deemed to
have admitted the correctness of the SOA.

o People us. Victoria - the failure of a co-accused-appellant to refute what was imputed as complicity to a
crime created presumption of acquiescence to the fact alluded to the appellant.

Ordinary course of nature and habits of life

o Normality is presumed in all things and particularly in human affairs.

o Examples:
1) When a person who is fired at by means of a rifle, stumbles down as a result of the shot, and immediately
thereafter dies, nobody ever doubts, as no one has ever doubted, that the victim is killed by the shot and not
by something else;

2) A woman's virginity is presumed whenever it is shown that she is unmarried and continues until
overthrown by proof to the contrary;

3) or instance, goods were delivered in good order and condition to W, carrier, who at the end of his route placed them in the
hands of N, another carrier. At the end of N's route the goods were found to be in a damaged condition. The presumption is
that N received the goods in good condition, and the burden is upon him to show the contrary.

Presumed co-partnership

➢ By contract of partnership 2 or more persons bind themselves to contribute money, property, or industry to a
common fund, with the intention of dividing the profits among themselves. 2 or more persons may also form a
partnership for the exercise of a profession.
➢ Where several persons carry on the same business together, they are presumed to be partners.
➢ Greenleaf > facts being less known to plaintiff is sufficient for him to prove that they (defendants) acted as
partners, and by their habit and course of dealings, conduct and declaration, they have induced those with whom
they have dealt to consider them as partners.
○ If it appears that 2 persons have in many instances traded jointly, that will be prima facie evidence of a
general partnership.
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➢ Partnership is not necessarily co-ownership.
○ Jaranilla v. Jaranilla -
■ There is co-ownership when an undivided thing or right belongs to different persons.
■ It is a partnership when 2 or more persons bind themselves to contribute money, property, or
industry to a common fund, with the intention of dividing the profits among themselves.
■ Co-ownership or co-possession does not itself establish a partnership, whether such
co-owners or co-possessors do or do not share any profits made by the use of the property.
■ Sharing of gross returns does not of itself establish a partnership, WON the persons
sharing them have joining or common right or interest in any property from which the returns
are derived.
○ Aside from the circumstance of profit, the presence of other elements constituting partnership is
necessary, such as the clear intent to form a partnership, existence of a juridical personality
different from that of the individual partners, and freedom to transfer or assign any interest in the
property by one with the consent of the others.
○ Isolated transaction where 2 or more persons contribute funds to buy certain real estate for profit in the
absence of other circumstances showing a contrary intention cannot be considered a partnership.
○ Persons who contribute property or funds for a common enterprise and agree to share the gross returns
of that enterprise in proportion to their contribution, but who severally retain the title to their respective
contribution, are not rendered partners.
■ No common stock or capital and no community of interest as principal proprietors in the
business itself which the proceeds derived.
○ Joint purchase of land, by two, does not constitute a co-partnership; nor does an agreement to share
profits and losses on sale of land create partnership; parties are only tenants in common.
➢ To constitute a partnership, there must be; (a) intention to form the same; (b) generally participating in both
profits and losses; (c) and such a community of interest, as far as third persons are concerned as enables
each party to make contract, manage business, and dispose of the whole property
➢ A corporation can enter into a joint venture which is akin to a particular partnership.
○ While corporation cannot generally enter into a contract of partnership unless authorized by law or its
charter, it has been held that it may enter into a joint venture akin to a particular partnership.
○ Main distinction: partnership contemplates a general business with some degree of continuity, while
joint venture is formed for the execution of a single transaction, and is temporary in nature.
○ PH SC> although corporation cannot enter into a partnership contract, it may however engage in a joint
venture with others.

Presumptions involving marital relation and cohabitation

● Sec. 3(aa), (bb), (cc), and (dd) Rule 131 RRE concerns marital relation and couple who live together.

Marriage

● Sec. 3(aa) presumes that a man and a woman who live as husband and wife and have a joint household are
married rather than living in transgression of the law.
● Vda de Jacob v. CA > clarified that inability to transmit the marriage contract for record purposes will not
invalidate the marriage, especially so when it is the solemnizing officer who is supposed to cause the delivery of
the contract to the civil registry.
● Persons dwelling together in apparent matrimony are presumed, in the absence of any counter presumption or
evidence special to the case, to be in fact married.
○ Reason> such is the common order of society and if parties were not what they thus hold themselves
out as being, they would be living in the constant violation of decency and of law.
● Presumption > man and woman deporting themselves as husband and wife have entered into a lawful contract
of marriage.
○ Semper praesumitur pro matrimonio - always presume marriage.
● Public policy is towards preservation and protection of marriage and home and that is why validity of
marriage is assumed to be valid.
○ Every reasonable presumption is indulged in favor of the validity of the marriage.
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○ Logical extension of the rule that a married man who lives with his wife and family is presumed to
intend that marital relationship shall continue until its dissolution by death.
● Jones > where spouses separated and one of them is cohabiting with another person as husband and wife, in
favor of innocence it may be presumed, in absence of evidence, that prior marriage has been dissolved by
death or divorce, and even that a divorce decree has been recorded in conformity with law.
○ No absolute presumption as to dissolution of marriage in such circumstances.
○ Each case must be determined in view of its own facts and inferences as should be reasonably drawn
from them.
● Where person is shown to have been previously married, there is a strong presumption that previous
marriage was dissolved and 2nd marriage is valid.
● While there is also presumption of continuation of 1st marriage, in the absence of proof of its dissolution,
presumption in favor of validity of 2nd marriage relationship is stronger and 1st presumption will yield to
the latter.

Cohabitation

➢ Aside from cohabitation, general reputation must also exist.

○ Both cohabitation and reputation must concur in order to raise presumption of marriage.
➢ Where presumption of marriage has been created by proof of cohabitation and repute, it is not to be lightly
repelled.
○ On contrary, presumption is of great weight.
○ Semper praesumitur pro matrimonio (presumption is always in favor of the validity of marriage)
■ Especially true in case of legitimacy. Law presumes morality and not immorality, marriage
and not concubinage, legitimacy and not bastardy.
➢ Persons dwelling together in apparent matrimony are presumed, in the absence of any counter presumption or
evidence special to the case, to be in fact married.
○ Reason: such is the common order of society, and if parties were not what they hold themselves out as
being, they would be living in the constant violation of decency and of law.
➢ However, if shown that during cohabitation one alleged spouse was living with another, no presumption of
marriage arises in either case.
○ Where relation between man and woman who have lived together is shown to have been illicit in its
commencement, it is presumed to have been continued in the absence of evidence showing an
intent on the part of the parties to live in a state of marriage and not in illicit intercourse.

Presumption on property system of unions without marriage

● Sec. 3(bb) Rule 131 presupposes that property obtained by common-law relationship where parties are
capacitated to marry each other or under a void marriage, were obtained by their joint efforts.
○ When a man and woman capacitated to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under void marriage, their wages and salaries
shall be owned by them in equal shares and property acquired by both of them through their work or
industry shall be governed by the rules on co-ownership.
○ Absent proof to contrary, properties acquired while living together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be owned by them in equal shares.
■ Party who did not participate in the acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in
the car and maintenance of the family and of the household.
○ Neither party can encumber or dispose by acts inter vivos or his or her share in the property acquired
during cohabitation and owned in common, without the consent of the other, until after the
termination of their cohabitation.
○ When only one of the parties to a void marriage is in good faith, the share of the party in bad faith
in the co-ownership shall be forfeited in favor of their common children.
■ In case of default of or waiver by any or all of the common children or their descendants, each
vacant share shall belong to the respective surviving descendants.
■ Absent descendants, share shall belong to the innocent party.
■ In all cases, forfeiture shall take place upon termination of cohabitation.
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● If incapacity to contract marriage exists in a state of cohabitation, assumption is that property, acquired through
joint contribution of money, property or industry, arose from equal contribution in Sec. 3(cc), Rule 131 RRE
● Art. 148 FC > co-ownership refers only to what each party actually contributes through their industry and
the parties will own the property in proportion to their contributions which contributions and shares are, in
the absence of proof to the contrary, presumed equal.
○ Rule applies to joint deposits of money and pieces of evidence of credit.
● In case of cohabitation not falling under preceding article, only properties acquired by both parties through
actual joint contribution of money, property, or industry shall be owned by them in common in proportion
to their respective contributions.
○ Absent proof to contrary, contributions and corresponding shares are presumed equal.
○ Same rule and presumption shall apply to joint deposit of money and evidence of credit.
● If one party is validly married to another, his/her share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid marriage.
● If party who acted in bad faith is not validly married to another, his/her share shall be forfeited.
○ Foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Presumption over a child in successive marriages

● Sec. 3(dd) Rule 131 RRE is similar to Art. 168 FC and both refer to a woman who, within 300 days after
termination of marriage, would contract another marriage and then gives birth to a child, creating a problem of
determining whether child is of the previous or subsequent marriage.
● Sec. 3(jj) > presumption of survivorship drawn from probabilities utilizing strength and age of sexes, if no
evidence to show who died first among 2 or more persons who perish in the same calamity save for the
purpose of succession.
● Anent presumption of succession of survivorship, if there is uncertainty between 2 persons called to succeed
each other, as to which of them died first, whoever alleges death of one prior to the other must prove it.
○ Otherwise, Sec. 3(kk), presumes both of them died at the same time and in Art. 43 NCC, there shall
be no transmission of rights from one to the other.
● Justice Regalado > compared rule on survivorship with concept of simultaneity in deaths among persons
called to succeed each other.
○ Par. kk v. Par. jj
■ Par. kk > not required that parties perished in a calamity and only applies in questions of
successional rights.
● Provides presumption of simultaneity in deaths of persons called to succeed each
other.
■ Par. jj > applies only where deaths occurred during a calamity and applies to cases not
involving successional rights.
● Provides presumptions of survivorship.

No Presumption of Legitimacy or Illegitimacy

● Sec. 4 Rule 131 > “No presumption of legitimacy or illegitimacy of a child born after 300 days following
dissolution of marriage or separation of spouses. Whoever alleges legitimacy or illegitimacy of child must
prove their allegation.”
● Proviso should properly apply when termination of marriage is by reason of causes other than the death of
the husband.
○ Prof. Nolledo > Art. 169 of FC can be considered an exception to the basic rule in Art. 164 that
children conceived or born during the marriage of parents are legitimate.

PRESUMPTION AGAINST AN ACCUSED IN CRIMINAL CASES

SECTION 6, RULE 131 – Presumption against an accused in criminal cases- If a presumed fact that establishes guilt, is an
element of the offense charged, or negates a defense, the existence of the basic fact must be proved beyond reasonable
doubt and the presumed fact follows from the basic fact beyond reasonable doubt.
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Sec 6- designed to deal with a situation in a criminal case where the prosecution relies solely upon a presumption to establish
guilt or the element of a crime and not any other evidence. Court may view the presumption as conclusive or as shifting the
burden of proof.

Committee notes - McCormick

Instructing the Jury on Presumptions- Unless a presumption is strong enough to meet stringent test for mandatory
presumptions, the trial judge must use caution in charging the jury so as to place no burden whatsoever on the defendant.

Whenever the existence of a presumed fact is submitted to the jury, the court shall instruct the jury that it may regard the basic
facts as sufficient evidence of the presumed fact but it is not required to do so. If the presumed fact establishes guilt or is an
element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all evidence, must be
proved beyond reasonable doubt.

The prosecution could not rest its case entirely on a presumption unless the facts proved were sufficient to support the
inference of guilt beyond reasonable doubt. Therefore, where the prosecution relies solely upon a presumption and not on any
other evidence, not only must the presumed fact flow beyond reasonable doubt from the basic facts, but the jury must be able
to find the basic facts beyond reasonable doubt.

A basic fact requires proof beyond reasonable doubt before the presumed fact can establish guilt. For instance, proof of
demand by a duly authorized officer to account for public funds or property in custody of a public officer, plus inability to do so,
shall be the prima facie evidence of malversation in ART 217 of the RPC.

Once the basic facts are established, a true or mandatory presumption compels a finding of the presumed fact in the absence
of contrary evidence. This compulsion appears to confirm that there exists a strong probative connection between the basic
facts and the presumed fact.

Private Hospitals Association v Medialdea

Under Sec 5 of RA 10932, the presumption of liability on the part of the medical practitioner/institution arises only when death,
permanent disability, serious impairment of the health condition of the patient-complainant, or, in the case of pregnant woman,
permanent injury or loss of her unborn child, occurs after the denial by the medical institution/practitioner of the emergency
patient’s admission to the health facility during an emergency/serious situation, pursuant to an established policy/practice
of demanding deposits/advance payments for confinement or treatment.

In the context of medical malpractice, Sec 5 creates a presumption of negligence on the part of the medical
institution/practitioner when it commits a violation of law, i.e., the act of denying the emergency patient’s admission to a
health facility during an emergency/serious situation pursuant to an established policy of demanding deposits/advance
payments for confinement or treatment, which RA 10932 considers a violation of law.

Presumption of negligence when a statutory duty has been violated

Under PH law, the violation of a statutory duty may be treated either as a circumstance which establishes a presumption of
negligence, negligence per se, or a circumstance which should be considered together with other circumstances as evidence
of negligence.

F.F. Cruz and Co v CA- failure of petitioner to build a firewall pursuant to city ordinances in itself sufficed to support a finding
of negligence.

Cipriano v CA- failure to register and insure his auto rust-proofing shop pursuant to PD 1572 constituted negligence per se. It
is for his failure to comply with this duty that he was guilty of negligence, thus liable for damages.
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Hence, creating a presumption of negligence based on the violation of a statutory duty is not legally infirm.

The violation of a statutory duty as the proximate cause of an injury.

Teague v Fernandez – if the very injury has happened which was intended to be prevented by the statute, it has been held
that the violation of the statute will be deemed as the proximate cause of the injury.

Non-observance of what the legislature has prescribed as a suitable precaution is failure to observe that the care which an
ordinary prudent man would observe, and, when the state regards certain acts as so liable to injure others as to justify their
absolute prohibition, doing the forbidden act is a breach of duty with respect to those who may be injured thereby, or, as it has
been otherwise expressed when the standard of care is fixed by law, failure to conform to such standard is negligence,
negligence per se or negligence in and of itself, in the absence of a legal excuse. According to this view it is immaterial,
where a statute has been violated, whether the act or omission constituting such violation would have been regarded as
negligence in the absence of any statute on the subject whether there was, as a matter of fact, any reason to anticipate that
injury would result from such violation.

When a statute is created in order to prevent a certain injury, and such injury, and such injury occurs when the statute is
violated, then the violation of the statute will be deemed to be the proximate cause of the injury.

SEC 5 RA 10932 – contemplates a situation wherein death, permanent disability, serious impairment of the health condition of
the patient-complainant occurs which are the very injuries intended to be prevented by the introduction of RA 10932, then the
acts violative of the Act will be presumed to be the proximate cause of the death or serious injury.

NOTE: The Presumption of Liability Clause does not create a conclusive presumption that the defendant is automatically guilty
of medical malpractice. What the provision merely does is to shift the burden to the defendant to prove that there was
another act or event that was the proximate cause of the death/injury.

The presumption of liability recognized under Philippine Law

Under the various legal provisions and established legal doctrines, it is well recognized that liability may, at certain time, be
disputably presumed when certain acts have been committed or when a certain set of conditions is present which has a
reasonable or rational connection with the fact presumed.

DOCTRINE OF RES IPSA LOQUITUR- a situation in which the thing causing the injury complained of is shown to be under
the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen
if those who have its management or control use proper care, it is presumed, in the absence of sufficient explanation by the
defendant, that the accident arose from want of care of the latter.

ARTICLE 1387 of the NCC- provides that alienation of property for valuable consideration made by a person against whom an
unsatisfied judgment is outstanding raises a presumption of fraud.

ARTICLE 1265 – whenever a thing is lost in the possession of the debtor, it shall be presumed that the loss was due to his
fault, unless there is proof to contrary, and without prejudice to Art 1165.

ARTICLE 1735 – with respect to common carriers, if goods under the care of common carriers are lost, destroyed or
deteriorated, then common carriers are presumed to have been at fault or to have acted negligently.

ARTICLE 1752 – dictates that despite the presence of an agreement limiting the liability of the common carrier in the vigilance
over the goods, the common carrier is nevertheless disputably presumed to have been negligent in cases of their loss,
destruction, or deterioration.

ARTICLE 1756 – in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed extraordinary diligence.

ARTICLE 2185 – with respect to motor vehicles mishaps, unless there is proof to the contrary, it is presumed that the person
driving a motor vehicle has been negligent if at the time of the mishap s/he is violating any traffic regulation.
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ARTICLE 2188 – there is prima facie presumption of negligence on the part of the defendant if the death or injury results from
his possession of dangerous weapons or substances, such as firearms or poison, except when possession or use is
indispensable in his occupation or business.

It is a settled rule that when a statute is created in order to prevent a certain injury, and such injury occurred when the statute
is violated, the violation of the statute will be deemed to be the proximate cause of the injury.

In fact, under Section 3(b), Rule 131, the disputable presumption that an unlawful act was done with unlawful intent is
sufficient, unless satisfactorily contradicted.

THE PRESUMPTION OF LIABILITY CLAUSE DOES NOT VIOLATE THE CONSTITUTIONAL PRESUMPTION OF
INNOCENCE

The notion of presuming liability has been so accepted in Ph law that it has even found application with respect to the more
stringent and rigid concept of criminal liability.

Court has upheld the constitutionality of penal statutes that provide for a prima facie evidence of guilt, shifting the burden of
proof to the accused, despite the elementary rule that the prosecution has the burden of establishing proof beyond reasonable
doubt. Hence, neither can the argument that the Presumption of Liability Clause infringes on the constitutional right to be
presumed innocent.

To illustrate:

ART 217 RPC – the failure of a police officer to have duly forthcoming public funds or property with which he is chargeable,
upon demand by any duly authorized public officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.

ART 315, PAR 2(d) RPC – the drawer of a check is given 3 days to make good the said check by depositing the necessary
funds to cover the amount thereof; otherwise, a prima facie presumption will arise as to existence of fraud, element of estafa.

BANARES v CA, citing PEOPLE v MINGOA – court held that, contrary to the petitioner’s theory on the supposed infringement
of the constitutional presumption of innocence, there is no constitutional objection to a law providing that the presumption of
innocence may be overcome by a contrary presumption founded upon the experience of human conduct.

There is no constitutional objection to a law providing that the presumption of innocence may be overcome by a
contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be
sufficient to overcome such presumption of innocence.

The legislature may provide for the prima facie evidence of guilt of the accused and shift the burden of proof provided there
be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one
from proof of others is not unreasonable and arbitrary because of lack of connection between the two in common
experience.

Applying the foregoing to the Presumption of Liability Clause, considering that it envisions a situation wherein a person who is
in extremely urgent need of medical attention is denied treatment due to an illegal policy of demanding advance payment and
such person dies or seriously injured immediately thereafter, there is undoubtedly a reasonable connection between the illegal
act and the ultimate fact presumed, i.e., liability for the death or injury of the emergency patient.

Such connection is not unreasonable and arbitrary, considering that the death or serious injury would be the rational
and logical outcome or consequence when a person experiencing an extremely urgent medical situation was not
given timely medical attention due to a policy or practice expressly prohibited by law.

Hizon v Court of Appeals

SC refuted the appellant’s invocation of the presumption of innocence when juxtaposed with presumption of guilt under the
Fisheries Code:
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Petitioners contend that presumption of guilt under the Fisheries Decree violates the presumption of innocence as guaranteed
by the Constitution. As early as 1916, the Court has rejected this by holding that:

In the Philippine Islands, no act is a crime unless it is made so by the statute. The state having the right to declare
what acts are criminal, within certain well-defined limitations, has the right to specify what act or acts shall constitute a
crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the
burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.

The validity of laws establishing presumptions in criminal cases is a settled matter. The legislature has the power to provide
that proof of certain facts can constitute prima facie evidence of the guilt of the accused and then shift the burden of proof to
the accused, provided there is rational connection between the facts proved and the ultimate facts presumed. To avoid any
constitutional infirmity, the inference of one from proof of the other shall not be arbitrary and unreasonable. The presumption
must be based on facts and these facts must be part of the crime when committed.

The 3rd paragraph of Sec 33 of PD 704 creates a presumption of guilt based on facts proved and hence is not constitutionally
impermissible. It makes the discovery of obnoxious or poisonous substances, explosives, or devices for electric fishing, or of
fish caught or killed with the use of obnoxious and poisonous substances, explosives or electricity in any fishing boat or in the
possession of a fisherman evidence that the owner and operator of the fishing boat or the fisherman had used such
substances in catching fish. The ultimate fact presumed is that the owner and operator of the boat or the fisherman were
engaged in illegal fishing and this presumption was made to arise from the discovery of the substances and the contaminated
fish in the possession of the fisherman in the fishing boat. The fact presumed is a natural inference from the fact proved.

We stress, however, that the statutory presumption is merely prima facie. It cannot, under the guise of regulating the
presentation of evidence, operate to preclude the accused from presenting his defense to rebut the main fact
presumed. At no instance can the accused be denied the right to rebut the presumption, thus:

The inference of guilt is one of fact and rests upon the common experience of men. But the experience of men has taught
them that an apparently guilty possession may be explained so as to rebut such an inference and an accused person may
therefore put witnesses on the stand or go on the witness stand himself to explain his possession, and any reasonable
explanation of his possession, inconsistent with his guilty connection with the commission of the crime, will rebut the inference
as to his guilt which the prosecution seeks to have drawn from his guilty possession of the stolen goods.
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RULE 132: PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES

· An in-depth knowledge and incisive application of Rules 128-131 are of the essence prior to the appropriate
introduction of diverse types of evidence in Rule 132.
· If evidence is fact-discovery, the factum probandum of a litigation will therefore depend on how the factum
probans is presented by a party to the court for judicial appreciation of admissibility and subsequent appraisal of
its intrinsic worth.
· Two solutions to control inadmissible hearsay as evidence and at the same time, to safeguard a party’s right to
cross-examine her adversary’s witness:
(1) To require that all the witnesses in a judicial trial or hearing be examined only in court under oath or
affirmation; and
(2) To require that all witnesses be subject to the cross-examination by the adverse party.

General conduct of examination

· How a witness is supposed to swear before the Court is dictated by Section 1, Rule 132:
“SECTION 1. Examination to be Done in Open Court. — The examination of witnesses presented in a
trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to
speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.”

Ordinary procedure

· Testimonial evidence is given in open court in answer to questions of counsel as well as the court.
· There are no rules on the kind and manner of the questions which the court may ask a witness, but there are
many rules on how a counsel may examine a witness.

Questions from the judge

· Query from the magistrate is legally permissible to clarify matters and to ferret out the truth, as prelude to
assessing the credibility of the witness.
· Judges must not only be impartial, but must appear impartial as an added assurance to the parties that the
decision will be just. However, this is not to say that judges must remain passive or silent during the proceedings.
It is only natural for judges to ask questions to elicit facts with a view to attaining justice for the parties because
they are in a better position to observe the demeanor of the witness as he testifies on the witness stand.
· Judges may also properly intervene in the presentation of evidence to expedite and prevent unnecessary waste
of time.
· The judge should limit himself to clarificatory questions to avoid impression of partiality. The court should stay out
of it as much as possible, neither interfering nor intervening in the conduct of the trial.
· In an application for search warrant, the judge must personally ascertain the existence of probable cause
therefor through searching questions under oath or affirmation to the complainant and the witnesses for the
application.

Questions from counsel

· As to how counsel may probe a witness is generally governed by the sequence of examination of an
individual witness:
(1) Direct examination by the proponent;
(2) Cross examination by the opponent;
(3) Re-direct examination by the proponent;
(4) Re-cross-examination by the opponent;
(5) Recall, with court permission.

Summary procedure

· Under the 1991 Revised Rules on Summary Procedure, there is no trial to speak of in a civil, as distinguished
from a criminal case.
· Hence, fact-discovery in a civil case under summary procedure will only entail submission of position papers,
affidavits and other evidence in 10 days from cognition of the preliminary conference order, subject to submission
of affidavits and other evidence to clarify specified matters, when so directed by the courts. A resort to the
clarificatory procedure will be inappropriate if the parties did not heed the call for submission of the vital papers
after the preliminary conference.

Judicial affidavit rule

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· To reduce the time for completing the testimonies of witnesses in cases under litigation, parties must file judicial
affidavits which shall serve as the direct testimony, and exhibits, at least 5 days before the hearing.
· A witness can thereafter be examined via cross-examination and re-direct examination, sans
re-cross-examination, on the compliant judicial affidavit.

Revised guidelines for continuous trial in criminal cases

· FOR FIRST LEVEL COURTS:

o In all criminal cases, including those covered by the Rule on Summary Procedure, the testimonies of
witnesses shall consist of the duly subscribed written statements given to law enforcement or peace
officers or the affidavits or counter-affidavits submitted before the investigating prosecutor, and if such
are not available, testimonies shall be in the form of judicial affidavits, subject to additional direct and
cross-examination questions.
Ø The trial prosecutor may dispense with the sworn written statements submitted to the law
enforcement or peace officers and prepare the judicial affidavits of the affiants or modify or revise
the said sworn statements before presenting it as evidence.
· FOR SECOND LEVEL COURTS:
o In criminal cases where the demeanor of the witness is not essential in determining the credibility of the
witness (forensic chemists, medico-legal officers, accountants, auditors, investigators, engineers,
custodians, expert witnesses) – the testimonies of the witnesses shall be duly subscribed written
statements given to law enforcement officers or the affidavits or counter-affidavits submitted fore the
investigating prosecutor. If such are not available, testimonies shall be in the form of judicial affidavits
subject to additional direct and cross-examination questions.
· In all other cases where the culpability or the innocence of the accused is based on the testimonies of the
alleged eyewitnesses, the testimonies of these witnesses shall be in ORAL form.

Venue

· The witness is expected to appear before the court where the cases is pending, and testify in open court so far
as convenient in a regular court room, without prejudice to specific rules as deposition in a civil case, conditional
examination of a defense witness in a criminal case, or ocular inspection elsewhere, like in drug cases, with
proper notice to the parties since such proceeding is also considered part of trial.

Terms

· “Witness” – one who testifies in a cause or gives evidence before a judicial tribunal.
· “Open court” – a court formally opened and engaged in the transaction of judicial affairs, to which all persons
who conduct themselves in an orderly manner are admitted.
· “Oath” – is an appeal by a person to God to witness the truth of what he declares and an impreciation of Divine
punishment or vengeance upon him if what he says is false.
· “Affirmation” – a solemn and formal declaration or assertion that the witness will tell the truth, etc. this being
substituted for an oath in certain cases. A solemn declaration without oath.

Oral examination; exceptions

GR: Examination of a witness in open court is by oral questions and answers

XPN: Unless the witness is incapacitated to speak or the question calls for a different mode of response.
Ø Thus, a deaf and dumb knowing how to read and write may testify by that method, otherwise he may
be examined by gestures or signs translated by an interpreter. The total absence of an interpreter
in the sign language for the deaf-mute amounts to deprivation of a fair trial.

Conditional examination

The trial court shall encourage the accused and the prosecution to consider the conditional examination of their
witnesses. (Revised Guidelines for Continuous Trial of Criminal Cases)

NOTE: (not from the book) Conditional examination of witnesses = the court may allow witnesses to use
depositions as testimonial evidence in lieu of direct court testimony. See Section 15 of Rule 119. (Go v.
People, G.R. No. 185527, July 18, 2012)

Deposition in a criminal case

· In People v. Sergio and Lacanilao, the court ruled as follows:

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o Mary Jane filed a case against her recruiters & traffickers – Cristina and Julius. Mary Jane was
convicted of drug trafficking and was sentenced to death by a foreign government and who is confined
in a foreign prison facility can testify by deposition.
o The deposition by written interrogatories will not infringe the constitutional right to confrontation of a
witness of Cristina and Julius, because the latter are given ample opportunity to cross-examine Mary
Jane by way of written interrogatories =.
o Moreover, the trial court judge will be present during the conduct of written interrogatories on Mary
Jane. This will give her ample opportunity to observe and to examine the demeanor of the witness
closely. Although the deposition is in writing, the trial court judge can still carefully perceive the reaction
and deportment of Mary Jane as she answers each question propounded to her both by the prosecution
and the defense.
o Finally, it must be mentioned that a ‘dying declaration’ is one of the recognized exceptions to the right to
confrontation. Here, it will not be amiss to state that Mary Jane’s deposition through written
interrogatories is akin to her dying declaration. To stress, Mary Jane has bee convicted by final
judgment and sentenced to death by firing squad. The only purpose for the grant of the reprieve was for
Mary Jane to assist the prosecution in erecting its against her recruiters and traffickers. :(((((

Videoconference technology

· In every stage of the criminal proceeding, there can now be a remote appearance or testimony of a person
deprived of liberty (PDL) by videoconference technology which shall be the equivalent of an in-court proceeding,
as an extension of the courtroom, with due regard to the right to confrontation and cross-examination of the PDL.

Live broadcast

· Subject to specified guidelines, the SC permitted pro hac vice the live broadcasting by radio and television of the
Maguindanao Massacre cases on account of the totality of circumstances test and the sheer volume of families
of the 57 victims and the 197 defendants.
· According to the SC, technology is the only solution to break the inherent limitations of the courtroom, to satisfy
the imperative of a transparent, open, and public trial.

Child witness

· A live-link testimony is permissible where a child is a witness, in all criminal and non-criminal cases, if such child
is:
(1) A victim of a crime;
(2) Accused of a crime; or
(3) A witness to a crime;

Extradition

· GR: The hearing of the Petition for Extradition shall be public.

XPN: Unless the accused requests with leave of court that it be conducted in chamber.

Trial in isolation

· Exclusion of the public by the judge sua sponte, or on motion of the accused, is also permitted by the rules of
criminal procedure if the evidence to be produced during the trial is offensive to decency or public morals.
o In Garcia v. Domingo, the Court ruled that it is to be admitted that the size of the room allotted the
Judge would reduce the number of those who could be present. Such a fact though is not indicative of
any transgression of the right to publicity of a hearing. Courtrooms are not of uniform dimensions. Some
are smaller than others.

Remedies to address a defiant party or witness

1. Contempt

· A contempt proceeding can be initiated against the defiant witness as an inherent power of the court.

2. Court expenses

· Reasonable expenses incurred by the adverse party and counsel in attending a scheduled deposition can be
assessed against the absent party who gave the notice therefor.

3. Dismissal, nonsuit, unilateral presentation

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· This may happen in case there is nonappearance of the interested party and his/her counsel.

4. Bail

· Bail may be required of a material witness in a criminal case if the court thinks that he/she will not testify when
required to do so.

5. Punitive sanctions

· Under RA 9165, penal sanctions, administrative liability, and punishment for any other accountability for violation
of any existing law can equally be enforced.

6. Trial in absentia

· In a criminal case, trial in absentia can proceed after the arraignment of the accused, conditioned upon proper
notice to the defendant whose absence is unjustifiable.
· The right of the accused to present can be waived, inclusive of the right to confront and cross-examine in the
event of trial in absentia, borne of the defendant’s escape from the custody of the law or confinement.

7. Dismissal

· The case may be dismissed premised on the defendant’s constitutional right to a speedy trial, swift disposition of
the case, insufficiency of evidence.

8. Liberation

· To secure the immediate release of the defendant from confinement, a Petition for Mandamus to compel
dismissal by the court of the criminal case and a Petition for Habeas Corpus can likewise be utilized by counsel.

Doctrine of incomplete testimony

· Denying an accused the right to cross-examine will render the testimony of the witness incomplete and
inadmissible in evidence.
· When cross-examination is not and cannot be done or completed due to causes attributable to the party offering
the witness, the uncompleted testimony is thereby rendered incompetent.
· However, the right to cross-examine may be waived, such as when the accused is given the opportunity to
cross-examine a witness but fails to avail of it, the accused shall be deemed to have waived this right. The
witness’ testimony given during direct examination will remain on record. If this testimony is used against the
accused, there will be no violation of the right of confrontation.

Doctrine of inordinate delay

· Inordinate delay is a doctrine wherein if the case took too long investigating, it is considered a violation of the
right of an accused to a speedy resolution
· Inordinate delay in proceedings before the proper forum depends on the peculiar circumstances of every case.
· Mere mathematical reckoning of the time involved is not sufficient to rule that there was inordinate delay. We
have to consider the (1) length of delay, (2) the reason for delay, (3) the defendant’s assertion or non-assertion of
his or her right, and (4) the prejudice to the defendant as a result of the delay.

Oath and publicity

· Prior to testimonial evidence, the oath or affirmation of the witness is indispensable as an incremental safeguard
for the solemnity of the ceremony and religious sanction implicit from the vow.
o The oath or affirmation is administered to awaken the witness’ conscience and impress the witness’
mind to do so. Also, it is administered to compel the witnesses to speak the truth.
o The court may direct the exclusion of witnesses from the courtroom while the testimony of the other
witness is being given, in order to prevent the testimony of one witness from being influenced by that of
another.
· If the oath has not been taken or the affirmation has not been made until part of the testimony has been given,
only that part of the evidence which follows the oath or affirmation is competent. Nonetheless, the right, however,
to have a witness sworn may be waived.

Manner of examination of a witness

1. Court discretion
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· “The subject lies chiefly in the discretion of the judge, before whom the cause is tried. The great object is to elicit
the truth from the witness, but the character, intelligence, moral courage, bias, memory, and other circumstances
of witnesses are so various, as to require almost equal variety in the manner of interrogation, and the degree of
its intensity to attain that end.”

2. Party’s onus on entire evidence

· The party having the affirmative must introduce all evidence that is necessary to support the substance of the
issue.
· The party denying the affirmative allegations produces his proof, and finally the proof in rebuttal is received.
· Corollary to the duty of the party to present evidence, is the concomitant responsibility to avoid presentation of
evidence in a piecemeal manner; and the courts are reluctant to permit either party, after resting his case, to
amend and add to his proof until by repeated experiments he conforms to the view of the court.

3. Interrogation

· Interrogation of a witness is managed by the counsel, or the court either through a direct question to the witness
or by suggestion as to how the query should be tossed to the witness by counsel.
o NOTE: The court can ask a leading question.
· Any of the parties to the case may object to improper questions put by the court to a witness, otherwise he
cannot raise the objection for the first time on appeal.

4. Propriety of repetition

· An attorney is not prohibited from requesting a witness to repeat what he has testified to upon a particular point
in his direct examination.
o He has a right to have it repeated to (a) test the recollection of the witness, and (b) ascertain whether
the witness makes a statement at variance with what he testified to in chief.
· However, the court may put an end to the repetition if: (a) the attorney wants the witness to repeat his whole
direct examination, (b) the attorney insists upon going over the same ground again and against, (c) it is apparent
that the witness has already answered without appearance of evasion, or (d) it is evident that the attorney is
merely pushing the witness for the sake of annoyance or any illegitimate purpose.

5. Narrative testimony

· The court in People v. Calixto allowed the child witness to testify in a narrative form. Usually in criminal cases,
the material facts within the knowledge of a witness are elicited by questions put to him by the counsel calling
him. However, it would still depend on the sound discretion of the trial judge to determine whether a witness will
be required to testify by question and answer, or will be permitted to testify in a narrative form.
o A witness may be allowed to testify by narration if it would be the best way of getting at what he knew or
could state concerning the matter at issue. It would expedite the trial and would perhaps furnish the
court a clearer understanding of the matters related as they occurred.

HOWEVER, under Sec. 39 of Rule 132 of the 2019 Revised Rules on Evidence, a narrative testimony from a witness
will be vulnerable to striking off the record, and it would thus seem that the discretion exercised by the Judge in
People v. Calixtro was practically foreclosed.

Self-serving doctrine

· When a witness testifies in court, his public declarations cannot be classified as self-serving since its concept is
restricted to an extra-judicial statement that is urged for admission in court.
· The self-serving doctrine excludes testimony in open court in the same manner that an extrajudicial statement
that was not made in anticipation of future litigation is equally beyond the idea of the self-serving doctrine.

Recorded proceeding (Sec. 2, Rule 132)

“SECTION 2. Proceedings to be Recorded. — The entire proceedings of a trial or hearing, including the questions
propounded to a witness and his or her answers thereto, and the statements made by the judge or any of the parties, counsel,
or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording
found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified
as correct by him or her, shall be deemed prima facie a correct statement of such proceedings.”
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· To ensure preservation of what occurred between the parties, witnesses, lawyers, and the court, and as an aid to
resolve a question of accuracy on what transpired during the hearing or trial, Sec. 2, Rule 132 requires the
official court stenographer to record what happens in the course of a hearing.
· Given the prima facie veracity accorded to the transcript of stenographic notes, the stenographer need not even
testify since the jottings are official records made in the performance of a duty by a public officer.

Rights and obligations of a witness (Sec. 3, Rule 132)

“SECTION 3. Rights and Obligations of a Witness. — A witness must answer questions, although his or her
answer may tend to establish a claim against him or her. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

(2) Not to be detained longer than the interests of justice require;

(3) Not to be examined except only as to matters pertinent to the issue;

(4) Not to give an answer which will tend to subject him or her to a penalty for an offense unless otherwise provided by
law; or

(5) Not to give an answer which will tend to degrade his or her reputation, unless it be to the very fact at issue or to a fact
from which the fact in issue would be presumed. But a witness must answer to the fact of his or her previous final
conviction for an offense.”

· It is a legal duty of every citizen to attend in court and testify to all the facts which he knows and are pertinent to
the issues in a particular case, and, consequently, he is bound to answer therein all questions on matters
connected with such issues.
· This duty, however, has its limitations. And the restrictions to the examination of a witness before the court are
underscored by Sec. 3, Rule 132.
· The court ought to interfere whenever necessary to protect the witness from needless insult, and to forbid
impertinent questions which are altogether irrelevant, and have been asked merely to surprise, annoy and
confuse the witness, and to cause him to lose his temper.
· While it is ordinarily the duty of the court to protect the witness from improper demeanor, the counsel for the
witness has an equal obligation to starve off coercive treatment by the court of the witness.
· Upon the court’s perception of the witness’ exhaustion due to thorough examination, the witness may be
momentarily excused from the witness stand for the much needed rest or to gather his thoughts prior to the
resumption of the witness’ testimony.
· The court may also exclude questions which are calculated to ridicule or modify the witness to whom they are
propounded.
· The trial judge also has the duty to see that the witness may understand the questions put to him and that he be
given time and opportunity to answer completely such questions.
· However, a question can be validly refused by the witness and it is incumbent upon the Court to protect the
witness irrespective of an objection if the query will transgress the witness’ right against:
(1) Self-incrimination; and
(2) Self-degradation, unless it be the very fact at issue or to a fact from which the fact in issue would be
presumed, or it concerns the fact of his previous final conviction for an offense.

Self-incrimination

· Section 17, Article 3 of the Constitution is the constitutional basis of the right of a person not to be compelled to
be a witness against himself as additionally guaranteed by Section 1(e), Rule 115 of the 2000 Revised Rules on
Criminal Procedure.
· The guarantee protects all persons and not just the accused.
· From the tenor of Section 3(4), Rule 132, the witness can refuse to provide an answer only when it tends to
subject him to a penalty for an offense, unless otherwise provided by law, like immunity statutes.
o If there is no peril of criminal liability, there is therefore no privilege.
o So, a lawyer may not refuse to give an answer which may subject him to a disbarment proceeding,
because a lawyer’s disbarment is not a penalty but a disciplinary measure to a disbarment proceeding,
because a lawyer’s disbarment is not a disciplinary measure.
· It is available in criminal prosecutions and all other government proceedings, including civil actions and
administrative or legislative investigations.
· This privilege can only be invoked by an individual and not by an artificial person like a corporation.
· It is an acknowledge precept in remedial law that the right against self-incrimination refers to coerced oral
declaration and testimonial act that involves the exercise of mental faculties.
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· The scope of the constitutional inhibition is directed not merely to giving of oral testimony, but embraces as well
the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact, which the
accused has the right to hold secret.
· Marcelo v. Sandiganbayan, G.R. No. 109242, January 26, 1999
o Petitioner’s counsel says that the signing of petitioner’s and his co-accused’s names was not a mere
mechanical act but one which required the use of intelligence and therefore constitutes
self-incrimination. Petitioner’s counsel presumably has in mind the ruling in Beltran v. Samson to the
effect that the prohibition against compelling a man to be a witness against himself extends to any
attempt to compel the accused to furnish a specimen of his handwriting for the purpose of comparing it
with the handwriting in a document in a prosecution for falsification.
o The Court held that petitioner’s signature in this case was used to merely to authenticate the envelopes
as the ones seized from him. This purpose and petitioner’s signatures on the envelope, when coupled
with the testimony of prosecution witnesses that the envelopes seized from petitioner were those given
to him and Romero, undoubtedly help establish the guilt of petitioner.
· People v. Ayson, G.R. No. 85215, July 7, 1989
o Two rights dealth with in Sec. 20, Article IV of the 1973 Constitution:
(1) The right against self-incrimination – i.e., the right of a person not to be compelled to be a witness
against himself – set out in the first sentence, which is a verbatim reproduction of Section 18, Art. III
of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American
Constitution; and
(2) The rights of a person in custodial interrogation – i.e., the rights of every suspect ‘under
investigation for the commission of an offense’

Right against self-incrimination

- Mentioned in Sec. 20, Art. IV of the 1973 Constitution is accorded to every person who gives evidence whether
voluntarily or under compulsion of subpoena, in any civil, crim, or admin proceeding.
- The right is NOT to be compelled to be a witness against himself.

FIRST SENTENCE of Sec. 20: prescribes an option of refusal to answer incriminating questions and not a prohibition of
inquiry. Secures to a witness, whether a party or not, the right to refuse to answer any particular incriminatory question. It also
does not impose on the judge, or officer presiding over trial, hearing or investigation, any affirmative obligation to advise a
witness of his right against self-incrimination.

- The right can be claimed only when the specific question, incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time.
- Does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time
appointed, or to refuse to testify altogether.
- It is a right that a witness knows or should know, in accordance with the well-known axiom that everyone is
presumed to know the law, and its ignorance excuses no one.
- Neither the judge nor the witness can be expected to know in advance the character or effect of a question to put
to the latter.

NOTE: the right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not
claimed by or in behalf of the witness, the protection does not come into play. The right may be WAIVED, expressly or
impliedly, as by failure to claim at the appropriate time.

Right in custodial interrogation

- Applies to persons under investigation for the commission of an offense (ie suspects) under investigation by
police authorities and this is what makes these rights different from that embodied in the first sentence. (the first
one applying to ANY person testifying in any proceeding, civil, crim, or admin)
- Avowedly derived from the decision in Miranda v Arizona (US SC decision)

Sec. 20 states that whenever any person is under investigation for the commission of an offense:

1. He shall have the right to remain silent and to counsel, and to be informed of each right
2. Nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him
3. Any confession obtained in violation of these rights shall be inadmissible in evidence.

CJ Warren (in Miranda): summarized the procedural safeguards laid down for a person in police custody being
regarded as the commencement of an adversary proceeding against the suspect:
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o He must be warned prior to questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an
attorney, one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those
rights must be afforded to him throughout the interrogation.
o After such warnings and such opportunity afforded him, the individual may knowingly and intelligently waive
these rights and agree to answer or make a statement.
o Unless and until such warnings and waivers are demonstrated by the prosecution at trial, no evidence obtained
as a result of the interrogation can be used against him.

OBJECTIVE: prohibit ‘incommunicado’ interrogation of individuals in a police-dominated atmosphere, resulting in

self-incriminating statement without full warnings of constitutional rights. (since after a person is arrested and his custodial
investigation begins, a confrontation arises which at best may be termed unequal)

Custodial interrogation – questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.

· Not every statement made to the police by a person involved in some crime is within the scope of the
constitutional protection. If not made under custodial investigation or under investigation for the commission of an
offense, the statement is not protected.
o EX: where a person went to a police precinct and before any sort of investigation could be initiated,
declared that he was giving himself up for killing an old woman, this statement is admissible,
compliance with the constitutional procedure on custodial interrogation not being exigible under the
circumstances.

Rights of defendant in criminal case as regards giving of testimony

- A defendant on trial or under preliminary investigation is not under custodial investigation. His interrogation, if
any, had already been ended at the time of the filing of the criminal case in court or the public prosecutor’s office.
- Accused in court (or undergoing prelim inv before the public prosec) possesses the right against
self-incrimination
- The accused in a criminal case has other rights in the matter of giving testimony or refusing to do so. An accused
‘occupies a different tier of protection from an ordinary witness’.

Under the ROC, in all criminal prosecutions the defendant is entitled:

1. To be exempt from being a witness against himself

2. To testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any
other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used
against him.

The right of the defendant in a criminal case to be exempt from being a witness against himself – signifies that he cannot be
compelled to testify or produce evidence in which he is the accused or one of the accused. He cannot be compelled even by
subpoena or other process or order of the court. He cannot be required to be a witness either for the prosecution, or for a
co-accused or even for himself.

- If he should wish to testify in his own behalf, he may do so. But if he does testify, then he may be
cross-examined as any other witness. He may be examined as to any matters stated in his direct examination or
connected therewith. He may NOT on cross-examination refuse to answer any question on the ground that the
answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime
with which he is charged.
- If the defendant be asked a question which might incriminate him, not for the crime with which he is charged, but
for some other crime, distinct from that which he is accused, he may decline to answer that specific question.

Rights of a person suspected of having committed a crime and subsequently charged with its commission in court
(in re his testifying or producing evidence)

1. BEFORE THE CASE IS FILED IN COURT (or with the public prosec, for prelim inv), but after having been
taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the
police: continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force,
violence threat, intimidation, or any other means which vitiates the free will; and to have evidence obtained in
violation of these rights rejected
2. AFTER THE CASE IS FILED IN COURT—
a. To refuse to be a witness
b. Not to have any prejudice whatsoever result to him by such refusal
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c. To testify to his own behalf, subject to cross-examination by the prosecution
d. WHILE TESTIFYING. To refuse to answer a specific question which tends to incriminate him for some
crime other than that for which he is prosecuted
· The greater danger of the violation of the right of any person against self-incrimination when the investigation is
conducted by the complaining parties, complaining companies, or complaining employers because being interested
parties, unlike the police agencies who have no pecuniary or proprietary interest to protect, they may be in their ever
eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements
under an atmosphere of moral coercion, undue ascendancy, and undue influence.
o The law requires that disciplinary sanctions may not be imposed on any employee by his employer until and
unless the employee has been accorded due process (ie, informed of the offenses, opportunity to explain, etc.)
· Purely mechanical acts, like submitting one’s self to a medical examination to determine pregnancy, to extract a
sample from the body for the purpose of a medical evaluation to test the presence of gonorrhea which was contracted
by the victim of rape, or to expel morphine from the mouth, and to be photographed, are excluded from the
constitutional protection.

Self-degradation

- Inquest to witness concerning a fact that will degrade his repute is not allowed unless it be the very fact at issue
or to a fact from which the fact in issue would be presumed.
- The witness will not be compelled to answer such questions when they are introduced only in order to discredit
him, and are not essential to the merits of the case of the party asking them.

WHARTON: it is important to notice the distinction between the questions in chief, whose object is to bring out facts
important to the maintenance of public justice, and questions in cross-examination, whose object is merely to harass
a witness.

- A witness may NOT refuse to answer a question as to the fact of his previous conviction for an offense, for there
is no danger that his answer may subject him to another conviction.
- Where a witness has already been pardoned or that the prosecution of the crime he committed is already barred
by the statute of limitations, he cannot claim the constitutional privilege.

Order of examination

The order in which an individual witness may be examined is as follows:

(a) Direct examination by the proponent

(b) Cross-examination by the opponent
(c) Re-direct examination by the proponent
(d) Re-cross-examination by the opponent

Direct examination – examination-in-chief of a witness by the party presenting him or her on the facts relevant to the issue

Cross-examination – upon termination of the direct exam, the witness may be cross-examined by the adverse party on any
relevant matter, with sufficient fullness and freedom to test his or her accuracy and truthfulness and freedom from interest or
bias, or the reverse, and to elicit all important facts bearing upon the issue.

COMMITTEE NOTES
“on any relevant matter” is intended to clarify that cross-exam may probe into any subject relevant to the issues in the case,
even if not covered by the direct examination. Cross-exam may go beyond the scope of the direct and that, by doing so, the
party is not making the witness his own. (English rule/wide-open rule)

Scope-of-direct/American rule: in cross-exam, a witness may be examined only as to matters stated in the direct exam or
anything connected therewith.

Two arguments that support the wide-open rule:

1. WOR encourages the search for truth by letting parties bring to light at the outset all the witness knows, while SOD rule
encourages the proponent to control the witness to reveal only part of the truth and prevents the adversary from setting
things right
2. WOR is easy to administer while the SOD is troublesome and perhaps unworkable because of its imprecision. The SOD
rule could be interpreted in at least 6 different ways, and this vagueness surely encourages “pettifogging objections”, it
also introduced the risk of reversal for trivial reasons.
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Re-direct examination – after cross of the witness, he or she may be re-examined by the party calling him or her, to explain
or supplement his or her answers given during the cross. Questions on matters not dealt with during the cross may be allowed
by the court in its discretion.

Re-cross-examination – upon the conclusion of the re-direct exam, the adverse party may re-cross-examine the witness on
matters stated in his or her re-direct examination, and also on such other matters as may be allowed by the court in its
discretion.

Recalling witness – after the examination of a witness by both sides has been concluded the witness cannot be recalled
without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require.

WIGMORE: an essential part of all testimony is the laying before the tribunal the witness’s results of his Observation and his
Recollection. Its prime and essential virtue consists in accurately reproducing and expressing the actual and sincere
Recollection.

- While Sec. 4, Rule 132 serves as the prototype for examination of a witness, the court has discretion to relax the
rules since the order of introducing evidence is a mere rule of practice that can be varied in the exercise of sound
judicial discretion.
- GR: several counsel will not be allowed to examine or cross-examine identical witness, yet departures may
properly be allowed (esp at different stages of the exam or if separate parties are affected and have separate
counsel)

Direct examination

- The original exam or examination-in-chief of a witness assumes worth in the trial of cases. It is one in which the
actor (plaintiff) or one having the burden of proof seek to establish his prima facie case, or the nonactor
(defendant) seeks to bring about an equilibrium in a civil case, or a reasonable doubt in a criminal case.
- One must produce his whole case at the outset. In the first instance the actor has the duty to produce facts
sufficient to make a case which will entitle him to a verdict, if no evidence were produced against him. It should
build up a theory of the case and nothing more.
- Direct exam is the foundation of trial. It is the putting together of one’s evidence that makes or unmakes a case.
- More cases are won by direct proof than all other phases of a trial combined. Direct exam may make or break
your case.
- While cross-examination is inherently negative in character, direct exam is generally positive.
- Function of direct exam: building of your own case. Unless you build a structure of proof that will persuade the
court you have a good, meritorious, honest-to-goodness claim or defense, you have accomplished nothing
constructive.

Direct exam should be sufficiently comprehensive:

1. To prove all elements necessary to merit a favorable verdict

2. To present a picture of the cause of action with clarity, understanding and interest
3. To present the witnesses to the greatest advantage so as to secure acceptance of their stories as true by the
court
4. To present this story and picture by proper questioning according to the rules of evidence
5. To present all documentary evidence to prove and to corroborate the contentions of the trial lawyer

Foundations for direct examination

The foundations for technique in direct exam are two-fold:

1. The first requisite is a firm grasp of the main lines of evidence, and the place of each line in the unfolding case
(ideal lawyer does not examine from his trial brief, though he uses it to refresh his memory, he must absorb
essentials of the story, so that the evidence is alive for him and can thus be brought out effortlessly).
2. The second requisite is skill in the use of words, so as to be able to guide the witness in the right direction
without leading him. (choice of simple words is helpful, verbosity and ponderousness are cardinal faults in all
forms of examination)
· Questions must be properly framed by, and through the guidance of counsel without leading the witness. Counsel
must remain in control but witness must occupy center stage while counsel is relegated to the background.
· For the sake of a logical presentation of evidence, the counsel must adopt a correct sequence for the evidence that
will unfold without sacrificing thoroughness.
· In the process of conducting the original examination, to shun an objection premised on a leading question, or that
which suggests to the witness the answer which the examining party desires to elicit, it is appropriate for examiner to
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preface the query with Who, What, When, Where, Why, and How so as to bring forth a specific response from the
witness. (a leading question during cross-exam is PERMITTED)
· If the question posed by the proponent of the witness on examination-in-chief assumes a fact not yet of record thru
the testimony of the witness, or contrary to what he declared on the witness stand, the impending evidence from the
witness can be timely objected to for lack of basis.
· If the immediately foregoing similar nature of the question is propounded to the witness by the opponent on
cross-exam, the proper ground for objection is misleading. (a misleading question is one which assumes as true a
fact not yet testified to by the witness or contrary to that which he or she has previously stated, it is NOT allowed).

In a civil case covered by the summary procedure, there is no room for application of the order of examination of a witness
since testimonial evidence is proscribed and in a crim case within the purview of the summary procedure, the affidavit
submitted by the party or a witness shall constitute as the direct testimony of the affiant provided it is identified by the affiant on
the witness stand and formally offered later.

Ø In the absence of a sworn statement from the witness, testimonial evidence can unfold during the rebuttal or
surrebuttal stage, pursuant to Sec. 15, of the 1991 Revised Rule on Summary Procedure.
o Affidavits submitted shall constitute the direct testimonies of the witnesses who executed the same
o Witnesses who testified may be subjected to cross, re-direct, re-cross. Should affiant fail to testify, his
affidavit shall not be considered as competent evidence for the party presenting the affidavit, BUT the
adverse party may utilize the same for any admissible purpose.
o No witness shall be allowed to testify unless his affidavit was previously submitted to the court in. (XPN:
rebuttal or surrebuttal)
o Should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence,
he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the
court, the additional shall be submitted to the court and served on the adverse party not later than 3
days after the termination of the prelim confe.
o If the additional are presented by the prosecution, the accused may file his counter-affidavits and serve
the same on the prosecution within 3 days from such service.
Ø It is the duty of counsel to lay a proper foundation for any testimony he seeks to elicit from his witness. This will
vary as the evid itself varies.

During direct exam, it is usual to expect intro or presentation of documents or object evid during the examination-in-chief of a
testimonial sponsor for the purpose of marking, identification, and authentication, if so required, as prelude to the formal offer.

Republic v Cuenca: failed to introduce either the original or the certified true copies of the documents during its
examination-in-chief for purposes of identification, marking, authentication and comparison with the copies furnished the SB
and the adverse parties despite knowledge of the existence and whereabouts.

Republic v Marcos-Manotoc: upheld the denial of the Republic’s documentary exhibits for violating the best evidence rule.

Cross-examination

- At the conclusion of the direct examination, the witness may be cross-examined by the adverse party, the
purpose of such examination being the explanation of matters to which the witness has testified in chief, and the
discovery of facts which are favorable to the examiner.
- Need not indicate the purpose of a particular interrogation; he is entitled to reasonable latitude even though he is
unable to state in advance the exact facts which may be developed by a reasonable examination.
- It would be prudent for a cross-examiner to preface the cross-examination amidst the previous and continuing
objection on direct examination.
o As the petitioner’s exhibits failed to establish the perfection of the contract of sale, oral testimony cannot
take their place without violating the parole evidence rule. It was irregular for the trial court to have
admitted in evidence testimony to prove the existence of a contract of sale of a real property between
the parties despite the persistent objection made by respondent’s counsel as early as the first
scheduled hearing.
o The direct testimonies of the witnesses were presented in affidavit-form where prompt objection to
inadmissible evidence is hardly possible, whereas the direct testimonies in these cited cases were
delivered orally in open court. The best that counsels could have done under the circumstances was to
preface the cross-examination with objection.
- Counsels should not be blamed and penalized for taking the path of prudence by choosing to cross-examine the
witnesses instead of keeping mum and letting the inadmissible testimony in affidavit form pass without
knowledge.
- Evidence elicited on cross-examination is regarded as testimony on the part of the party calling the witness, and
not as evidence of the party cross-examining.
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Questions from adverse party’s counsel

- Generally, cross-examination is the function of the counsel and not of the court.
- The trial court should stay out of it as much as possible, by neither interfering nor intervening.
- The court may intervene on its own motion under certain circumstances (eg prevent needless waste of time)

Cross-examination questions from the judge

- Even the judge can cross-examine the witness.

- A trial judge has the right to propound such questions to witnesses as may be necessary to elicit pertinent facts,
to establish the truth, although some reviewing courts have declared that the practice of so doing except when
absolutely necessary should be discouraged.
- It is the duty of the court to propound such questions to reluctant witnesses as will strip them of the subterfuges
to which they resort to evade telling the truth.
- The extent of which such examination shall be conducted rests in the discretion of the judge, the exercise of
which will not be controlled unless abused.

Value of cross-examination

Wellman: Through cross-examination, we will know the opinions of which side are warped by prejudice or blinded by
ignorance, which side has had the power or opportunity of correct observation. If all witnesses had the honest and intelligence
to come forward and scrupulously follow the letter and spirit of the oath, to tell the truth, the whole truth and nothing but the
truth, and if all advocates on either side had the necessary experience, combined with honesty and intelligence, and were
similarly sworn to develop the whole truth and nothing but the truth, there would no occasion for cross-examination. But as yet
no substitute has ever been found for cross-examination as a means of separating truth from falsehood, and of reducing
exaggerated statements to their true dimensions.

Restrictions

a.) Waiver
- It can be waived expressly or impliedly by the opponent
- EX: the nonappearance of a party and counsel despite notice of the hearing operates as a waiver of the right to
cross-examine the witness of the adverse party who testifies. However, there is authority for the view that where
counsel for a party was absent at the opening of the trial, but appeared before the conclusion of the examination of
the plaintiff’s second witness, he should be permitted to call for cross-examination of the first witness, whose
examination in chief had been completed.

b.) Relevant
- Evidence is relevant if there is a logical nexus between the factum probans and the factum probandum.
- Previous rule referred to any matters stated in the direct examination or connected therewith, new rule is confined to
any relevant matter.
- Cross-examination should be restricted to matters which are competent, material and relevant, and will not be
allowed as to matter which is obviously irrelevant. The rule of relevancy is much more liberally construed on
cross-examination that on direct examination.
- The extent to which cross-examination respecting collateral matters may go rests almost entirely in the discretion of
the trial court, since from the nature of the case no fixed rule can be devised defining the right and limiting the extent
of irrelevant inquiry which be just or safe in universal application.
- If the doctrine of conditional admissibility can be explored during direct, there is no reason to preclude its application
during cross provided the cross-examiner can also justify the tentative evidence extracted during scrutiny with the
ultimate object of the prove, vis-à-vis the good faith accorded by the court to the cross-examiner’s inquisition.
- The witness can be assayed on cross-examination but the extent has 2 acknowledged schools of thought:
o English rule: where a witness is called to a particular fact, he becomes a witness for all purposes and
may be fully cross-examined upon all matters material to the issue, the examination not being confined
to the matters inquired about in the direct.
o American rule: restricts cross-exam to facts and circumstances which are connected with the matters
that have been stated in the direct exam of the witness. If a party wishes to examine as to the other
matters, he must do so by calling the witness in his own behalf.
§ The fact that other witnesses have testified to certain matters does not subject a witness to
cross-examination as to such matters, unless he has testified to them himself.
§ Witness may not be cross-examined upon evidence given during direct but subsequently
stricken out.
§ If immaterial or irrelevant evidence has not been stricken out, it is error to refuse cross to facts
related
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§ A witness may not be cross-examined as to a document not offered in evidence, although there
is authority for the proposition that in exceptional cases documents may be identified and
introduced on cross-examination.
- The PH adheres to the English rule since the cross-examiner can confront the witness not only with matters
stated in the direct but also on aspects connected therewith. It assumes wide liberality in judicial attitude, in
conjunction with the doctrine of conditional admissibility.
- There is fidelity to the American rule when the witness on the stand is accused, an unwilling witness, a hostile
witness, or adverse party’s witness, conditioned upon timeliness of the XPN to the attempt of the adverse party
to surpass the subject matter of the direct.
- The view was advanced that the accused is governed by the English rule since by occupying the witness stand,
he is deemed to have consented and offered to submit to such inquiry and he must testify to whatever has
legitime bearing upon the question of his guilt.

c.) Default
- Not meant to punish the defendant, but to enforce the prompt filing of the answer to the complaint. Its existence
is justified on the ground that it is the one final expedient to induce defendant to join issue upon the allegations
tendered by the plaintiff, and to do so without unnecessary delay.
- In a civil case beyond the context of the summary procedure, although a party validly declared in default is
entitled to notice of subsequent proceedings, he is deprived of the right to take part in the trial and cannot
subsequently cross-examine the adverse party.

d.) Ex-parte proceeding

- Not proper to allow cross-exam in an ex-parte proceeding.
- Ex-parte proceeding merely means that it is taken or granted at the instance and for the benefit of one party, and
without notice to or contestation by any party adversely affected.

e.) Best Evidence and Parol Evidence Rule

Foreign ruling: if cross-examination develops the fact that an agreement testified to on direct was in writing, this permits the
cross-examiner to invoke the BER or the PER and move to strike out all the evidence relating to the it.

JONES: took cognizance of jurisprudence to the effect that the witness may not in the first instance, be asked as to the
contents of what he has written for to do so would violate the rule making the instrument itself the best evidence of its
contents.

Is the BER or the PER applicable during cross? If so, against whom pertinent?

WIGMORE: No. When a witness is to be asked on cross as to the terms of a document written or signed by him, the document
must be at the time produced and shown or read aloud to him before he can be asked as to its contents; he cannot be asked
WON he said such and such things in the document, but the supposed document must first be shown to him.

From Wigmore, it seems that the BER does NOT apply during cross of a witness relative to the contents of a
document:

1. The rule for the production of the original is applicable only to the proponent of the document.
a. REGALADO’s comparison of Rule 27, regarding the production or inspection of documents or things as
a mode of discovery in CivPro and Sec. 6, Rule 130 of the Revised Rules on Evidence, concerning the
supplementary rule if the adverse party has custody of the original, also highlighted that the BER is
applicable only to the proponent of the original writing.

Production of documents under Sec. 6, Rule 130 Rule 27

Production of the original is procured by mere notice to the Document is neither assumed to be favorable to the party in
adverse party, and the requirements for such notice must be possession thereof or that the party seeking its production is
complied with as a condition precedent for the subsequent not sufficiently informed of the contents of the same.
introduction of secondary evidence by the proponent.
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Generally, presupposes that the document to be produced is The production of such a document is in the nature of a
intended as evidence for the proponent who is presumed to mode of discovery and can be sought only by proper motion
have knowledge of its contents, secondary evidence being in the trial court, and is permitted only upon good cause
available in case of its non-production shown.

2. During the adverse party’s impeachment of the opponent’s witness on cross either by prior inconsistent
statements or contradictory evidence, Sec. 14, Rule 132 permits inquiry by the cross-examiner on the contents of
the document provided the instrument is initially shown to the witness.
- Hence, if the cross-examiner ventures to ask the witness on the contents of the document, as a prelude to laying
the predicate for impeachment, it is but logical to expect and allow the response of the witness to the question
albeit it apparently traverses the language of the original document.
- Evidence elicited on cross-examination is regarded as testimony on the part of the party calling the witness, and
not as evidence of the party cross-examining.

JONES: it does not follow that the original writing must be presented to a witness being cross-examined in order to be able to
ask him if he made a writing of a certain import. Very often, the BER places a great obstacle in the way of effective
cross-examination of a slippery and dishonest witness.

· In regard to the PER, if an XPN to the general proscription is properly pleaded by a party to the suit, or extrinsic
evidence is introduced by the party thereon during direct examination of his witness sans objection from the
adverse party, it is inconceivable to think that the response of the party’s witness to the cross-examination by the
adverse party on evidence aliunde can be expunged from the record on the belated invocation by the
cross-examiner during cross-examination of the PER.

f) Former testimony and other exceptions to the hearsay rule

● There is no reason to complain of denial of the right to cross-examine following the death of the witness or
unavailability of the witness involving testimony or deposition in a previous case involving the same parties and
subject matter.
o Condition: There was opportunity to cross-examine.

g) Defendant’s escape from confinement

● An accused who escaped from prison or confinement loses his standing in court and is deemed to have waived
any right to seek relief from the court unless he surrenders or submits to the jurisdiction of the court.

● Gimenez v. Nazareno: An escapee who has been tried in absentia did not retain his rights to cross-examine and
to present evidence on his behalf. By his failure to appear during the trial of which he had notice, he virtually
waived these rights.

● The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice
shall be considered a waiver of his right to be present during that trial.

h) Accused who testifies

● Section 1(c), Rule 115 implies that once custody is regained over the escapee, the defendant’s right to
cross-examine is recovered insofar as a witness who will testify against the accused, or if the prosecution
witness is still under examination-in-chief.

● A defendant in a criminal case who opts to testify can be cross-examined like any other witness, subject to
cross-examination only on matters covered by the direct examination.

● If the defendant in a criminal prosecution voluntarily offers himself as a witness in his own behalf and testifies in
chief, he thereby subjects himself to a legitimate and pertinent cross-examination.

i) Unwilling or hostile witness

● An unwilling or hostile witness cannot be subjected to cross-examination on matters that transcend the direct
examination.
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● Before a party may be qualified under Section 12, Rule 132, the party presenting the adverse party as witness
must comply with Section 6, Rule 25 of the Rules of Court. There must be service of written interrogatories first.
o Purpose: To prevent fishing expeditions and needless delays; it is there to maintain order and facilitate
the conduct of trial.
o It will be presumed that a party who does not serve written interrogatories on the adverse party
beforehand will most likely be unable to elicit facts useful to its case if it later opts to call the adverse
party to the witness stand as its witness.

j) Misleading and inadmissible

● The cross-examination of any witness cannot be premised on a misleading question or inadmissible evidence
such as hearsay.
o Condition: Timeliness of an objection from the party who presented the witness.

● On cross-examination, a witness should not be asked questions which assume facts not in evidence, or facts
without sufficient basis in the record, or which assume that the witness has given testimony which he has not
given, or that matter has been proved when it was not.

Duration of the right to cross-examine

● Rests very largely in the discretion of the trial judge, subject to the right of the witness against self-degradation
as provided in Section 3(2), Rule 132 of the Revised Rules on Evidence.

● Thoroughness, as well as cleanliness and orderliness, ought to permeate the whole texture of
cross-examination, whatever particular technique is for the moment employed.

Three main techniques of cross-examination:

1. Confrontation
2. Probing
3. Insinuation

Confrontation

⮚ Consists in confronting the witness with the damaging facts which he cannot deny, and which are inconsistent
with his evidence.
⮚ It is a destructive technique, and even if it fails to destroy, it may still succeed in weakening.

Probing

⮚ Carried out by inquiring thoroughly into the details of the story to discover the flaws. It may be used either to
weaken or to destroy.
⮚ It consists only in delving into the story as told, so as to detect and expose its inherent weaknesses.
⮚ It has a marked advantage over confrontation.

Insinuation

⮚ A many-sided technique; the most important of the three techniques in everyday practice.
⮚ It is the building up of a different version of the evidence-in-chief by bringing out new facts and possibilities, so
that, while helping to establish a positive case in one’s favor, it simultaneously weakens the evidence-in-chief by
drawing out its sting.

Two forms of insinuation:

1. Gentle insinuation
2. Firm insinuation

Fourth line of approach: Undermining

⮚ Its object is not to break down the evidence by delving into it, but to take away the foundations of the evidence by
showing that either:
o The witness does not know what he is talking about; or
o If he does know the truth, he cannot be trusted to tell it.
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Doctrine of Incomplete Testimony

● Wigmore attributed 5 occasions that can impede cross-examination:

o The witnesses’ death or illness
o The witness’s refusal to answer on cross-examination or the party’s prevention of his answer
o The witness’s answering the direct examination non-responsively
o The framing of the direct examination so as to prevent adequate cross-examination
o Sundry circumstances preventing adequate cross-examination.

● R Transport Corporation v. Philhino Sales Corporation: The Supreme Court disagreed with petitioner’s invocation of
due process when the testimony of its witness was stricken off the record by the trial court after the cross-examination can
hardly be completed on account of repeated postponements of the hearing at the behest of the petitioner’s counsel.

● Bachrach Motors Co., Inc. vs. CIR: The witness failed to appear at the scheduled hearings for his cross-examination for
the simple reason that he left for abroad. Having been deprived, without fault on its part, of its right to cross-examine the
witness, the respondent was entitled to have the direct testimony of the witness stricken off the record.

● Ortigas, Jr. v. Lufthansa German Airlines: Oral testimony may be considered only when it is complete, that is, if the
witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part
through the fault of such adverse party.
o When cross-examination is not and cannot be done or completed due to causes attributable to the party offering
the witness, the uncompleted testimony is thereby rendered incompetent.

DOCTRINES:

● Until such cross-examination has been finished the testimony of the witness cannot be considered as
complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the
case.

● The right to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in
nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is
part of due process.

● The said right is a personal one which may be waived expressly or impliedly by conduct amounting to a
renunciation of the right of cross-examination.

● Common basic principle on implied waiver: The party was given the opportunity to confront and
cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone.

● Savory Luncheonette v. Lakas ng Manggagawang Pilipino: Private respondents were given not only one but five
opportunities to cross-examine the witness but despite warnings and admonitions of the court, and despite the readiness
and willingness of the witness that he be cross-examined, the counsel by his repeated absence and/or unpreparedness
failed to do so until death sealed the witness’s lips forever.
o The mere fact that the witness died after giving his direct testimony is no ground in itself for excluding his
testimony from the record so long as the adverse party was afforded an adequate opportunity for
cross-examination but through fault of his own failed to cross-examine the witness.

● People v. Gorospe: If the witness has been thoroughly cross-examined on material points, it is but proper to rule out the
prospect of disregarding the direct testimony of the witness although the defense counsel has not completed the
cross-examination.

● People v. Seneris: If the witness dies due to a fortuitous event after the cross-examination on material points, then the
direct examination should not be ignored.

o As a general rule, the testimony of a witness, given on direct examination, should be stricken where there is not
adequate opportunity for cross-examination, as where the witness by reason of death, illness, or absence cannot
be subjected to cross-examination.
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o HOWEVER, the direct testimony of a witness who dies before conclusion of the cross-examination can be
stricken only insofar as not covered by cross-examination and absence of a witness is not enough to warrant
striking his testimony for failure to appear for further cross-examination where the witness has already been
sufficiently cross-examined.

● People v. Narca: The direct testimony of the prosecution witness for the bail hearing was preserved after her death when
it was shown that the defense counsel requested for the deferment of the cross-exam. “Mere opportunity and not actual
cross-examination is the essence of the right to cross-examine.”

RE-DIRECT EXAMINATION

● After the cross-exam by the opponent to the witness, the proponent may subject the witness to a re-direct examination
which is intended to explain or supplement the answers given by the witness during the cross examination.

● Questions on matters not dealt with during the cross-examination can be permitted, subject to the court’s discretion.

● On re-direct examination, it is proper to draw from the witness an explanation or clarification of his testimony given on
cross-examination, or of former statements as to which he has been cross-examined or of matters brought out on
cross-examination, and on such re-direct examination the witness may give explanation of an answer and what he meant
by certain words or expressions.

Principal function of a re-direct examination: To prevent injustice to the witness and the part who has called him by
affording an opportunity to the witness to explain the testimony given on cross-examination, and to explain any apparent
contradiction or inconsistency in his statements. It serves the purpose of completing the answer of a witness, or of adding a
new matter which has been omitted, or of correcting a possible misinterpretation of testimony.

RE-CROSS EXAMINATION

● The adverse party can subject the party to re-cross examination on matters declared during the re-direct examination and
also on such other matters as may be permitted by the court in the exercise of its sound discretion.

● It is proper to allow re-cross-examination on a subject which was opened upon on direct examination, or as to new matter
which was brought out on re-direct examination, or which is designed to test the credibility of the witness or of testimony
elicited on redirect examination.

RECALL

● After the conclusion of a witness’s examination by both sides, incremental evidence from the witness rests solely on the
court’s discretion. (Sec. 9, Rule 132, ROC)

● It can be insisted as a matter of right if so reserved by a party prior to the witness’s discharge and with the court’s previous
permission.

● In the process of recall, there must be due regard to the right of the witness against unnecessary examination longer than
the interest of justice so requires in Section 3(2), Rule 132.

● Where it was shown that a witness had been previously cross-examined extensively, it was more in consonance with
justice and equity for the court to have denied the recall of the witness concerned. (Savory Luncheonette v. Lakas ng
Manggagawang Pilipino)

● Castillo v. Sebullina: No one can doubt the power of a trial judge in the course of a proceeding pending before him to
recall and re-examine a particular witness, if he deems it advisable to do so for the development of the truth as to the
issues he is called upon to adjudicate and of course upon such re-examination he may repeat any or all of the questions
asked in the examination in chief.

Leading and misleading questions

· A question is leading where it assumes any fact which is in controversy, so that the answer may really or apparently admit
that fact.
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· While the authorities concur in stating the proposition that leading questions are in general improper, some difficulty is
experienced in determining disputes as to what questions are leading and what are not, within the meaning of the rule.
· A question is leading if it suggests to the witness the answer which he is to make or if it puts into his mouth words which
he is to echo back.
· But, if it merely suggests a subject without suggesting an answer or a specific thing, it is not leading.

Exceptions

The rule which forbids a leading question does not apply when:

a. a witness is on cross-examination,
b. the question involves preliminary matters,
c. there is difficulty in obtaining answers from the witness who is ignorant, of tender age, feebleminded, or is a
deaf-mute,
d. the witness is unwilling or hostile, or
e. the adverse party is on the witness stand.

Cross-examination

· The value of cross-examination must depend upon the right of counsel thoroughly to probe the memory of an adverse
witness, and to test his accuracy and truthfulness; hence, very great latitude is allowed as to the form of questions and the
mode of conducting the examination.
· However, while leading questions may be asked on cross-examination, the rule is subject to the qualification that the
court, in its discretion, may restrict the right where the witness shows bias in favor of the cross-examiner.

Preliminary matters

· Leading questions not bearing upon the merits of the controversy, and which are calculated to save time, and bring the
witness at once to the matters in dispute, should be allowed as preliminary questions. For example, Do you know the
accused? Did you see him on March 13, 1929? - are preliminary questions, and admissible.
· Leading questions are proper, also, where they are merely introductory and designed to lead the witness more quickly to
matters which are material to the issue.

Witness lacking power of recollection

· In this situation, the question is not necessarily leading although it supplies a name or date or some connecting fact or link
which will enable the witness to recall a forgotten fact.
· Similarly, if the witness is testifying as to articles which have been lost or destroyed or goods which have been sold, his
attention may be called to items which he has failed to remember.
· Again, leading questions are often found to be necessary in the case of those who, by reason of tender years or old age,
ignorance or some infirmity are unable to state facts without some aid or suggestion

Unwilling, hostile, or adverse party witness

· If it is apparent that the witness is attempting to promote the interest of the adverse party, or if the witness is in fact the
adverse party, the court is justified in permitting the direct examination to take the form of cross-examination, leading
questions being asked as a matter of right.
· The hostility, bias, or unwillingness of a witness is to be determined by the court from his demeanor on the stand and from
such facts as may show that the witness, because of his relationship to a party, interest in the case, or for other reasons,
has some bias against the one calling him or has some disinclination to testify.

Misleading question

· A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he
has previously stated. It is not allowed to be posed by the cross-examiner unless the witness is an expert.
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o "On cross-examination of an expert witness, the rule that the facts assumed in the hypothetical questions should
appear to be supported by some evidence, does not apply. The witness may be cross-examined as to his opinion
upon imaginary facts, not only to test his skill and experience and the value of his opinion but also his credibility."

Impeachment

Concept

The impeachment of a witness embraces all means which will tend to impair his credit. Impeachment is an attack on the
credibility of a witness.

Time of impeachment

A witness may be impeached either by questions propounded to him during his cross-examination or by independent proof
subsequently introduced. A court may in its discretion permit a witness to be recalled for the purpose of laying a foundation for
his impeachment.

(See Sections 11 to 14, Rule 132 of the Revised Rules on Evidence)

Basic assumptions

a) Party is bound by own witness

· A party who voluntarily offers the testimony of a witness in the case, is, as a rule, bound by the testimony of the witness
except in the case of a hostile or adverse witness and if the witness is not voluntarily offered but is required by law to be
presented as in the case of subscribing witnesses to a will.

· The testimony from an adverse party is still evidence in the case and one who calls an adverse party as a witness will be
bound by the testimony if the party fails to discredit or impeach the adverse party.

b) Impeachment is a matter of right

· It is the right of a party to impeach the credibility of a witness whom he did not call. Generally, any fact or circumstance
tending in the least to discredit a witness is admissible to impeach him, and a party, especially the accused, is entitled to
all the evidence in the case legitimately bearing upon the question of the veracity of a witness of the prosecution.
· Impeaching a witness is a fundamental right on cross-examination. Since the witness's credibility is always an issue, it is
never beyond the permissible scope of cross-examination.
· Insofar as the time for impeachment, the witness is usually impeached during cross-examination, re-cross examination, or
during the presentation of the other party's case. In the absence of such impeachment, his testimony must be taken as
any other testimony with the presumption of truthfulness as it was given under oath.

Modes of impeachment

a) Adverse party or witness

· Section 11, Rule 132

(1) contradictory evidence,
(2) prior inconsistent statement, or
(3) evidence of bad character.
· Section 12, Rule 132
(4) evidence of conviction of a crime by final judgment where the penalty is in excess of one (1) year, or, a crime
involving moral turpitude, irrespective of the penalty, except when the conviction has been the subject of either
amnesty or annulment of the judgment of conviction.

b) Party's own witness

Good faith assumed

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· By reason of the traditional assumption that a witness is in good faith when presented as a testimonial sponsor before the
trial court, and the supposition that the party who introduces the witness under oath thereby assures the court of the
witness's credibility, a party is ordinarily enjoined from impugning his own witness

Unwilling, hostile witness

· Exceptionally, however, a party who produces a witness can assail the latter's credibility if the witness is unwilling or
hostile or is an adverse party witness. The credit of a witness cannot be impeached after the hearing and decree, and a
party desiring to impeach his own witness must do so before closing his case.

Time for recognition of hostility or unwillingness

· It has been observed 250 that the right of a party to impeach his or her own witness arises only where the witness has
testified to some matter which is shown to be prejudicial to the party who presented the witness.

Concepts on impeachment

· The major forms of impeachment consist of prior inconsistent statement and contradictory evidence.
· Prior inconsistent statement relates to oral or documentary evidence from the same witness during an occasion other than
the trial in which he is testifying. By contrast, contradictory evidence involves oral or documentary evidence from the same
witness in the same case.
· If both types of tools for impeachment emanate from the identical witness, it follows that it is improper to impeach him by
employing the statement of another witness. The impeaching statement must have been made, or at least assented to, by
the witness sought to be impeached; as a general rule, a witness cannot be impeached by proof of statements made by
others, unless such statements were assented to by the impeached witness, in which case they may be put in evidence
with the fact assent.

Laying of the predicate

Necessity for proper foundation

· A witness cannot be impeached by the proof of contradictory statements until the proper foundation or predicate has been
laid by the impeaching party. Failure to lay a proper foundation may be waived by the failure of the adverse party to object
in proper form to the introduction of the alleged former statement or testimony.

Disparities cannot be raised on appeal to impugn credibility

· Where no predicate is laid during the trial by calling the attention of a witness to alleged inconsistent statements and
asking him to explain the contradiction, proof of alleged inconsistent statements of the witness, whether verbal or written,
cannot be admitted on objection of the adverse party, or be pointed out on appeal for the purpose of destroying the
credibility of the witness.

Forms of foundation

· If the foundation for impeachment is oral, exact precision in the laying of a predicate is not necessary. It suffices if there is
reasonable certainty or if it is clear that the attention of the witness is called to the conversation in such manner that it is
identified by him. If the circumstances stated in the question are such as to describe the occasion with reasonable
certainty, a variance as to the time is immaterial.
· On the same principle if the question designates the person or the place with reasonable certainty, it is sufficient. Similarly,
it is not necessary, in laying the foundation, to give the exact language of the alleged statement; the substance is
sufficient.
· As to a written statement as foundation for impeachment, such statement should be produced at the time of such
questioning and be shown to, or read to, or by, the witness, and marked for identification. The writing by which it is
proposed to contradict the witness must be shown him on his examination so that he may read it, or it may be read to
him. He must be asked if he wrote it or signed it, and if he admits this his attention must then be called to the
inconsistencies

Discrediting a witness' statements: Irreconcilable and significant disparities

· A witness may also be impeached by prior inconsistent statements via evidence that he has made at other times
statements inconsistent with his present testimony.
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· Material discrepancies and apparent falsehoods which remain unexplained at the trial cannot be overlooked; the law
provides that in these cases the credibility of the witnesses is impeached.
· In order that the testimony of a witness may be given credit, it is necessary that it be not incompatible with other
declarations of his made on previous occasions on the same matter. But the prior inconsistent statements which may be
proved to impeach a witness must concern matter relevant to the issue to avoid interminable multiplication of issues.
· If the witness can explain satisfactorily his prior inconsistent statements, he will not be discredited.

IMPEACHMENT VIA ANOTHER WITNESS

- A denial can open the door towards the reception of another witness to prove that such statement has in fact been made.
- The additional witness can be utilized to impeach the previous witness by evidence of bad character.
- To prove the bad character of one witness by another, the latter must first be questioned to ascertain whether he is
competent to give testimony upon the subject (Note: Basically, competent ba siya mag testify regarding the reputation; i.e.
kilala ba niya? Kapitbahay ba niya? Ano reputation nung tao sa neighborhood? etc.)

IMPEACHMENT OF THE WITNESS’ CHARACTER

- Proof of a witness’ character and reputation is a recognized means of impeaching him or discrediting his testimony.
- A “direct attack upon the credibility”
- It is necessary to show that the impeaching witness knows the general character of the person to be impeached or his
reputation for truth and veracity in the community in which he resided.
- Evidence of good character of the witness can be introduced if the character of the witness is assailed during
cross-examination.

EXCLUSION AND SEPARATION OF WITNESS

- It has been the practice of courts, on motion of either counsel and sometimes on their own motion, to bar from the
courtroom all witnesses except the witness on the stand.
- Ratio: to prevent one perspective witness form being influenced by the testimony of another.

Section 15. Exclusion and separation of witnesses. - The court, motu proprio or upon motion, shall order
witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize
exclusion of (a) a party who is a natural person, (b) a duly designated representative of a juridical entity
which is a party to the case, (c) a person whose presence is essential to the presentation of the party's
cause, or (d) a person authorized by a statute to be present.

The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or
through intermediaries, until all shall have been examined.

- The power of exclusion applies only to witnesses and not to the parties in a civil case.

- The right against exclusion also applies to the accused in a criminal case since he has the right to be present and defend
in person and by counsel at every stage of the proceedings, unless he expressly or impliedly waived his presence.
- The express prohibition on witnesses from conversing with one another “directly or through intermediaries” is simply
designed to emphasize that an indirect circumvention of the rule is not allowed.
- This separation allows for the exposure of inconsistencies in their testimony.
- The rule was also designed to prevent witnesses form shaping their testimony to conform with that of another.

SCOPE

- Applies only to a witness who is not a party to the suit or criminal action.
- XPNs:
· a defendant who defaulted, though a party in the suit may be deprived of involvement in the proceedings.
· The defendant/s in a crim. Case who expressly or impliedly waived his right to be present.
· The judge excludes the defendant if his presence or conduct caused fear to a child who is testifying as a
witness or as a victim.
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VIOLATION OF A SEPARATION ORDER

- The court may forbid the witness’s testimony, assign less weight to his evidence, or cite the defiant witness for contempt.

REVITALIZING THE WITNESS’S MEMORY

- A witness may be permitted to refresh his memory or to stimulate his power of recollection by reference to a
written matter, mindful of the frailty of human memory.

Section 16. When witness may refer to memorandum. - A witness may be allowed to refresh his or her
memory respecting a fact by anything written or recorded by himself or herself, or under his or her direction,
at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in
his or her memory and he or she knew that the same was correctly written or recorded; but in such case, the
writing or record must be produced and may be inspected by the adverse party, who may, if he or she
chooses, cross-examine the witness upon it and may read it in evidence. A witness may also testify from
such a writing or record, though he or she retains no recollection of the particular facts, if he or she is able to
swear that the writing or record correctly stated the transaction when made; but such evidence must be
received with caution.

MEDIA OTHER THAN WRITINGS

- Anything that will refresh the memory of the witness may be resorted to (i.e. pictorial preservation of facts).
- The court may also allow verbal inquiry as to statements or circumstances which may tend to enable the witness to
recollect more clearly the fact which is sought to be proved,

PRECONDITION TO THE USE OF MEMORANDA

- When it is shown ahead of time as to the fading memory of the witness whose recollection therefore needs to be
refreshed by the memorandum.

Borromeo v. Court of Appeals

As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the memory of the
witness, which is not the case here. Nowhere in the record is there any indication that Alcantara needed during her testimony
the aid of any memorandum in respect to the matters contained in the notes in dispute. Besides, under the above witness
does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to
testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his testimony
has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative
evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot
be more credible just because he support his open-court declaration with written statements of the same facts even if he did
prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is
more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be
received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true
when the witness stands to gain materially or otherwise from the admission of such evidence, which is exactly the case of
Crispina Alcantara.

- Recollection is treated as an exception to the hearsay evidence rule.

TYPES OF REJUVENATION FOR THE WITNESS’S MEMORY

- “revival of present memory” à the witness recalls the facts relative to his entries and is entitled to greater weight
- “revival of past recollection” à the witness does not remember the facts involved; received with caution or prudence.
- The memorandum need not be the original when used to refresh present recollection (regarded only as secondary
evidence)

CROSS-EXAMINATION
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- The memorandum need not be brought into court. Nonetheless, the witness may be asked as to any means he used to
refresh his memory, and the absence of the writing may have a discrediting effect on his testimony.
- Where it appears that the witness has no independent recollection of either the memorandum or the facts which it recites,
and his memory is not refreshed thereby, the writing may not be used as a basis for testimony.

THEORY OF COMPLETENESS

- Piecemeal introduction of evidence by any party will authorize inquiry by the adverse party on the remainder
thereof.

Section 17. When part of transaction, writing or record given in evidence, the remainder admissible. - When
part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the
same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing
or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence.

- Under the doctrine of curative admissibility, where the court has improperly admitted evidence of a party
regarding a conversation or writing, the adverse party should be permitted to introduce the whole thereof.

People v. Regular

We have gone over thoroughly the extrajudicial confessions of the two accused. In these extrajudicial confessions, nothing is
said on how the crimes were committed. The only thing that these extrajudicial confessions had brought out of the two
accused is the fact that they had participated in the stabbing spree. In open court, the accused de Lara made explanatory
statements on how he became involved in the case, while the accused Regular completely repudiated his confession.

It is true, of course, that under the Rules and in the spirit of fair play, the whole of the confession must be put in evidence. An
extrajudicial confession may be accepted in its entirety or only a part thereof. 6 To accept fragments of the confession which
limits or modifies the criminality of the accused and suppresses others which aggravates such behavior is utterly inconsistent
with justice.

Nevertheless, the aforecited rule admits of certain exceptions, for it is not absolute. There are instances, occasions and
circumstances which can make it justifiably imperative to believe or accept only a part of the confession and reject the rest.
One such instance is when an accused, in his testimony, makes some explanatory statements tending to mitigate his
participation in the crimes committed and the prosecution fails to rebut such testimony.

RIGHT TO INSPECT A WRITING PRESENTED TO A WITNESS

- Entwined with the theory of completeness

Section 18. Right to inspect writing shown to witness. - Whenever a writing is shown to a witness, it may be
inspected by the adverse party.

- While a person who calls for the production of a document and inspects the same is not obliged to offer it, a scrutiny by the
adverse party of the whole document as presented to the witness is warranted precisely on account of the theory of
completeness.

- Where a document is produced on request, it may be inspected by the party requesting it without first being placed in
evidence.

B. AUTHENTICATION AND PROOF OF DOCUMENTS

DOCUMENT

- Any substance having any matter expressed or described upon it by marks capable of being read.
- It includes all material substances on which the thoughts of mean are represented by writing, or any other person
species of conventional mark or symbol.
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DOCUMENTARY EVIDENCE

- Legal evidence is not confined to the human voice or oral testimony.

- In documentary evidence, the witness is the thing that speaks.
- 2 principal classes

1) Public writings
2) Private writings

PUBLIC AND PRIVATE DOCUMENTS

Section 19. Classes of documents. - For the purpose of their presentation in evidence, documents are either
public or private.

Public documents are:

(a) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments;

(c) Documents that are considered public documents under treaties and conventions which are in force
between the Philippines and the country of source; and

(d) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private.

PRESENTATION OF DOCUMENTARY EVIDENCE

PROCUREMENT

- Documents being inanimate things, necessarily come to the cognizance of tribunals though human testimony
- Dead proofs (probation mortua)

STAGES

MARKING

- The instrument must be:

1. Marked
2. Identified
3. Authenticated
4. Formally offered and subjected to
5. Tender of excluded evidence, if rejected by the court

- Authentication of the document serves as the initial segment to unveil documentary evidence prior to identification,
marking, and formal offer.
- The marking and identification of the document occupy the primordial aspect in the birth of documentary evidence.

PUBLIC DOCUMENTS AND PRIVATE DOCUMENTS

- Assessment as to whether it is a priv or pub document is essential to address the question of necessity for authentication
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Republic v. Gimenez

The nature of documents as either public or private determines how the documents may be presented as evidence in court. A
public document, by virtue of its official or sovereign character, or because it has been acknowledged before a notary public
(except a notarial will) or a competent public official with the formalities required by law, or because it is a public record of a
private writing authorized by law, is self-authenticating and requires no further authentication in order to be presented as
evidence in court. In contrast, a private document is any other writing, deed, or instrument executed by a private person
without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set
forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private document
requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court.137
(Emphasis supplied)

PUBLIC DOCUMENT

- Any instrument authorized by a notary public or a competent public official with the solemnities required by law.
- Two classifications:
1) Executed by private individuals which are authenticated by notaries public
2) Issued by competent public officials by reason of their office.
- May be classified as judicial or nonjudicial.
- Judicial and nonjudicial public documents may be again divided into domestic and foreign documents.

PRIVATE DOCUMENT

- Every deed or instrument executed by a private person, without the intervention of a public notary or of other
person legally authorized, by which the document some disposition or agreement is proved, evidence or set
forth.
- Document that is defective by reason of incompetency of the notary is considered as a private instruments.

PROPOSITIONS ON AUTHENTICATION AND ADMISSIBILITY

- General Rule: a public document does not require authentication for admissibility, unlike a private document.
- A public document is admissible even against a third person insofar as due execution and the date of the
document.
- A private document is admissible only between the parties thereto.

Cavile v. Heirs of Clarita Cavile

The document speaks for itself. The foregoing document was acknowledged before Notary Public Iluminado Golez and
recorded in his notarial book as "Reg. Not. No. 41; Pag. 100; Lib. II, Serie de 1937." Documents acknowledged before notaries
public are public documents which are admissible in evidence without necessity of preliminary proof as to their authenticity and
due execution. They enjoy the presumption of regularity. It is a prima facie evidence of the facts stated therein. To overcome
the presumption, there must be evidence that is clear, convincing and more than merely preponderant. Absent such evidence,
the presumption must be upheld.

Antillon v. Barcelona

The rule is well established that before private documents may be admitted in evidence as proof, their due execution and
delivery must be proved. (Sec. 321, Act No. 190.) Their due execution and delivery may be proved (a) by any one who saw the
document executed, or (b) by evidence of the genuineness of the handwriting of the maker, or (c) by a subscribing witness.
(Sec. 324, Act No. 190.) There are certain statutory exceptions to the foregoing rule in this jurisdiction. (Sec. 326, Act No.
190.)

To the foregoing rules with reference to the method of proving private documents an exception is made with reference to the
method of proving public documents executed before and certified to, under the hand and seal of certain public officials. The
courts and legislatures have recognized the valid reason for such an exception. The litigation is unlimited in which testimony
by officials is daily needed; the occasions in which the officials would be summoned from his ordinary duties to declare as a
witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not
needed from official sources. Were there no exception for official statements, hosts of officials would be found devoting the
greater part of their time to attending as witnesses in the court or delivering their depositions before an officer. The work of
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administration of government and the interest of the public having business with officials would alike suffer in consequence.
For these reasons, and for many others, a certain verity is accorded such document, which is not extended to private
documents. (3 Wigmore on Evidence, sec. 1631.)

The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy
and fidelity; and, therefore, whatever acts they do in discharge of their public duty may be given in evidence and shall be taken
to be true under such a degree of caution as the nature and circumstances of each case may appear to require.

Identification and authentication

● Apply to the process of laying a foundation for the admission of such nontestimonial evidence as documents and objects.
● Function: to establish, by way of preliminary evidence, a connection between the evidence offered and relevant facts of
the case. There must be an element of personal connection with a corporal object.
● The process of evidencing the connection is termed “authentication,” i.e., evidencing the genuineness of the thing; or
otherwise stated, evidencing that the thing here shown did come from the very person or place testified to by the witness.
In criminal cases, the thing produced in court must be traced by testimony from hand to hand until it appears that it is the
very thing which a witness spoke of seeing or finding or using.
● No rule of evidence prevents the proof of its execution when the document lacks a signature.
● Authentication of a document is pointless when:

a) the writing is a public document (Section 19, Rule 132) except when a special rule applies like in the probate of a
will (Sections 5, 6, 11, and 12 of Rule 76);

b) authenticity and due execution of the document has been explicitly or impliedly admitted 366 by the adverse party
by failure to deny the same under oath, as in the case of an actionable document (Section 8, Rule 8);

c) it is not offered as authentic per the first paragraph of Section 20, Rule 132 of the 2019 Revised Rules on
Evidence;

d) it is simply identified as that which it is claimed to be under the last paragraph of Section 20, Rule 132;

e) it is an ancient documents under Section 21, Rule 132;

f) immaterial or not an issue before the Court;

g) authentication is eliminated by sheer operation of law;

h) self-authenticated by the contents of the letter wherein the facts are known only to the writer;

i) authenticated by the adverse party's reply purporting to be the addressee of a prior letter duly addressed and
mailed.

Rules on authentication of a private document

● Sections 20 to 22, Rule 132 of the 2019 Revised Rules on Evidence refer to the rules on authentication of a private
document.

"Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and
authenticity must be proved by any of the following means:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker; or

(c) By other evidence showing its due execution and authenticity.

Any other private document need only be identified as that which it is claimed to be."
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"When evidence of authenticity of private document not necessary. Where a private document is more than thirty years old, is
produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or
circumstances of suspicion, no other evidence of its authenticity need be given."

"How genuineness of handwriting proved. - The handwriting of a person may be proved by any witness who believes
it to be the handwriting of such person because he or she has seen the person write, or has seen writing purporting to be his
or hers upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such
person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge."

The need for proper foundation of a private document

● The identity and authenticity of the document must be reasonably established as a prerequisite to its admission in
evidence.
● The authenticity of a document, for the purpose of rendering it admissible in evidence, may be shown by direct or
circumstantial evidence. The sufficiency of the evidence for the foundation of documentary proof lies in the discretion of
the trial judge.
● Needs to answer the question, "Is this the one?" before an item is received in evidence. If an item of evidence is not what
it is claimed to be because of forgery, misidentification, or any other reason, the item is not connected with the case as its
proponent claims, it is irrelevant.

Due execution and authenticity

● Genuineness and due execution of the instrument simply means that the instrument is not spurious, counterfeit, or of
different import on its face from the one executed.

Proof of the signature

● Proof of the handwriting or signature is established through evidence from any of these methods:
a) Party or witness: Obviously, the author himself can prove his or her signature. Distinction should be made
between one who: 1) an instrumental witness, and 2) affixes his signature as proof of his consent to, approval of,
and conformity with, the contents of the deed or document.
b) Eyewitness: A witness who actually saw the person writing the instrument can testify for proof of the handwriting
in Section 20(a), Rule 132.
c) Expert or ordinary witness: 1) Section 49. Opinion of expert witness. — The opinion of a witness on a matter
requiring special knowledge, skill, experience or training which he shown to posses, may be received in
evidence, or 2) For the nonexpert opinion, the authenticating witness is asked whether he or she is familiar with
the handwriting of the author or signatory and, if so, whether the document or signature in question is in the
handwriting of that person. An affirmative response to the latter question provides sufficient authentication to
warrant admission of the document into evidence.
d) Comparison: Use of the comparison technique to establish authenticity actually involves two (2) levels of
authentication, i.e., authentication of the specimen and authentication of the offered exhibit. Appropriate
specimens may be obtained from a variety of sources including writings already in evidence for some other
purpose, documents obtained in the official case file, business records, or private writings.

Other evidence of due execution and authenticity (RCBC Bankard Services Corporation vs. Oracion, Jr.)

"For the Court to consider an electronic document as evidence, it must pass the test of admissibility. According to
Section 2, Rule 3 of the Rules on Electronic Evidence, "[a]n electronic document is admissible in evidence if it complies with
the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by
these Rules."

Rule 5 of the Rules on Electronic Evidence lays down the authentication process of electronic documents. Section 1
of Rule 5 imposes upon the party seeking to introduce an electronic document in any legal proceeding the burden of proving
its authenticity in the manner provided therein. Section 2 of Rule 5 sets forth the required proof of authentication:
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SEC. 2. Manner of authentication. - Before any private electronic document offered as authentic is received in
evidence, its authenticity must be proved 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 may be authorized by the Supreme Court or
by law for authentication of electronic documents were applied to the document; or

c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

As to method of proof, Section 1, Rule 9 of the Rules on Electronic Evidence provides:

SECTION 1. Affidavit of evidence. - All matters relating to the admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on
authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters
contained therein.

Ancient document

● Xpn to the general rule requiring documents to be authenticated by the testimony of subscribing witnesses or
otherwise.
● Based on the ground of public expediency or necessity, rather than on the presumption that the witnesses are
dead.
● As an important qualification of the rule that ancient documents prove themselves, it is essential that the
proffered instrument be on its face free from suspicion, come from proper custody, and be accompanied by some
corroborating evidence.
● If there are erasures or interlineations, or other facts giving rise to suspicion, the document should be proved, like
other documents, by the subscribing witnesses, or by proof of their handwriting. There must be some
corroborating evidence beyond the mere production of the instrument from the proper custody.
● Before an ancient document can be appreciated by the Court under Section 21, Rule 132 of the Revised Rules
on Evidence, it is required that:

(1) the private document is more than thirty years old;

(2) is produced from a custody in which it would naturally be found if genuine; and

(3) is unblemished by any alteration or circumstance of suspicion

Reckoning period of 30 years

● The period is to be reckoned backwards from the time of offering the deed, not from the time of suit begun or any
earlier period; and, forwards, from the time of its taking effect in law (as, in a will, from the death of the testator).

Proper custody

● It is a condition precedent to the admission of ancient documents, without proof of their execution, that they must
come from proper custody.
● What is proper custody is a question which may be determined by all the circumstances of the case.
● An ancient document, to be admissible under the present rule, must in appearance be unblemished by any
alterations or unaccompanied by any circumstances of suspicion.

Proof of signatures by comparison

● According to the rule commonly adhered to by the courts, it was not permissible to compare the disputed writing
with an admittedly genuine specimen of the writing of the person who was alleged to have executed the
instrument in question.
● At present, it is now generally recognized that a comparison of writings is a rational method of investigation and
that similarities and differences disclosed are probative.
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● The practice of comparing writings is largely regulated bu statute; comparison being permitted between the
disputed writing and any other writing which is admitted or proved to be genuine.
● Familiarity of a record custodian with a signature is enough foundation for comparison with the subject
handwriting and expert on the matter was not indispensable.
● Sec. 22, Rule 132 provides:

Section 22. How genuineness of handwriting proved. - The handwriting of a person may be proved by any witness who
believes it to be the handwriting of such person because he or she has seen the person write, or has seen writing purporting to
be his or hers upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such
person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge.

Public and private documents as evidence

● Additional guidelines for a public document and a private document

● Sections 23 to 33 of Rule 132 provides:

Section 23. Public documents as evidence. - Documents consisting of entries in public records made in the performance of
a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even
against a third person, of the fact which gave rise to their execution and of the date of the latter.

Section 24. Proof of official record. - The record of public documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody.

If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or convention to which the
Philippines is also a party, or considered a public document under such treaty or convention pursuant to paragraph (c) of
Section 19 hereof, the certificate or its equivalent shall be in the form prescribed by such treaty or convention subject to
reciprocity granted to public documents originating from the Philippines.

For documents originating from a foreign country which is not a contracting party to a treaty or convention referred to in the
next preceding sentence, the certificate may be made by a secretary of the embassy or legation, consul general, consul,
vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his or her office.

A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof, the
certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved. The
certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the
requirement, or has exempted the document itself from this formality.

Section 25. What attestation of copy must state. - Whenever a copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as
the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he or she be the
clerk of a court having a seal, under the seal of such court.

Section 26. Irremovability of public record. - Any public record, an official copy of which is admissible in evidence, must not
be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to
the just determination of a pending case.

Section 27. Public record of a private document. - An authorized public record of a private document may be proved by the
original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such
officer has the custody.

Section 28. Proof of lack of record. - A written statement signed by an officer having the custody of an official record or by
his or her deputy that, after diligent search, no record or entry of a specified tenor is found to exist in the records of his or her
office, accompanied by a certificate as above provided, is admissible as evidence that the records of his or her office contain
no such record or entry.

Section 29. How judicial record impeached. - Any judicial record may be impeached by evidence of:
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(a) want of jurisdiction in the court or judicial officer;

(b) collusion between the parties; or

(c) fraud in the party offering the record, in respect to the proceedings.

Section 30. Proof of notarial documents. - Every instrument duly acknowledged or proved and certified as provided by law,
may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the
execution of the instrument or document involved.

Section 31. Alteration in document, how to explain. - The party producing a document as genuine which has been altered
and appears to have been altered after its execution, in a part material to the question in dispute, must account for the
alteration. He or she may show that the alteration was made by another, without his or her concurrence, or was made with the
consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the
meaning or language of the instrument. If he or she fails to do that, the document shall not be admissible in evidence.

Section 32. Seal. - There shall be no difference between sealed and unsealed private documents insofar as their admissibility
as evidence is concerned.

Section 33. Documentary evidence in an unofficial language. - Documents written in an unofficial language shall not be
admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings,
parties or their attorneys are directed to have such translation prepared before trial.

● The amendments distinguish between public documents that emanate from countries that are signatories or
parties to treaties or conventions to which the Philippines is a party and countries that are not signatories or
parties to such treaties or conventions
● In Section 23, Rule 132, documents consisting of entries in public records if made by a public officer in the
performance of a duty are prima facie evidence of the facts stated is similar to the provision in Sec. 46, Rule 130.
➔ Section 46. Entries in official records. - Entries in official records made in the performance of his or
her duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated.

Proof of public documents

● Public documents under Sec. 19(a) of Rule 132 may be proved by:
a) The original copy
b) Official publication thereof
c) Copy attested by an officer having legal custody of the record or his or her deputy, with a certificate that
such officer has custody, if the record is not kept in the Philippines.

*If a certified true copy is used, there must be a certification or attestation of the true copy under Sec. 24 and
25 of Rule 132, apart from the requisite documentary stamp tax, unless exempted therefrom.

● Inability to stamp the taxable document will not render the document invalid. But, it could preclude registration,
admissibility, inclusion of the jurat or acknowledgment from the notary public and will lead to the imposition of
surcharge and interest.
● Presentation of duplicate or carbon copies of a document may carry the presumption that the documentary
stamp tax was affixed on the original.
● The Apostille Convention provides the following:

Article 3

The only formality that may be required in order to certify the authenticity of the signature, the capacity in which the person
signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears, is the addition of the
certificate described in Article 4, issued by the competent authority of the State from which the document emanates. However,
the formality mentioned in the preceding paragraph cannot be required when either the laws, regulations, or practice in force in
the State where the document is produced or an agreement between two or more Contracting States have abolished or
simplified it, or exempt the document itself from legalisation.

Article 4
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The certificate referred to in the first paragraph of Article 3 shall be placed on the document itself or on an "allonge"; it shall be
in the form of the model annexed to the present Convention. It may, however, be drawn up in the official language of the
authority which issues it. The standard terms appearing therein may be in a second language also. The title "Apostille
(Convention de La Haye du 5 octobre 1961)" shall be in the French language.

Article 5

The certificate shall be issued at the request of the person who has signed the document or of any bearer. When properly filled
in, it will certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where
appropriate, the identity of the seal or stamp which the document bears. The signature, seal and stamp on the certificate are
exempt from all certification.

Foreign Law

● PH does not take judicial notice of foreign laws, hence, they must not only be alleged; they must be proven.
○ To prove, party invoking must present a copy and comply with Secs. 24 and 25 od Rule 132 of Revised
Rules of Court (RRC)

Section 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody.

If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or convention to which the
Philippines is also a party, or considered a public document under such treaty or convention pursuant to paragraph (c) of Section
19 hereof, the certificate or its equivalent shall be in the form prescribed by such treaty or convention subject to reciprocity
granted to public documents originating from the Philippines.

For documents originating from a foreign country which is not a contracting party to a treaty or convention referred to in the next
preceding sentence, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-consul,
or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is
kept, and authenticated by the seal of his [or her] office.

A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof, the
certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved. The
certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the
requirement, or has exempted the document itself from this formality. (24a)

Section 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the
case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he or she be the clerk of
a court having a seal, under the seal of such court. (25a)

● Morana v. Republic - to extend to the petitioner the opportunity to properly prove the appropriate Japanese law
on divorce.
○ Well settled that PH Court cannot take judicial notice of foreign laws. Like any other facts, they must be
alleged and proved. The power of judicial notice must be exercised with caution, and every reasonable
doubt upon the subject should be resolved in the negative.
○ Petitioner merely offered print outs of pertinent portions of the Japanese law on divorce and its English
translations. No proof at all that these printouts reflected the existing law on divorce in Japan and its
correct translation. PH rules require more than a printout from a website to prove foreign law.
○ In Racho, Japanese law was duly proved through a copy of the English Version of the Civil Code of
Japan translated under the authorization of the Ministry of Justice and the Code of Translation
Committee.
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● Rotterdam v. Glow Laks Enterprises - acknowledged the propriety of proof of foreign law through testimonial
evidence from a lawyer in San Francisco
○ The RRC does not exclude the presentation of other competent evidence to prove the existence of
foreign law.
○ In Willamette Iron Case, the Court allowed foreign law to be established on the basis of the testimony in
open court during trial in the PH of an attorney at law in San Francisco, who quoted the particular
foreign law sought to be established.
○ Petitioners cannot invoke Willamette ruling since their expert witness never appeared during trial and
his deposition was obtained ex parte.
● Sobejana-Condon v. COMELEC - acknowledged the legal feasibility of accepting other modes of proof for
foreign law.
○ Existence of foreign law may also be established through:
■ Testimony under oath of an expert witness
■ In naturalization cases, Court held that evidence of the law of a foreign country on reciprocity
regarding acquisition of citizenship, although not meeting the prescribed rule of practice, may
be allowed and used as basis for favorable action, if, in the light of all circumstances, Court is
satisfied of the authenticity of the written proof offered.
● Mere authentication of Chinese Naturalization Law by the Chinese Consulate General
of Manila was held to be a competent proof of that law.
● Oral testimony from expert witnesses can also prove an unwritten foreign law.
○ Distinction to be made to the manner of proving written and unwritten law.
■ Written - Sec. 24, Rule 132
■ Unwritten - oral testimony of expert witness is admissible, as are printed and public books of
reports of decisions of the courts of the country concerned if proved to be commonly admitted
in such courts.
● Secs. 24 & 25 Rule 132 of RR on Evidence (1989) -
○ Domestic record must be evidenced by:
■ Official publication
■ A copy thereof
■ Attested by the officer having the custody of the record or his deputy and
■ Certificate that such officer has the custody
○ Foreign record is evidenced by:
■ Official publication
■ Copy thereof
■ Attested by the officer having the legal custody of the record or his deputy
■ Accompanied by a certificate by a secretary of the embassy or legation, consul general,
consul, vice consular, or consular agent or foreign service officer, and with the seal of his
office.
● The amendment introduced in Secs. 19(c) and 24 of Rule 132 and to supplement the explanation from the Rules
Committee, it is apt to consider the Apostille Convention.
○ PH assented to the instrument Sept. 12, 2018 and effective on May 14, 2019 between the PH and other
contracting states.
● CONVENTION ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC
DOCUMENTS

Apostille Convention

➔ With modification of the rule, a foreign public instrument or official record from a State-signatory to the Apostille
Convention is admissible in the PH, as prima facie evidence of the authenticity of the foreign document, based
on a certificate or its equivalent prescribed by the treaty or convention, subject to reciprocity, and without
prejudice to subsequent abolition of the requirement or exemption.
➔ If the state is not a signatory of the Apostille Convention, certificate of foreign public record can suffice if made by
the proper Philippine officer stationed in the foreign country, and authenticated by the seal.
Attestation

➢ Attestation - solemn or official declaration, oral or written, in support of a fact.

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○ The door to fraud and mistake which would be opened to by the admission in evidence of uncertified
copies of original writings, sufficiently explains this very salutary rule of evidence.
➢ On principle, a certificate needs to state no more than that the paper bearing it is a copy of a specified document
in the certifier’s custody.
➢ To “certify” - to affirm or to assert in writing the correctness or identity of the designated instrument. Not
necessary that a sufficient certification employ the word “certificate” or “certify”. Sufficient if writing is a certificate
in substance.
➢ Noveras v. Noveras - absence of certificates of authenticity and the seal of attesting officer can be fatal to a
cause of action.
○ Sec. 25 states that whenever a copy of a document or record is attested for the purpose of evidence,
the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part
thereof, as the case may be.
○ Attestation must be under official seal of attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
○ In Bayot, the Court relaxed the requirement on certification where they held that petitioner was clearly
an american citizen when she secured the divorce and that divorce is recognized and allowed in any of
the States of the union, the presentation of a copy of foreign divorce decree unduly authenticated by the
foreign court issuing said decree is sufficient.

Irremovability of public record

● When essential to the just determination of a pending case, the Court can order the inspection and production of
the original public record under, and by way of exception to, Sec. 26, Rule 132 RRE, like in a criminal case for
falsification of public document which entails production via a subpoena duces tecum of the original falsified
public document to prevent exoneration of the accused.
● Pacasaum v. People - non-representation of original fabricated document is not necessarily fatal in a criminal
case for falsification if secondary evidence is properly explored in lieu of the original paper.
● For reasons similar to those applicable to judicial records, documents belonging to any public office need not be
produced but may otherwise be proved.
● Removal or production of evidence would delay and hinder the official use of the files, would make it impossible
for other persons to consult the absent documents, would subject them to risk of the loss and would injure them
by constant wear and tear.

Public Record of a private document

➔ Public records kept in the PH of private writings are public writings, and a copy of the same, duly certified to be
true, should be admissible in evidence the same as the original writing.
◆ Only private documents required by law to be of public records are public documents such as marriage
contracts, birth certificates, etc.
◆ When rules speak of public record, it means that which the law required to be recorded.
➔ For a public record in the PH of a private document which is required to be entered in Sec. 19(d), Rule 132,
when juxtaposed with Sec. 27, Rule 132, what is considered an authorized public document is not the private
writing but the public record.
◆ If a writing itself is inserted officially into a public record, its recordation or incorporation into the public
record becomes public document, but that does not make the private writing itself a public document so
as to make it admissible without certification.
➔ Under this rule, authorized public record of a private document may be proved by:
◆ Original record
◆ Copy thereof, attested by the legal keeper of the record, with an appropriate certificate that such officer
has the custody

Proof of lack of record

➢ Sec. 27, Rule 132, custodian’s certificate to the effect that after diligent search no record or entry of a specified
tenor is found to exist in the records of his office, is admissible as evidence of lack of record.
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➢Certificate of custodian of the record is as satisfactory for evidencing its nonexistence in his office as his
testimony on the witness stand to this effect would be.
➢ Absent documentary and testimonial evidence as to exertion of diligent efforts in locating document, presumption
of regularity in the performance of official duty cannot apply.
➢ If certificate of no record on file is issued by a government office, it is sufficient and competent evidence even
without the testimony of the person who issued the certification as an exception to the hearsay evidence rule.
➢ Republic v. CA - certification from local civil registrar as to inability to locate marriage license from office file was
considered adequate to establish non issuance of marriage license prior to the marriage, especially so when the
Petition was amplified by the wife’s testimony, sans the husband’s contestation despite occasion.
○ Certification of “due search and inability to find” issued by the civil registrar of Pasig enjoys probative
value, he being the officer charged to keep a record of all data relative to the issuance of a marriage
license.
○ A certificate of due search and inability to find sufficiently proved that his office did not issue marriage
license no. 3196182 to the contracting parties.
○ The fact that private respondent Castro offered only her testimony in support of her petition is, in itself,
not a ground to deny her petition.
○ Failure to offer any other witness to corroborate her testimony is mainly due to the peculiar
circumstances of the case.
➢ Kho v. Republic - defective certification of lack of record is not necessarily inadmissible.
○ The certification issued by the local civil registrar(LCR), which attests to the absence in its records of a
marriage license, must categorically state that the document does not exist in the said office despite
diligent search.
○ In Rep. v. CA - Court considered the certification issued by the LCR as a certification of due search and
inability to find the record or entry sought by the parties despite the absence of the categorical
statement that “such document does not exist in their records despite diligent search”
■ Court citing Sec. 28, 26 Rule 132 ROC held that certification of due search and inability to find
a record or entry as to purported marriage license, issued by the civil registrar, enjoys
probative value, he being the officer charged under the law to keep a record of all data relative
to the issuance of a marriage license.
○ Under Sec. 3(m) Rule 131 ROC, it is a disputable presumption that an official duty has been regularly
performed, absent contradiction or other evidence to the contrary.
○ Presumption may be rebutted by affirmative evidence of irregularity or failure to perform duty.
Impeachment of Judicial Record

● Judicial Record - record, official entry, or files of the proceedings in a court of justice, or of the official act of the
judicial officer, in an action, suit or proceeding.
● Although there presumption of regularity in the performance of official duty and a court or judge acted in the
lawful exercise of jurisdiction in Sec. 3(m) and (n), Rule 131 RRE, a judicial record can still be impeached by
evidence of:
○ Want of jurisdiction in the court or judicial officer
○ Collusion between parties
○ Fraud in the party offering the record
● Jurisdiction - power and authority of a court to hear, try and decide a case.
○ Foundation upon which the courts exercise their power of adjudication and without which, no rights or
obligations could emanate from any decision or resolution.
● Subject matter jurisdiction is a matter of law.
○ It cannot be conferred by the acquiescence of the courts.
○ Courts must not change the relief and remedy to accommodate a petition over which it has no subject
matter jurisdiction the same way that parties cannot choose, consent to, or agree as to which court or
tribunal should decide their disputes.
○ Absent any jurisdiction over subject matter, or if there is excessive exercise of jurisdiction by a judicial
officer, it can be properly impugned in the manner specified by law or jurisprudence.
● Ongkiko v. Sugiyama - situation where Information was defective because it was initiated by an authorized
officer without the corresponding approval, or when it was filed by an unauthorized official.

○ While a court has jurisdiction over subject matter, it does not acquire jurisdiction over the case itself until
its jurisdiction is invoked with the filing of the Information.
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○ In instances where the information is filed by an authorized officer, like a public prosecutor, without the
approval of the city prosecutor appearing in the information, but the resolution for filing of the
information bears the approval of the city prosecutor, or their duly authorized deputy, and such lack of
approval is timely objected to before arraignment, the court may require the public prosecutor to have
the signature of the city prosecutor affixed in the information to avoid undue delay. However, if objection
is raised after arraignment, at any stage of the proceeding or even on appeal, the same should no
longer be a ground to declare the information as invalid, because it is no longer a question of jurisdiction
over the case.

○ If information is filed by public prosecutor without the city prosecutor’s or their deputy’s approval both in
the information and the resolution for the filing thereof, then the court should require the public
prosecutor to seek the approval of the city prosecutor before arraignment; otherwise, case may be
dismissed on ground of lack of authority to file information under Sec. 3(d), Rule 117. This ground may
be raised at any stage of the proceedings, which may cause the dismissal of the case.

○ If information is filed by an unauthorized official - not a public prosecutor, like private complainant or
even public officers not authorized by law or rule to file information - then information is invalid from the
very beginning, and court should motu proprio dismiss the case even without any motion to dismiss,
because such kind of information cannot confer upon the court jurisdiction over the case.
● Court held that where there is an apparent denial of fundamental right to due process, decision is issued in
disregard of that right is void for lack of jurisdiction, in view of the cardinal precept that in cases of violation of
basic constitutional rights, courts are ousted from their jurisdiction.
● Well settled that a judgment or decision rendered without due process is void ab initio and may be attached at
any time directly or collaterally by means of a separate action, or by resisting such decision in any action or
proceeding where it is invoked for such judgment or decision is regarded as a lawless thing which can be treated
as an outlaw and slain at sight or ignored wherever it exhibits its head.
○ However, estoppel of a party can impede an explicit challenge to jurisdiction.
● Collusion - an agreement between 2 persons that the one should institute a suit against the other, in order to
obtain the decision of a judicial tribunal for some sinister purpose.
○ 2 kinds:
■ When the facts put forward as the foundation of the sentence of the court do not exist
■ When they exist, but have been corruptly preconcerted for the express purpose of obtaining
the sentence
○ Where the parties collusively procure a judgment or decree, neither may have it vacated on that ground,
since he is estopped by his own misconduct.
○ Like subject matter jurisdiction, collusion is vulnerable to judicial redress.
● Judicial record can also be challenged due to fraud.
○ Extrinsic Fraud - any fraudulent act of the prevailing party in litigation committed outside of the trial of
the case, whereby the defeated party is prevented from fully exhibiting his side of the case by fraud or
deception practiced on him by his opponent, such as:
■ Keeping him away from court
■ Giving him a false promise of a compromise
■ Defendant never had the knowledge of the suit, being kept in ignorance by the acts of the
plaintiff
■ Attorney fraudulently or without authority connives at his defeat
● While foreign judgment can be recognized and enforced pursuant to Sec. 48, Rule 39 CivPro, verdict itself can
be resisted by proving lack of jurisdiction, lack of notice to the party, collusion, fraud, or clear mistake of fact or
law.

Proof of notarial documents

➢ Except for last will and testament, a document acknowledged before the notary public is also a public document
in Sec. 19(b), Rule 132 of the RRE.
➢ 2nd sentence of Sec. 23 Rule 132 - 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.
○ Public documents other than entries in public records made in the performance of a duty by a public
officer, and it includes notarial documents.
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➢ Act of notarization is imbued with substantive public interest.
○ It converts a private document into a public document resulting in the document’s admissibility in
evidence without further proof of its authenticity.
○ Notarial document is entitled to full faith and credit on its face and by law.
➢ Notarial document, if properly proved or certified according to law, may be utilized without proof of genuineness
and due execution.
○ However, given the restrictive role of notary public, and inasmuch as certificate of acknowledgement on
a notarial document is only prima facie evidence of the execution of the instrument or document
involved under Sec. 30, Rule 132, fact of notarization does not imply validity of the document nor is it
conclusive of the true agreement between the parties.
➢ Although classified as a public document, a notarized document is merely evidence of fact which gave rise to
their execution and of the date of the latter.
○ When notarization is defective, public character of document is stripped off and reduced to mere private
document that should be examined under the parameters of Sec. 20, Rule 132.
➢ To overcome prima facie evidence accorded to public document, a high degree of proof is needed.

Alteration on a document

➔ Alteration - act done upon the document by which its meaning or language is changed.
◆ If what is written upon or erased from the instrument has no tendency to produce this result, or to
mislead any person, it is not an alteration.
◆ Alteration is material when it affects, or may possibly affect, the rights of the persons interested in the
document.
➔ Material alteration - one which makes it speak a language different in legal effect from that which it originally
spoke, or which carries with it some change in the rights, interests, or obligations of the parties to the writing.

Account for alteration when instrument is introduced

● To surpass admissibility of materially altered document after its execution, Sec. 31, Rule 132 requires party
producing instrument as genuine to demonstrate before the court upon introduction, and not afterwards, that it
was made by another without the proponent’s conformity, or with the consent of all parties affected by it, or it was
properly or innocently made or it did not change the meaning or language of the document.
● If alteration is made by a stranger, party to the document should not be deprived of benefit of the contract
through the wrongful act of an outsider.
● An alteration on document to change the age of person can hardly be classified as an alteration if modification
was a correction of the instrument to speak truth. It was a correction, not falsification,
● Absent positive proof as to when and by whom alterations apparent on face of document were made, general
presumption by law is that they were made contemporaneously with its execution, for the law will not presume
fraud without evidence to sustain the imputation, but any ground of suspicion appearing upo face of instrument or
arising from circumstances of case is sufficient to rebut general presumption, and throws upon party offering
document burden of showing how, when, by whom and with what intent such alteration were made, it being fair
enough that one who desires to avail himself of the benefit of a document bearing suspicious alterations on the
face should be prepared to show how they appeared there.
● Some hold that even an immaterial alteration if made with fraudulent purpose, has the effect of vitiating the
instrument.
○ Many decisions, however, support the rule that materiality of alteration, rather than intent with which it
has been made, is the controlling factor.
● If alteration is material = instrument invalidated.
● Material alteration, after delivery, if unexplained, is presumptively fraudulent.

Seal

● There is no difference between a sealed or unsealed private document insofar as admissibility thereof (Sec. 32,
Rule 132 RRE)
● Absence of seal on public document, such as court order for decree of registration, can substantially affect a
petition for reconstitution of a certificate of title. (Recamara v. Republic)
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● For additional authentication, seal of issuing office is required for a document originating from foreign country
which is not a contracting party to a treaty or convention (3rd par. Sec. 24, Rule 132 RRE)
● Attestation must be under the official seal of the attesting officer or court seal (Sec. 25, Rule 132 RRE)

Documentary evidence in an unofficial language

● Filipino is the national language in the Philippines (Sec. 6, Art. XIV 1987 Constitution)
○ For purposes of communication and instruction, official languages of the PH, under Sec. 7 Art. XIV of
the Constitution, are Filipino and, until otherwise provided by law, English.
● Document written in an unofficial language shall not be admitted as evidence if it is not accompanied with the
corresponding translation into English or Filipino. (Sec. 33, Rule 132)
● St. Martin Polyclinic v. LWV Construction - Sans any translation in English or Filipino provided by respondent,
same should not have been admitted in evidence; thus their contents could not be given probative value, and
deemed to constitute proof of the facts stated therein.
● To avoid unnecessary interruption of proceedings, official translation should be prepared by the parties or their
lawyers prior to trial and translation in the official language should emanate from an official interpreter. (J.
Feliciano, Pacific Asia Overseas Shipping Corp. v. NLRC)
○ The Dubai decision is accompanied by a document which purports to be an English translation of that
decision; but that translation is legally defective.
○ Sec. 34, Rule 132 > documents written in a non-official language shall not be admitted as evidence
unless accompanied by a translation into English/Spanish/Filipino.
○ Ahog v. Cabiling (J. Moreland) - need for a translation of a document written in a language other than
an official language.
■ When there is presented in evidence an exhibit written in any language other than Spanish,
exhibit should be translated into Spanish by the official interpreter of the court, or a translation
should be agreed upon by the parties, and both original and translation sent to this court.
○ Teng Giok Yan v. Hon. CA (J. Montemayor) - translation made by the court interpreter is official and
reliable not only because of the recognized ability of said interpreter to translate Chinese characters into
English, but also because said interpreter was under the direct supervision and control of the Court.
○ In the present case, no showing who effected the English translation of Dubai decision which
respondent submitted.
■ English translation does not purport to have been made by an official court interpreter of the
PH Gov’t nor of the Dubai Gov’t.
■ Neither identity of translator nor his competence in both languages has been shown.
■ English translation submitted is not sworn to as an accurate translation of the original decision
in Arabic. Neither has that translation been agreed upon by the parties as a true and faithful
one.
● People v. Salison, Jr (J. Regalado) - Sec. 33 of Rule 132 RRE is vulnerable to waiver more so when no
prejudice was caused to defendant and where it was shown that concerned parties and judicial authorities or
concerned personnel were familiar with or knowledgeable of Cebuano in which document was written.
● Heirs of Doronio v. Heirs of Doronio - requirement that documents written in an unofficial language must be
accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be
insisted upon by the parties at the trial to enable the court, where a translation has been impugned as incorrect,
to decide the issue.
○ Where such document, not so accompanied with a translation in English or Filipino, is offered in
evidence and not objected to, either by the parties or the court, it must be presumed that the language
in which the document is written is understood by all, and the document is admissible in evidence.
● When a document unaccompanied with translation in the official language is admitted without objection, it will be
considered by the appellate courts, and in criminal cases the SolGen may be ordered to submit a translation with
notice to the accused.

C. OFFER AND OBJECTION

● Admissibility of evidence is determined at the time it is offered to the court.

● It cannot be gainsaid that the offer and objection from the parties is the process of inclusion and exclusion of
evidence.
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○ To calibrate the offer and objection, if any, the court will then rule, subject to the prospect of tender of
excluded evidence.
● Introduction of evidence is distinct from its formal offer.
○ While evidence may have been marked and introduced, it may be withdrawn and it may or may not be
formally offered in the exercise of a proponent’s, or even the opponent’s discretion on the matter.
○ Introduction is simply a prologue but it may not perforce culminate into the formal offer.
● In actual practice, there is difference between presentation or introduction of evidence and offer such evidence at
trial of a case.
● Presentation consists of putting in as evidence the testimony of witnesses or documents relevant to the issue.
● Offer means statement made by counsel as to what he expects to prove through the witness.
○ “Offer of evidence” in Sec. 34, Rule 132 > include the presentation or introduction of evidence.
● What is essential in order that an offer of testimony may be valid is that the witness be called and asked
appropriate questions.
○ Document or article is not evidence when it is simply marked for identification, it must be formally
offered in evidence, and opposing counsel must have an opportunity of objecting it or cross-examining
any witness called to prove or identify it.
● Chua v. CA - how a document or paper undergoes presentation of evidence to formal offer.
○ Procedure to present documentary evidence before the court:
■ Document should be authenticated and proved in the manner provided in the ROC
■ Document should be identified and marked for identification
■ It should be formally offered in evidence to the court and shown to the opposing party so that
the latter may have an opportunity to object
● US v. Diaz (J. Torres) - evidence from a party can be utilized by the adverse party
○ In view of the repeated presentation of the record of said trial, it was not necessary for the provincial
fiscal to offer the said proceedings for a 3rd time as evidence for the prosecution and he is entitled to
avail himself of them to prove the crime and guilt of the principal, inasmuch as it is a rule of law that
document presented in evidence by one party may likewise be used by the adverse party as evidence
for his cause of action.
● There are 7 section on the projected inclusion or exclusion of evidence in Secs. 34-40 Rule 132.

Section 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The purpose for which the
evidence is offered must be specified. (34)

Section 35. When to make offer. – All evidence must be offered orally.

The offer of the testimony of a witness in evidence must be made at the time the witness is called to testify.

The offer of documentary and object evidence shall be made after the presentation of a party’s testimonial evidence. (35a)

Section 36. Objection. – Objection to offer of evidence must be made orally immediately after the offer is made.

Objection to the testimony of a witness for lack of a formal offer must be made as soon as the witness begins to testify. Objection to a
question propounded in the course of the oral examination of a witness must be made as soon as the grounds therefor become reasonably
apparent.

The grounds for the objections must be specified. (36a)

Section 37. When repetition of objection unnecessary. – 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 such objection was
sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his or her continuing
objection to such class of questions. (37a)

Section 38. Ruling. – The ruling of the court must be given immediately after the objection is made, unless the court desires to take a
reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give
the party against whom it is made an opportunity to meet the situation presented by the ruling.
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The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two [(2)] or more grounds, a
ruling sustaining the objection on one [(1)] or some of them must specify the ground or grounds relied upon. (38)

Section 39. Striking out [of] answer. – Should a witness answer the question before the adverse party had the opportunity to voice fully its
objection to the same, or where a question is not objectionable, but the answer is not responsive, or where a witness testifies without a
question being posed or testifies beyond limits set by the court, or when the witness does a narration instead of answering the question, and
such objection is found to be meritorious, the court shall sustain the objection and order such answer, testimony or narration to be stricken off
the record.

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (39a)

Section 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the court, the offeror may have the
same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other
personal circumstances of the witness and the substance of the proposed testimony. (40)

Committee Notes

Proposed to prevent delays caused by submission of written formal offer of evidence.

Proposed amendment > “The offer of the testimony of a witness in evidence must be made at the time the witness is called to
testify.”

● Does not at all change the substance of existing rule; it relates only to the form or phraseology of the section.

Sub-Committee proposed the 2nd par. To read “Such offer shall be done orally, unless the court allows the offer to be made in
writing within 5 days”

● This was intended to limit the discretion of the court in respect of the allowable period for making written offer of
evidence.

● Members of SubCom took note of the fact that many judges are quite liberal in the grant of the allowable period
for making written offers of evidence - usually, 30 days subject to extension - and that this practice is one of the
many causes contributing to the delay in the resolution of the cases.

However, rules committee removed written offer altogether in accordance with the rule on offer of evidence under Continuous
Trial of Criminal Cases which state that “the offer of evidence, the comment/objection thereto, and the Court ruling thereto
shall be made orally”

Proposed amendment incorporates ruling in Catuira v. CA, case where prosecution failed to offer in evidence the testimony of
the complaining witness upon calling her to testify and that the offer was made only after her testimony and after the accused
had moved that the testimony be stricken off the record.

● SC held that procedural error or defect was waived when accused did not object to the testimony when it was
first offered upon calling the complainant.

● Substitution of word “must” for “shall” in the existing rule is just a matter of style.

The oral offer

Any evidence which a party desires to submit to the consideration of the court must be formally offered by the proponent. Offer
is necessary because it is the duty of the judge to rest the findings of facts and judgment only on and strictly upon the
evidence offered by the parties at the trial. Offer must now be made orally, to show that the party is ready and willing to submit
the evidence in court. Absent any formal offer, no evidentiary value can be given to the evidence that was merely introduced
by a party.
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In every trial of an adversary or responsory nature, the first general line of division in the presentation of evidence will have
reference to the whole mass of evidence as shared between the opposing parties. Each must have his turn. It its immaterial
under what system of pleading the trial is conducted; it is assumed that the law of pleading has prescribed whether one or
more than one plea may be at issue, and that the law of procedure has prescribed whether one or more than one issue may
be investigated at the same trial. In any case, the party sustaining the burden of affirmation (proponent) will first come forward
with his evidence in support, the party sustaining the opposite (opponent) will then come forward in denial, and each in turn
may need to present further evidence. The apportionment of the whole evidential material between the parties is thus the first
problem.

Next, since almost all evidential material comes before that tribunal through assertions of witnesses, and since every witness
is subject to examination by the opposing as well as by calling the calling party, to extract the whole of his further line of
division in the examination for each witness; he may need to be examined first by the calling party, then by the opposite party,
and so again by each in turn. The apportionment of the order and topics of examination for each witness, as between the
parties, thus presents the second problem.

Evidence not formally offered before the trial court cannot be considered on appeal, for to consider it at such stage will deny
other parties to their right to rebut it.

Thus, there must be the offer of evidence which involves three kinds of questions on the time of offer, the form of the offer and
its tenor.

Function of offer

To inform the court what the party making the offer intends to prove, so that the court may rule intelligently upon the objections
to questions which have been asked, and may be necessary in order to preserve an exception to a ruling of the trial court
excluding evidence.

As a GR, a party offering evidence must show its relevancy, materiality, and competency, and when he seeks to introduce
evidence which does not appear to be relevant or competent, he should make a formal offer of proof showing what testimony
he proposes to adduce, and when necessary, his intention to prove other facts which will render the evidence competent; the
purpose for which apparently irrelevant or incompetent evidence must be disclosed.

Specific offer

The purpose for which the evidence is offered must be specified since the evidence may be admissible for a specific purpose
but not admissible generally; or may be admissible for one purpose but not for another; or it may be admissible against one
joint defendant but not against another.

Whether the offer is general, and the evidence is admissible for one purpose but inadmissible for another, the evidence should
be rejected. Likewise, where the offer is made for 2 or more purposes and the evidence is incompetent for one of them, the
evidence should be excluded. The reason is that “it is the duty of the party to select the competent from the incompetent of
offering testimony, he cannot impose this duty upon the trial court.”

When a party offers a particular documentary instrument as evidence he must specify the purpose for which the document or
instrument is offered. He must also describe and identify and offer the same as an exhibit so that the other party may have the
opportunity of objecting to it.

Absence or flaw of and oral offer

Certain instances can avert the formal offer of evidence or ratify a faulty offer

a. Matters which need not be proved

- A party can be relieved of the formal offer of his evidence if the court takes judicial notice thereof, or a
disputed fact or evidence is judicially admitted.

b. Civil case under summary procedure

- ­in a civil case covered by summary procedure, no trial unfolds and there can hardly be any occasion to
speak of formal offer of evidence therein.
- Heirs of Lourdes Saez Sabanpan v Comorposa reiterated the principle involving a civil case for unlawful
detainer:
o The certification was not formally offered, however, because respondents had not been able to file
their position paper. Neither the rules of procedure nor jurisprudence would sanction the admission
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of evidence that has not been formally offered during the trial. But this evidentiary rule is applicable
only to ordinary trials, not to the cases covered by the rules of summary procedure.
- Chinatrust Commercial Bank v Turner also acknowledged that a civil case covered by the rule on summary
procedure does not require any trial and thus, there can be no presentation of witnesses during actual trial.

c. Common exhibit
- If the documentary evidence becomes a common exhibit after it has been adopted by the adverse party, the
absence of a formal offer by the adverse party of the evidence that has been admitted by the court after its
formal offer by the proponent is of no moment. (People v Cabodoc)

d. Waiver
- People v Java- absence of formal offer of testimonial evidence may be cured by the lack of objection to it
during trial and when the exception to the defect was aired only on appeal.
- Catuira v CA- also applied the doctrine of waiver when the adverse party adopted a sub silencio treatment
anent the absence of a formal offer of testimonial evidence.

e. Identification and integration

- If the evidence has been identified by the testimonial sponsor and integrated in the record of the case, the
absence of a formal offer of evidence will not prevent its admissibility.
- Mato Vda. De Onate case, relaced the application of Sec 34, Rule 132 as regards offer of evidence and
allowed evidence not formally offered to be considered by the trial court, the same was subject to the
presence of the following requirements: first, that the evidence must have been duly identified by the
testimony duly recorded, second, that the same must have been incorporated in the records of the case.
- People v Jose- given the gravity of the offense for complex crime for the complex crime of forcible
abduction with rape, SC took cognizance of the birth certificate of the accused
- Co vs CA- involving a homicide perpetrated by a 14-year-old accused, to prove the mitigating circumstance
of minority albeit the birth certificate was not presented nor offered in trial court.
- Bravo Jr v Borja- birth certificate to prove minority of the accused was considered by the SC as part of the
record.

f. Joint hearing
- When 2 or more cases are jointly heard, the offer of evidence in one case is also an offer of evidence in the
other case. Separate offer is not required.

Time for oral offer

Aside from a formal and specific offer, the evidence must be offered at the proper stage of trial (sec 35, Rule 132) depending
on the type of evidence.

If testimonial, the oral offer made by calling the witness to the witness stand with a preface as to the gist of his impending
testimony and by subjecting the witness to appropriate questions by the party presenting him.

If documentary and real evidence, the offer shall be made after the party’s testimonial evidence.

The absence of the words “we are formally offering the testimony for the purpose of” should be considered merely as an
excusable oversight, since the purpose of Sec 34m, Rule 132 is to inform the court of the purpose of the testimony, to enable
the judge to rule whether the said testimony is necessary or is irrelevant, and since purpose of the subject testimony was
succinctly stated, the reason behind the requirement for its formal offer has been substantially complied with.

Chua v Court of Appeals relayed how a document undergoes presentation as evidence prior to formal offer:

1. Document should be authenticated and proved in the manner provided by the ROC.
2. Document should be identified and marked for identification
3. It should be formally offered in evidence to the court and shown the opposing party so that the latter may have opportunity
to object thereon.
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General Enterprises, Inc v Lianga Bay Logging

The authentication and proof of documents are provided in Sec 20-24 Rule 132. Only private documents require proof of their
due execution and authenticity before they can be received in evidence. This may require the presentation and examination of
witnesses to testify on this fact. When there is no proof as to the authenticity of the writer’s signature, such private document
may be excluded.

On the other hand, public or notarial documents, or those instruments duly acknowledged or proved and certified as provided
by law, may be presented as evidence without further proof, the certificate of acknowledgment being prima facie evidence of
the execution of the instrument or document involve. There is also no need for proof of execution and authenticity with respect
to documents the genuineness and due execution of which are admitted by the adverse party.

If a sequential presentation and formal offer of evidence is expected, it is not appropriate for the defendant to offer his
evidence before the plaintiff has rested, except in a reverse order of trial as permitted by the court in a criminal case where the
accused admits the act or omission charged in the complaint but interposes a lawful defense.

The One-Day Examination of Witness Rule, that is, a witness has to be fully examined in one (1) day only, shall be strictly
adhered to subject to the courts’ discretion during trial on whether or not to extend the direct and/or cross-examination for
justifiable reasons. On the last hearing day allotted for each party, he is required to make his formal offer of evidence after the
presentation of his last witness and the opposing party is required to immediately interpose his objection thereto. Thereafter,
the Judge shall make the ruling on the offer of evidence in open court. However, the judge has the discretion to allow the offer
of evidence in writing in conformity with Section 35, Rule 132.

Constantino v CA – a formal offer made out of time may be rejected by the court.

The trial court was correct in holding that petitioner waived the right to formally offer his evidence. A considerable
lapse of time, about three (3) months, had already passed before petitioner's counsel made effort to formally offer his
evidence. For the trial court to grant petitioner's motion to admit her exhibits would be to condone an inexcusable
laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the
speedy administration of justice.

The objection

The initiative in excluding improper evidence is left entirely to the proponent- so far at least as concerns his right to appeal on
that ground to another tribunal. Thejudge may of his own motion deal with offered evidence; but for all subsequent purpose it
must appear that the opponent invoked some rule of evidence.

The function of objection is to first signify that there is an issue of law, and to give notice of the terms of the issue.

Two-fold function of objection

1. Tell the court that the party does not wish the evidence admitted
2. To inform the court why it is believed that the evidence is improper and thus give the court an opportunity to
determined whether the reason for exclusion is sufficient.

Time for objection

When a party desires the court to reject evidence offered, he must state so in form of objection. Without such objection he
cannot raise the question for the first time on appeal. Objection to evidence that is not yet offered is premature.

Sec 26, Rule 132 provides that objection to testimonial evidence for want of formal offer must be expressed at the
commencement of testimony, and if the reservation refers to the question propounded as soon as the grounds become
reasonably apparent.

For documentary or real evidence, the specific objection must be effected after the offer thereof, or following the party’s
presentation of all testimonial evidence.

Every objection to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the
objection to its admissibility shall have become apparent; otherwise, the objection shall be treated as waived.

Chief Justice Shaw of Massachusetts said: “The right to except is a privilege, which the party may waive; and if the ground
for exception (objection) is known and not seasonably taken, by implication of law it is waived.
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If a question is put which is leading or otherwise objectionable in form, or which plainly calls for inadmissible testimony in
answer thereto, objection should be made to such question before it is answered. When no objection is made, a motion to
strike out the answer would ordinarily be too late, except where the objector did not have time to object the question because
the witness answered it immediately. If the question be one which does not necessarily call for incompetent testimony, but
such testimony is in fact given in reply thereto, objection should be made not to question but to answer or such part thereof as
may be incompetent or irrelevant as soon as such incompetency or irrelevancy shall become apparent.

Waiver of objection

An objection may be expressly waived. Of implied waver, the usual instance is that of failure to make the objection at the
proper time. Another instance is the curing of an error of admission by the opponent’s subsequent use of evidence similar to
that already objected to; and perhaps the prior use of similar inadmissible evidence may be dealt with on the theory of waiver
in advance. No doubt other conduct of various sorts may require in fairness to be deemed a waiver. Failure to object to any
evidence tending to prove facts outside the issues joined amounts to an implied consent to try issues not raised in the
pleadings nor listed in the pre-trial order.

Silence, when there is an opportunity to speak out, may operate as a waiver of objections. Hence, failure to object will render
admissible a relevant evidence which is otherwise incompetent. The court cannot on its own motion disregard the evidence.

Right to object is a mere privilege which the parties may waive; and if the ground for objection is known and not reasonably
made, the objection is deemed waived.

Form of the objection

An objection must be positive, not hypothetical or contingent; hence, it cannot be reserved or postponed by notifying the Court,
at the time when it should be made, that it will possibly be made in the future; unless through the length of a deposition, for
example, or a compilation of relevancies, it is not practicable for the opponent to know whether there is ground for objection.
The test is whether he at the time of offer knows or could know the grounds ; if he does, his decision must be absolute, not
contingent.

The trial court is not bound to wait for objections; he may exclude improper testimony of his own motion.

Court cannot reject motu proprio documentary evidence. With reference to testimonial evidence, People v Moralde was
categorical that the judge need not wait for an objection to bar an immaterial question.

Tenor of objection

An objection to offer of evidence is either general or specific but the last paragraph of Section 36, Rule 132 requires specific
objection.

General objection- when the grounds therefor are not stated or are generally stated.

- An objection that the evidence is “irrelevant.” “incompetent” or “ inadmissible is a general one.

Specific objection- where it states where or how or why the evidence is irrelevant or incompetent.

The general rule is that an objection must be specific. The object of requiring the grounds of objection to be stated, which may
seem to be a technicality, is really to avoid technicalities and prevent delay in the administration of justice.

When evidence is offered to which to which there is some objection, substantial justice requires that objection be specified so
that the party offering the evidence can remove it. If it is objected that the question is leading, the form may be changed; if that
the evidence is irrelevant, incompetency may be removed; if that it is immaterial, its materiality may be established; if to the
order of instruction, it may be withdrawn and offered at another time – and thus appeals could be saved, delays avoided and
substantial justice administered.

If domestic law mandates a specific objection, the objection stating he proffered evidence is irrelevant or immaterial or
improper is insufficient as an objection to the competency of the witness or that the testimony will contradict or vary a written
contract. Nor is a mere general objection a sufficient attack on a secondary evidence.
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Continuing objection

Sec 37, Rule 132 – replication by a party of an objection is unnecessary, irrespective of the court’s ruling to the previous
exception to the same class of evidence, for it is enough for a party to register a continuing objection.

Objection to the same class of evidence is sufficient without the necessity of repeating the objection to every question. The
court may treat the objection a continuing one.

Trial court’s ruling

After the oral offer and the oral objection is made, the trial court is ordinarily expected to also orally rule in open court on the
admissibility of evidence save when the trial court opts to defer its resolution to study the problem during trial.

The reservation of a ruling made by the court on an objection to the admissibility of evidence, without subsequently excluding
the same, amounts to a denial of objection.

Rulings should be unequivocal and so definite in character as to leave no room for doubt as to what evidence is admitted and
was excluded.

Failure to make a distinct ruling is not error where the Court’s statement might be construed as a ruling an no request is made
for a more distinct ruling. Thus, failure to make a distinct ruling on a request to strike out evidence is not error, where the court,
on an inquiry whether the evidence should be ruled out, stated “Yes, I reckon so” and no more distinct ruling was requested.

If the court pronounces its ruling, it need not specify the reason therefor, especially so if no objection is posed by the adverse
party, unless the exceptions are anchored on two or more grounds in which event the court must specify the reason for
sustaining an objection.

While the SC referred to the admission of borderline evidence for whatever it is worth (por lo que puedo valer), it is belived that
admission of evidence for whatever it is worth appears to be antithetical to acknowledge dichotomy between admissibility of
evidence, and weight, which is the intrinsic worth of evidence that was accepted. Indeed, it is improper to even speak of
evidentiary weight when the piece of evidence in question has not even been admitted.

Striking out evidence

It incorporated additional foundations for expunging an answer, such as an unresponsive answer, a witness who volunteers
testimony even without a question, or when a witness transcends court restrictions, or when a witness narrates.

The remedy by way of objection to strike out the objectionable testimony may be availed of by the aggrieved party where the
answer of the witness is not responsive to an unobjectionable question or where a witness has volunteered statements in such
a way that the party has not been able to object thereto.

Offer or proof

Where the court refuses to permit the counsel to present testimony which he thinks is competent, material and necessary to
prove his case, the method of preserving the record to the end that the question may be saved for the purposes of review, is
through the making of an offer of proof or tender of excluded evidence. This is a right given to the examining counsel for a
two-fold purpose, namely; (1) to inform the court what is expected to be proved, and (2) procuring exceptions to the exclusion
of the offered evidence so that the upper court may determine from the record whether the proposed evidence is competent.

If the rejected evidence is testimonial, the proponent must specify the personal circumstances of the testimonial sponsor
inclusive of the gist of the abated testimony.

If the discarded evidence is documentary or real evidence, the proponent may ask the court to attach the documentary or real
evidence to the record of the case. If the evidence is rejected and is not attached to the record the appellate court has to order
a new trial upon a finding that the trial court has made a mistake in excluding a piece of evidence.

The presence of a witness is necessary for the offer of proof. Without having the witness present and calling them, or asking
leave to call them, an offer of proof is not sufficient.
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People v Barellano

If a party elects to forego presentation of a witness, but the adverse party believes that the omitted witness of the proponent is
vital to its defense, the opponent can insist for the presentation of the omitted witness as its own witness or effect a tender of
excluded evidence.

Effects of erroneous ruling of the trial court

Whether a new trial will be granted because of an erroneous admission or exclusion of evidence is a question which depends,
of course, upon the probative effect of the disputed item of evidence with relation to the other matters of proof in the case. The
application for a new trial will be denied, it is said, where the court is of the opinion that the error in receiving or excluding
evidence was not prejudicial. Error being established, it is said that a new trial will be granted unless it can be seen that the
admission or exclusion of the evidence can have had no influence upon the jury.

Justice Regalado – an erroneous admission or rejection of evidence by the trial court is not a ground for a new trial or reversal
of the decision if there are other independent evidence to sustain the decision, or if the rejected evidence, if it had been
admitted, would not have chanced the decision.
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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE

Admissibility and weight

➔ Admissibility - determined by its adherence to the relevancy and competency to the fact in issue when
assayed by the Constitution and pertinent law or the rules.
➔ Weight (or probative effect) - dependent on judicial evaluation of admitted evidence within the
guideposts in Rule 133 vis a vis jurisprudential precepts from the SC.

Weight of evidence
➔ The weight of evidence depends on its effect in inducing belief, under all of the facts and circumstances
proved.
◆ Evidence is to be weighed according to the proof which it was in the power of one side to have
produced, and in the power of the other to have contradicted, and the reasonableness of the
evidence given, in view of surrounding circumstances and the inherent probabilities, should be
considered in determining its weight.
➔ All we can do is to note all the facts and circumstances carefully, and estimate its absolute and relative
weight by the lights of conscience and experience (Judge Vrendenburgh of New Jersey)

Preponderance of Evidence
- Unlike burden of evidence, which is the duty of a party to present evidence sufficient to establish or
rebut a fact in issue to establish a prima facie case, burden of proof never shifts.
- Preponderance of Evidence - evidence adduced by one side is, as a whole, superior to or has greater
weight than that of the other.
- Evidence which is more convincing to the court as worthy of belief than that which is offered in
opposition thereto.
- Sec. 1, Rule 133 > refers to factors that can enhance or diminish the evidence which, in turn, can spell
the difference between an effective or inefficacious discharge of the burden of proof in a civil case.
- Factors determining weight and sufficiency of evidence on issues involved in civil cases apply
also to criminal cases.
- Quantum of Proof
- Civil cases - preponderance of evidence
- Criminal case - proof beyond reasonable doubt
- Administrative proceedings/ quasi-judicial body - substantial evidence
- Substantial evidence - that amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion, would be sufficient.
- Preponderance rests with that evidence which, when fairly considered, produces the stronger
impression, and has the greater weight, and is more convincing as to its truth when weighed against the
evidence in opposition.
- Preponderance of evidence is with the party who has adduced evidence more credible and
conclusive than that of the other.
- Preponderance - probability of truth.

Probable Cause
➢ Probable Cause (for issuance of warrant of arrest) - the existence of such facts and circumstances that
would lead a reasonably discreet and prudent person to believe that an offense has been committed by
the person sought to be arrested.
○ Judge, before issuing a warrant of arrest, must satisfy himself that based on the evidence
submitted, there is sufficient proof that a crime has been committed and that the person
arrested is probably guilty.
○ At this stage, judge is not yet tasked to review in detail the evidence submitted during
preliminary investigation. Sufficient that he ersonally evaluates evidence in determining
probable cause.
➢ Webb v. De Leon - judge merely determines the probability, not certainty, of the guilt of the accused
and, in doing so, he need not conduct a de novo hearing.
○ He simply reviews the prosecutor’s initial determination finding probable cause to see if it is
supported by substantial evidence.
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➢ Probable Cause - actual belief or reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed
or about to be committed.

Clear and Convincing evidence

➔ Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction
as to the allegation sought to be established.
➔ It is indeterminate, being more than preponderance, but not to the extent of such certainty as is required
beyond reasonable doubt in criminal cases.
◆ Alibi, denial, and improper motive require clear and convincing evidence.

Substantial evidence
➢ Substantial evidence - More than mere scintilla of evidence.
○ Relevant evidence as a reasonable mind might accept as adequate to support a conclusion,
even if other minds might equally reasonable might conceivable opine otherwise.
➢ Requirement satisfied where there is reasonable ground to believe that respondent is guilty of the act or
omission complained of, even if evidence might not be overwhelming.

Equiponderance of evidence
➔ When the scale shall stand upon an equipoise and nothing in the evidence which shall incline it to one
side or the other, the court will find for the defendant.
➔ If facts and circumstances are capable of 2 or more explanations, one of which is consistent with the
allegations of the plaintiff and the other consistent with the defendant’s defense, evidence does not fulfill
the requirement of preponderance of evidence.
◆ When evidence of parties is in equipoise, or when there is a doubt as to where preponderance
of evidence lies, party with the burden of proof fails.
➔ Reason: plaintiff must rely on the strength of his evidence and not on the weakness of the defendant’s
claim.
◆ Even if evidence of plaintiff may be stronger than that of defendant, there is no preponderance
of evidence on his side when this evidence is insufficient in itself to establish his cause of
action.

Proof beyond reasonable doubt

➢ On account of the constitutional presumption of innocence of every defendant in a criminal proceeding,
as supplemented by Sec. 1(a), Rule 115 of 2000 Revised Rules on CrimPro, prosecution must
demonstrate the guilt of the accused beyond reasonable doubt. Otherwise, defendant should be
exonerated by the court per Sec. 2, Rule 133 of the RRE.
➢ Unlike PH Consti, the US SC held in a number of cases that proof of a criminal charge beyond a
reasonable doubt is constitutionally required though not included in the BOR for, as explained in In re
Winship:
○ Requirement of proof BRD has vital role in criminal procedure for cogent reasons.
■ Accused during criminal prosecution has at stake interests of immense importance,
both because of possibility that he may lose his liberty upon conviction and because
of certainty that he would be stigmatized by conviction.
■ A society that values good name and freedom of every individual should not condemn
a man for commission of crime when there is reasonable doubt about his guilt.
➢ Reasonable doubt is that engendered by an investigation of the entire evidence and an inability, after
such investigation, to let the mind rest easy upon the certainty of guilt.
○ Well settled tenet that presumption of innocence is founded upon basic principles of justice
and is a substantial part of the law. Thus, it cannot be overcome by mere suspicion or
conjecture.
○ To overcome presumption of innocence, nothing but proof of BRD of every fact essential to
constitute the offense with which accused is charged must be established by the prosecution.
➢ People v. Mejia -
➢ US v. Luling - under the presumption of innocence, however, it is merely required of the state that it
establish a prima facie case, after which the burden shifts to the accused.
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○ In some states, there exists common law offenses. In the PH, no act is a crime unless it is
made so by statute. The State having the right to declare what acts are criminal, within certain
well defined limitations, has a right to specify what act/s shall constitute a crime, as well as
what proof shall constitute prima facie evidence of guilt and then to put upon defendant burden
of showing that such act/s are innocent and are not committed with any criminal intent or
intention.
○ Nor does the principle preclude statutory provisions of presumption of guilt in certain situations
like the presumption of larceny from the unexplained possession of stolen property, or the
prima facie evidence of malversation from the failure of an accountable officer to produce the
money in his custody upon demand in Art. 217 RPC.

Factors in determining weight of evidence

a. Facts and circumstances of the case; totality of facts and evidence
➔ In weighing evidence of witnesses, court should take into consideration all surrounding facts
and circumstances in the case on trial including the means of knowledge of the witnesses,
their true intentions, their seeming honesty or lack of same, their respective opportunities for
seeing and knowing the things about which they testify, their conduct upon witness stand, their
manner of testifying, etc.
◆ All these must properly be considered in determining the weight of evidence.
➔ Decision maker must consider totality of evidence presented as he or she decides the case.
◆ Last requirement relating to form and substance of the decision is the decision
maker’s duty to give reason to enable the affected person to understand how the rule
of fairness has been administered in his case, to expose reason of public scrutiny and
criticism, and to ensure that the decision will be thought through by the decision
maker.
➔ In ascertaining true meaning of testimony given by witness, everything stated by him on his
examination in chief as well as on cross must be considered.
◆ Facts imperfectly stated in answer to one question may be supplied by his answer to
another; and when from one statement considered by itself an inference may be
deduced, that inference may be strengthened or repelled by facts disclosed in
another.
◆ There should be no selection of isolated parts of the testimony; its general bearing
must be taken together.
➔ Probative weight of any document or any testimonial evidence must be evaluated not in
isolation but in conjunction with other evidence, testimonial, admissions, judicial notice, and
presumptions, adduced or given judicial cognizance of, and if the totality of evidence presented
by both parties supports the claimant’s claim, then he is entitled to a favorable judgment.

Caso Fortuito
➢ Where certain documents which were subject of direct and cross-examination of the witness
who identified the documents and same were marked and formally offered in evidence, were
lost and are no longer available for physical scrutiny, the court can still consider in its decision
the documents along with the testimonial evidence attesting to their tenor and contents.

Basis of Judgment
a. Ordinary Procedure
i. When case is already deemed submitted for decision or resolution, court can only
consider evidence presented prior to this period. It cannot and must not take into
account evidence presented thereafter without obtaining prior leave of court.
b. Incremental Evidence before the trial court
i. Sindophil v. Republic - new evidence, either as rebuttal or newly discovered
evidence, during a reopening, which is prior to the judgment or before it becomes
final, is procedurally and jurisprudentially permissible.
c. Additional Evidence at the appellate level
i. Widows and Orphans Association, Inc. v. CA - construed Sec. 9 of BP 129 in
conjunction with Sec. 12, Rule 124 of 2000 Rules on Criminal Procedure, to mean the
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authority to receive evidence for incidental facts not touched upon by the trial court, or
fully heard by the trial court, rather than a full-blown trial.
ii. Crispino v. Tansay - Court of Appeal’s power to receive evidence to resolve factual
issues in cases falling within its original and appellate jurisdiction is qualified by its
internal rules.
1. In an ordinary appeal, CA may receive evidence when a motion for new trial
(MNT) is granted based on newly discovered evidence.
d. Summary Procedure
i. Despite abbreviated proceeding it ordains and limited pleading it allows, Rule on
Summary Procedure does not relax the rules on evidence.
1. Sec. 14, Rule 70 is emphatic that affidavits required to be filed shall state
only facts of direct personal knowledge of the affiants which are admissible
in evidence, and shall show their competence to testify to the matters stated
therein.
ii. In civil case covered by summary procedure, court can rely on allegations of
Complaint alon for judgment if there is no Answer from the defendant despite valid
service of summons.
1. If there is answer, no trial to speak of since testimonial evidence is
proscribed and adjudication of such civil case can be accomplished through
affidavits, position papers, and other evidence, within 30 days from
submission or expiration of the time-frame, subject to possible additional
affidavits solely to clarify matters.
iii. Procedure in civil case under summary procedure which allows matters to be clarified
by additional affidavits or other evidence cannot be utilized if the parties failed to
submit position papers and affidavits.
1. Appellate court not also authorized to receive evidence under Sec. 9, par. 3
of BP 129 given its restrictiev language.

Chain of Custody Rule

➔ People v. Macaspac - assayed the requisites therefor and sustained the guilt of the accused
for illegally transporting shabu.
◆ Not all people who came into contact with the seized drugs are required to testify in
court. There is nothing in RA 9165 or in any rule implementing the same that imposes
such requirement. As long as chain of custody of seized drug was clearly established
not to have been broken and that prosecution did not fail to identify properly the drugs
seized, it is not indispensable that each and every person who came into possession
of the drugs should take the witness stand.
➔ People v. Cabiles - unless there is clear and convincing evidence that the police officers were
inspired by any improper motive or did not properly perform their duty, their testimonies on the
operation deserve full faith and credit. Thus, unless the presumption is rebutted, it becomes
conclusive.
➔ People v. Perondo - findings of the trial courts which are factual in nature and which involve
credibility are accorded respect.
◆ The rule finds an even more stringent application where said findings are sustained
by the Court of Appeals.

b. Witnesses’ manner of testifying

➔ Opportunity to observe demeanor and appearance of witnesses in many instances becomes the very
touchstone of credibility.
➔ Sec. 1, Rule 133 > requires that in determining superior weight of evidence on issues involved, court,
aside from other factors therein enumerated, may consider the witness’s manner of testifying which can
only be done if the witness gives his testimony orally in open court.
◆ If trial judge prepares his opinion immediately after conclusion of the trial, with the evidence
and his impressions of the witnesses fresh in his mind, it is obvious that he is much more likely
to reach a correct result than if he simply reviews evidence from a typewritten transcript,
without having had opportunity to see, hear and observe actions and utterances of witnesses.
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➔ Rules on governing examination of witnesses are intended to protect the rights of the litigants and to
secure orderly dispatch of the business of the courts.
◆ Under the rules, only questions directed to the eliciting of testimony, which under general rules
of evidence, is relevant to, and competent to prove, the issue of the case, may be propounded
to the witness.
◆ Witness may testify only on facts which he knows of his own knowledge. Thus, on direct
examination, leading questions are not allowed, except on preliminary matters, or when there
is difficulty in getting direct and intelligible answer from the witness who is ignorant, a child of
tender years, or feebleminded, or a deaf-mute.
➔ To understand testimony, court may consider witness’s manner of testifying, for his emphasis, gesture
and inflection of the voice or are potent aids in understanding the testimony of a witness, and trial court
which as opportunity of observing his conduct, is presumed to have taken advantage of said aids in
weighing the testimony of the witness.
➔ Positiveness of witness, as well as his uncertainty as to facts as to which testimony is given, may be
considered; but mere fact that witness hesitates and reflects before answering a question should not be
taken to indicate that his answer is untrue in absence of any evidence to contradict him; testimony has
probative force even though witness does not speak with certaintu as to exclude all doubts in his mind.
➔ SC has deferred to the trial court’s factual findings and evaluation of credibility of witnesses, especially
when affirmed by the CA, in the absence of any clear showing that trial court overlooked or
misconstrued cogent facts and circumstances that would justify altering or revising such findings and
evaluation.
◆ This is because trial court’s determination proceeds from its first-hand opportunity to observe
the demeanor of the witnesses, their conduct and attitude under grilling examination, thereby
placing trial court in unique position to assess witnesses’ credibility and appreciate their
truthfulness, honesty, and candot.
◆ Rule of appreciation of evidence does not apply where 1 judge heard the testimony and
another penned the decision, for, in such case, reason for the rule does not apply.
◆ Besides, rule of appreciation of evidence must yield to the superior and immutable rule that the
guilt of the accused must be proved BRD, because law presumes that accused is innocent and
this presumption must prevail unless overturned by competent and credible proof.

c. Witnesses’ intelligence or ignorance

➔ “Possession of a strong intelligence” adds weight to the testimony of a witness.
◆ He is evidently a man of more general intelligence, and more thoroughly acquainted with
business said court, when awarding superior credit to the statement of a witness who related
the circumstances accompanying a business transaction with more detail and much greater
particularity than other witness.
➔ Intelligent boy is undoubtedly the best observer to be found. He is little influenced by suggestion of
others and describes objects and occurrences as he has really seen them.
◆ On other hand, deficient mentality may indicate inability to invent so plausible a story as the
witness tells, and thus in a sense attest his veracity.
● Victim’s mental condition does not by itself make testimony incredibly as long as
witness can recount the experience in a straightforward, spontaneous and believable
manner.
➔ Banks are expected to exercise high degree of due diligence in their business transactions, such as
issuance of credit and supplementary cards.
◆ Prudence dictates that banks should likewisse list down the serial number of dollar bills
released to a client to demonstrate that the bills are genuine.
➔ Testimony, given under oath and subjected to cross-examination is proof and in determining the
quantum of proof, the SC is not required to exclusively consider documentary evidence.

d. Witnesses’ means and opportunity of knowing the facts to which they are testifying
➔ Force of all human testimony depends as much upon the ability of the witness to observe the facts
correctly as upon his disposition to describe them honestly.
➔ In weighing the testimony of witnesses of equal intelligence and veracity, witness who had greater
interest in noticing and remembering the facts is to be believed in preference to the one who had a
slighter interest to observe or was wholly indifferent.
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➔ Identification of person is not established solely through knowledge of the name of that person.
Familiarity with the physical feature, particularly those of the face, is actually the best way to identify the
person.
➔ People v. Reception - the attention of people who are present in the celebration is not particularly
focused on a particular guest but on the revelry itself.
◆ Testimonies of witnesses for the appellants which declared that they were able to see
appellants attend the party and in fact see them singing throughout its duration appear
dubious. The Court find the alibi played up by the appellants and which the witnesses tried to
confirm contrary to human experience.
➔ A person may be recognized by means of his face, height movement and shape of his body by
someone who is familiar with his features.
◆ Identification by sound of the voice of person identified has been held sufficient, and an
acceptable means of identification where it is established that the witness and the accused had
known each other personally and closely for a number of years.
➔ People v. Santos - to ensure reliability of out-of-court idenfitication, courts adopted the totality of
circumstances test which considered the following factors:
◆ Witness’ opportunity to view the criminal at the time of the crime
◆ Witness’ degree of attention at that time
◆ Accuracy of any prior description given by witness
◆ Level of certainty demonstrated by witness
◆ Length of time between crime and identification and
◆ Suggestiveness of identification procedure
➔ People v. Pineda - 2 rules for ourt-of-court identification through photographs
◆ First rule > series of photographs must be shown and not merely that of the suspect.
◆ Second rule > when a witness is shown a groupd of pictures, their arrangement and display
should in no way suggest which one of the pictures pertains to suspect.
➔ Custodial investigation commences when person is taken into custody and is singled out as a suspect
in the commission of the crime under investigation.
◆ As rule, police line up no part of custodial investigation; hence, right to counsel guaranteed by
Constitution cannot yet be invoked at this stage.
◆ Right to be assisted by counsel attaches only during custodial investigation and cannot be
claimed during identification in a police lineup.
➔ For purposes of criminal investigation, DNA identification is indeed a fertile source of both inculpatory
and exculpatory evidence.
◆ In this case, the result of DNA is rendered inconclusive to exculpate or inculpate the appellant
since sample tested by NBI merely contained vaginal discharges.

e. Nature of the facts to which they testify

➔ In civil cases, basic rule that party making allegations has the burden of proving them by a
preponderance of evidence.
◆ Parties must rely on the strength of their own evidence, not upon the weakness of the defense
offered by their opponent.
◆ This principle equally holds true, even if defendant was not given the opportunity to present
evidence because of a default order.
◆ Extent of relief that may be granted can only be as much as has been alleged and proved with
preponderant evidence required under Sec. 1, Rule 133.
➔ Hornbook doctrine > if inculpatory facts and circumstances are capable of 2 or more explanations, one
is consistent with innocence of accused and other consistent with his guilt, then evidence does not fulfill
test of moral certainty and not sufficient to support conviction.
➔ Dates > court frequently declare that they have no faith in any one’s recollection of dates and times, if
he has nothing by which he can ascertain them but the mere act of his memory.
➔ Time of day > nothing generally so unsatisfactory in the course of judicial investigation as the attempt to
fix so fleeting a thing as time.
◆ Unless attention of witness is called to the exact period of time when event occurs, or unless
he is enabled to estimate from a given point the period at which a subsequent event occurred,
very little value is to be attached to the effort of his memory.
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➔ Oral statements > there is inherent difficulty, even under the most favorable conditions, in remembering
with precision the words of a conversation. Conversations are always but partially recollected, never
truly stated.
◆ No class of testimony is more unreliable and a more frequent cause of error in courts of justice
than the narration of conversations, real or pretended.

f. Probability or improbability of testimony

➔ Probability - consonance to reason.
➔ Repeatedly held that evidence to be believed, must not only proceed from the mouth of a credible
witness, but must be credible in itself - such as the common experience of mankind can approve as
probable under the circumstances.
◆ We have no test of the truth of human testimony, except its conformity to our knowledge,
observation, and experience. Whatever is repugnant to these belong to the miraculous and is
outside judicial cognizance.
➔ People v. Oropesa - appellant was acquitted for lack of evidence in a charge for rape when it was
conceded by the complainant, who was 17 y/o during the incident, that despite the alleged previous
sexual advances made by appellant, she still voluntarily went with him because she trusted him.
◆ Her voluntary acts of separating from her friends and going with appellant because of her faith
in him negated the presence of force, threat, or intimidation in the commission of alleged rape.
➔ When the testimony is inherently improbable, inconsistent with human experience, or against natural
course of things, it will not be credited.
◆ It is highly improbable that a young lady who had just been criminally violated by brute force
would still continue to carry out the ordinary relations of friendship with the very man who had
been the cause of her degradation.
➔ The improbable, however, is not always untrue.
◆ The most improbable things are sometimes true, and most probable things sometimes don’t
happen.

g. Witnesses’ interest or want of interest

➔ Interest in the outcome of the case, along with religious or political belief, conviction of a crime unless
otherwise provided by law, shall not be a ground for disqualification of a witness.
➔ Bias - is an inclination or a predisposition to decide a cause or an issue in a certain way, which does not
leave the mind perfectly open to conviction. It is that which excites a disposition to see and report
matters as they are wished for rather than as they are.
◆ Witness may be said to be biased when his relation to the cause or parties is such that he has
an incentive to exaggerate or give false color to his statements, or to suppress or pervert the
truth or to state what is false.
➔ Interest on part of witness does not necessarily render his testimony incredible.
◆ Mere relationship of witness to victim does not automatically impair his credibility and render
the testimony less worthy of faith and credit.
◆ A witness’s relationship to victim, far from rendering his testimony biased, would even render it
more credible as it would be unnatural for relative interest in vindicating the crime to accuse
somebody other than the real culprit.
➔ To impute actual bias based on brief discourse with respect to hypothetical matters is conjectural and
highly speculative.
◆ Allegations and perceptions of bias from mere tenor and language of a judge is insufficient to
show prejudment.
◆ Mere conjectures and speculations cannot justify the inhibition of a judge or justice from a
judicial matter.
● Presumption that judge will undertake his noble role of dispensing justice in
accordance with law and evidence, and without fear or favor, should not be
abandoned without clear and convincing evidence to the contrary.
➔ Natural reaction of one who witnessed the commission of a crim, especially if victim is his kin, is to
immediately and spontaneously report the case to the police authorities so that perpetrators are
charged, prosecuted, and punished if found guilty. Principle, however, is not iron-clad.
➔ Fear of reprisal and natural reluctance of witness to get involved in criminal case are sufficient
explanations for a witness’s delay in reporting the crime to authorities.
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◆ Failure to making prompt report to proper authorities does not destroy the trust per se of the
complaint.
◆ Natural hesitance of witnesses to volunteer information about criminal case and unwillingness
to be involved or dragged into criminal investigation is common, and has been judicially
declared not to affect their credibility.
➔ Where conditions of visibility are favorable and witness does not appear to be biased against man on
the dock, their assertions as to identity of malefactor should be normally accepted.
◆ If accusing words are said against a close relative, victim’s testimony would be entitled to
greater weight.
➔ When witnesses both sides are equally interested or otherwise biased, especially if no numerical
preponderance on either side, bias ceases to be a consideration in determinig where weight of evidence
rests.
◆ If plaintiff and defendant in suit should contradict each other, court might well conclude that
one whose demeanor was exceptionally excellent should be given the preference over the
other who exhibited foibles commonly found in biased witnesses.
➔ Witness who has inconsiderable interest in event of suit may be entitled to superior credit as against
one whose interest is very great, since “small fact” become important in conflict of testimony.
➔ When interested witnesses contradict each other the testimony of credible disinterested witnesses with
equal opportunities for observation frequently determines the preponderance of evidence.
◆ Seems very extraordinary that a court should feel justified in believing one party who is wholly
uncorroborated, as against the testimony of other party who is corroborated by 2 disinterested
witnesses.

h. Credibility of witnesses
➔ Credibility - worthiness of belief or that quality in a witness which renders his evidence worthy of belief.
◆ After competence of a witness is allowed, consideration of his credibility arises, and not before.
➔ Trial courts allow a person to testify as a witness upon a given matter because he is competent but may
decide after whether to believe it or not.
◆ Testimony of any witness who may have been previously instructed as to what to say and what
not to say before the court and who admits having obeyed such instruction, cannot be relied
upon; and when in other respects the witness’s testimony appears exaggerated,
self-contradictory, evasive and otherwise denotes lack of sincerity and candor, it is certainly not
safe for court to accept it for any purpose, and much less as a basis for conviction.
➔ When the testimony of a rape victim is simple and straightforward, unshaken by rigorous
cross-examination and unflawed by any serious inconsistency or contradiction, the same must be given
full faith and credit.
◆ Affirmative testimony is far stronger than a negative testimony is far stronger than a negative
testimony especially when it comes from the mouth of a credible witness.
➔ A witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains
consistent is a credible witness.
◆ The credibility of witness is under the domain of trier of facts due to the unique opportunity
afforded them to observe the witnesses when placed on the stand.
➔ Disparities, inconsistencies on trivial matters do not affect the integrity of the witness since it is generally
due to an innocent mistake and not to a deliberate falsehood.
◆ But error on a crucial or major point will be enough to cast doubt on the credibility of the
witnesses like the prosecution witness.
◆ People v. Aranda - prosecution witness, when asked to identify the person who delivered the
drug to him, he did not name the appellant. Since witness was no declared as a hostile witness
in the 2nd par. Sec. 12, Rule 132 RRE, prosecution was thus bound by the testimony of the
witness’s testimony that nothing was delivered to him by the defendant-appellant.
● Principle net effect of flaw in testimony of witness on significant point serves as a
limitation to the rule on superiority of a court declaration as against an affidavit.
◆ People v. Aniscal - general rule that if there is an inconsistency between the affidavit and
testimony of a witness, the latter should be given more weight since affidavits, being taken ex
parte, are usually incomplete and inaccurate.
● Court likewise subscribes to the doctrine that where the discrepancies are
irreconcilable and unexplained that they dwell on material points, such
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inconsistencies necessarily discredit the veracity of the witness’ claim and thus cast
serious doubts as to the culpability of the accused.
➔ If situation involves a class of testimonies from 2 witnesses, court can adopt such tesitmony which it
believes to be true.
◆ Where 2 witnesses directly contradict each other, and veracity of neither is impeached,
presumption of truth is in favor of the witness who swears affirmatively.
◆ It is within the province of the jury to accept a party’s testimony upon a question of fact
although it is clearly in conflict with that of several witnesses.
◆ When witnesses have not only materially contradicted one another but openly and brazenly
lied to the court, their testimony cannot sustain conviction.
➔ There is no law requiring that the testimony of prospective witness should be reduced into writing in
order that his declaration in court at a later date may be believed. Withal, there is no rule that a person
who hears something cannot testify on what was heard.

i. Number of witnesses
➔ While a party is entitled to call as many witnesses as he may deem necessary to establish his claim or
defense - subject to power of court to reasonbly limit the number to be heard in respect of any issue and
commonly the testimony of several witnesses is offered in proof of a contested fact - it is erroneous to
suppose that an issue is to be determined by a count of witnesses and reference to numerical
superiority.
◆ On contary, trier of facts may base a finding or verdict on the testimony of a minority of the
witnesses; nor will the conclusion be disturbed on appael because it is opposed to the
testimony of the majority.
➔ Preponderance of evidence does not consist merely in greater numerical array of witnesses, but means
the weight, credit, and value of the aggregate evidence on either side.
➔ Except in treason or in probate of contested wills, there is no law requiring a certain specific number of
witnesses in the trial of other criminal or civil cases.
◆ A single and a credible witness may be sufficient.
➔ General rule: number of witnesses should not in and by itself determine the weight of evidence, but in
case of conflicting testimonies of witnesses, the numerical factor may be given certain weight.
◆ Nonetheless, failure of party to present merely corroborative or cumulative evidence does not
give rise to any adverse or unfavorable presumption although nonproduction of a corroborative
witness, without any explanation given why he was not so produced, weakens the testimony of
the witness who named that corroborating witness in his testimony.
➔ Sec. 22 of the Rule on Examination of a Child Witness, corroboration shall not be required of a
testimony of a child.
◆ His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or
judgment subject to the standard of proof required in criminal and noncriminal cases.
➔ Court given full weight and credence to the testimony of child victims.
◆ Highly improbable that a girl of tender years would impute any man a crime so serious as rape
if what she claims is not true.
◆ Even standing alone, her credible testimony is sufficient to convict given the intrinsic nature of
the crime of rape where only 2 persons are usually involved.

Additional rules for weighing of evidence

Falsus in uno, falsus in omnibus - false as to one thing, false as to all things.
➢ Import of this precept is that a witness who has been found to swear falsely as to one matter is not
worthy of belief in other matters.
○ Reason (Starkie): as the credit due to a witness is founded in the first instance on general
experience of human veracity, it follows that a witness who gives false testimony as to one
particular cannot be credited as to any. The presumption that the witness will declare the truth
ceases as soon as it manifestly appears that he is capable of perjury. Faith in a witness’
cannot be partial or fractional.
○ What ground of judicial relief can there be left when the party has shown such gross
insensibility to the difference between right and wrong, between truth and falsehood.
➢ Many authorities consider Falsus in uno to be a rule of permission and not a mandatory precept.
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○ Jury may property reject in toto testimony of a witness whom they believe to have testified
falsely in some particular, or they may accept some of his statements and reject others.
➢ In domestic scene, principle of Falsus in uno is not an absolute rule and inaccuracy in some facts will
not necessarily lead to invalidation of other facts.
○ In this connection, trial court, by reason of its proximate contact with witnesses should be in
competent position to discriminate between the true and the false.
➢ Falsus in Uno is not a positive rule of law and is not strictly applied in this jurisdiction. It presupposes
the existence of positive testimony on a material point contrary to subsequent declarations in the
testimony.
○ For Falsus in uno to apply, there should be a conscious and deliberate intention to falsify.
➢ On other hand, proclivity to utilize inaccurate information in various government documents served as
factual foundations for application of the doctrine of Falsus in uno against a party.

Affirmative and Negative testimony

➔ Definition:
◆ Affirmative testimony - if it consists of statements as to what a witness has heard or seen.
◆ Negative testimony - if witness states that he did not hear or did not see the phenomenon in
question.
➔ Established rule that where the one form of statement is opposed to the other, the affirmative testimony
must be deemed to outweigh that which is merely negative.
➔ Testimony of a credible witness, that he saw or heard a particular thing at a particular time and place is
more reliable than that of an equally credible witness who, with the same opportuniities, testifies that he
did not hear or see the same thing at the same time and place.
➔ Reason: witnesses who testifies to a negative may have forgotten what actually occurred while it is
impossible to remember what never existed.
➔ In weighing contradictory declaration and statements, greater weight must generally be given to the
positive testimony of the prosecution witnesses than to the denial of the defendant.

Delay
➢ Delay in prosecuting the offense is not an indication of a fabricated charge, and does not necessarily
cast doubt on the credibility of the victim.
➢ Natural tendency of a person who witnesses the commission of a crime is to report it, and inscribe the
malefactors at the earliest opportunity.
○ Especially true where victim is so closely related to the witness who claims to have seen the
commission of the crime, and since witness failed to give a reasonable explanation why there
was no denunciation, witness’s failure to promptly come out with such information to the police
will cast a serious doubt on the accuracy if not veracity of the identification of the
accused-appellant.
➢ SC has taken judicial notice of the natural reticence of witnesses to get involved in the solution of
crimmes considering the risk of their lives and limbs.

Testimony elicited by leading questions

➔ Testimony elicited by leading questions is of doubtful value.
◆ Not really testimony of witness but that of the counsel.
◆ If counsel are permitted to so frame a question put to their own witness as to suggest the
answer desired, there is always imminent danger of setting before the Jury (here before the
court) the phrases and ideas not really those of witness.
➔ Testimony on direct examination elicited through leading questions of counsel for proponent was little
probative value.

Identification
➢ Basic that when a crime is committed, the first duty of the prosecution is to prove the identity of the
perpetrator of the crime BRD for there can be no conviction even if the commission of the crime is
established.
➢ No hard and fast rule as to the place where suspects are identified by witnesses.
○ Identification may be done in open field.
○ Often done in hospitals while crime and criminal are still fresh in the mind of the victim.
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○ Adequate moonlight which illuminated the area, and familiarity of the victim with the accused
as a neighbor, can provide sufficient cornerstone for identification of the felon.

Affidavits
➔ Sworn statements taken ex parte are generally considered inferior to testimony given in open court as
they are almost always incomplete and do not purport to contain a complete compendium of the details
of the event narrated by the affiants.
➔ However, in civil case covered by summary procedure, affidavit is entitled to great respect in the
absence of anything to show the contrary.

Conspiracy
➢ Must be proven BRD.
➢ Presence of element of conspiracy among accused can be proven by their conduct before, during, and
after the commission of the crime showing that they acted in unison with each other, evincing a common
purpose or design.
➢ Accused must participate, even by a single overt act, in the perpetuation of the crime.
○ Sufficient that at the time of the aggression, all of them acted in concert, each doing his part to
fulfill their common design to kill the victim.
○ Evidence of intentional participation is imperative.
○ One’s mere presence i nthe crime scene, by itself, does not make him a conspirator.
Self-defense
➔ When accused invokes self-defense, accused assumes burden to establish his plea through credibly,
clear and convincing evidence.
◆ Otherwise, conviction would follow from his admission that he harmed or killed the victim.
➔ For self-defense to be appreciate, appellant must prove following:
◆ Unlawful aggression on the part of the victim
◆ Reasonable necessity of the means employed to prevent or repel it
◆ Lack of sufficient provocation on the part of the person defending himself.
➔ If no unlawful aggression attributed to the victim is established, self-defense is unaivailing, for there is
nothing to repel.

Insanity
➢ People v, Madarang - insanity is successfully invoked as a circumstance to evade crminal liability.
○ In PH > courts established more stringent criterion for insanity to be exemption as it is required
that there must be a complete deprivation of intelligence in committing the act.
■ Mere abnormality of mental faculties will not exclude imputability.
○ Issue of insanity is a question of fact for insanity is a condition of the mind, not susceptible of
the usual means of proof.
○ Establishing insanity of the accused requires opinion testimony which may be given by a
witness who is intimately acquainted with the accused, by a witness who has rational basis to
conclude that the accused was insane based on the witness’ own perception of the accused,
or by a witness who is qualified as an expert, such as a psychiatrist.
■ Testimony or proof of accused’s insanity must relate to the time preceding or
coetaneous with the commission of the offense with which he is charged.
○ To be exempted under a plea of insanity, he must successfully show that:
■ He was completely deprived of intelligence
■ Such complete deprivation of intelligence must be manifest at the time or immediately
before the commission of the offense

Alibi
➔ To prosper, not enough to prove that appellant was somewhere else when crime was committed but it
must likewise be demonstrated that he was so far away that he could not have been physically
present at the place of the crime or its immediate vicinity at the time of its commission.
➔ Fundamental judicial dictum that alibi cannot prevail over the positive identification of the accused.
➔ Although defense of denial may be weak, courts should not at one look at them with disfavor as there
sare situations where accused may really have no other defenses which, if established to be truth, may
tilt the scales of justice in his favor, especially when prosecution evidence itself is weak.
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Motive - cause or reason that moves the will and induces action.
➢ While motive is generally immaterial when it comes to considering intent in criminal case, it can help
facilitate the intrusion into the accused’s mind especially when there is an issue as to the identity of the
latter.
➢ PH legal arena, motive not essential to element of crime, and hence, need not be proved for purposes
of conviction.
➢ Essential only when there is doubt to the identity of the accused, in ascertaining truth between 2
antagonistic theories or versions of the killing or where evidence is merely circumstantial.

Sufficiency of an extrajudicial confession

➔ Sec. 33, Rule 130, effect of an extrajudicial confession from the accused was tacked and corollary
thereto, Sec. 3, Rule 133 provides that:
◆ Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial
confession made by an accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti.
➔ Corpus Delicti - body of the crime or the body (material substance) upon which a crime has been
committed.
◆ In derivative sense, it is the substance or foundation of a crime; substantial fact that a crime
has been committed.
◆ Means actual commission by someone of particular crime charged.
◆ It is a common fact made up of 2 things:
● Existence of a certain act or result forming the basis of the criminal charge and
● Existence of a crminal agency as the cause of the act or result.
◆ Identity is not necessary element of corpus delicti.
● An eyewitness is not necessary. Neither is proof of locus of the crime necessary in
order to establish the corpus delicti.
◆ In prosecution of theft, corpus delicti was the taking of the property without the consent of the
owner.
● Corpus delicti is composed of 2 elements: (1) that the property was lost by the owner
and (2) that it was lost by a felonious taking.
● Hence, failure to recover property does not detract from fact that a crim may be
established without recovery of stolen object.
➔ Sec. 3, Rule 133 > there should be some evidence tending to show the commission of the crime apart
from the confession. Does not mean all the elements of the crime must be clearly established by
evidence independent of that confession.
◆ What must be corroborated is the extrajudicial confession and not the testimony of the person
to whom the confession is made and corroborative evidence required is not the testimony of
another person who heard the confession but the evidence of corpus delicti.
➔ Rule excluding extrajudicial confession of the accused unless ther eis independent proof of corpus
delicti is intended to guard against convictions upon false confessions of guilt.
◆ Either direct or circumstantial evidence is enough to establish corpus delicti provided that
circumstances relied on to prove corpus delicti is more than enough to raise a mere conjecture
or suspicion.
➔ People v. De La Cruz - even while there is evidence of corpus delicti, appellant’s conviction must be set
aside for his extrajudicial confession is obviously inadmissible in evidence against him.
◆ Rule is that an extrajudicial confession, where admissible, must be corroborated by evidence
of the corpus delicti in order to sustain a finding of guilt. Both must co-exist.
➔ Corpus Delicti - fact of specific injury or loss sustained, in murder the fact of death is the corpus delicti/
◆ Opined that the finding of a dead body establishes only the corpus.
◆ The finding of such body under circumstances that indicate a crime indicate the delicti or
felonious killing.
◆ When these facts concur, first element of corpus delicti, criminal act is made to appear.
● Hence, not necessary to the establishment of a complete corpus delicti that identity
should be shown because the dead body and crime against it complete all that is
indicated by corpus delicti.
◆ Second element is the agency in the crime.
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➔ As matter of practice and procedure, death certificate is not indispensable.
◆ If it were, numerous murders would go unpunished.
➔ Corpus Delicti - fact of the commission of the crime which may be proved by the testimony of
eyewitnesses who saw it.
➔ In drug cases, drug itself is the corpus delicti and it is of utmost importance that there be no doubt or
uncertainty as to its identity and integrity.
◆ Fuentes v. People - under RA 9165, essential that the identity of the

Circumstantial Evidence
- In this jurisdiction, direct evidence is not only the basis upon which guilt of accused may be proved.
- Mindful of crimes where there are no eyewitnesses, perdition of accused can be premised on
circumstantial evidence upon the concurrence of requisites in Sec. 4, Rule 133 RRE.
- People v. Sonata - distinguished between direct and indirect evidence.
- Difference involves the relationship of fact inferred to the facts that constitute the offense.
- Does not relate to probative value of evidence.
- Direct evidence - proves a challenged fact without drawing any inference.
- Probative value is generally neither greater nor superior to circumstantial.
- Circumstantial - indirectly proves a fact in issue, such that the fact-finder must draw an
inference or reason from circumstantial evidence.
- ROC do not distinguish between direct evidence of fact and evidence of circumstances from
which existence of a fact may be inferred.
- Same quantum of evidence is still required. Courts must be convinced that accused is
guilty BRD.
- No requirement in our jurisdiction that only direct evidence may convict. After all, evidence is
always a matter of reasonable inference from any afact that may be proven by the prosecution
provided the inference is logical and BRD.
- DE immediately establishes the main act to be proved, but CE or evidence of relevant collateral facts,
immediately establishes collateral facts from which the main fact may be inferred.
- CE is that which indirectly proves a fact in issue and fact-finder must draw an inference from
such evidence.
- Rule on CE requires that each circumstance must be positively established with the requisite
quantum of evidence, in same manner that the catena that binds them together and conduces to a
conclusion of guilt must survive the test of reason and satisfy the required evidentiary weight.
- There can be conviction based on CE when circumstances proved form an unbroken chain
which leads to a fair and reasonable conclusion pinpointing the accused, to the exclusion of all
others, as perpetrator of the crime.
- Theory of CE is that indicia that are separately of little importance may, by their concordant combination
and cumulative effect, satisfy the legal requirements.
- CE > less susceptible to fabrication when it constitutes an unbroken chain of natural and
rational circumstances corroborating each other.
- Resort to it is essential when lack of direct testimony would result in setting felon free.
- Although CE is sufficient for conviction even in capital offenses, it will not be enough in treason on
account of 2 witness rule. Neither is indirect evidence enough in falsification, bigamy, and libel through
written publications since documents involved must be presented.
- Jones > CE may well apply to a civil case.
- Proposition cannot be said to be established by circumstantial evidence, either in a civil or in a
criminal prosecution, unless disclosed facts and circumstances shown are consistent therewith
and inconsistent with any other rational theory.
- People v. Austria - inclusion of last par. of Sec. 4, Rule 133 that inference cannot be based on another
inference.
- Conviction should be made on the basis of strong, clear and compelling evidence. Thus, if
inculpatory facts and circumstances are capable of 2 or more explanations, one is inconsistent
with innocence of accused and other consistence with his guily, the evidence does not fulfill
tests of moral certainty and is not sufficient to support conviction.
- Inference - permissible deduction or induction that trier of fact may draw from fact that are established
accdg to Rules of Evidence.
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- Typically based on logic or common human experience, and it is the essential component of
circumstantial proof.
- Jury may attach weight to inferred fact in same manner as it does to DE upon which inferred
fact is based.
- Presumption must be anchored on a fact, it cannot arise from mere inference or from another
presumption.
- Presumption - inference of existence of non-existence of a fact/s from the existence or non-existence of
some other fact/s based upon a prior experience of their connection.
- CE is based on inferences from facts although there was commentary from manuscript in
evidence that, under well defined circumstances, from other inferences as well.
- On account of inclusion of last par. In Sec. 4, Rule 133, it rendered moot the incremental insight from
Jones to the effect that while inference cannot be drawn from another inference that is too remote or
conjectural, inference may be based on fact which itself is based on an infrence justifiably drawn from
CE.
- Nonetheless, CE should be considered and weighed with great caution for our jurisprudence is
built around the precept that it would be preferanble for the guilty to remain unpunnished than
for an innocent person to suffer injustly.

Factors for intrinsic worth of an opinion from an expert

➢ Sec. 5, Rule 133 provided parameters on the intrinsic value of an expert.
○ Section 5. Weight to be given opinion of expert witness, how determined. – In any case where
the opinion of an expert witness is received in evidence, the court has a wide latitude of
discretion in determining the weight to be given to such opinion, and for that purpose may
consider the following:
■ (a) Whether the opinion is based upon sufficient facts or data;
■ (b) Whether it is the product of reliable principles and methods;
■ (c) Whether the witness has applied the principles and methods reliably to the facts of
the case; and
■ (d) Such other factors as the court may deem helpful to make such determination.
➢ Rule 702 of 2018 Federal Rules of Evidence, of primordial bearing to the net effect of an expert’s
opinion is whether the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.
○ Rule 702 performs four functions:
■ It serves as an authorization for the use of expert testimony.
■ Articulates standards to be applied in determining whether expert testimony should be
admitted in a particular case
■ Provides criteria to be applied in determining whether individual tendered as an
expert witness should be accorded expert status by 3rd court.
■ Expands the form the expert testimony may assume
➢ Expert testimony - considered exception to the general rule requiring witnesses to testify facts rather
than opinions.
○ The expert, by reason of their expertise in particular area, is qualified to draw inferences from
facts that a jury would be unable to draw.
○ Because expert’s value to the litigation process lies in their special special inferential skills,
expert is not required to have firsthand knowledge of the particular set of facts supporting their
opinion or inference as is required of a lay witness.
➢ Generally, expert testimony will be admissible if:
○ Expert’s testimony will assist the trier of fact and
○ Person giving testimony is qualified as an expert concerning matter upon which their testimony
is based
➢ While test for use of expert testimony requires that the trier of fact be aided by the expert’s testimony,
this standard is both broad and relative and often depends upon particluar subject or particular witness.
○ Wigmore > on this subject can a jury receive from this person appreciable help?
○ Determinations concerning admissibility of expert testimony must always be made on a
case-by-case basis.
➢ Rule 702 > 3 distinct reliability requirements for expert testimony to be admissible:
○ Testimony must be sufficiently based upon reliable facts or data
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○ Must be product of reliable principles and methods
○ Witness must have applied the principles and methods reliably to the facts of the case
➢ Sec. 5, Rule 133 RRE > 4th criterion on other factors which court may consider as helpful in
determination.
○ Daubert Court > non-exhaustive list of inquiries that courts may find helpful in determining
whether to admit novel scientific evidence:
■ Can theory or technique in question be tested and if so, has it been?
■ Has the theory or technique been published and subjected to peer review/
■ What is the known or potential rate of error when using the theory or technique?
■ Do standards exist that can serve as controls on a technique’s operation and if so,
were such standards employed in the matter in dispute?
■ Has theory or technique been generally accepted?
➢ Frye v. US - expert testimony decuded from a scientific principle or discovery must be sufficiently
established to have gained general acceptance in the particular field to which it belongs.
➢ Against this bg of inconsistent standards, Daubert Court held that Federal Rules of Evidence, not Frye
test, provide the standard for admitting expert scientific evidence.
○ Rules place appropriate limits on admissibility of purportedly scientific evidence by requiring
trial judge to ensure that expert’s testimony on a reliable foundation and is relevant.
➢ Daubert decision confirmed the trial court’s role as a “gatekeeper” in determining admissibility of
evidence.
○ Advisory committee note to the rule lists the 5 Daubert factors, but goes on to explain that
courts may use other appropriate factors in determining whether expert testimony is sufficiently
reliable.

Substantial Evidence
➔ Sec. 6, Rule 133 RRE
◆ Section 6. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies,
a fact may be deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
➔ Nature > powers of admin agencies may be classified into:
◆ Investigatory powers
◆ Quasi-legislative or rule-making powers and
◆ Quasi-judicial or adjudicatory powers
➔ Differences in origin and function of courts and of admin agencies preclude wholesale transportation of
admin proceedings from rules of procedure, trial and review which have evolved from the history and
experience of courts.
◆ Reasonable to assume that their proceedings may not be conducted with that degree of
exactness or with such scrupulous observance with complex tech rules expected in legal battle
before a court of justice.
➔ Substantial Evidence - such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.
◆ Such evidence which affords a substantial basis from which fact in issue can be reasonably
inferred.
➔ Technical rules of procedure not strictly applied in admin proceedings and admin due process cannot be
fully equated with due process in its strict judicial sense.
◆ Neither strict rules of evidence demanded by quasi-judicial bodies.
◆ Nonetheless, assurance of desirable flexibility in admin procedure does not go so far as to
justify orders without a basis in evidence having rational probative force, and it would be
prudent to heed the caveat in Jarcia Machine v. NLRC.
● While rules of evidence prevailing in courts of law or equity are not controlling in
proceedings before NLRC, evidence presented before it must at least have a
modicum of admissibility for it to be given some probative value.
● To admit an otherwise belatedly filed pleading or evidentiary document is one thing.
To give credence and evidentiary weight is quite another thing.
➔ Labor cases > required that there be some proof of authenticity or reliability as condition for admission
of documents.
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◆ Technical rules should not prevent courts from exercising their duties to determine and settle,
equitably and completely, the rights and obligations of the parties.
➔ Sec. 12(1), Admin Code > admin agency may admit and give probative value to evidence commonly
accepted by reasonably prudent men in the conduct of their affairs.

Superfluous Cumulative Evidence

➢ Evidence is not inadmissible simply because it is cumulative but considerable discretion may be
exercised by the trial judge in determining the extent to which such evidence will be received, and in
limiting number of witnesses who may testify to a particular fact.
➢ Sec. 7, Rule 133 -
○ Section 7. Power of the court to stop further evidence. – The court may stop the introduction of
further testimony upon any particular point when the evidence upon it is already so full that
more witnesses to the same point cannot be reasonably expected to be additionally
persuasive. This power shall be exercised with caution.
➢ Without discretionary power, trial could be indefinitely prolonged, to the serious detriment of public
interest.
○ Power to limit number of witnesses should be more cautiously exercised, with due regard to
the circumstances of the case.
○ Power of presiding in court must be reasonably exercised so as not to deprive the parties of
their natural right.
➢ Goo v. Looyuko - there was wanton exercise of discretion conferred upon trial court when it utilized the
foregoing remedial measure.
➢ People v. Webb - when trial court denied request of defense for taking of deposition of witnesses who
are residents of the US, SC agreed that there was no transgression of the rule on the power of the court
to stop further evidence.

Evidence on motion
➔ Sec. 8, Rule 133
◆ Section 8. Evidence on motion. – When a motion is based on facts not appearing of record, the
court may hear the matter on affidavits or depositions presented by the respective parties, but
the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
➔ Sec. 8 refers to facts put in issue in a motion, but not to facts alleged in the pleadings.
◆ Facts alleged in a motion may be proved by affidavits or depositions, but court in its discretion
may order that oral testimony be presented before it, or before a commissioner appointed.
➔ Merrill Lynch v. CA - evidence on motion rule was applied relative to a motion to dismiss based on
perceived want of plaintiff’s legal capacity to sue.
➔ Bravo, Jr. v. Bravo - when trial judge refused to consider minority of accused despite existence of birth
certificate on record, SC set aside denial of bail for accused.

Lecture Notes:
● If a party has admitted the matter during pre-trial, it constitutes as a judicial admission and you don’t
need to present evidence. You can go to other matters to be proven by the parties.
● Determine the hierarchy of evidence that you have gathered from your client.
○ Documentary -
■ Best evidence rule
■ Are the contents of the document in question for the best evidence rule to apply
■ Or matters which are not found in the document in which case parole evidence will
apply
○ Object and Real evidence
■ Is this object evidence excluded by the rules? Can I present it in Court?
■ Was it properly identified and marked at the time it was confiscated or seized
● Will it be used against him?
○ Testimonial
■ Make a preliminary assessment of the witnesses that are available
● Just because available does not mean you present that witness
● Identify if witness is qualified or disqualified
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● First: Arraignment and Pre-trial
○ Civil case - no arraignment
■ Defendant - file an answer
● Attach all documents here
■ Plaintiff - file the complaint
● Attach all evidence here
■ After defendant’s answer, attend pre-trial
○ Criminal Case - Pre-trial and Preliminary conference
● List of evidence > state that during pre-trial
○ Why important? - if it is not listed or marked no reservation, you cannot present it during trial.
● After pre-trial, preliminary conference
○ Proceed with presentation of witnesses you have prepared
● Once presented the testimonies of the witnesses, call them to court
○ Criminal cases - what if the private complainant or the victim will not testify?
■ Victim is the only one with personal knowledge with the facts and circumstances
surrounding the case.
■ As counsel of the defense, do you need to present evidence? NO
● Move for the provisional dismissal of the case. Ask the court, with the
consent of the accused, that the case be dismissed for the lack of interest of
the private complainant to appear.
● Lower court (6 years and below) - provisions dismissal would be permanent
after 1 year
● 6 years and 1 day - permanent after 2 years
■ There can be permanent dismissal if the private complainant does not appear OR if
the parties have executed an affidavit of desistance.
● Mark as evidence the affidavit of desistance of the private complainant
because that is your evidence that the private complainant desisted from
proceeding from the case.
■ During trial, witnesses were presented and formally offered already.
● Once you rest your case, there will no longer be presentation of evidence.
● Important that after your last witness you formally offer your pieces of
evidence, list down the documents and exhibits, and purpose for which they
were offered.
■ In the formal offer of evidence, a document can be presented for several purposes.
● Example in a criminal case, a judicial affidavit can prove the guilt of the
accused, can prove that the witness has personal knowledge of the crime,
and etc.
● There can be multiple purposes for the presentation of a piece of evidence.
● If no purpose was indicated (need to state purpose during the formal offer)
○ For example: presented a judicial affidavit but that was not the
purpose for which I offered that piece of evidence then the court will
not consider that piece of document for that purpose.
● Evidence not formally offered will not be considered in evidence by the court.
■ If both parties done with presentation of evidence, the case is now submitted for
decision.
○ Civil cases -
■ After pre-trial or during pre-trial the defendant fails to appear, ex parte just present
evidence and its done.
■ What if plaintiff fails to appear?
● Dismiss but the defendant may be allowed to present evidence on his
counterclaim
■ If its summary under expedited rules, there is no presentation of witnesses because
the judicial affidavit in expedited takes the place of the testimony of the witness in a
civil case.
● Because in criminal cases, whether summary or regular, the witnesses will
testify.
● Civil cases > witnesses do not need to testify
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○ Non-attachment of judicial affidavit in relation to procedure during
pre-trial, it will be a grave error on your part because nothing will be
considered testimonial evidence.
● If no judicial affidavit, not marked nor presented, you don’t have testimonial
evidence for the plaintiff/defendant.
● After pre-trial/preliminary conference, submission of position papers then
submitted for decision.
■ Regular civil cases:
● Present testimonial evidence = present witnesses
● Formal offer
● Submitted for decision
○ Why important to know the formal offer?
■ If not presented or stated the purposes, the court will not consider it in the weight of
evidence. (same criminal and civil cases)
○ Pieces of evidence, documentary, object or real, or testimonial should be presented properly,
at the proper time and you should immediately comment to the objections.
○ If other party objects, you have the right to comment to the objection. You have the right to say
that the objection should not be sustained.