2019 REVISED RULES ON EVIDENCE

JUDGE GLOBERT J. JUSTALERO

PRELIMINARY STATEMENTS

Every law students and student of laws must have a basic foundation on
the rules on evidence, especially those who intends to engage in the practice of
law as a trial lawyer. It is very essential that lawyers should be equipped in the tip
of their fingers the fundamental of evidence either they are litigating a criminal,
civil or special proceedings case.

Knowing the mechanics on what should be presented in court, the

admissibility and credibility of evidence, when to make an object to a testimonial
or documentary or object evidence is also helping in the speedy disposition of a
case under trial. In a similar way, it is also a must that trial lawyers should know
the appropriate time to make a formal offer of their evidence or they would not
be considered by the court at all. So it is not enough that a lawyer should know
the law or the fact of a case but he must also be knowledgeable on how to prove
his case in court through the mastery of the rules on evidence.

This humble work will guide lawyers and future lawyers on how to
effectively handle a case in terms of familiarity with the nitty gritty of evidence. A
lawyer can try a case with confidence and eventually will have a favorable
judgment in his favor when he knows his evidence like the palm of his hands.
Once a lawyer knows his evidence, the case is already half won, and it is up to him
how to use his evidence for the complete victory, so to speak, for the case he is
representing.

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 RULE 128

GENERAL PROVISIONS

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.

Evidence defined

The Rules of Court defines evidence as the means sanctioned by these

rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.
The four Components of Evidence

1. It a means of ascertainment – It includes not only the procedure or manner

of ascertainment but also evidentiary fact from which the truth respecting
a matter of fact may be ascertained.
2. It is sanctioned by the Rules, Laws or the Constitution.
3. In a judicial proceedings
4. The truth respecting a matter of fact.

Why is evidence required?

Presentation of evidence in any action of proceedings is necessary because

of the presumption that the court where the case is pending is not aware of the
veracity of the fact in involved in a case. It is, therefore, incumbent upon the
parties (Plaintiff or defendant; Prosecution or defense) to prove a fact in issue
through the presentation of relevant and competent evidence.

Purpose of Evidence:

Based on the definition of the term “evidence,” the purpose of evidence

under the Rules of Court is to ascertain the truth respecting a matter of fact in a
JUDICIAL PROCEEDING. It is also clear that the Rules of Evidence apply only in a
judicial proceeding, and its application in a non-judicial proceeding is suppletory
or by analogy and whenever practicable and convenient. In other words, the
Rules of Evidence finds NO application in administrative cases, like labor cases,

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election cases, and preliminary investigation before the office of the prosecution,
to mention some few, for the reason that they have their own rules of procedure.

Truth as the Purpose of Evidence:

While the purpose of evidence is to know or ascertain the truth in a judicial

proceeding, but it should be noted here that the truth referred to in the definition
is not necessarily the actual truth but one aptly referred to as the judicial or the
legal truth, or the truth as supported and substantiated by evidence. Actual truth
may not always be achieved in judicial proceedings because the court would
depend on the evidence presented before it based on the accepted rules for
admissibility.

For instance, while it may be the actual truth that it was Mr. Digong who
shot Mr. Pinoy, if the available evidence presented and admitted in court points
to Mr. Mar as the culprit, then the judicial or legal truth is that it was Mr. Mar, not
Mr. Digong, who shot Mr. Pinoy. Simply put, all the people in the community
would say that it was the accused who perpetrated the crime charged, but if the
evidence adduced in court would show otherwise, the court has no option but to
acquit the accused.

Absolute Truth

It is something that is true at all times and in places. It is something that is

always true no matter what the circumstances. It is a fact that cannot be changed.

Examples

1. The law of Gravity

2. The compass always points North
3. There are no round squares
4. There are no Square Circles
5. Mathematical Equations

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Applicability of the Rules of Evidence

The rules of evidence, being parts of Rules of Court, apply only to judicial
proceedings, whether it is criminal, civil or special proceedings.

Significantly, Sec. 4 of Rule 1 provides for the non-applicability of the Rules

of Court, including necessarily the rules of evidence, to certain specified
proceedings. The provision declares:

“Sec. 4. In what cases not applicable. – These Rules shall not apply to
election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient.’

When Evidence is Required; When not required:

1. Evidence is the means of proving a fact. As the definition says, it is offered

to ascertain the truth “respecting a matter of fact.” When there is a
“question of law,” presentation of evidence is NOT also required; the court
would simply resort to the applicable law, to settle the question.

It should be noted that other than factual issues, the case invariably
present legal issues. A question of law exists when the doubt or difference
arises as to what the law is on a certain state of facts. Legal issues are
resolved by simply applying the law or rules applicable, or interpreting the
law applicable considering the facts of the case. Generally, no evidence
need be presented on what the applicable law is. Everyone, including the
judge, is presumed to know the law.

2. When the pleadings in a civil case do not tender an issue of fact, a trial need
be conducted since there is no more reason to present evidence. Examples:
(1) Summary Judgment, Small Claim cases, and (2) Judgment on the
Pleadings.

3. Evidence may likewise be dispensed with by agreement of the parties.

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 4. Evidence is not required on matters of judicial notice and on matters
judicially admitted.

5. Allegations contained in the complaint or answer immaterial to the issues;

6. Facts which are admitted or which are not denied in the answer, provided
they have been sufficiently alleged;

7. Facts which are legally presumed; and

8. Facts peculiarly within the knowledge of the opposite party.

Since evidence is the means of proving the truth of a fact in judicial

proceedings. It becomes necessary to present evidence in a case when the
pleadings filed present factual issues.
Factual issues arise when a party specifically denies material allegation in
the adverse party’s pleading. These are the issues which the judge cannot resolve
without evidence being presented thereon.

Thus, whether a certain thing exists or not, whether a certain act was done
or not, whether a certain statement was uttered or not, are questions of fact that
require evidence for their resolution. Question of fact exists when the doubt or
difference arises as to the truth or falsehood of alleged facts. (Dean Riano)

Sample of Factual Issues:

1. When the tenant renting an apartment allegedly had not paid the owner
the agreed monthly rental yet such tenant alleges that he had already paid,
the case raises a factual issue: whether or not the tenant renting the
apartment had not paid his rent. (Basic Trial Technique (BTT) by Abad)

2. In a vehicular accident involving a car and motorcycle, the car owner claims
that the motorcycle driver suddenly and negligently swerved in front of his
moving car. On the other hand, the motorcycle driver claims that the car
negligently sped up and hit him after he made a signal to move in front of
the car. The factual issue is whether or not the motorcycle suddenly and

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 negligently swerved in front of the moving car or it was the car’s driver who
negligently sped up and hit the motorcycle driver (BTT)

3. When the plaintiff claims that the food he ate at the defendant’s restaurant
was spoiled while the latter claims that it was not. Here, the factual issue is
whether or not the food plaintiff ate in the defendant’s restaurant was
spoiled. (BTT)

4. In a case for sum of money, wherein the plaintiff alleged that the
defendant, despite repeated demands, failed to pay his monetary
obligation to the plaintiff. On the other hand, the defendant claimed that
he had already paid his financial concern pursuant to a promissory note. In
this case, there is a factual issue on whether or not the defendant had paid
the money he borrowed from the plaintiff.

Sample of Legal issues:

An issue is legal when the contending parties assume a thing exists or has
actually happened but disagree on its legal significance or effect on their rights.

1. In a case of rape, the prosecution and the defense might agree that the
male organ of the accused merely touched the sex organ of the victim and
did not penetrate it, yet they could disagree on whether or not the fact
amounted to rape. You have here the legal issue of whether or not there is
rape when the male organ merely touched the surface of the female organ
(BTT)

2. The prosecution and the defense agreed that the accused received the
thing subject matter of the case but they could not come to an agreement
whether or not what was transferred to the accused involved physical or
juridical possession.

3. Whether or not the check was issued in payment of a pre-existing

obligation in the prosecution for the crime of estafa under the Revised
Penal Code, is a legal issue.

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 4. Whether or not the alleged malicious imputation is an absolutely privileged
communication, is a legal issue in the prosecution for the crime of libel.

5. Whether or not only the private complainant could initiate the filing of the
so-called private crimes, like adultery or concubinage in court.

6. Whether or not the contract entered into by the parties is a contract of

mortgage or a contract of sell with the right to repurchase.

Sec. 2. Scope. – The rules of evidence shall be the same in all courts and in all
trials and hearings, except as otherwise provided by law or by these rules.

Scope of the Rules of Evidence:

The rules of evidence in the Rules of Court are guided by the principle of
uniformity. As a general policy, the rules of evidence shall be the same in all
courts and in all trials and hearings (Sec. 2, Rule 128, Rules of Court).

Section 2 mandates that the Rules on Evidence shall have the same
application in all courts and in all trials and hearings. The exceptions pertain to
cases governed by the Rules on Summary Procedure and Rule on Small Claims
cases, which are within the original and exclusive jurisdiction of the first level
court.

For cases governed by the Rules on Summary Procedure, Small Claims cases
and Judgment on the Pleadings, the court could resolve these cases based on
position papers, affidavits, and other necessary pleadings, without the need of
presentation of evidence.

Evidence in Civil Cases distinguished from Evidence in Criminal Cases

1. In civil cases, the party having the burden of proof must prove his claim by
a preponderance of evidence (Sec. 1, Rule 133, Rules of Court. In criminal
cases, the guilt of the accused has to be proven beyond reasonable doubt
(Sec. 1, Rule 133, Rules of Court.)

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 2. In civil cases, an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror (Sec. 27, Rule 130,
Rules of Court). In criminal cases, except those involving quasi-offense
(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. (Sec. 27, Rule 130, Rules of Court).

3. In civil cases, the concept of presumption of innocence does not apply and
generally there is no presumption for or against a party except in certain
cases provided for by law. Example: A common carrier is presumed to have
been at fault or negligent in case a passenger is injured in the course of his
transportation by the carrier (Art. 1756, Civil Code of the Philippines). In
criminal cases, the accused enjoys the constitutional presumption of
innocence. (sec. 14, Art. III, Constitution of the Philippines.)

Distinction between Proof and Evidence.

1. “Proof” is not the evidence itself. There is proof only because of evidence.
It is merely the probative effect of evidence and is the conviction or
persuasion of the mind resulting from a consideration of the evidence.

2. Evidence is the medium or means by which a fact is proved or disproved.

Proof is the effect of evidence because without evidence there is no proof.
Bare allegations unsubstantiated by evidence, are not equivalent to proof.

Falsus in uno, Falsus in 0mnibus – means “false in one thing, false in everything.”
The doctrine means that if the testimony of a witness in a material issue is
willfully false and given with an intention to deceive, the judge or jury must
disregard ALL the witness’ testimony.

In this jurisdiction, we do not entirely adhere to this principle of “falsus in

uno, falsus in omnibus,” for the reason that the court, in the appreciation of the
witness’ testimony, may disregard those evidence which the court believes is not
to be worthy of belief and credence, and consider those which are within the
realm of ordinary human experience.

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Specific defenses available to the accused in criminal cases

1. Alibi – It is a Latin term which means “elsewhere, somewhere else.” As a

defense, alibi is inherently weak and crumbles in the light of positive
identification by truthful witnesses.

For defense alibi to prosper, the following must be established:

1. The presence of the accused in another place at the time of the

commission of the offense; and
2. The physical impossibility for him to be at the scene of the crime at the
time of its commission.

2. Denial- it is either “specific” or “general” denial.

The defense of “general” denial involves the defense of “self-defense,”

“alibi,” “defense of relative” and the like. However, when the accused invokes the
defense of “specific” denial, what the accused was saying is that he was there at
the crime scene but he did not perpetrate or participate in its commission.

3. Frame Up – like alibi, the defense of frame-up is viewed with disfavor as it

can easily be concocted and is commonly used as a defense in most
prosecutions arising from the violations of the Dangerous Drugs Act. The
legal presumption that official duty has been regularly performed exists. It
is generally viewed with caution by the court because it is to contrive and
difficult to disprove. For this claim to prosper, the defense must adduce
clear and convincing evidence to overcome the presumption that
government officials have performed their duties in a regular and proper
manner.

4. Sweethearts Theory – Finds application only in cases of Rape, Acts of

Lasciviousness, and Consented Abduction. This kind of defense is
somewhat “dangerous” for the reason that the accused has deemed to
have admitted the commission of the crime charged just like “self-
defense” in crime against persons.

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 5. Self defense – like alibi is inherently weak because it can be easily
fabricated. By invoking “self-defense,” and having admitted that he killed
the victim, it is now incumbent upon the accused to prove the elements
of “self-defense.”

PRINCIPAL CLASSIFICATION OF EVIDENCE

With respect to form, the Revised Rules of Evidence categorize evidence

into three types:

(1) Object or Real Evidence;

(2) Documentary Evidence; and

(3) Testimonial Evidence.

It is worth noting that as between these three forms of evidence, it is

OBJECT or PHYSICAL evidence that enjoys superiority of credit or weight, for it is
evidence of the highest order, and it speaks more eloquently than a hundred
witnesses.

For example, the witness for the prosecution testified that he saw the
accused shot the victim with .45 caliber pistol, but the slug that was recovered
from the victim’s body was that of an armalite rifle. Between the testimonial
evidence and the physical evidence, the court would rather give weight and
credence to the physical evidence.

1. Real Evidence or Demonstrative Evidence – is evidence by direct

inspection through the court’s physical sense of vision, hearing, touch,
taste or smell, or a fact, the existence of which is perceptible to the
senses. (Wigmore)

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 2. Documentary Evidence – It consists of written instruments offered as
proof of their contents.

3. Testimonial Evidence – As evidence, the concept refers to verbal

expressions or oral declarations that emanate from natural persons who
testify before the court.

BAR 2005

May a private document be offered, and admitted in evidence both as

documentary evidence and as object evidence? Explain

Suggested answer

Yes. A private document may be offered and admitted in evidence both as

documentary and as object evidence. A document can also be offered as an
object for purposes of the case. Objects as evidence are those addressed to the
senses of the court. Hence, a private document may be presented as object
evidence in order to establish certain physical evidence or characteristics that are
visible on the paper and writings that comprise the document. (Espejo)

Other types of evidence

1. Positive and Negative Evidence – a positive testimony normally enjoys

more weight than a negative testimony.

Evidence is positive when the witness affirms that a fact did or did not
occur, and negative when the witness states that he did not see or know the
occurrence of a fact.

Positive and negative evidence – Evidence is said to be positive when a

witness affirms in the stand that a certain state of facts does exist or that a certain
even happened. It is negative when the witness states that an event did not occur
or that the state of facts alleged to exist does not actually exist.

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 According to Jones’ passage, testimony is affirmative or positive if it
consists of statements as to what a witness has heard or seen; it is negative if the
witness states that he did not hear or did not see the phenomenon in question.
This being the distinction between testimony which is affirmative and testimony
which is negative, it is an 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. (Jones on Evidence)

In other words, the 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 opportunities, testifies that he did
not hear or see the same thing at the same time and place. The reason for this
rule is that the witness who testifies to a negative may have forgotten what
actually occurred while it is impossible to remember what never existed. (Jones
on Evidence)

Example of positive evidence

1. The testimony of a witness that he saw the accused fired a gun at the
victim is a positive evidence.

2. In a reckless imprudence case where in the witness testified that he saw

the headlight of the motorcycle was on, is a positive evidence.

3. In a murder case wherein the witness declared that it was the accused
who shot the victim is an affirmative evidence.

4. In a case for collection of sum of money, the testimony of a witness that

he saw the plaintiff handed the money to the defendant, is a positive
evidence.

5. In a case for Recovery of Ownership, the statement of the witness that

the defendant has been occupying the disputed piece of land since time
immemorial, is a positive evidence.

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Example of negative evidence. –

a. The testimony of a witness that he could not have fired the gun because
he was not armed during the incident.

b. The witness in a collision incident averred that the headlight of the

motorcycle was not on is a negative evidence.

c. In a car accident the witness testified that he did not notice that the
headlight of the car was on is a negative evidence.
d. In a case for unlawful detainer, the witness testified that he is not aware
that the defendant occupied the apartment by mere tolerance of the
owner is a negative evidence.

2.Direct and Circumstantial Evidence

DIRECT EVIDENCE means evidence which if believed, proves the existence

of a fact in issue without reference or presumption.

Direct evidence is that which proves the fact in dispute without the aid of
any inference or presumption, while circumstantial evidence is the proof of fact
or facts from which taken either singly or collectively the existence of the
particular fact in dispute may be inferred as a necessary or probable
consequence.

Example 1

The witness testified that he actually saw the accused stabbed the victim
several times at the back portion of the victim’s body is a direct evidence.

Example 2

In a forcible entry case, the witness for the plaintiff declared in court that
he saw the defendant entered the subject premises without the consent of the
plaintiff is a direct evidence.

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Example 3

Security camera footage showing a person breaking into a store and

stealing items and goods.

Example 4

An audio recording of a person admitting to committing a crime.

Example 5

Ballistics tests that show a bullet was fired by a specific firearm.

CIRCUMSTANTIAL EVIDENCE is that evidence that indirectly proves a fact in

issue through an inference which the fact finder draws from the evidence
established. Simply put, circumstantial evidence usually is that which suggests a
fact by implication or inference.

Conviction by circumstantial evidence:

In criminal case, circumstantial evidence may be sufficient for conviction

provided the following requisites concur:

1. There is more than one circumstance;

2. The facts from which the inferences are derived are proven; and
3. The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt

Example 1

In an arson case, the witness for the prosecution testified that he saw the
accused running away from the burning house is an example for circumstantial
evidence. In the absence of other circumstantial evidence, and standing by itself,
is not sufficient to bring about the conviction of the accused beyond a shadow of
doubt.

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Example 2

In a case for homicide, the prosecution’s witness declared that he heard the
accused and the victim having a heated altercation two days before the stabbing
incident is a circumstantial evidence. Unless substantiated or corroborated by
other circumstantial evidence, this alone would not be enough to secure the
conviction of the accused beyond reasonable doubt.

Example 3

If an assault happened at Democracia St., Jaro, Iloilo City at around 6: 15 in

the morning, a witness who testified that he saw the accused walking down said
street at around 6: 00 in the morning, is a circumstantial evidence.

Example 4

Eyewitness testimony that he saw the accused was seen fleeing from the
scene of a crime.

Example 5

Other examples of circumstantial evidence are fingerprint analysis, blood

analysis or DNA analysis of the evidence found at the scene of a crime.

A person’s fingerprint found at the scene of the crime alongside other

people’s fingerprints.

3.Cumulative Evidence and Corroborative Evidence

Cumulative evidence refers to evidence of the SAME kind and character as that
already given and that tends to prove the proposition. It is an additional evidence
of the same kind.

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Example 1

When a witness testifies that he saw the event testified to and two other
witnesses testify having seen the same event which the first witness claimed he
saw, the subsequent testimonies constitute CUMULATIVE evidence.
Example 2

If 50 people saw a shooting incident, and each witness would each give
substantially similar description of the shooting incident, it would be a needless
presentation of cumulative evidence if all 50 people testified at the trial.

Corroborative evidence is one that is supplementary to that already given

tending to strengthen or confirm it. It is additional evidence of a different
character to the same point.

Corroborative evidence is usually of a DIFFERENT type from that previously

offered but which tends to prove the same fact. It is an additional evidence of
different kind.

Example 1

If W testifies that the gun marked as Exhibit “A” was the weapon used in
the shooting of the victim, the findings of the crime laboratory that the gun bears
only the fingerprint of the accused corroborates the testimony of W.

Example 2

A witness claims that he saw Mr. X sign the document subject of the action.
Mr X denies the authenticity of his signature. Evidence by a handwriting expert
that the signature is indeed that of Mr. X is corroborative evidence.

Example 3

W, a witness, testifies that she saw X drive his car into a green car.
Meanwhile, Y, another witness, testifies that when he examined X’s car, later that
day, he noticed green paint on its fender.

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4.Prima facie and conclusive –

PRIMA FACIE EVIDENCE is that which, standing alone, unexplained or

uncontradicted, is sufficient to maintain the proposition affirmed.

Prima facie evidence may be used as an adjective meaning “sufficient to

establish a fact or raise a presumption unless disproved or rebutted.

Example 1

If the prosecution in a frustrated murder case presents a videotape

showing the accused screaming death threats at the victim, such evidence may be
prima facie evidence of intent to kill, an element that must be proved by the
prosecution before the accused may be convicted of frustrated murder.

Example 2

A wife saw her husband with another woman. At first glance, it looks as if
he is guilty of something just because of the circumstances.

Example 3

A businessman may file a case for breach of contract, indicating that one of
his suppliers failed to deliver an order and that the failure to deliver resulted in
businessman losing some of his customers.

Example 4

In a case for adultery, the prosecution’s witness testified that he saw the wife
and her paramour going inside a motel several times.

CONCLUSIVE EVIDENCE is that class of evidence which the law does not
allow to be contradicted.

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 It is one which the proof of certain facts makes the existence of the
assumed fact beyond dispute. The presumption cannot be rebutted or
contradicted by evidence to the contrary.

Example 1

A child less than nine (9) years of age is presumed to be incapable of

committing a felony.

Example 2

The certificate of incorporation of a company is conclusive evidence of its

incorporation.

Example 3

A bill of lading is conclusive evidence of the facts contained in it, for

example, as to the condition of the goods, quantity, marks, quality, and the date
of loading.

5.Primary and secondary evidence

PRIMARY OR BEST EVIDENCE is that which the law regards as affording the
greatest certainty of the fact in question. Primary evidence, more commonly
known as best evidence, is the best available substantiation of the existence of an
object because it is the actual item.

Example 1

Some examples of Primary Evidence are archives and manuscript material,

photographs, audio recordings, video recordings, films, journals, letters and
diaries.

Example 2

Photographs of a historical event or Essay by a philosopher.

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SECONDARY EVIDENCE is that which is inferior to the primary evidence and is
permitted by law only when the best evidence is not available. Secondary
evidence is also called substitutionary evidence.

Example 1

Certified copies of a public document

Example 2

Copies made from or compared with the original.

6.Material evidence – evidence which tends to prove the fact in issue of a case.
Evidence is material if offered upon a matter properly in issue. Whether a matter
is properly in issue is determined by substantive law and the pleadings submitted
by the parties. (Espejo)

Examples

(1) In a case for collection, the promissory note is a material evidence.

(2) In a civil case for Breach of Contract, the Deed of Sale or Contract of Lease,
is an example of material evidence.

(3) In a murder case, the murder weapon is an example of material evidence.

(4) An eye-witness to a criminal incident can be said to be a material witness

(evidence), because he can give credible and material evidence in
respect of the incident.

7.Immaterial evidence – Evidence which does not tend to prove the fact in issue
in a case or evidence offered upon a matter not in issue.

Examples

1. In a collection case, the presentation of a gun is an immaterial evidence.

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 2. In the prosecution for the crime of murder, the evidence introduced to
prove that the accused was previously convicted for violation of R.A. No.
3019, is considered an immaterial evidence.

3. The accused was charged for violation of R.A. No. 9165. The evidence which
would show that also seized from his possession a loose firearm, is an
immaterial evidence.

4. In a case regarding individual having committed a parking violation,

evidence is brought to bear which would instead prove that the defendant
cheated on his or her spouses, then that evidence might be objected to as
immaterial or irrelevant.

FACTUM PROBANS AND FACTUM PROBANDUM.

1. EVIDENCE SIGNIFIES A RELATIONSHIP BETWEEN TWO FACTS, NAMELY:

(A) THE FACT OR PROPOSITION TO BE ESTABLISHED (FACTUM PROBANDUM); AND

(B) THE FACTS OR MATERIAL EVIDENCING THE FACT OR PROPOSITION TO BE ESTABLISHED
(FACTUM PROBANS)

2. STATED IN ANOTHER WAY, THE FACTUM PROBANDUM IS THE FACT TO BE PROVED; THE FACT
WHICH IS IN ISSUE AND TO WHICH THE EVIDENCE IS DIRECTED. ON THE OTHER HAND, FACTUM
PROBANS IS THE PROBATIVE OR EVIDENTIARY FACT TENDING TO PROVE THE FACT IN ISSUE.

EXAMPLE:

IF P CLAIMS TO HAVE BEEN INJURED BY THE NEGLIGENCE OF D WHO DENIES HAVING BEEN
NEGLIGENT, THE NEGLIGENCE OF D AND THE CAUSAL CONNECTION BETWEEN SUCH NEGLIGENCE, AND
THE INJURIES OF P TAKEN AS A WHOLE, CONSTITUTE THE FACTUM PROBANDUM OF THE SUIT. THE
EVIDENCE OFFERED BY P, WHETHER IT BE OBJECT, DOCUMENTARY OR TESTIMONIAL, CONSTITUTE
MATERIALS TO PROVE THE LIABILITY OF D. THE TOTALITY OF THE EVIDENCE TO PROVE THE LIABILITY
REFERS TO THE FACTUM PROBANS.

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Section 3. Admissibility of evidence. – Evidence is admissible when it is relevant
to the issue and is not excluded by THE CONSTITUTION, the law or these rules.

Admissibility of Evidence

The study of the law on Evidence involves two main problems, viz: (1)
determining whether a given piece of evidence is admissible, and (2) the proper
presentation of that evidence so that the court will consider it in resolving the
issues and deciding the case. Although evidence may, by itself, be admissible, the
court may not admit or consider it in the resolution of the case, unless the
evidence was properly presented and formally offered. (Dean Riano)

The addition of the words “the Constitution” simply seeks to make explicit
the fact that the 1987 Constitution contains a number of exclusionary rules of
evidence, to wit: Article III, Sections 2, 3 (1) and (2), (2) and (3); and 17.

ARTICLE III – BILL OF RIGHTS

Section 1. xxxxx

Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.

Sec. 3 (1) The privacy of communication and correspondence shall be inviolable

except, upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

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Two Principles relative to Competency:

1. The Exclusionary Rule Principle – Which mandates that evidence obtained

in violation of a particular law, must be excluded from the trial and will not
be admitted as evidence.

2. Fruit of the Poisonous Tree Doctrine – Which declared that evidence will be
excluded if it was gained through evidence uncovered in violation of a
particular exclusionary law or rule. (Espejo)

Thus, for evidence to be admissible, two essential elements must concur, namely:

1. The evidence is relevant, and

2. The evidence is not excluded by the law, these rules or the constitution
(competent).

BAR 2010

In a prosecution for murder, the prosecutor asked Darwin if he had

previously arrested for violation of the Anti Graft and Corrupt Practices Act. As
defense counsel, you object. The trial court asks you on what ground/s. Respond

Suggested answer

The objection is on the ground that the fact sought to be elicited by the
prosecution is irrelevant and immaterial to the offense under prosecution and
trial. Moreover, the Rules do not allow the prosecution to adduce evidence of bad
moral character of the accused pertinent to the offense charged, except on
rebuttal and only if it involves a prior conviction by final judgment (Rule 130, Sec.
51, Rules of Court).

22
 No evidence is admissible unless it is relevant. However, relevancy alone
does not make the evidence admissible. To be admissible, the evidence must be
both RELEVANT and COMPETENT.

Relevant but Incompetent

Example 1:

In a prosecution for homicide, the witness swears that the accused killed
the victim because his ever truthful boyhood friend told him so. The testimony,
although relevant, is not admissible because the witness was not testifying based
on his personal knowledge of the event. The testimony is hearsay and this type of
evidence is, as a rule, excluded by the rules. In short, the testimony offered is
relevant but incompetent.

Example 2:

In a prosecution for robbery, the wife of the accused testified that the
husband admitted to her in confidence that it was he who killed their neighbor. If
the testimony is offered as evidence against the husband and is objected to by
the latter, the testimonial evidence will be inadmissible by virtue of a particular
provision of the Rules of Court which excludes it as a specie of evidence
notwithstanding its obvious relevance to the issue of guilt. This is based on the
marital privileged communication rule. Here, the testimony is also relevant but
incompetent.

Example 3:

Evidence obtained in Violation of RA 4200 shall not be admissible in

evidence.

23
Example 4

Documents obtained in violation of constitutional guarantees although

containing relevant matters are inadmissible because they are illegally obtained
as when evidence is illegal seized.

Irrelevant but Competent

Example 1

In the prosecution for violation of RA No. 9165, the witness for the
prosecution testified that the accused had a previous conviction by final judgment
for the crime of homicide. In this case, the evidence is competent but irrelevant.

Example 2

The accused Vicente was charged for the crime of robbery of a certain
bank. The bank manager testified that the bank had been the victim of several
robberies in the past. The testimony of the bank manager is competent but
irrelevant because it did not specifically relate to the accused Vicente.

Example 3

Jose was charged with carnapping. He was arrested in his home and the
prosecution wanted to offer evidence that the arresting officer found shabu and
an unregistered handgun there. Unless the prosecution can establish that the
shabu and handgun were somehow involved in the carnapping, there was nothing
to connect them with the crime of carnapping.

Kinds of Admissibility

1. Multiple Admissibility -- There are times when a proffered evidence is

admissible for two or more purposes.

24
 Thus, depending upon the circumstances, the declaration of a dying person
may be admissible for several purposes. It may be offered as a dying
declaration, as part of res gestae, or as a declaration against interest.

For instance, the victim made a dying declaration pointing to the accused as
the perpetrator. If the dying declaration fails to comply with the
requirements provided for by the rules, then it may also be considered as
part of res gestae.

Where the evidence is relevant and competent for two or more purposes,
such evidence should be admitted for any or all the purposes for which it is
offered provided it satisfies all the requirements of law for its admissibility
therefor.

Examples

(1) If immediately after the fight, in a state of excitement and conscious of his
impending death, the declarant stated that it was he who provoked and
commenced the assault and seriously wounded his opponent, in a prosecution for
the death of said declarant such declaration may be admitted as part of res
gestae, as a dying declaration or as a declaration against interest (People v.
Toledo and Hogado, 51 Phil. 825)

(2) A birth certificate primarily proves the fact of a person’s birth but it may also
be offered to prove who his parents are and where he was born.

(3) A marriage contract principally establishes the fact of marriage between the
spouses, but it may also be presented to prove the date of marriage, as well as
the name of the solemnizing officer.

2. Conditional Admissibility. – It happens frequently enough that the

relevance of a piece of evidence is not apparent at the time it is offered,

25
 but the relevance of which will readily be seen when connected to other
pieces of evidence not yet offered.

In other words, where the evidence at the time of its offer appears to be
immaterial or irrelevant unless it is connected with other facts to be
subsequently proved, such evidence may be received on condition that the
other facts will be proved thereafter, otherwise the evidence already given
will be stricken out.

Example 1

In the prosecution for the crime of robbery with homicide, the witness of
the prosecution testified that the furniture were turned upside down at the crime
scene. At this point in time it appears that the evidence is immaterial or
irrelevant, unless it is connected with other facts to be subsequently proved like
the fact there was a struggle between the accused and the victim. This evidence
may be conditionally received or admitted on the condition that the other facts
will be proved thereafter. Otherwise, the evidence already given will be stricken
out.

Example 2

The accused was charged for rape. A witness for the prosecution testified
that he saw the accused drinking beers in the nearby store. At this juncture, the
evidence appears to be irrelevant or immaterial, unless it is connected with other
facts to be subsequently proved.

3. Curative Admissibility – the doctrine of curative admissibility allows a party

introduce otherwise inadmissible evidence to answer the opposing party’s
previous introduction of inadmissible evidence if it would remove any
unfair prejudice caused by the admission of the earlier inadmissible
evidence.

26
 This doctrine treats upon the right of a party to introduce incompetent
evidence in his behalf where the court has admitted the same kind of evidence
adduced by the adverse party.

The doctrine of curative admissibility allows a litigant to introduce

otherwise inadmissible evidence to rebut the admission of improper evidence by
an opponent.

Example 1

In a case for murder, the prosecution‘s witness testified, without objection

from the defense, that his friend who informed him that it was the accused who
killed the victim. On cross examination, the same witness was asked on what
other information did his friend tell him.

Example 2

In car collision case, the traffic investigating officer testified for the plaintiff,
without objection, that the driver of a passing car told him that it was the fault of
the defendant. On cross examination, over the objection of the plaintiff, said
traffic investigating officer, was queried on the statements made by other drivers
of the passing cars.

Wigmore cites three (3) theories or rules obtaining in some jurisdictions on

curative admissibility, to wit:

1. The American Rule, under which the admission of such incompetent

evidence, without objection by the opponent does not justify such
opponent in rebutting it by similar incompetent evidence.

2. The English Rule, wherein if a party has presented inadmissible

evidence, the adverse party may resort to similar inadmissible evidence.

27
 3. The Massachusetts Rule – wherein the adverse party may be permitted
to introduce similar incompetent evidence in order to avoid a plain and
unfair prejudice caused by the admission of the other party’s evidence.

Flight or non-flight of the accused – the fact that appellants never fled the locality
where the crime was committed is not by itself a valid defense against the
prosecution’s allegations because non-flight does not signify innocence.

Sec. 4. Relevancy; collateral matters. – Evidence must have such a relation to

the fact in issue as to induce belief in its existence or non-existence. Evidence on
collateral matters shall not be allowed, except when it tends in any reasonable
degree to establish the probability or improbability of the fact in issue.

Relevant evidence

Note that under Section 3, of Rule 128, it provides for the elements of
admissibility, namely: (a) relevancy, and competency. Sec. 4 of Rule 128, answers
the requirement of relevancy, wherein it declares that evidence to be relevant
must have such a relation to the fact in issue as to induce belief in its existence or
non-existence. It deals with the rational relationship between the evidence and
the fact to be proved. In other words, the evidence adduced should be directed to
the matters in dispute and any evidence which has neither direct nor indirect
relationship to such matter must be set aside as irrelevant.

The matter of relevance under the Rules of Court requires the existence of
a fact in issue. Necessarily, this fact in issue must be a disputed fact. Since
relevant evidence necessarily relates to a disputed fact, it is obvious that evidence
offered to prove an undisputed fact is irrelevant, and, as such, is inadmissible.
Where there is no issue as to a matter of fact, there exists no purpose for an item
of evidence.

28
Example 1

Edgar was indicted for crime theft of a cell phone. The prosecution wanted
to offer evidence that Edgar’s mother had refused to buy him a cell phone. The
evidence is relevant to prove that Jose had a motive for stealing the subject cell
phone.

Example 2

Joenar was charged for Frustrated Homicide for stabbing the victim with a
knife. Joenar claimed self-defense. The prosecution sought to offer into evidence
(a) the knife allegedly used in the assault, and (b) a picture of the victim taken
minutes after the assault.

Example 3

In the prosecution for the crime of estafa for issuing a postdated check, the
subject check is a relevant evidence to prove the accused issued the bum check to
the private complainant.

Collateral matters

Collateral matters are matters other than the facts in issue and which are
offered as a basis for INFERENCE as to the existence or non-existence of the facts
in issue. Remember that not all collateral matters are prohibited by the Rules.
Where the collateral matters are RELEVANT to the fact in issue because “then
tend in any reasonable degree to establish the probability or improbability of the
fact in issue” evidence of such collateral matters is admissible. What is prohibited
by the Rules is evidence of irrelevant collateral facts.

In these cases, collateral evidence could take the forms of the victim’s prior
bad acts, mental health examination, criminal history, acts of aggression
indicating a violent disposition, school disciplinary records.

29
Examples:

1. The accused’s acts of aggression indicating a violent disposition.

2. The accused had prior convictions.

3. Evidence of character is generally inadmissible, the accused may prove his

good moral character which is pertinent to the moral trait involved in the
offense charged.

4. In civil cases, evidence of the moral character of a party is admissible when

pertinent to the issue of character involved in the case.

5. Evidence of the good character of a witness is admissible if his character

has been previously impeached.

Competent Evidence

Competent evidence is one that is not excluded by the Constitution or law

in a particular case. If the test of relevance is logic and common sense, the test of
competence is the law or the rules. If the law or a particular rule excludes the
evidence, it is incompetent.

Relevance of Evidence on the Credibility of a Witness.

Evidence on the credibility or lack of it of a witness is always relevant. In

every proceeding, the credibility of the witness is always an issue. The credibility
of the witness has the inherent tendency to prove or disprove the truthfulness of
his assertion and consequently, the probative value of the proffered evidence.

In the assessment of the testimonies of witnesses, the Court is guided by

the rule that for evidence to be believed, it must not only proceed from the
mouth of a credible witness, but must be credible in itself such as the common

30
experience of mankind can approve as probable under the circumstances. There
is no test of the truth of human testimony except its conformity to our
knowledge, observation, and experience. What is repugnant to these belongs to
the miraculous, and is outside of juridical cognizance. (People vs. Calumpang, 454
SCRA 719).

Admissible evidence distinguished from credible evidence

Admissible evidence is not necessarily credible evidence. ADMISSIBILITY

and CREDIBILITY must be sharply contrasted. They are entirely two different
matters and involve different concepts. The term “admissible” means that the
evidence is of such a character that the court, pursuant to the rules of evidence, is
bound to receive it and to allow it to be introduced at the trial.

The term “credibility” refers to worthiness of belief, that quality which

renders a witness worthy of belief. The meaning of credibility in law is exactly
what it means in ordinary usage: “believability.” Credible evidence is evidence
that is likely to be believed.

Jurisprudence has established the standard for appreciating the credibility

of a witness’ claim. The test to determine the value of the testimony whether
such is in conformity with knowledge and consistent with the experience of
mankind.

Examples

1. The witness testified that he was able to identify the assailant at a distance
of 500 meters, at nighttime and with the aid of a street lamp.

2. It is hard to believe that the victim at the time she was sexually assaulted
by the accused did not shout for help, when her life was not in danger, and
the crime scene was a public place.

31
3. The testimony of the accused is not worthy of belief being incredible when
he declared that while he and the victim were struggling for the possession
of the gun, the gun went off hitting the victim twice in his stomach and in
the neck, which resulted to the victim’s death.

32
 WHAT NEED NOT BE PROVED (JUDICIAL NOTICE AND
ADMISSIONS)
RULE 129

Rule 129 of the Revised Rules of Court deals with judicial notice.

A doctrine of judicial notice applied by a court that allows the court to

recognize and accept the existence of a particular fact commonly known by
persons of average intelligence without establishing its existence by admitting
evidence in a civil or criminal action.

When a court takes judicial notice of a certain fact, it obviates the need for
parties to prove the fact in court. Ordinarily, facts that relate to a case must be
presented to the judge through testimony or tangible evidence. However, if each
fact in a case had to be proved through such presentation, the simplest case
would take weeks to complete. To avoid burdening the judicial system, all
legislatures have approved court rules that allow a court to recognize facts that
constitute common knowledge without requiring proof from the parties.

1. Judicial Notice, which can be:

(a) Mandatory;
(b) Discretionary; or
(c) When hearing is necessary; and

2. Judicial Admissions

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

33
the 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 Notice, When Mandatory

The addition of the phrase “national government of the Philippines” merely

clarifies that the official acts of the legislative, executive and judicial departments
referred to in the provision are those of the national government of the
Philippines. (Peralta)

Not everything alleged in a party’s pleading is required to be proved.

Certain matters may be so well known to the court that to compel a party to
prove it would be a waste of time and effort. Simply put, judicial is the cognition
by the judge of certain facts on the supposition that such facts are within his
knowledge.

There are matters in a litigation which must be admitted without need for
evidence.

Examples

1. When the complainant in a criminal case alleges that he was assaulted by

the accused in Iloilo City, it would be ridiculous to require the prosecution
to prove that a place called Iloilo City exists.

2. Also, if the accused is charged with the violation of a law, there is no need
to introduce evidence that said statute exists because the court is charged
with the knowledge of the law it being the product of an official act of the
legislative department of the Philippines.

3. That a day is composed of 24 hours.

34
 4. That the world is round.

5. That the planet Earth revolves around the sun.

Function of Judicial Notice

The function of judicial notice is to abbreviate litigation by the admission of

matters that need no evidence because judicial notice is a substitute for formal
proof of a matter by evidence.

To say that a court will take judicial notice of a fact is merely another way
of saying that the usual form of evidence will be dispensed with if knowledge of
the fact can be otherwise acquired. This is because the court assumes that the
matter is so notorious that it will not be disputed. But judicial notice is not judicial
knowledge. The 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 fact, not generally or professionally known, the basis of his action.

When Judicial Notice is Mandatory

1. A matter of judicial notice may either be mandatory or discretionary.

When the matter is subject to a mandatory judicial notice, no motion or
hearing is necessary for the court to take judicial notice of a fact
because this is a matter which a court ought to take judicial notice of.

2. The following are matters subject to mandatory judicial notice:

(a) the existence and territorial extent of states;

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 public acts of the legislature

35
 and executive, although those acts are not formally put in evidence,
not in accord with the pleading (Jones on Evidence)

(b) the political history,

The rule is well established that 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
event of general importance (Jones on Evidence)

(c) forms of government

Governmental matters such as the principal department and their

respective powers and duties, the time of sessions of congress or of
state legislatures or the privileges of members, and the usual course
of proceedings therein are deemed embraced in this aspect of
mandatory judicial notice (Jones on Evidence)

(d) symbols of nationality of states;

A court not only takes notice of foreign states and sovereigns that
have been recognized as such by the home government of such
court, but also their symbols of authority – such as national flags and
seals of state (Jones on Evidence)

(e) the law of nations;

The laws of foreign countries are not judicially noticed in the absence
of such enabling statute. When foreign laws are involved, it must be
alleged and proved. And in default of proof of foreign law, it will be
presumed that the character of foreign law is the same as Philippine
law, consistent with the doctrine of processual presumption, unless
the provisions of the foreign law were subjected to a judicial
admission. (Regalado, Remedial Law Compendium)

36
(f) the admiralty and maritime courts of the world and their seals;

No proof need be given of the seals of foreign maritime or admiralty

courts (Jones on Evidence)

(g) the political constitution and history of the Philippines;

A chronological record of events is a matter of public knowledge.

(h) the official acts of the legislative, executive and judicial departments
of the Philippines;

Judicial knowledge of public acts from the three departments of the

Philippine Republic include legislative journals, opinions of the
Secretary of Justice, judicial records, adjudication by appellate courts
such as Decisions of the Supreme Court and the Court of Appeals, but
not decisions of coordinate trial courts or within branches of the
same judicial sphere (Padilla, Evidence Annotated)

(i) the laws of nature;

Subject to the qualification that the phenomenon in question must

be certain and invariable, it is the settled rule that 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 – such as action
of the elements, the recurrence of the seasons, events of the
calendar, and the coincidence of the days of the week with the days
of the month and of the year.

Examples

1. Newton’s Law of Gravitation.

37
 2. The Laws of Supply and Demand

(j) the measure of time; and

Among other matters, included in this aspect are the successive

weeks in the calendar, the time when the sun rises or sets in a
particular day, as well as the natural conditions of visibility (Padilla,
Evidence Annotated)

(k) the geographical divisions.

This refers to topographical matters or the physical texture of a place

or region.

When Judicial Notice is Discretionary

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

Hearing the parties on discretionary judicial notice:

Judicial Notice, When Discretionary

During the trial, when a court is uncertain whether it may, at its discretion,
take judicial notice of a certain fact or not, it may call the parties to a hearing to
give them a reasonable opportunity to present information relevant to the
propriety or impropriety of taking judicial notice of that fact. Certainly, the so-
called “hearing” is not for the purpose of adducing evidence on that fact.

In other words as explained by Espejo, judicial notice is termed

discretionary under Section 2 because, by its very nature, it depends wholly on

38
the judgment of the court. Unless a matter falls within Section 1, no party can
compel a judge to take judicial notice of the same. Judicial notice under Section 2
cannot be compelled by mandamus.

The matters of judicial notice under Section 2 have three material components:

1. Matters which are of public knowledge;

2. Matters which are capable of unquestionable demonstration;
3. Matters which ought to be known to judges because of their judicial
functions.

Stated in another way, the principles of discretionary judicial notice will

apply where the following requisites are met:

1. The matter must be one of common knowledge;

2. The matter must be settled beyond reasonable doubt (if there is any
uncertainty about the matter, then evidence must be adduced); and
3. The knowledge must exist within the jurisdiction of the court.

(1) Things of public knowledge or “common knowledge” of which the courts

take judicial matter coming to the knowledge of men generally in the
course of the ordinary experience of life, or they may be matters which
are generally accepted by mankind as true and are capable of ready and
unquestioned demonstration.

Examples:

1. “Shabu” is judicially noticed as metamphetamine hydrochloride;

2. The use of dynamite as an explosive is intrinsically dangerous;

39
 3. In a special complex crime of robbery with rape, the value of stolen goods,
like the value of appliances, canned goods, perfume are certainly within
public knowledge and easily capable of unquestionable demonstration.

4. The circumstances involving the Oakwood Mutiny.

5. The fact that a person is a duly elected representative of a certain

congressional district could be properly taken judicial notice of by the
court, the same being a matter of common knowledge in the community
where said person sits.

6. The “Dinagyang” is a popular cultural activity in Iloilo City.

7. The court should take discretionary judicial notice of the names of

municipality and cities within the court’s judicial territory.

(2) On the other hand, matters which are capable of unquestionable

demonstration pertain to the field of professional and scientific
knowledge.

Examples

(a) Theory of Gravity

(b) The explanation why the sky is blue
(c) The theory on photosynthesis
(d) The theory of relativity
(e) Table of the Elements

(3) As to matters which ought to be known to judges because of their

judicial functions, an example would be facts which are ascertainable
from the record of court proceedings, e.g., as to when court notices
were received by a party.

40
Examples

(a) Fluctuation in the prices of fuel

(b) Foreign exchange
(c) Prices of essential goods, like rice and sugar
(d) Public Utility fares

In fine, the doctrine of judicial notice rests on the wisdom and discretion of
the courts. The power to take judicial notice is to be exercised by the courts with
caution; care must be taken that the requisite notoriety exists; and every
reasonable doubt upon the subject should be promptly resolved in the negative
(Herrera, Remedial Law)

Stage when judicial notice may be taken:

1. During the trial;

2. After the trial;
3. On appeal.

Sec. 3. Judicial notice, when hearing necessary. – During the PRE- trial AND THE
TRIAL, the court, MOTU PROPRIO, OR UPON MOTION, SHALL HEAR the party ON
THE PROPRIETY OF TAKING judicial notice of any matter.

Before judgment or on appeal, the court, MOTU PROPRIO, 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.

Judicial Notice When Hearing Necessary

As opined by an eminent commentator on Evidence, the word “pre-trial”

has been added because a court may properly indicate to the parties its intention,
or the parties may request the court, to take judicial notice of a particular matter
during the pre-trial.

41
 In the same manner, the words “on the propriety of taking” judicial notice
have been added to clarify the purpose of the hearing i.e., whether the matter
involved is a proper subject of discretionary judicial notice. (Peralta)

Our courts do not take judicial notice of foreign laws and judgments; hence,
like any other facts, both the divorce decree and the national law of the alien
must be alleged and proven according to our law on evidence.

For instance, in the prosecution for homicide wherein the accused invoked
the defense of alibi, the court may require presentation of evidence to show the
distance of the accused from the crime scene.

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.
(Herrera, Remedial Law). Any matter can be heard by the Court during or after
trial and prior to judgment or on appeal, but on appeal, the Court may only take
judicial notice of a point that is decisive of a material issue in the case
(Perspective of Evidence, Peralta, Jr).

The court cannot take judicial notice of age of a person as evidence by

simply looking at a person’s appearance. When the trier of facts observes the
appearance of a person to ascertain his or her age, he is not taking judicial notice
of such fact; rather he is conducting an examination of the evidence, the evidence
being the appearance of the person. (Espejo)

Does judicial notice apply to administrative agency?

Yes. Application of the rule on judicial notice is not confined to a court since
an administrative agency can also take cognizance of facts in the exercise of its
quasi-judicial function (Francisco). The agency may take notice of judicially
cognizable facts and of generally cognizable technical of scientific facts within its

42
specialized knowledge. The parties shall be notified and afforded an opportunity
to contest the facts so notice.

Judicial notice and knowledge of the judge

Judicial notice is not judicial knowledge. The mere personal knowledge of

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

For instance, while the judge was doing brisk walking one beautiful Sunday
morning, he chance upon a stabbing incident, and he was able to identify the
assailant. If a case was eventually filed and raffled to his court, he could not
decide the guilt of the accused based on the judge’s personal knowledge of the
stabbing incident. Meaning, the judge should still decide the case based on the
evidence submitted by the parties.

Sec. 4. Judicial admissions. – An admission, verbal or written, made by a party in

the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made through
palpable mistake or that THE IMPUTED admission was NOT, IN FACT, made.

Judicial Admissions

Judicial admission or an admission in judicio is a deliberate, clear,

unequivocal statement by a party about a concrete fact within that party’s
knowledge. It must be deliberate because an admission will not bind the party
making it if it was made by mistake. It must be clear and unequivocal and must
not admit of two or more interpretations. (Espejo)

To be judicial admission under sec. 4 of Rule 129, certain elements must be

considered:

1. The same must be made by a party to the case;

43
 2. The admission to be judicial, must be made in the course of the
proceedings in the same case;
3. Sec. 4 of Rule 129 does not require a particular form for an admission.

A party may make judicial admissions in (a) the pleadings, (b) during the
trial, either by verbal or written manifestations or stipulations, or (c) in other
stages of the judicial proceedings.

Examples

1. In the case for Sum of Money, the defendant, in his Answer, admitted the
existence of the Promissory Note, is a judicial admission.

2. In the prosecution for the crime of rape, the declaration of the accused that
he was infatuated with the complainant is a judicial admission.

3. During the pre-trial conference, the defendant admits the genuineness and
due execution of the Contract of Sale is a judicial admission.

Who can register a judicial admission?

If a party is not represented by counsel, it is obvious that only the party, or

his duly sanctioned representative, can effect a judicial admission.

While the language of Section 4, Rule 129 seemed to contain the legal
viability of a judicial admission from a party to the suit, it is equally a truism in law
that 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
(Wigmore on Evidence). Not even a change of attorney, can abrogate an
admission that was originally binding (Wigmore)

44
 A stipulation of facts proposed during the trial by the prosecution and
admitted by the defense counsel is tantamount to a judicial admission by the
appellant of the facts stipulated. (People v. Hernandez, G.R. No. 108028, July 30,
1996) (Espejo)

The form of a Judicial Admission

Section 4, Rule 129 of the Rules of Court contemplates a verbal or written

judicial admission from a party in the midst of the proceeding in the same
dispute, and it can also be implicit in a statement (Regalado), or from the conduct
of a party (Herrera), such as a “negative pregnant” (Regalado).

Anent judicial admission, it can therefore be established on the pleadings

presented by the parties, during pre-trial conference, in the course of a hearing or
trial, or other stages of the proceedings such as admissions obtained by
depositions, written interrogatories or requests for admission.

A “negative pregnant” is that form of denial which at the same time

involves an affirmative implication favorable to the opposing party. Such a
“negative pregnant” is in effect an admission to an averment to which it is
directed. It is said to be a denial pregnant with an admission of the substantial
facts in the pleading responded to.

Example

1. The accused was asked if he ever smoked marijuana, and he answered that
he never smoked marijuana in school. The answer of the accused would
imply that he had smoked marijuana in other places and he only denied
having smoked marijuana in school.

The Theory of Adoptive Admission

Adoption of another person’s oral or written statements may occur in

either of two ways: (1) by conduct manifesting a party’s belief in the truthfulness

45
of the statement, or (2) by a party’s failure to refute an accusatory statement that
a reasonable person would refute under the same or similar circumstances
(Estrada vs. Desierto. Et. al and Estrada vs. Arroyo, G.R. Nos. 146710-15, April 3,
2001)

Effect of an Amended Pleading

In general, an amendment is the correction of some error or mistake in a

pleading which is before the court (Rules of Court). A proposal to rectify a
pleading insofar as an allegation or the mistake in the name of a party, as well as
an inadequate averment, will swiftly adjudicate the actual merits of the dispute
without regard to technicalities (Section 1, Rule 10, Rules of Court). In the event
of an amendment of a pleading, either as a matter of right or with leave of court,
the pleading that amends serves as the replacement of the original pleading
which thereafter no longer forms part of the record.

In legal contemplation, an amendment practically obliterates the original

pleading. Nevertheless, admission in the superseded pleading can be received in
evidence against the pleader and claims or defenses alleged therein that were not
incorporated in the amended pleading will be deemed to have been deserted,
consistent with Section 8, Rule 10 of the Rules of Court.

Consequences of judicial admissions

1. They do not require proof; and

2. They cannot be contradicted because they are conclusive upon the party
making it.

The above rule however, admits of two exceptions, namely:

1. Upon showing that the admission was made through palpable mistake,
or

46
 Palpable mistakes are mistakes that are obvious to all sides. These are
mistakes that are glaring that the judge or the adverse party can see that there
was really no judicial admission made (Espejo)

2. When it is shown that the imputed admission was not, in fact, made.

This exception may mean either of two things: (1) That they have not been
made at all; or (2) The admission was taken out of context or not in the sense in
which the admission is made to appear.

47
 RULE 130
(Secs 1 to 54)
RULES OF ADMISSIBILITY

OBJECT (REAL) EVIDENCE

MEANING OF OBJECT EVIDENCE

Object or real evidence as defined by the Rules of Court refers to evidence

that is addressed to the senses of the court, like sense of touch, sense of sight,
sense of smell, and sense of hearing.

SECTION 1. Object as evidence.—Object as evidence are those addressed to the

senses of the court. When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court.

Object as Evidence

Where the object is relevant to a fact in issue, the court may acquire
knowledge thereof by actually viewing the object, in which case such object
becomes real evidence.

Normally, real evidence is brought to the court, and if it is not physically

viable to do so like a monument or a building, an ocular inspection thereof in its
situs can achieve the same level of satisfaction.

An ocular inspection conducted by the judge without notice to or the

presence of the parties is invalid as an ocular inspection is a part of the trial (In Re
Hon. Rafael C. Climaco, Adm. Case No. 134 – J, Jan 21, 1974).

48
 Object or real evidence is exactly what its name suggests. It is the real thing
itself.

Examples

1. The knife used to slash the victim’s throat.

2. The ring stolen by the accused.
3. The bullet extracted from the victim’s chest.
4. The shabu seized from the accused.
5. The checks issued by the accused in the case for violation of BP 22.

Object evidence is not visual alone. It covers the entire range of human
senses: hearing, taste, smell and touch.

Real evidence includes any article or object which may be known or

perceived by the use of any of the senses. It includes the examination of the
anatomy of a person or of any substance, taken therefrom or the conduct of tests,
demonstrations, or experiments, or the examination of representatives portrayals
of the object in question, such as maps, diagrams, or sketches, pictures or audio-
visual recordings, provided the same are properly authenticated (City of Manila
vs. Cabangis, 10 Phil. 151)

While the Rules speak of “view of an object” real evidence includes any
object which may be known by the senses of hearing, taste, smell or touch. Thus
the sense of hearing is involved in determining the nature of sounds or similarity
of tunes; touch, in determining textures or temperature; taste and smell, in
determining types and conditions of substance or objects.

Documents, real or documentary evidence:

Documents are real evidence if the purpose is to prove their existence or

condition, or the nature of the handwritings or the nature of the handwritings
thereon, or to determine the age of the paper used, or the blemishes or

49
alterations thereon, as where falsification is alleged. Otherwise, they are
considered documentary evidence if the purpose is to establish the contents or
tenor thereof.

Physical evidence is a mute but eloquent manifestation of truth, and it

ranks high in our hierarchy of trust worthy evidence – where physical evidence
runs counter to the testimonial evidence, the physical evidence should prevail. In
a case, the Supreme Court ruled that object or physical evidence as evidence of
the highest order because it speaks more eloquently than a hundred witnesses
(People v. Lavapie, G.R. No. 130209, March 14, 2001).

Hence, if the testimony of a witness that the victim was hacked at the left
side of his neck but the autopsy report shows that he was instead hacked at the
right side of his neck, this material inconsistency, consequently, casts a serious
doubt on the testimony of the witness.

In the same manner, the witness testified that he saw the accused shot the
victim with a .45 caliber pistol, but the autopsy examination shows that he was
shot with an armalite rifle. There is no question that this material inconsistency in
the witness testimony severely put cloud on the credibility of his testimony.

REQUISITES FOR ADMISSIBILITY OF OBJECT EVIDENCE

1. The evidence must be Relevant – to be relevant the evidence must have

a relationship to the fact in issue.

2. The evidence must be Competent – to be competent it must not be

excluded by the Constitution, the law or these Rules.
3. The evidence must be authenticated by a competent witness – to prove
or serve to prove to be real, true, or genuine an object, article or
document.
4. The object must be formally offered in evidence.

50
Example 1

In the prosecution for violation of the provision of R.A. No. 9165, a witness
or so called sponsoring witness, needs to testify that the subject dangerous drug,
which is an object evidence, was the very the same dangerous that was seized or
recovered from the possession and control of the accused.

Example 2

In a civil case for Breach of Control involving the purchase of a piece of

land, a sponsoring witness should testify as to the existence of a Deed of Sale,
which is an object evidence, to show that the Deed of Sale is the very the same
document that the parties had executed.

Example 3

In a murder case wherein the victim was stabbed to death, a sponsoring

witness needs to testify that the murder weapon, a knife, which an object
evidence, was the same knife that used to stab the victim.

5. The object must be formally offered in evidence.

Pursuant to Section 34, Rule 132, “the court shall consider NO evidence
which has not been formally offered. The purpose for which the evidence is
offered must be specified.”

Object evidence and the right against self-incrimination:

The right against self-incrimination cannot be invoked against object

evidence, for the reason that it is applicable only to testimonial evidence.

A person may be compelled to submit to fingerprinting, photographing,

paraffin, blood and DNA, as there is no testimonial compulsion involved. The right
against self-incrimination therefore only covers compulsion to confess guilt but
excludes purely mechanical or physical acts. But a person cannot be compelled to

51
produce a sample of his handwriting as basis for determining his criminal liability
as the author of a certain document. Writing is not a mere mechanical act but
involves the application of the intellect. However, if the accused testifies in his
own behalf and denies authorship, he may be compelled to give a sample of his
handwriting. (People v. Joel Yatar, G.R. No. 150224, May 19, 2004)

In People v. William, et,al. G.R. No. 93712, June 15, 1992, the Supreme
Court ruled that the fact that object evidence is beyond the commerce of man is
not a ground for exclusion. In this case, the accused raised a strange argument
that marijuana has no probative value because it is beyond the commerce of man.

CATEGORIES OF OBJECT EVIDENCE

For purposes of AUTHENTICATION of an object or for laying the foundation

for the exhibit, object evidence may be classified into the following:

1. Objects that have readily identifiable marks (unique objects), like the
serial number of a caliber 45 pistol, the serial numbers of a paper bills or
bank check numbers.

2. Object that are made readily identifiable (objects made unique), like the
typical kitchen knife that has no serial number, bottle of beer or the
stone used in the killing of the victim.

3. Object with no identifying marks and cannot be marked (non-unique

objects), like drops of blood or oil, drugs in powder form, fiber, grains of
sand.

Object evidence must generally be marked as (Exhibits A, B, etc for the

prosecution, petitioner or plaintiff; Exhibits 1, 2, 3, etc, for the defense,
respondent or defendant) either during the pre-trial or during its presentation at
the trial. It must also be identified as the object evidence it is claimed to be. This
requires a testimonial sponsor. For example, a forensic chemist identifies a
marijuana leaves as those submitted to him in the case for examination. Further,

52
object evidence must be formally offered after the presentation of a party’s
testimonial evidence. (Dean Riano)

When presentation of object evidence can be dispensed with and replaced

by mere testimony or document if:

1. Its exhibition is contrary to public morals or decency;

2. To require its being viewed in court or in ocular inspection would result

in delays, inconvenience, or unnecessary expenses which are out of
proportion to the evidentiary value of such object;

3. Such object evidence would be confusing or misleading, as when the

purpose is to prove the former condition of the object and there is no
preliminary showing that there has been no substantial change in said
condition;

4. The testimonial or documentary evidence already presented clearly

portrays the object in question as to render a view thereof unnecessary;

5. Where the existence of the object is not the very fact in issue, but is
merely a collateral fact, or is merely used as reference;

6. Where the article has not been recovered or is outside the coercive
jurisdiction of the court e.g.; stolen articles which are not recovered,
unrecovered weapons used in crimes). (Espejo)

Other limitations

1. Exhibition of the private parts in sex cases;

2. Presentation of the corpse or disembodied body parts;
3. Re-enactment of violent or offensive act;

53
 4. Objects which are offensive to man’s sensibilities or repulsive objects (e.g.,
waste matters, human excreta, carcasses of dead animals, killing of an
animal to prove a substance is poison)

Requites in cases of ocular inspection

1. The condition of the thing or place must not have been altered; and
2. There be prior notice of the date, time and place given to the parties
because ocular inspection is still part of the trial.

DEMONSTRATIVE EVIDENCE

Demonstrative evidence is not the actual thing but it is referred to as

“demonstrative” because it represents or demonstrates the real thing.

Examples

1. Photographs
2. Motion pictures and recordings
3. Diagrams, models and maps
4. X-ray pictures
5. Scientific tests, demonstrations and experiments.

The inspection may be made inside or outside the courtroom. An inspection

or view outside the courtroom should be made in the presence of the parties or
at least with notice to them.

PARAFFIN TESTS

Paraffin tests, in general, have been considered as inconclusive by the

Court because scientific experts concur in the view that paraffin tests have proved
extremely unreliable in use. The tests can only establish the presence or absence
of nitrates or nitrites on the hand but the tests alone cannot determine whether

54
the source of the nitrites was discharge of a firearm. The presence of nitrates
should be taken only as an indication of a possibility or even a probability but not
of infallibility that a person has fired a gun, since nitrates are also admittedly
found in the substance other than gunpowder.

A more recent pronouncement by the Court affirmed the rule that the
paraffin test is merely a corroborative evidence, neither proving nor disproving
that a person did indeed fire a gun. The positive or negative results of the test can
be influenced by certain factors, such as the wearing of gloves by the subject,
perspiration of the hands, wind direction, wind velocity, humidity, climate
condition, the length of the barrel of the firearm, or the open or closed trigger
guard of the firearm (People vs. Buduhan, G.R. No. 178196, August 6, 2008)

POLYGRAPH TESTS (LIE DETECTOR TESTS)

1. A polygraph test operates on the principle that stress causes

physiological changes in the body which can be measured to indicate
whether the subject of the examination is telling the truth.

2. Courts accordingly uniformly reject the results of polygraph tests when

offered in evidence for the purpose of establishing the guilt or
innocence of one accused of a crime because it has not yet attained
scientific acceptance as a reliable and accurate means of ascertaining
truth or deception. (Peralta Jr)

X-RAYS

In all courts today the validity of knowledge based on the use of X-ray
apparatus is recognized, as well as the propriety of testifying by the use of
photographs recording the disclosures of X-rays.

55
PHOTOGRAPHS

It is well-established that photographs of persons, things, and places, when

duly verified and shown by extrinsic evidence to be faithful representations of the
subjects as of the time in question, are admissible in evidence, both in civil and
criminal cases, as aids to the jury in arriving at an understanding of the evidence,
the situation or condition of objects or premises, the circumstances of an
accident, or the condition or identity of a person when any such matter is
relevant to the issues being litigated. (Evidence, Oregon State Bar Committee on
Continuing Legal Education)

B. DOCUMENTARY EVIDENCE

MEANING OF A DOCUMENTARY AS EVIDENCE (DOCUMENTARY EVIDENCE)

Sec. 2. Documentary evidence. – Documents as evidence consist of writings or

any material containing letters, words, SOUNDS, numbers, figures, symbols or
THEIR EQUIVALENT, or other modes of written expressions OFFERED AS PROOF
OF THEIR CONTENTS. PHOTOGRAPHS INCLUDE STILL PICTURES, DRAWINGS,
STORED IMAGES, X-RAY FILMS, MOTION PICTURES OR VIDEOS.

Documentary Evidence

The expanded definition of “documentary evidence” is to embrace in the

broadest possible terms essentially every memorial that preserves written and
spoken language, including recorded sounds; hence the inclusion of “recordings”
and “sounds” in the definition of documentary evidence.

Documents as evidence do not exclusively refer to writings. They may refer

to any other material like objects as long as the material contains letters, words,
numbers, figures, symbols or other modes of written expression and offered as
proof of their contents.

56
 Being writings or materials containing modes of written expressions do not
ipso facto make such writings or materials documentary evidence. For such
writings or materials to be deemed documentary evidence, the same must be
offered as proof of their contents. (The contents are the subject of inquiry). If
offered for some other purpose, the writings or materials would not be deemed
documentary evidence but merely object evidence.

When a contract is presented in court to show that it exists or simply to

establish its condition, it is not offered to prove its content. The contract
therefore, is not considered a documentary evidence but an object or real
evidence. Simply put, the most important requirement to remember is that the
writing or material must be offered as proof of its contents. If the writing or
material is not offered as proof of its contents, but rather as proof of the writing
or material itself, then it is already considered as object evidence. (Espejo)

Examples

1. A buy bust money is an object evidence, if the purpose is to prove the fact
of buying and selling dangerous drugs.
2. If the marriage contract is offered to prove the existence of marriage, and
not its contents, then it is an object evidence.
3. A CCTV footage is an object evidence if the offer is to prove the existence of
said CCTV footage.

REQUISITES FOR ADMISSIBILITY OF DOCUMENTARY EVIDENCE

(a) The document must be relevant;

(b) The evidence must be component;

(c) The document must be authenticated by a competent witness; and

(d) The document must be formally offered in evidence.

57
 To be admissible, documentary evidence, like any other evidence must be
relevant and competent. It is also subject to general exclusionary rules such as the
rule against HEARSAY, ORIGINAL DOCUMENT rule and PAROL EVIDENCE RULE.
Thus, depending upon the specific purpose for which the contents of the
document is offered, there are certain inevitable issues which may arise in
connection with the admissibility of the document aside from the issue of
relevancy. First, has the document been authenticated? It is relevant? Is it the
best evidence? Is it a mere parol evidence and so must be excluded? Is it hearsay
and therefore, must be excluded?

It would therefore be critical to remember that whenever a documentary

evidence is involved, the ORIGINAL DOCUMENT rule, the parol evidence rule and
the hearsay rule, or anyone of these rules may come into play. On the other hand,
where the evidence is offered as an OBJECT evidence, the ORIGINAL DOCUMENT
rule, the parol evidence rule, and the hearsay rule find no application.

1. ORIGINAL DOCUMENT RULE

SEC. 3. 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 shall be admissible other than the original
document itself, except in the following cases:

One of the notable amendments in the 2019 Revised Rules on Evidence

(RRE) is the change of the term “Best Evidence Rule” to “Original Document Rule.”
This change was made to reflect the precept that the application of the rule is
limited to documentary evidence only.

Furthermore, the RRE expanded the definition of documentary evidence.

Under Section 2 of Rule 130, documentary evidence includes writing, recording,
photograph or other record.

Photographs, still pictures, drawings, stored images, X-Ray films and motion
pictures or videos are expressly included in the definition of documentary
evidence. Given that photographs and recordings are considered documentary

58
evidence, the “Original Document Rule” likewise applies. (Irish May Quintana or
IMQ)

Science of Original Document Rule

Proving a case to a court often requires using written, recorded or

photographic evidence. These types of evidence include pictures of property
damaged, voice message recordings and contracts. When written, recorded or
photographic evidence is needed for a hearing or trial, the Rules of Evidence
provide that the “original writing, recording or photograph must be provided to
prove its content unless the original be lost, destroyed, or otherwise
unobtainable.”
This undergirding principle of evidentiary law is called the Best Evidence
Rule, also referred to as the Original Writing Rule. The foundation of the Original
Document Rule is that the original writing, recording or photograph is the “best”
way to prove the actual content of the evidence. This is because requiring best
evidence ensures that litigants provide evidence that will facilitate a court’s task
of accurately resolving disputed issues of fact. Other evidence of the writing,
recording, or photograph will be admissible ONLY if the original document is not
available.

Original Document must Be Produced

When applied to documentary evidence, the ORIGINAL DOCUMENT 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. The norm requires a party to
generate the finest evidence to establish the document only if the subject of
query is the contents of the instrument. (Peralta, Jr)

When does the Original Document Rule apply?

The Original Document Rule only applies when the party offering evidence
seeks to prove the content of the writing, recording or photographic evidence.

59
Examples

1. In a civil case for Breach of Contract, the Deed of Sale was presented to
prove that its execution was attended by fraud, the Original Document Rule
applies.

2. In a criminal case for Rape wherein the prosecution offered in evidence the
recorded extrajudicial confession of the accused, and accused denied the
same, the Original Document Rule finds application.

3. In a case for violation of BP 22, the accused denies that he executed the
subject checks, the Original Document Rules applies.

General Rule

The general rule for the application of the Original Document Rule is that
when the subject of an inquiry is the contents of a document, writing, recording,
photograph or other records, no evidence shall be admissible other than the
original document itself.

REASON FOR THE ORIGINAL DOCUMENT RULE

THERE IS NO REASON TO APPLY THE “ORIGINAL DOCUMENT RULE” WHEN THE ISSUE DOES
NOT INVOLVE THE CONTENTS OF A DOCUMENT, WRITING, RECORDING, PHOTOGRAPHS OR
OTHER RECORD. SEC. 3 OF RULE 130 IS CLEAR ON THIS POINT: THE RULE WILL COME INTO PLAY
ONLY “WHEN THE SUBJECT OF INQUIRY IS THE CONTENTS OF A DOCUMENT, WRITING,
RECORDING, PHOTOGRPAHS OR OTHER RECORD.”

THE BASIC PREMISE JUSTIFYING THE RULE IS THE NEED TO PRESENT TO THE COURT THE EXACT
WORDS OF A DOCUMENT, WRITING, RECORDING, PHOTOGRPAHS OR OTHER RECORDS
WHERE A SLIGHT VARIATION OF WORDS MAY MEAN A GREAT DIFFERENCE IN RIGHTS.

60
 THE ORIGINAL DCOUMENT RULE IS APPLICABLE ONLY TO DOCUMENTS, WRITING,
PHOTOGRAPHS OR OTHER RECORDS. DOCUMENTS AS EVIDENCE CONSIST OF WRITINGS OR
ANY MATERIAL CONTAINING LETTERS, WORDS, FIGURES, SYMBOLS OR OTHER MODES OF WRITTEN
EXPRESSION OFFERED AS PROOF OF THEIR CONTENTS. WHEN THE SUBJECT OF INQUIRY IS THE
CONTENTS OF A DOCUMENT, WRITING, PHOTOGRAPHS OR OTHER RECORDS, NO EVIDENCE
SHALL BE ADMISSIBLE OTHER THAN THE ORIGINAL DOCUMENT, WRITING, PHOTOGRAPHS OR
OTHER RECORDS ITSELF. PRODUCTION OF THE ORIGINAL MAY BE DISPENSED WITH, IN THE TRIAL
COURT’S DISCRETION, WHENEVER ON THE CASE IN HAND THE OPPONENT DOES NOT BONA FIDE
DISPUTE THE CONTENTS OF THE DOCUMENT AND NO OTHER USEFUL PURPOSE WILL BE SERVED BY
REQUIRING PRODUCTION.

WHAT TO DO TO APPLY THE ORIGINAL DOCUMENT RULE

THE FIRST STEP TO APPLY THE ORIGINAL DOCUMENT RULE IS TO DETERMINE THE MATTER
INQUIRED INTO. IF THE INQUIRY INVOLVES A DOCUMENT, WRITING, PHOTOGRAPHS AND
OTHER RECORDS, AND ITS CONTENTS ARE THE SUBJECT OF THAT SAME INQUIRY, THE ORIGINAL
DOCUMENT RULE APPLIES AND MUST THEREFORE, BE COMPLIED WITH THE PROCEDURAL
COMPLIANCE, AND NOT A COPY OF THAT DOCUMENT, WRITING, PHOTOGRAPHS OR OTHER
RECORDS. SO LONG AS THE ORIGINAL IS AVAILABLE, NO OTHER EVIDENCE CAN BE SUBSTITUTED FOR
THE ORIGINAL BECAUSE THE ORIGINAL IS THE “BEST EVIDENCE” IN RELATION TO MERE COPIES OR
SUBSTITUTES THEREOF.

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 Accordingly, the correct order of proof is as follows: Existence, Execution, Loss
and Contents (EELC), although at the sound discretion of the court, this order may
be changed if necessary.

The due execution and authenticity of the document must be proved either:
(1) by anyone who saw the document executed or written, or (2) by the evidence
of the genuineness of the signature or handwriting of the maker.

After complying with the requirements for laying the basis for the introduction
of secondary evidence, the offeror may now be allowed to prove the contents of
the documents, WRITING, PHOTOGRAPHS OR OTHER RECORDS by secondary
evidence.

The presentation of the secondary evidence must be in the following order:

1. A copy of the original;

2. A recital of the contents of the document, WRITING, PHOTOGRAPHS OR
OTHER RECORDS, in some authentic document; or
3. By the testimony of witnesses.

The hierarchy of preferred secondary evidence must be strictly followed.

Because of the requirements of the rule, the testimony of the witness to prove
the contents of the lost original is inadmissible if a copy is available or if there is a
recital of the contents of the writing in some authentic document.

When the Original Document Rules Does Not Apply

(a)The Original Document Rule does NOT apply when a party is simply trying to
prove an event or fact that is memorialized in a writing, recording or piece of
photographic evidence. In other words, if only the fact of Execution, Existence,
and Surrounding circumstances only is involved, the Rule does not apply.

62
Examples

1. In the case of Declaration of Nullity of Marriage, the Certificate of Marriage

was merely offered to prove the fact of marriage as evidenced by the
Marriage Contract, the Original Document Rule does not apply.

2. In the case of Annulment of Title, the presentation of the Deed of Sale to

establish its execution or existence, the Original Document Rule does not
apply.

3. In the criminal case of adultery, the presentation of a photograph showing

the married woman and her paramour in a very compromising position,
offered to prove the existence of said picture, does not fall within the ambit
of Original Document Rule.

(b) Collateral Facts Rule

If the contents of the document, writing, photograph or other record, 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 document, writing,
photograph or other record, if the fact to be proved is an independent fact to
which the writing is merely collateral or circumstantially relevant (Peralta, Jr)

When the document, writing, photograph or other record is involved in the

inquiry but the document is only COLLATERAL in issue, the ORIGINAL DOCUMENT
rule does not apply. A document is collaterally in issue when the purpose of
introducing the document is not to establish its term but to show facts that have
no reference to its contents like its existence, condition, execution or delivery.

Examples

1. A witness testifies that the victim was writing a letter when shot by
accused.

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 2. A witness declares that he actually saw the debtor tender payment of his
obligation to the creditor.

3. A witness testified as to the delivery of the deed of sale.

4. A witness testified that the victim was reading a newspaper when the
accused attacked him.

5. In the prosecution for homicide, the accused was seen writing a letter
intended to the complainant. In this case, the Original Document Rule does
not apply, for the reason that the letter is only collateral evidence to the
case for homicide.

6. In a case for collection, the witness testified that he saw the defendant
affixing his signature in a promissory note. Here, the Original Document
Rule finds no application for the reason that the witness testified only on
the fact that he saw the defendant signing on a promissory note.

7. In a case for estafa, the witness declared in open court that he saw the
accused received a copy of a demand letter. The Original document Rule
does not apply because the tenor of the witness’s testimony is only on the
fact that the accused received a demand letter.

8. A witness may testify that she provided payment to a party without

entering a receipt for the payment into evidence. In this scenario, the
witness is not testifying to what the receipt says, but is testifying to making
payment.

Applies to Criminal case

The ORIGINAL DOCUMENT Rule is significant in a criminal case for

falsification where the issue is not only with reference to the contents of a
document but also relates to the existence of the document itself with the
participation of the accused as imputed to him by the prosecution. In this
situation, the non-production of the original in a criminal case for falsification can

64
lead to the exoneration of the accused as in the case of U.S. vs. Gregorio, 17 Phil.
522) (Peralta, Jr)

BAR 2016

Police officers arrested Mr. Druggie in a buy-bust operation and confiscated

from him 10 sachets of shabu and several marked genuine peso bills worth
P5,000.00 used as the buy-bust money during the buy-bust operation.

At the trial of Mr. Druggie for violation of R.A. No. 9165 (Comprehensive
Dangerous Drug Act of 2002), the Prosecution offered in evidence, among others,
photocopies of the confiscated marked genuine peso bills. The photocopies were
offered to prove that Mr. Druggie had engaged at the time of his arrest in the
illegal selling of dangerous drugs.

Invoking the ORIGINAL DOCUMENT Rule, Atty. Maya Bang, the defense
counsel, objected to the admissibility of the photocopies of the confiscated
marked genuine peso bills.

Should the trial judge sustain the objection of the defense counsel? Briefly
explain your answer.

Suggested answer

No, the trial judge should not sustain the objection that invokes the
ORIGINAL DOCUMENT rule.

The Supreme Court has held that the ORIGINAL DOCUMENT rule applies only
to documentary evidence, not to object or testimonial evidence.

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 Here the marked money is object not documentary evidence since it is being
offered to prove not its contents but its existence and use in the buy-bust
operation. [People v. Tandoy, 192 SCRA 28 (1990)]

2. Exceptions to ORIGINAL DOCUMENT Rule:

a. Original is lost or destroyed, or cannot be produced in court without bad

faith on the part of the offeror; (See Section 5)

b. When the original is in the custody 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; (See Section 6)

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 the general result of the
whole; (See Section 7)

d. When the original is a public record in the custody of a public officer or

is recorded in a public office; (See Section 8); and

e. WHEN THE ORIGINAL IS NOT CLOSELY -- RELATED TO A CONTROLLING

ISSUE.

WHAT IS AN ORIGINAL DOCUMENT

AND SINCE THE ORIGINAL DOCUMENT 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 SECTION 4, RULE 130 OF THE RULES OF
COURT (PERALTA):

66
SEC. 4. ORIGINAL OF 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.

WHAT ARE REGARDED AS THE ORIGINAL OF DOCUMENT?

RULE 130, SEC. 4. OF THE 2019 REVISED RULES OF EVIDENCE ENUMERATES ORIGINAL OF
DOCUMENT, AS FOLLOWS:

(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”

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 FROM THE FOREGOING DESCRIPTION OF THE ORIGINAL OF A DOCUMENT, A MACHINE COPY,
OR SIGNED CARBON COPY OR DUPLICATE, OF THE DOCUMENT CAN EQUALLY BE REGARDED AS THE
ORIGINAL IF IT WAS INTENDED TO HAVE THE SAME EFFECT BY A PERSON EXECUTING OR ISSUING IT.
IN THE SAME MANNER, WHEN A LAWYER WRITES A PLEADING IN TWO OR MORE COPIES WHICH
ARE EXECUTED AT THE SAME TIME, WITH IDENTICAL CONTENTS, EACH DOCUMENT IS AN ORIGINAL.
ALSO CONSIDERED AS ORIGINAL IS WRITING WITH IDENTICAL CONTENTS MADE BY PRINTING,
MIMEOGRAPHING, LITHOGRAPHY AND OTHER SIMILAR METHODS EXECUTED AT THE SAME TIME.
THUS, EACH NEWSPAPER SOLD IN THE STAND IS AN ORIGINAL IN ITSELF.

ELECTRONICALLY STORED DATA IS AN INTERESTING CASE STUDY IN THIS RULE. ONE COURT
WAS FACED WITH THE QUESTION OF WHETHER TO ADMIT TEXT MESSAGES EXCHANGED BETWEEN THE
PLAINTIFF AND DEFENDANT. THE TEXT MESSAGES HAD BEEN FORWARDED IN SEPARATE EMAILS
DIRECTLY FROM A CELLPHONE TO THE DEFENDANT’S ATTORNEY AND EACH EMAIL CONTAINED ONE
TEXT MESSAGE. THE PHONE DID NOT HAVE SCREEN SHOT CAPABILITIES OR ANY OTHER METHOD OF
CAPTURING AN IMAGE OF THE MESSAGES. ACCOMPANYING EACH EMAIL SEEKING TO BE INTRODUCED
INTO EVIDENCE WAS A DECLARATION FROM THE DEFENDANT STATING, UNDER PENALTY OF PERJURY,
THAT THE EMAILS ACCURATELY REFLECTED THE TEXT MESSAGES FROM THE CELLPHONE. THE
DEFENDANT ALSO OFFERED DETAILS ABOUT THE TEXT MESSAGES, INCLUDING WHO SENT THEM. THE
CELLPHONE HAD SINCE BEEN REPLACED AND WAS NO LONGER AVAILABLE.

THE COURT DETERMINED THAT THE PRINTED-OUT EMAILS OF THE TEXT MESSAGES WERE
ACCEPTABLE FOR PURPOSES OF SATISFYING THE ORIGINAL DOCUMENT RULE OR THE BEST EVIDENCE
RULE. THE TEXT MESSAGES WERE FORWARDED DIRECTLY FROM THE CELLPHONE AND THE EMAILS
WERE THE ONLY AVAILABLE RECORD OF THE MESSAGES. ALSO, THE DEFENDANT VOUCHED FOR THE
AUTHENTICITY OF THE MESSAGES. EACH OF THESE FACTORS INDICATED THAT THE EMAILS WERE THE
BEST POSSIBLE EVIDENCE OF THE TEXT MESSAGES.

(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,

One notable change in the rules on documentary evidence is the inclusion

of a “duplicate” as an original document. Under Section 4 (b) of Rule 130 of the

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RRE, a duplicate is defined as 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. This raises the questions on the admissibility of photocopies as
evidence of an original document. (IMQ)

A photocopy is a photographic copy of a printed or written material

produced by a process involving the action of light on a specifically prepared
surface. Under the old rules on evidence, photocopies are treated as secondary
evidence when presented before the court. It is only admissible as such when the
offeror of the photocopy has complied with specific conditions set forth under the
old rules.

Based on the expanded definition of an original of a document under the

RRE, it would appear that a photocopy may now be admissible as a duplicate, so
photocopies are no longer treated as secondary evidence. Given that a photocopy
of a document is a counterpart produced by photography, a technique that
accurately reproduces the original, it falls within the definition of a duplicate that
includes a counterpart produced through photography.

Given the novelty of the RRE and that there is no jurisprudence on the
admissibility of photocopies as an original under the amended rules, it remains to
be seen how court would rule when parties present photocopies as evidence of
original documents before the court. (IMQ)

(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.

UNDER SECTION 4 © OF RULE 130, A DUPLICATE IS AS ADMISSIBLE AS THE ORIGINAL.

HOWEVER, THE ADMISSIBILITY OF DUPLICATES AS AN ORIGINAL IS LIMITED. A DUPLICATE IS NOT AS
ADMISSIBLE AS THE ORIGINAL IF A GENUINE QUESTION IS RAISED ON THE AUTHENTICITY OF THE
ORIGINAL OR, IN THE CIRCUMSTANCES, IT IS UNJUST OR INEQUITABLE TO ADMIT THE DUPLICATE IN

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LIEU OF THE ORIGINAL. THE ADMISSIBILITY OF A PHOTOCOPY AS A DUPLICATE MAY STILL BE
QUESTIONED BY THE OPPOSING PARTY ON THESE QUESTIONS. (IMQ)

BAR 2019

In a case for specific performance and damages, plaintiff Q presented

photocopies of the contracts he had executed with defendant R for the purpose
of establishing their existence. Defendant R's counsel objected to the admission
of said photocopies, invoking the best evidence rule.

(a) Should the objection of defendant R's counsel be sustained? Explain.

(b) Assuming that the ORIGINAL DOCUMENT rule applies, under what
circumstances will the photocopies be admissible in evidence?

BAR 1997

WHEN X LOANED A SUM OF MONEY TO Y, THE FORMER TYPED A SINGLE COPY OF THE
PROMISSORY NOTE, WHICH THEY BOTH SIGNED. X MADE TWO PHOTOCOPIES OF THE PROMISSORY
NOTE, GIVING ONE COPY TO Y AND RETAINING THE OTHER COPY. X ENTRUSTED THE TYPEWRITTEN
COPY TO HIS COUNSEL FOR SAFEKEEPING. THE COPY WITH X’S COUNSEL WAS DESTROYED WHEN THE
LAW OFFICE WAS BURNED BY Z.

IN AN ACTION TO COLLECT THE PROMISSORY NOTE, WHICH IS DEEMED TO BE THE “ORIGINAL”

COPY? CAN THE PHOTOCOPIES IN THE HANDS OF THE PARTIES BE CONSIDERED “DUPLICATE”
ORIGINALS?

2. SECONDARY EVIDENCE

Sec. 5. When original document is unavailable. – When the original document

has been lost or destroyed, or cannot be produced in court, the offeror, upon
proof of its execution or existence and the cause of its unavailability without
bad faith on his part, may prove its content by a copy, or by a recital of its
contents in some authentic document, or by the testimony of witnesses in the
order stated.

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When original document is unavailable

Under the above provision, after the party has legally justified its failure to
present the original, the production of secondary evidence is proper subject to
the following conditions:

1. The offeror must prove the execution or existence of the original;

2. The offeror must show the cause of its unavailability; and
3. The offeror must show that the unavailability was without bad faith on
his part.

The exception under this provision covers three situations:

1. LOSS;
2. DESTRUCTION;
3. UNAVAILABILITY

When is a thing lost? A 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.

Destruction means the obliterations of a document such as by tearing,

shredding, or burning. It includes acts of alteration that would render the
contents of a document unintelligible for the purpose it is offered in evidence.

Unavailability may be physical or legal. Physical unavailability may refer to

cases where the original consists of inscriptions on immovable objects or
monuments and even gravestones. Legal unavailability, on the other hand, may
refer to instances where the document is beyond the territorial or coercive
jurisdiction of the court. (Espejo)

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 To prove the loss or destruction of the original, any competent person can
testify on the circumstances thereon either through direct or circumstantial
evidence. 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 as
rule in the case of De Vera vs. Aguilar, 218 SCRA 602.

Simply put, the due execution of the document may be established by the
person or persons who executed it; by the person before whom its execution was
acknowledged; or by any person who was present and saw it executed or who
after its execution, saw it and recognized the signatures; or by a person to whom
the parties to the instrument had previously confessed the execution thereof.

After laying the basis for the introduction of secondary evidence, the
offeror may now be allowed to prove the contents of the documents by
secondary evidence. The offeror may now prove the contents of the document in
the following order.

Secondary Evidence:

1. its content by a copy, or

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

3. by the testimony of witnesses in the order stated. (Espejo)

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.

When original document is in adverse party’s custody or control

The party who seeks to present secondary evidence when the document is
in the adverse party’s custody must lay the foundation for its introduction,
subject to the following requisites.

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Elements:

1. That the original exists;

2. That said document is under the custody or control of the adverse party;
3. That the proponent of secondary evidence has given the adverse party
reasonable notice to produce the original document; and
4. That the adverse party failed to produce the original despite the reasonable
notice.

Notice to the adverse party may be in the form:

a. Motion for the production of the original;

b. Motion made in open court in the presence of the adverse party;
c. By way of subpoena duces tecum.

Take note that the justified refusal or failure of the adverse party to
produce the document does not give rise to the presumption of suppression of
evidence, or create an unfavorable inference, against him. It only authorizes the
introduction of secondary evidence.

Time to produce the Original

With respect to the time-frame, it is difficult to draw the line as to what

constitutes a reasonable period for the notice, and the determination thereof will
then depend on the court’s discretion.

SEC. 7. 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 ORIGINAL 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.

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Summaries

In the case of Republic vs. Mupas, G.R. No. 181892, the Supreme Court
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.

Large of voluminous writings, recordings or photographic evidence are also

treated differently because reviewing the originals would be inconvenient to the
court. For this type of evidence, the party offering it may provide a summary,
chart or calculation to prove its content. The party offering the summary, chart or
calculation must make the original or a duplicate available for examination. Thus a
party may provide a summary of a large book to the court, while providing notice
that the original book is available and any party can examine it.

Examples

1. To establish the actual medical expenses incurred by the victim, he need

not submit to the court the voluminous copies of receipts, rather he may
submit a SUMMARY of the receipts.

2. The plaintiff may present to the court a CHART of account, which provides
for the breakdown of all the financial transaction that a company
conducted during a specific accounting period.

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 copy issued by the public
officer in custody thereof.

Evidence admissible when original document is public record

Under the eight exception, the original document is not required when said
original is a record or other document in the custody of a public officer. This is so
because by specific provision of Section 26, Rule 132, such document may be
evidenced by an official publication thereof or by a copy attested by the officer

74
having the legal custody of the record, and in the case of an authorized public
record of a private writing, the same may also be proved by a copy thereof
attested by the legal keeper of the record.

The evidence is a certified true copy of the original. Thus certified true copy
is to be issued by the public officer in custody of the public records.

Examples

1. The Register of Deeds may issue, upon request, a certified true copy of a
Certificate of Title.
2. The Local Civil Registrar may issue, upon request, a certified true copy of a
Certificate of Marriage.
3. The court, upon request, may issue a certified true copy of its decision.

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.

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. In other words, he can elect not to use it in
evidence.

Examples

1. In a civil case for Breach of Contract, the plaintiff who requests for the
production of a copy of Contract of Sell is not duty bound to offer it as his
evidence.

2. In the case for homicide against the accused, the prosecution who calls for
the production of a police blotter is not obliged to offer the same as his
evidence.

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 3. PAROL EVIDENCE RULE

Sec. 10. Evidence of written agreements. -- When the terms of an agreement

have been reduced into 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 upon subsequent to the execution of

the written agreement.

The term “agreement” includes wills.

THE RULE OF INTEGRATION

To paraphrase Espejo, when the terms of a contract have been reduced to

writing, it is deemed to be the absolute manifestation of the meeting of the minds
of the parties. It is the repository of everything that the parties have agreed upon.
Thus, as a general rule, if the subjects of inquiry are the terms of a written
agreement, there can be no evidence of such terms other than the agreement
itself. Parol or oral or extrinsic (outside) evidence or evidence aliunde is not
allowed to modify, explain or add to the term.

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 In essence, the 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. The application of
the Parol Evidence Rule 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. The Parol Evidence Rule does not apply if the contract itself is
clear. (Syquia v. Court of Appeals, G.R. No. 61932, June 30, 1987)

For instance, in a dispute over the sale of a house, if the buyer and seller have
signed a written contract for the sale of a house, and have written down the
purchase price of P1, 000, 000. 00. The buyer will be barred from introducing
evidence of a discussion that he had with the seller where they agreed to sell the
house only for P500, 000. 00

Parol Evidence Rules does not apply

1. Where the validity of such agreement is the fact in dispute, such as when a
contract may be void for lack of consideration.
2. The validity of an agreement or writing is the very fact in issue, such as
when the contract or writing may be void due to fraud employed by one of
the parties to said contract or writing.

BASIS OF THE PAROL EVIDENCE RULE

The Parol Evidence Rule has several bases, to wit:

1. It is based on the principle of hierarchy of evidence. In general,

documentary evidence prevails over parol or oral evidence.

Testimonial evidence is easy of fabrication and there is very little room for
choice between testimonial evidence and documentary evidence. Generally,
documentary evidence prevails over testimonial evidence (GSIS v. CA, G.R. No. L –
52080, May 28, 1993)

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 2. It is based on the principle of waiver after integration.

The rule is based on the presumption that the parties “have made the
writing the only repository and memorial of the truth and whatever is not found
in the writing must be understood to have been waived and abandoned.”
(Carenan vs. CA, G.R. No. 84358, May 31, 1989)

3. It is based on the comparative accuracy of written evidence over all else

that rest merely on the fleeting memory of man.

The rule is in fact founded on long experience that written evidence is so

much more certain and accurate than that which rest in fleeting memory only,
that it would be unsafe, when parties have expressed the terms of their contract
in writing, to admit weaker evidence to control and vary the stronger and to show
that the parties intended a different contract from that expressed in the writing
signed by the, (Roble v. Arbasa, G. R. No. 130707, July 31, 2001)

4. It is based on the belief that parol evidence is most prone to fabrication.

5. It is based on the hornbook rule interpretation of contracts that gives

primacy to the intention of the parties as the law between them.

6. It is based on the policy of the law to give stability to written agreements

and to remove the temptation of perjury. (Espejo)

Requisites for the applicability of the Parol Evidence Rule

1. There must be an agreement;

2. The terms of the agreement must be reduced to writing;
3. The dispute is between the parties or their successors-in-interest; and
4. There is dispute as to the TERMS of the agreement.

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First: There must be an agreement

In order for the rule to apply, there must be an “agreement.” As

understood, an agreement is a contract. Thus, where there is meeting of the
minds between the parties and the same is reduced into writing, the resulting
physical contract is therefore covered already by the Rule.

This general understanding is not applicable to the last part of the Rule
which provides that the term “agreement” includes wills.” Verily, a will is not an
agreement, since it is strictly personal and unilateral. However, by force of the
Rules and in an apparent legal fiction, a will is an agreement as well although
there is clearly no meeting of the minds.

Why is the Rule applied to wills? The dangers sought to be avoided by the
requirement of the Rule is present in the making of wills and are deemed to be
more prevalent inasmuch as the maker of a will, the decedent, can no longer
object to attempts to vary his testamentary intent as his voice is already silenced
by death. (Felix Azuela vs. CA, G.R. No. 122880, April 12, 2006)

Second: The terms of the agreement must be reduced into writing.

It is not required that the agreement should be in a public instrument for

the applicability of the Parol Evidence Rule. What is merely required is that the
agreement is reduced into writing.

In a case the Supreme Court pronounced that “Clearly, the rule does not
specify that the written agreement be a public document. What is required is that
the agreement be in writing as the rule is in fact founded on “long experience that
written evidence is so much more certain and accurate than that which rests in
fleeting memory only, that it would be unsafe, when have parties expressed the
terms of their contract in writing, to admit weaker evidence to control and vary
the stronger and to show that the parties intended a different contract from that
expressed in the writing signed by them.” Thus, for the parol evidence rule to
apply, a written contract need not be in any particular form, or be signed by both
parties. As a general rule, bills, notes and other instrument of a similar nature are

79
not subject to be varied or contradicted by parol or extrinsic evidence. (Inciong Jr.
vs. CA, G.R. No. 96405, June 26, 1996). (Espejo)

The parol evidence rule is based upon the consideration that when the
parties have reduced their agreement on a particular matter into writing, all their
previous and contemporaneous agreement on the matter are merged therein.

Parol evidence is any evidence aliunde, whether oral or written, which is

intended or tends to vary or contradict a complete and enforceable agreement
embodied in a document.

Third: The dispute is between the parties or their successors-in-interest.

The rule does not apply, and may not properly be invoked where at least
one party to the suit is not a party or privy of a party to the agreement in question
and does not base a claim or assert a right originating in the instrument or the
relation established thereby. Thus, if one of the parties to the case is a complete
stranger to the contract involved therein, he is not bound by this rule and can
introduce extrinsic evidence against the efficacy of the writing (Victoria Lechugas
v. CA, G.R. Nos. L – 39972 to L – 40300, august 6, 1986).

Fourth: There is dispute as to the TERMS of the agreement

Thus, if the dispute between parties who are contractually bound refers to
matters extraneous (irrelevant or unrelated to the subject matter being dealt
with) to the agreement or with respect to rights and obligations that do not
emanate from it, the Parol Evidence Rule does not apply. (Espejo)

AMONG THE VARIOUS EVIDENTIARY RULES, IT IS THE PAROL EVIDENCE RULE THAT HAS DIRECT
APPLICATION TO THE LAW ON CONTRACTS. THE RULE, HOWEVER, APPLIES ONLY TO CONTRACTS
WHICH THE PARTIES HAVE DECIDED TO SET FORTH IN WRITING. WHEN THE AGREEMENT IS MERELY
ORAL, THE PAROL EVIDENCE RULE SHOULD NOT BE APPLIED.

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 THE PAROL EVIDENCE RULE APPLIES ONLY TO CONTRACTUAL DOCUMENTS. PAROL EVIDENCE RULE,
WHICH PROVIDES THAT “WHEN THE TERMS OF WRITTEN AGREEMENTS 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.” (DEAN RIANO)

CONTRACT IS AN AGREEMENT BETWEEN PRIVATE PARTIES CREATING MUTUAL OBLIGATIONS

ENFORCEABLE BY LAW. THE BASIC ELEMENTS REQUIRED FOR THE AGREEMENT TO BE ENFORCEABLE
CONTRACT ARE:

1. MUTUAL ASSENT

2. EXPRESSED BY A VALID OFFER AND ACCEPTANCE

3. ADEQUATE CONSIDERATION
4. CAPACITY, AND

5. LEGALITY

WHEN PAROL EVIDENCE RULE DOES NOT APPLY

1. 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. (HEIRS OF URETA V. HEIRS
OF URETA, 657 SCRA 555)

2. A STRANGER TO THE WRITING OR AGREEMENT IS NOT AFFECTED BY THE RULE SINCE THE
OUTSIDER HAS HAD NO PART IN THE MAKING OF THE WRITING OR AGREEMENT 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. (MARQUEZ
V. ESPEJO, G.R. NO. 168387) HENCE, THE PAROL EVIDENCE RULE MAY NOT BE INVOKED
WHERE AT LEAST ONE OF THE PARTIES TO THE SUIT IS NOT A PARTY OR A PRIVY OF A PARTY TO
THE WRITTEN DOCUMENT IN QUESTION, AND DOES NOT BASE HIS CLAIM ON THE INSTRUMENT
OR ASSERT A RIGHT ORIGINATING IN THE INSTRUMENT.

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 3. 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.
(JONES)

4. THE PAROL EVIDENCE RULE DOES NOT APPLY IF THE DOCUMENT IS NOT A CONTRACT AS
NORMALLY UNDERSTOOD IN CIVIL LAW. (ARTICLE 1305, NEW CIVIL CODE). FOR INSTANCE,
WHERE AN INSTRUMENT IS A MERE RECEIPT, NOT USED OR DESIGNED TO EMBODY AND SET
OUT THE 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.

EXCEPTIONS OR HOW TO INTRODUCE PAROL EVIDENCE:

THE RULE PROHIBITING PAROL EVIDENCE IS NOT ABSOLUTE. A PARTY MAY PRESENT EVIDENCE TO
MODIFY, EXPLAIN OR ADD TO THE TERMS OF THE WRITTEN AGREEMENT BY SHOWING ANY OF THE
FOLLOWING.

1. AN INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION IN THE WRITTEN AGREEMENT;

2. THE FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS THE TRUE INTENT AND AGREEMENT OF
THE PARTIES THERETO;

3. THE VALIDITY OF THE WRITTEN AGREEMENT; OR

4. 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.

INTRODUCING PAROL EVIDENCE MEANS OFFERING EXTRINSIC OR EXTRANEOUS EVIDENCE THAT

WOULD MODIFY, EXPLAIN OR ADD TO THE TERMS OF THE WRITTEN AGREEMENT BUT PAROL EVIDENCE
MAY BE ONLY ALLOWED, IF ANY OF THE MATTERS MENTIONED ABOVE IS PUT IN ISSUE IN THE
PLEADINGS. WITHOUT COMPLYING WITH THIS REQUIREMENT – PUTTING IN ISSUE IN THE PLEADINGS –
PAROL EVIDENCE CANNOT BE INTRODUCED.

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1.AN INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION IN THE WRITTEN AGREEMENT;

(A) INTRINSIC OR LATENT AMBIGUITY

IS ONE WHICH IS NOT APPARENT ON THE FACE OF THE DOCUMENT BUT WHICH LIES IN
THE PERSON OR THING THAT IS THE SUBJECT OF THE DOCUMENT OR DEED. IN OTHER WORDS, THE
AMBIGUITY IS INTRINSIC OR LATENT WHEN THE LANGUAGE OF THE WRITING IS CLEAR AND
INTELLIGIBLE AND SUGGESTS BUT A SINGLE MEANING BUT SOME MATTER EXTRANEOUS TO THE
WRITING CREATES THE AMBIGUITY. SIMPLY PUT, 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. (CUI)

EXAMPLES:

(1) THE TESTATOR’S WILL BEQUEATHS TO JOSE NAVIDA. HIS GRANDSON, A PARCEL OF GRAZING
LAND WITH AN AREA OF TEN (10, 000) THOUSAND SQUARE METERS, LOCATED IN A TOWN
CALLED MAGDIWANG. IT WAS DISCOVERED AFTER HIS DEATH THAT THE TESTATOR OWNS TWO
PARCELS OF LAND IN THE SAME PLACE WHICH ARE OF EXACTLY THE SAME AREA AND
DESCRIPTION. THERE IS HERE AN INTRINSIC AMBIGUITY IN THE WRITING. PAROL EVIDENCE MAY
BE PROFFERED TO SHOW WHICH OF THE TWO PARCELS OF LAND SHOULD BE GIVEN TO JOSE
NAVIDA.

(2) IF THE TESTATOR OWNS ONLY ONE PARCEL OF LAND AND BEQUEATHS THAT LAND TO HIS
GRANDSON, DESCRIBED IN THE WILL AS JOSE NAVIDAD, BUT IT WAS DISCOVERED LATER THAT
HE HAS TWO GRANDSONS WITH THE SAME NAME, THERE IS ALSO EXISTS AN INTRINSIC OR
LATENT AMBIGUITY. PAROL EVIDENCE MAY BE INTRODUCED TO SHOW THE EXACT GRAZING
LAND REFERRED TO IN THE WILL OR THE GRANDSON INTENDED IN THE WILL PROVIDED THAT
THE WILL’S INTRINSIC AMBIGUITY IS PUT IN ISSUE.

(3) DEFENDANT SOLD TO PLAINTIFF A DISTILLING APPARATUS WITH A GUARANTEED CAPACITY OF

6, 000 LITERS PER DAY. AFTER USING IT, PLAINTIFF DISCOVERED THAT THE APPARATUS
PRODUCED ONLY A MAXIMUM OF 480 LITERS ON A DAILY BASIS. DEFENDANT CLAIMED THAT
THE TERM “CAPACITY” REFERRED TO “RECEPTIVE” CAPACITY. PLAINTIFF ON THE OTHER HAND,

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 POSITED THAT THE TERM “CAPACITY” OUGHT TO MEAN “PRODUCTIVE” CAPACITY. HERE THE
WORD “CAPACITY” WAS SUSCEPTIBLE OF TWO INTERPRETATIONS. THE COURT HELD THAT
PAROL EVIDENCE IS ADMISSIBLE TO SHOW WHICH OF THE TWO INTERPRETATIONS WAS
ACTUALLY MEANT BY THE PARTIES.

(4) A BUYER, A RESIDENT OF THE USA, AGREES TO PURCHASE 1000 SQUARE METERS, FROM A
SELLER LOCATED IN THE PHILIPPINES. THE CONTRACT FAILS TO STATE WHETHER THE PRICE IS IN
U.S. DOLLARS OR PHILIPPINE PESOS. EVIDENCE MAY BE ADMITTED TO THE COURT SHOWING
THAT THE PARTIES UNDERSTOOD TO MEAN THAT IT IS PAYABLE IN PHILIPPINE PESOS.

PATENT OR EXTRINSIC AMBIGUITY

PATENT OR EXTRINSIC AMBIGUITY IS THAT WHICH APPEARS ON THE VERY FACE OF THE
INSTRUMENT, AND ARISES FROM THE DEFECTIVE, OBSCURE, OR INSENSIBLE LANGUAGE USED. IN
OTHER WORDS, IS THAT AMBIGUITY WHICH IS APPARENT ON THE FACE OF AN INSTRUMENT TO ANY
ONE PERUSING IT, EVEN IF HE BE UNACQUAINTED WITH THE CIRCUMSTANCES OF THE PARTIES.

PATENT OR OVERT AMBIGUITY, IF OBJECTED TO BY THE ADVERSE PARTY, DOES NOT SANCTION
INTRODUCTION OF EVIDENCE TO SUPPLY THE LACUNA ON 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. (REGALADO)

FOR EXAMPLE, 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.

IS PATENT OR EXTRINSIC AMBIGUITY CURABLE BY PAROL EVIDENCE?

THE LAW IS SILENT ON THIS POINT BUT, TRADITIONALLY, IN THE CASE OF A PATENT
AMBIGUITY, PAROL EVIDENCE IS ADMISSIBLE TO EXPLAIN ONLY WHAT HAS BEEN WRITTEN, NOT WHAT
IT WAS INTENDED TO WRITE.

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 HOWEVER, UNDER PHILIPPINE LAW, A PATENT AMBIGUITY CANNOT BE CURED BY PAROL
EVIDENCE. EXAMPLE: “I GIVE TO B BY WAY OF LEGACY SOMETHING.” THERE IS REALLY NO
DESCRIPTION.

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. OTHERWISE
STATED, IN ORDER TO ADMIT PAROL EVIDENCE TO AID IN THE DESCRIPTION OF THE SUBJECT MATTER
OF A DEED OR OTHER WRITING, THERE MUST BE A DESCRIPTION THAT WILL SERVE AS A FOUNDATION
FOR SUCH EVIDENCE; THE WRITING MUST AT LEAST GIVE SOME DATA FROM WHICH THE DESCRIPTION
MAY BE FOUND AND MADE CERTAIN. PAROL EVIDENCE IS NOT ADMISSIBLE TO IDENTIFY THE PROPERTY
WHERE THE DESCRIPTION THEREOF IS SO VAGUE AS TO AMOUNT TO NO DESCRIPTION AT ALL. IN
OTHER WORDS, PAROL EVIDENCE IS NOT PERMITTED TO SUPPLY A DESCRIPTION, BUT ONLY TO APPLY
IT. (BORILLO VS. CA, G.R. NO. 5561, MAY 21, 1992)

B. MISTAKE

MISTAKE IS DEFINED AS SOME UNINTENTIONAL ACT, OMISSION, OR ERROR ARISING FROM

IGNORANCE, SURPRISE, IMPOSITION, OR MISPLACED CONFIDENCE. A MISTAKE EXISTS WHEN A
PERSON, UNDER SOME ERRONEOUS CONVICTION OF LAW OR FACT, DOES OR OMIT TO DO SOME
ACT WHICH, BUT FOR THE ERRONEOUS CONVICTION, HE WOULD NOT HAVE DONE OR OMITTED. IT
MAY REFER TO EITHER A MISTAKE OF FACT OR MISTAKE OF LAW, AND IT CAN BE MUTUAL
(PERALTA, JR)

TO JUSTIFY APPLICATION OF THE EXCEPTION 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
(REGALADO)

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EXAMPLES:

1. WHERE THE 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 NOT COMMUNITY BUT SEPARATE PROPERTY. (PERALTA JR)

2. 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. (PERALTA JR)

3. CLERICAL MISTAKES, TYPOGRAPHICAL ERRORS AND THE LIKE ARE, AS A GENERAL RULE,
PROVABLE BY PAROL EVIDENCE (JONES ON EVIDENCE)

4. PAROL EVIDENCE IS SUITABLE TO SHOW THAT A CONVEYANCE OF REAL OR PERSONAL

PROPERTY IS ACTUALLY AN EQUITABLE MORTGAGE UNDER ARTICLES 1602 TO 1604 OF THE
NEW CIVIL CODE.

5. IF A ZERO IS MISSING FROM THE AMOUNT, OR IF A WORD WAS MISSPELLED, PREVIOUS DRAFTS
OF AN AGREEMENT COULD BE INTRODUCED TO CORRECT THESE MISTAKES.

C. IMPERFECTION IN THE WRITING AND FAILURE TO EXPRESS THE TRUE AGREEMENT OF THE PARTIES:

THIS SIMPLY MEANS THAT THE WRITING IS INCOMPLETE AND DOES NOT EXPRESS THE WHOLE
AGREEMENT OF THE PARTIES. IN CASE OF IMPERFECTION, THERE IS A FAILURE OF THE PARTIES TO
LAY DOWN ALL THE TERMS AND CONDITIONS WHICH ARE TO CONSTITUTE THE AGREEMENT.

EXAMPLE:

IF THE DOCUMENT APPEARS TO BE A SALE, PAROL EVIDENCE MAY BE RESORTED TO IF THE SAME
DOES NOT EXPRESS THE TRUE INTENT OF THE PARTIES BECAUSE IT IS ACTUALLY A LOAN.

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2.The failure of the written agreement to express the true intent and agreement
of the parties thereto;

AS THE SECOND EXCEPTION, THE COURT IS PERMITTED TO ASCERTAIN THE TRUE OBJECTIVE OF THE
PARTIES. IN ARTICLE 1359 OF THE NEW CIVIL CODE, 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,
SUBJECT TO THE QUALIFICATION THAT IF 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. (MALOLOS AND MARTIN)

WITHOUT SAYING THE OBVIOUS, WHERE THE INSTRUMENT IS CLEAR, WITHOUT AMBIGUITY, MISTAKE
OR IMPERFECTION, MUCH LESS OBSCURITY OR DOUBT IN THE TERMS THEREOF, THE EXCEPTION
DOES NOT APPLY.

THE MOST COMMON INSTANCES WHEN WRITTEN AGREEMENT DOES NOT EXPRESS THE TRUE
INTENTION OF THE PARTIES ARE THOSE DISCUSSED IN CIVIL LAW SUCH AS:

1. PAROL EVIDENCE IS SUITABLE TO SHOW THAT A CONVEYANCE OF REAL OR PERSONAL

PROPERTY IS ACTUALLY AN EQUITABLE MORTGAGE UNDER ARTICLE 1602 TO 1604 OF THE
NEW CIVIL CODE. (PERALTA)

AN EQUITABLE MORTGAGE IS DEFINED AS ONE THAT, ALTHOUGH LACKING SOME FORMALITY OR

FORM, NEVERTHELESS REVEALS THE INTENTION OF THE PARTIES TO CHARGE A REAL PROPERTY AS
SECURITY FOR A DEBT

A CONTRACT OF SALE IS CONSIDERED AN EQUITABLE MORTGAGE WHEN THE REAL INTENTION OF THE
PARTIES WAS TO SECURE AN EXISTING DEBT BY WAY OF MORTGAGE.

2. LEASE WITH OPTION TO BUY.

THE COURT HAS LONG BEEN AWARE OF THE PRACTICE OF VENDORS OF PERSONAL PROPERTY OF
DENOMINATING A CONTRACT OF SALE ON INSTALLMENT AS ONE OF LEASE TO PREVENT THE

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OWNERSHIP OF THE OBJECT OF THE SALE FROM PASSING TO THE VENDEE UNTIL AND UNLESS THE
PRICE IS FULLY PAID.

AT THE RISK OF BEING REPETITIOUS TAKE NOTE THAT THE REMEDY IN CIVIL LAW WHERE THE
AGREEMENT DOES NOT EXPRESS THE TRUE INTENTION OF THE PARTIES IS REFORMATION. ON THE
OTHER HAND, IF MISTAKE, FRAUD, INEQUITABLE CONDUCT, OR ACCIDENT HAS PREVENTED A MEETING
OF THE MINDS OF THE PARTIES, THE PROPER REMEDY IS NOT REFORMATION OF THE INSTRUMENT BUT
ANNULMENT OF THE CONTRACT.

C. The Validity of the written agreement;

AS THE THIRD EXCEPTION, 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. (JONES) SIMPLY PUT, WHERE A PARTY SEEKS TO PRESENT ORAL
EVIDENCE TO PROVE THAT THE CONTRACT IS NOT VALID, BECAUSE OF FRAUD, WANT OF
CONSIDERATION, ILLEGALITY OR OTHER VICE WHICH GOES TO THE EXISTENCE THEREFO, HE MUST,
AS IN ALL THE OTHER, RAISE THE INVALIDITY OF THE CONTRACT IN THE PLEADING.

IN OTHER WORDS, WHILE THE TERMS OF A WRITTEN INSTRUMENT MAY NOT BE VARIED BY EXTRINSIC
EVIDENCE, YET, WHERE THE 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, ILLEGALITY OR OTHER VICE
WHICH GOES TO THE EXISTENCE THEREOF. (PERALTA JR)

EXAMPLES

X SELLS TO Y HIS LAND FOR P1 MILLION. THEY DRAW UP AND SIGN A DEED OF SALE, WHICH STATES
THAT: “IN CONSIDERATION OF ONE MILLION PESOS, RECEIPT OF WHICH IS HEREBY
ACKNOWLEDGED IN FULL, I HEREBY SELL THIS PROPERTY TO Y XXX.” BUT Y SAYS THAT HE HAS TO
GO TO THE BANK TO SECURE MANAGER’S CHECK AS P1 MILLION IS TOO LARGE AN AMOUNT TO BE
PAID IN CASH. X AGREES TO WAIT FOR Y, WHO BROUGHT WITH HIM THE DEED OF SALE AND THE

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 TITLE TO THE LAND. Y, HOWEVER, NEVER CAME BACK AS HE WENT STRAIGHT TO THE REGISTRY OF
DEEDS TO HAVE THE TITLE OF THE PROPERTY TRANSFERRED OVER TO HIM.

QUESTION:

HOW DOES X PROVE THAT Y NEVER PAID HIM THE AGREED CONSIDERATION WHEN THE DEED OF
SALE HAS BEEN DULY ACKNOWLEDGED AND THE SALE DULY REGISTERED?

ANSWER:

X WILL PROVE, THROUGH TESTIMONY, THAT HE NEVER RECEIVED THE CONSIDERATION.

BASED ON THE GENERAL RULE, X CANNOT REALLY PROVE THAT HE DID NOT RECEIVE THE MONEY,
BECAUSE THE DOCUMENTS WILL SHOW OTHERWISE. ANY ATTEMPT ON THE PART OF X TO DO SO
WILL BE OBJECTIONABLE. HOWEVER, SINCE HE FILED THE CASE TO NULLIFY THE DEED OF SALE – IN
EFFECT, HE IS RAISING THE ISSUE ON THE VALIDITY OF THE SAID INSTRUMENT FOR LACK OF
CONSIDERATION. SO, IN THIS CASE, PAROL EVIDENCE MAY BE ALLOWED TO PROVE SUCH LACK OF
CONSIDERATION. AS A MATTER OF FACT, WHEN ONE IS TRYING TO PROVE SUCH AN ISSUE AS THE
VALIDITY OF THE INSTRUMENT, HE IS NOT VARYING THE TERMS OF THE AGREEMENT. HE MAY BE
PROVING THAT THERE IS NO AGREEMENT OR CONTRACT AT ALL OR THAT THERE IS ACTUALLY NO
BINDING AGREEMENT BETWEEN THE PARTIES.

OTHER EXAMPLES

1. EXTRINSIC EVIDENCE IS ADMISSIBLE FOR THE PURPOSE OF SHOWING THAT THE INSTRUMENT IN
SUIT IS A MERE SHAM (JONES ON EVIDENCE)
2. PAROL EVIDENCE MAY BE SHOWN TO PROVE THAT A CONTRACT IS TAINTED WITH USURY EVEN
THOUGH, UPON IT FACE, IT APPEARS TO BE LEGAL OR ASSUME TO BEAR INTEREST AT A LEGAL
RATE.
3. A GAMBLING CONTRACT OR A CONTRACT FOUNDED UPON A GAMBLING CONSIDERATION IS
ILLEGAL, AND SUCH ILLEGALITY MAY BE SHOWN BY PAROL EVIDENCE.

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“(D) THE EXISTENCE OF OTHER TERMS AGREED TO BY THE PARTIES OR THEIR SUCCESSORS IN
INTEREST AFTER THE EXECUTION OF THE WRITTEN AGREEMENT.”

BASED ON THE FOREGOING, ONLY PRIOR AND CONTEMPORANEOUS AGREEMENTS WHICH ARE
DEEMED TO HAVE BEEN MERGED IN THE WRITING CONFORMABLY TO THE “INTEGRATION OF THE
AGREEMENT RULE.” (CHARLES F. WOODHOUSE V. FORTUNATO F. HALILI, G.R. NO. JULY 31,
1953)

A CONTEMPORANEOUS AGREEMENT IS ONE ENTERED INTO AT THE SAME TIME AS THE AGREEMENT
WHICH HAS BEEN REDUCED TO WRITING. THE RULE IS, WHEN A CONTEMPORANEOUS ORAL
AGREEMENT IS SEPARATE AND DISTINCT FROM THE WRITTEN AGREEMENT, SUCH ORAL
AGREEMENT MAY BE PROVED BY PAROL EVIDENCE.

THE RULE IS CLEAR THAT BEFORE EVIDENCE MAY BE INTRODUCED THAT THE PARTIES ENTERED INTO
ANOTHER AGREEMENT AFTER THE EXECUTION OF THE WRITTEN AGREEMENT, SUCH SUBSEQUENT
AGREEMENT HAS FIRST TO BE PUT IN ISSUE IN THE PLEADINGS.

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 CANNOT
POSSIBLE ALTER A PREVIOUS FORMAL COVENANT (PERALTA JR)

WHAT AGREEMENTS ARE NOT COVERED BY THE RULE? IN OTHER WORDS, WHAT ARE THE CASES WHEN
PAROL EVIDENCE MAY BE ADMITTED OR ALLOWED.

1. SUBSEQUENT AGREEMENT, NOTWITHSTANDING THAT SUCH AGREEMENTS MAY HAVE THE

EFFECT OF ADDING TO, CHANGING, MODIFYING, OR EVEN ALTOGETHER ABROGATING THE
CONTRACT OF THE PARTIES AS EVIDENCED BY THE WRITING.

2. COLLATERAL AGREEMENTS WHICH ALTHOUGH ORAL AND CONTEMPORANEOUS WITH THE

WRITING ARE SEPARATE AND DISTINCT AGREEMENTS, ALSO KNOWN AS CONTEMPORANEOUS
ORAL AGREEMENTS. (PNB VS. BENITO SEETO, G.R. NO. L – 4388, AUGUST 13, 1952)

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 3. ALL OTHER AGREEMENTS, WHETHER PRIOR AND CONTEMPORANEOUS, SUBSEQUENT OR
COLLATERAL, IF THE ISSUE REVOLVES AROUND FRAUD AND FALSE REPRESENTATION SINCE
THEY ARE INCIDENTAL TO THE EXECUTION AND NOT TO THE INTEGRATION;

4. ALL OTHER AGREEMENTS, WHETHER PRIOR AND CONTEMPORANEOUS, SUBSEQUENT OR

COLLATERAL, WHEN THIRD PARTIES, WHO ARE NOT PRIVY THERETO, ARE INVOLVED.

EXAMPLE:

X BORROWED MONEY FROM Y. FOR THIS, X SIGNED A PROMISSORY NOTE IN FAVOR OF Y FIXING THE
MATURITY DATE ON JULY 3, 1995. WHEN JULY 3, 1995 CAME, X DID NOT PAY. THUS, Y SUES X
FOR NON-PAYMENT OF THE DUE ACCOUNT. X CONTENDS THAT THE AMOUNT IS NOT YET DUE FOR
AFTER THE EXECUTION OF THE PROMISSORY NOTE, Y AGREED TO EXTEND THE PERIOD OF PAYMENT
UNTIL DECEMBER 3, 1995. X, HOWEVER, CLAIMED THAT SAID AGREEMENT WAS ONLY REACHED
BY THEM VERBALLY. X IS TRYING TO PROVE THAT AN ORAL AGREEMENT HAPPENED AFTER THE
EXECUTION OF THE PROMISSORY NOTE. CAN THIS BE DONE? YES, X CAN TESTIFY ORALLY IN COURT
ON THE SUBSEQUENT VERBAL AGREEMENT THAT HE HAD WITH Y. THE EXTENTION RESULTED IN
THE NOVATION OF THEIR PREVIOUSLY AGREED UPON MATURITY DATE.

OTHER EXAMPLES

1. A PARTY MAY SHOW BY PAROL THAT THE WRITTEN CONTRACT HAS BEEN ABANDONED EXCEPT
IN SO FAR AS IT HAS BEEN MODIFIED BY A NEW PAROL AGREEMENT, THAT THE TIME OR PLACE
OF PAYMENT OR OF PERFORMANCE HAS BEEN CHANGED, THAT PERFORMANCE HAS BEEN
PREVENTED OR WAIVED BY THE OTHER PARTY, OR THAT THE CONTRACT HAS BEEN WHOLLY
DISCHARGED (PERALTA JR)

2. WHERE A WRITTEN CONTRACT CONTAINS NO STIPULATION AS TO THE TIME OF PAYMENT,

EVIDENCE IS ADMISSIBLE OF A SUBSEQUENT PAROL AGREEMENT FIXING SUCH TIME.

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WHEN TO OBJECT BASED ON THE PAROL EVIDENCE RULE

A PARTY SHOULD RAISE HIS OBJECTION UNDER THE PAROL EVIDENCE RULE WHEN THE OBJECTIONABLE
NATURE OF THE EVIDENCE ALIUNDE BECOMES APPARENT. OBJECTION IS PROPER WHEN A PARTY
WHO SEEKS TO PRESENT EXTRINSIC EVIDENCE DID NOT PLEAD ANY OF THE EXCEPTIONS IN HIS
PLEADINGS. ALSO, MORE OFTEN THAN NOT, WHEN A PARTY SEEKS TO PRESENT EVIDENCE TO
MODIFY, EXPLAIN, OR ADD TO THE TERMS OF WRITTEN AGREEMENT, HE DOES SO BY MEANS OF
TESTIMONIAL EVIDENCE. (ESPEJO)

THUS, WHEN TESTIMONIAL EVIDENCE IS OFFERED ORALLY AND FROM THE OFFER IT IS APPARENT THAT
THE WITNESS IS GOING TO TESTIFY ON MATTERS THAT VIOLATE THE RULE, THE OPPONENT MUST
IMMEDIATELY OBJECT. UNDER RULE 132, SECTION 26, OBJECTION TO EVIDENCE OFFERED ORALLY
MUST BE MADE IMMEDIATELY AFTER THE OFFER IS MADE.

EXAMPLE 1

LAWYER: THE TESTIMONY OF THE DEFENDANT IS OFFERED TO PROVE THAT (1) SOMETIME AFTER THEY
EXECUTED THE LOAN AGREEMENT ON JANUARY 1, 2020, DEFENDANT VERBALLY GRANTED AN
EXTENSION TO PAY THE DEBT AND (2) FOR OTHER PURPOSES MATERIAL TO HIS DEFENSE, YOUR
HONOR.

GJJ: OBJECTION, YOUR HONOR. AS OFFERED, THE TESTIMONY SEEKS TO MODIFY THE TERMS OF THE
WRITTEN AGREEMENT BY MEANS OF PAROL EVIDENCE.

TESTIMONIAL EVIDENCE THAT VIOLATES THE RULE MAY ALSO BE IN THE FORM OF QUESTION RAISED
DURING THE EXAMINATION OF A WITNESS. STILL UNDER RULE 132, SECTION 26, OBJECTION TO A
QUESTION PROPOUNDED IN THE COURSE OF ORAL EXAMINATION OF A WITNESS SHALL BE MADE
AS SOON AS THE GROUNDS THEREFOR SHALL BECOME REASONABLY APPARENT.

EXAMPLE 2

LAWYER: YOU MENTIONED THAT YOU DID NOT PAY THE DEBT BECAUSE YOU HAD A SUBSEQUENT
AGREEMENT TO EXTEND THE PERIOD OF PAYMENT. WHAT IS THIS AGREEMENT ALL ABOUT?

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GJJ: OBJECTION YOU HONOR. THE QUESTION CALLS FOR AN ANSWER THAT IS OUTSIDE THE TERMS OF
THE WRITTEN AGREEMENT. IT VIOLATES THE PAROL EVIDENCE RULE.

SUMMARY

HERE IS THE LIST OF THE IMPORTANT EXCEPTIONS UNDER WHICH EVIDENCE NORMALLY
EXCLUDED BY THE PAROL EVIDENCE RULE CAN BE ADMITTED.

1. TO RESOLVE AMBIGUITIES IN THE CONTRACT OR TO OTHERWISE ASSIST IN INTERPRETING

A TERM OF THE CONTRACT.
2. TO SHOW THAT A TERM IN THE CONTRACT IS A MISTAKE.
3. TO SHOW THAT FRAUD, DURESS, UNCONSCIONABLE BEHAVIOR, OR TORTIOUS
INTERFERENCE WITH CONTRACT OCCURRED.
4. TO SHOW THAT CONSIDERATION WAS NEVER PAID.
5. TO IDENTIFY THE PARTIES OR SUBJECT MATTER OF THE CONTRACT.
6. TO MODIFY THE CONTRACT AFTER ITS HAS BEEN SIGNED BY ALL PARTIES, IF THE CONTRACT
EXPLICITLY ALLOWS FOR THAT.
7. TO SHOW A CONDITION THAT HAD TO OCCUR BEFORE CONTRACT PERFORMANCE WAS
DUE.
8. TO SHOW THAT AN IMPLIED TERM OF CUSTOM OR TRADE USAGE OR PAST DEALINGS IS
PART OF A CONTRACT EVEN IF NOT IN A WRITTEN AGREEMENT.

9. IF THE EVIDENCE IS INCORPORATED INTO THE CONTRACT BY REFERENCE TO THE EVIDENCE

IN THE CONTRACT ITSELF.

Distinction between Parol Evidence Rule and ORIGINAL DOCUMENT Rule:

PAROL EVIDENCE RULE ORIGINAL DOCUMENT RULE

Presupposes that the original The original writing is not
document is available in court available and/or there is a dispute
as to whether said writing is the
original

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Prohibits the varying of the terms Prohibits the introduction of
of a written agreement substitutionary evidence in lieu of
the original documents,
regardless of whether or not it
varies the contents of the original
With the exception of wills, Applies to all kinds of document
applies only to documents which WRITINGS, PHOTOGRAPHS
are contractual in nature (written OR OTHER RECORDS
agreements)
Can be invoked only when the Can be invoked by any party to
controversy is between the an action, regardless of whether
parties to the written agreements, such party participated in the
their privies or any party affected writing involved
thereby (does not apply to
complete strangers)

4.INTERPRETATION OF DOCUMENTS

SEC. 11. INTERPRETATION OF A WRITING ACCORDING TO ITS LEGAL MEANING. – THE LANGUAGE OF
A WRITING IS TO BE INTERPRETED ACCORDING TO THE LEGAL MEANING IT BEARS IN THE PLACE
OF ITS EXECUTION, UNLESS THE PARTIES INTENDED OTHERWISE.

WHAT IS THE RULE IN THE INTERPRETATION OF A WRITING?

THE LANGUAGE OF A WRITING IS TO BE INTERPRETED ACCORDING TO THE LEGAL MEANING IT BEARS IN

THE PLACE OF ITS EXECUTION, UNLESS THE PARTIES INTENDED OTHERWISE.

WHEN THE CONTRACT IS ENTERED INTO IN ONE PLACE, TO BE EXECUTED IN ANOTHER, THERE ARE TWO
LOCI CONTRACTUS: THE LOCUS CELEBRATE CONTRACTUS AND THE LOCUS SOLUTIONIS. THE
FORMER GOVERNS IN EVERYTHING WHICH RELATES TO THE MODE OF CONSTRUING THE
CONTRACT, THE MEANING TO BE ATTACHED TO THE EXPRESSIONS, AND THE NATURE AND VALIDITY
OF THE ENGAGEMENT, WHILE THE LATTER GOVERNS THE PERFORMANCE OF THE AGREEMENT.

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SEC. 12. INSTRUMENT CONSTRUED SO AS TO GIVE EFFECT TO ALL PROVISIONS. – IN THE
CONSTRUCTION OF AN INSTRUMENT WHERE THERE ARE SEVERAL PROVISIONS OR PARTICULARS ,
SUCH A CONSTRUCTION IS, IF POSSIBLE, TO BE ADOPTED AS WILL GIVE EFFECT TO ALL.

SEC. 13. INTERPRETATION ACCORDING TO INTENTION; GENERAL AND PARTICULAR PROVISIONS. –

IN THE CONSTRUCTION OF AN INSTRUMENT, THE INTENTION OF THE PARTIES IS TO BE PURSUED;
AND WHEN A GENERAL AND PARTICULAR PROVISION ARE INCONSISTENT , THE LATTER IS
PARAMOUNT TO THE FORMER. SO A PARTICULAR INTENT WILL CONTROL A GENERAL ONE THAT
IS INCONSISTENT WITH IT.

SEC. 14. INTERPRETATION ACCORDING TO CIRCUMSTANCES. – FOR THE PROPER CONSTRUCTION OF

AN INSTRUMENT, THE CIRCUMSTANCES UNDER WHICH IT WAS MADE, INCLUDING THE
SITUATION OF THE SUBJECT THEREOF AND OF THE PARTIES TO IT, MAY BE SHOWN, SO THAT THE
JUDGE MAY BE PLACED IN THE POSITION OF THOSE WHOSE LANGUAGE HE IS TO INTERPRET .

SEC. 15. PECULIAR SIGNIFICATION OF THE TERMS. – THE TERMS OF A WRITING ARE PRESUMED TO
HAVE BEEN USED IN THEIR PRIMARY AND GENERAL ACCEPTANCE BUT EVIDENCE IS ADMISSIBLE
TO SHOW THAT THEY HAVE A LOCAL, TECHNICAL OR OTHERWISE PECULIAR SIGNIFICATION, AND
WERE SO USED AND UNDERSTOOD IN THE PARTICULAR INSTANCE, IN WHICH CASE THE
AGREEMENT MUST BE CONSTRUED ACCORDINGLY.

SEC. 16. WRITTEN WORDS CONTROL PRINTED. – WHEN AN INSTRUMENT CONSISTS PARTLY OF
WRITTEN WORDS AND PARTLY OF A PRINTED FORM, AND THE TWO ARE INCONSISTENT, THE
FORMER CONTROLS THE LATTER.

SEC. 17. EXPERTS AND INTERPRETERS TO BE USED IN EXPLAINING CERTAIN WRITINGS . – WHEN THE
CHARACTERS IN WHICH AN INSTRUMENT IS WRITTEN ARE DIFFICULT TO BE DECIPHERED , OR THE
LANGUAGE IS NOT UNDERSTOOD BY THE COURT , THE EVIDENCE OF PERSONS SKILLED IN
DECIPHERING THE CHARACTERS, OR WHO UNDERSTAND THE LANGUAGE, IS ADMISSIBLE TO
DECLARE THE CHARACTERS OR THE MEANING OF THE LANGUAGE.

SEC. 18. OF TWO CONSTRUCTIONS, WHICH PREFERRED. – WHEN THE TERMS OF AN AGREEMENT
HAVE BEEN INTENDED IN A DIFFERENT SENSE BY THE DIFFERENT PARTIES TO IT , THAT SENSE IS TO
PREVAIL AGAINST EITHER PARTY IN WHICH HE OR SHE SUPPOSED THE OTHER UNDERSTOOD IT,

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 AND WHEN DIFFERENT CONSTRUCTIONS OF A PROVISION ARE OTHERWISE EQUALLY PROPER ,
THAT IS TO BE TAKEN WHICH IS MOST FAVORABLE TO THE PARTY IN WHOSE FAVOR THE
PROVISION WAS MADE.

SEC. 19. CONSTRUCTION IN FAVOR OF NATURAL RIGHT. – WHEN AN INSTRUMENT IS EQUALLY

SUSCEPTIBLE OF TWO INTERPRETATIONS, ONE IN FAVOR OF NATURAL RIGHT AND THE OTHER
AGAINST IT, THE FORMER IS TO BE ADOPTED.

SEC. 20. INTERPRETATION ACCORDING TO USAGE. – AN INSTRUMENT MAY BE CONSTRUED

ACCORDING TO USAGE, IN ORDER TO DETERMINE ITS TRUE CHARACTER.

C. TESTIMONIAL EVIDENCE

1. QUALIFICATION OF WITNESSES

ESSENCE OF TESTIMONIAL EVIDENCE

WIGMORE RECAPITULATED THE ELEMENTS OF A VERBAL REPRESENTATION INTO THREE COMPONENTS:

1. OBSERVATION

2. RECOLLECTION
3. COMMUNICATION

FOR EXAMPLE – THE STATEMENT OF “A” THAT “B” STRUCK “C.”

THE WITNESS MUST KNOW SOMETHING, I.E., MUST HAVE OBSERVED THE AFFRAY AND RECEIVED
SOME IMPRESSION ON THE QUESTION WHETHER “B” STRUCK “X” (OBSERVATION)

THE WITNESS MUST HAVE A RECOLLECTION OF THESE IMPRESSIONS (RECOLLECTION)

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HE MUST COMMUNICATE THIS RECOLLECTION TO THE COURT (COMMUNICATION)

NATURE OF TESTIMONIAL OR ORAL EVIDENCE

TESTIMONIAL OR ORAL EVIDENCE IS EVIDENCE ELICITED FROM THE MOUTH OF A WITNESS

DISTINGUISHED FROM REAL OR DOCUMENTARY EVIDENCE. IT IS SOMETIMES CALLED VIVA VOCE
EVIDENCE WHICH LITERALLY MEANS “LIVING VOICE” OR BY WORD OF MOUTH. IN THIS KIND OF
EVIDENCE, A HUMAN BEING IS CALLED TO THE STAND, IS ASKED QUESTIONS, AND ANSWERS THE
QUESTIONS ASKED OF HIM. THE PERSON WHO GIVES THE TESTIMONY IS CALLED A “WITNESS.”
(DEAN RIANO)

RECALL THAT COMPETENT EVIDENCE MEANS EVIDENCE THAT IS NOT EXCLUDED BY THE
CONSTITUTION, BY THE LAW OR BY THE RULES. IT THEREFORE MEANS THE ELIGIBILITY OF AN
EVIDENCE TO BE ADMITTED BY THE COURT. WHEN APPLIED TO A WITNESS, COMPETENCE MEANS
THAT THE WITNESS IS QUALIFIED TO TAKE THE STAND AND TESTIFY. IT MEANS THAT HE IS FIT OR
THAT HE IS ELIGIBLE TO TESTIFY ON A PARTICULAR MATTER IN A JUDICIAL PROCEEDING. (DEAN
RIANO)

IF A WITNESS CANNOT PERCEIVE OR EVEN IF HE CAN PERCEIVE BUT HE CANNOT REMEMBER WHAT
HE HAS PERCEIVED, HE IS INCOMPETENT TO TESTIFY. IF HE HAS NO PERSONAL KNOWLEDGE OF AN
EVENT THE TRUTH OF WHICH HE WANTS TO PROVE, HE IS ALSO INCOMPETENT TO TESTIFY.
COMPETENCE OF A WITNESS THEREFORE, REFERS TO HIS PERSONAL QUALIFICATIONS TO TESTIFY.
COMPETENCE ALSO INCLUDES THE ABSENCE OF ANY FACTOR THAT WOULD DISQUALIFY HIM FROM
BEING A WITNESS. (DEAN RIANO)

“COMPETENCE” 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. THUS, “TESTIMONIAL
COMPETENCE” REFERS TO THE ELIGIBILITY OF A PERSON TO TAKE THE WITNESS STAND AND TESTIFY
(PERALTA JR)

“CREDIBILITY REFERS TO THE BELIEVABILITY OF THE WITNESS AND HAS NOTHING TO DO WITH THE
LAW OR THE RULES.

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 EXPERIENCE AND PLAIN OBSERVATION WILL TELL US THAT THE PRESENTATION AND INTRODUCTION
OF EVERY KIND OF EVIDENCE, WHETHER IT BE OBJECT, DEMONSTRATIVE OR DOCUMENTARY
EVIDENCE NEEDS THE INTERVENTION OF A WITNESS. THE ADMISSION OF ANY EVIDENCE REQUIRES
ITS IDENTIFICATION BY A WITNESS. IT IS A LEGAL TRUTH THAT IDENTIFICATION PRECEDES
AUTHENTICATION. WITHOUT A WITNESS, NO EVIDENCE CAN EVER BE AUTHENTICATED. EVEN THE
SO-CALLED “SELF-AUTHENTICATING DOCUMENTS” NEEDS A WITNESS TO IDENTIFY THE
DOCUMENT. THE REASON IS SIMPLE. BEING INANIMATE, A DOCUMENT OR AN OBJECT CANNOT
SPEAK FOR ITSELF. (DEAN RIANO)

Sec. 21. Witnesses; Their qualifications: -- Except as provided in the next

preceding section, all persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or

conviction of a crime unless otherwise provided by law, shall not be a ground
for disqualification.

SECTION 21 OF RULE 130, SUPPLIES THE BASIC QUALIFICATIONS OF A WITNESS, NAMELY:

1. HE CAN PERCEIVE;

2. IN PERCEIVING, HE CAN MAKE KNOWN HIS PERCEPTION TO OTHERS.

ADDITIONAL QUALIFICATIONS:

3. HE MUST TAKE EITHER AN OATH OR AN AFFIRMATION; AND

4. HE MUST NOT POSSESS THE DISQUALIFICATIONS IMPOSED BY THE LAW OR THE RULES.

THE QUALIFICATIONS AND DISQUALIFICATIONS OF WITNESSES ARE DETERMINED AS OF THE TIME SAID
WITNESSES ARE PRODUCED FOR EXAMINATION IN COURT OR AT THE TAKING OF THEIR
DEPOSITIONS, EXCEPT AS TO WITNESSES WHO ARE MINORS, AS THEIR COMPETENCE AT THE TIME
OF THE OCCURRENCE TO BE TESTIFIED TO SHOULD ALSO BE TAKEN INTO ACCOUNT.

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INTEREST IN THE OUTCOME OF THE CASE:

THE INTEREST WHICH A WITNESS HAS IN THE SUBJECT MATTER OF THE ACTION OR IN ITS OUTCOME
DOES NOT DISQUALIFY HIM FROM TESTIFYING, EXCEPT THOSE COVERED BY THE RULE ON
SURVIVING PARTIES, ALSO KNOWN AS THE DEAD MAN STATUTE, OR THE SURVIVORSHIP
DISQUALIFICATION RULE. OTHERWISE, THE INTEREST OF THE WITNESS AFFECTS ONLY HIS
CREDIBILITY BUT NOT HIS COMPETENCY.

CONVICTION OF A CRIME:

A PERSON CONVICTED OF A CRIME IS NOT DISQUALIFIED, BUT HE MUST ANSWER TO THE FACT OF
SUCH CONVICTION, AS SUCH FACT MAY BE TAKEN INTO CONSIDERATION AS AFFECTING HIS
CREDIBILITY.

CLEARLY, THE MERE PENDENCY OF A CRIMINAL CASE AGAINST A PERSON DOES NOT DISQUALIFY HIM
FROM BECOMING A WITNESS. AS A MATTER OF FACT, CONVICTION OF A CRIME DOES NOT
DISQUALIFY SUCH PERSON FROM BEING PRESENTED AS A WITNESS UNLESS OTHERWISE PROVIDED
BY LAW (PEOPLE VS. DE LEON, G.R. NO. 115367, SEPTEMBER 28, 1995)

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. (ART. 281(2) THE NEW CIVIL
CODE), AND NECESSARILY CANNOT TESTIFY IN THE PROBATE THEREOF. WITHAL, BY SUCH
CONVICTION, HE CEASES TO BE A CREDIBLE WITNESS TO THE WILL UNDER ARTICLE 805 OF THE
NEW CIVIL CODE.

DEAF-MUTES:

DEAF-MUTES ARE COMPETENT WITNESSES WHERE THEY CAN UNDERSTAND AND APPRECIATE THE
SANCTITY OF AN OATH, CAN COMPREHEND FACTS THEY ARE GOING TO TESTIFY TO AND CAN
COMMUNICATE THEIR IDEAS THROUGH A QUALIFIED INTERPRETER.

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UNSOUND MIND

THE PHRASE OF “UNSOUND MIND” WHICH AFFECTS COMPETENCY OF THE WITNESS INCLUDES ANY
MENTAL ABERRATION, WHETHER ORGANIC OR FUNCTIONAL, OR INDUCED BY DRUGS OR
HYPNOSIS. MENTAL UNSOUNDNESS OF THE WITNESS AT THE TIME THE FACT TO BE TESTIFIED TO
OCCURRED AFFECTS ONLY HIS CREDIBILITY.

CHILD WITNESS

IN THE CASE OF CHILD WITNESS, THE COURT IN DETERMINING HIS COMPETENCY MUST CONSIDER THE
FOLLOWING:

1. HIS CAPACITY TO DISTINGUISH RIGHT FROM WRONG OR TO COMPREHEND THE OBLIGATION OF

AN OATH;
2. HIS CAPACITY AT THE TIME THE FACT TO BE TESTIFIED OCCURRED SUCH THAT HE COULD
RECEIVE CORRECT IMPRESSIONS THEREOF; AND
3. HIS CAPACITY TO RELATE THOSE FACTS TRULY TO THE COURT AT THE TIME HE IS OFFERED AS A
WITNESS.

THE ABOVE PROVISION SUPPLIES THE BASIC QUALIFICATIONS OF A WITNESS, NAMELY:

1. HE CAN PERCEIVE; AND IN PERCEIVING

2. HE CAN MAKE KNOWN HIS PERCEPTION TO OTHERS

3. HE MUST TAKE EITHER AN OATH OR AN AFFIRMATION.

ABILITY TO PERCEIVE:

A WITNESS MUST BE ABLE TO PERCEIVE AN EVENT. THUS, IT WOULD BE ABSURD

TO ASK A BLIND WHAT HE SAW, OR A DEAF PERSON WHAT HE HEARD.
COROLLARY TO THIS CAPACITY TO PERCEIVE IS THE REQUIREMENT THAT THE
WITNESS MUST HAVE PERSONAL KNOWLEDGE OF THE FACTS SURROUNDING THE SUBJECT MATTER
OF HIS TESTIMONY.

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ABILITY TO MAKE KNOW THE PERCEPTION TO OTHERS:

THE ABILITY TO MAKE KNOWN THE PERCEPTION OF THE WITNESS TO THE COURT INVOLVES TWO
FACTORS: (A) THE ABILITY TO REMEMBER WHAT HAS BEEN PERCEIVED; AND (B) THE ABILITY TO
COMMUNICATE THE REMEMBERED PERCEPTION.

DEAF MUTE ARE NOT NECESSARILY INCOMPETENT AS WITNESSES. THEY ARE COMPETENT WHERE
THEY: (A) CAN UNDERSTAND AND APPRECIATE THE SANCTITY OF AN OATH: (2) CAN COMPREHEND
FACTS THEY ARE GOING TO TESTIFY TO; AND (3) CAN COMMUNICATE THEIR IDEAS THROUGH A
QUALIFIED INTERPRETER.

COMPETENCY AND CREDIBILITY:

COMPETENCE IS A MATTER OF LAW OR IN THIS JURISDICTION, ALSO A MATTER OF RULE.

CREDIBILITY OF THE WITNESS HAD NOTHING TO DO WITH THE LAW OR THE RULES. IT REFERS TO
THE WEIGHT AND THE TRUSTWORTHINESS OR RELIABILITY OF THE TESTIMONY. IN DECIDING THE
COMPETENCE OF A WITNESS, THE COURT WILL NOT INQUIRE INTO THE TRUSTWORTHINESS OF THE
WITNESS.

ACCORDINGLY, A PREVARICATING WITNESS OR ONE WHO HAS GIVEN CONTRADICTING TESTIMONY

IS STILL A COMPETENT WITNESS. ALTHOUGH HE MAY BE COMPETENT AS A WITNESS, HIS
TESTIMONY MAY NOT BE GIVEN MUCH WEIGHT BY THE COURT OR NO WEIGHT AT ALL IF THE
COURT DEEMS HIM NOT WORTHY OF BELIEF. THE COMPETENCE OF THE WITNESS MUST HENCE, BE
SHARPLY DISTINGUISHED FROM HIS CREDIBILITY.

COMPETENCY OF A WITNESS HAS REFERENCE TO THE BASIC QUALIFICATIONS OF A WITNESS AS HIS

CAPACITY TO PERCEIVE AND HIS CAPACITY TO COMMUNICATE HIS PERCEPTION TO OTHERS. IT ALSO
INCLUDES THE ABSENCE OF ANY OF THE DISQUALIFICATIONS IMPOSED UPON A WITNESS.
CREDIBILITY OF THE WITNESS REFERS TO THE BELIEVABILITY OF THE WITNESS AND HAS NOTHING
TO DO WITH THE LAW OR RULES. IT REFERS TO THE WEIGHT AND THE TRUSTWORTHINESS OR
RELIABILITY OF THE TESTIMONY. (DEAN RIANO)

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 QUESTIONS CONCERNING THE CREDIBILITY OF A WITNESS ARE BEST ADDRESSED TO THE SOUND
DISCRETION OF THE TRIAL COURT AS IT IS IN THE BEST POSITION TO OBSERVE HIS DEMEANOR AND
BODILY MOVEMENTS. THE SUPREME COURT GENERALLY DEFERS TO THE TRIAL COURT’S
ASSESSMENT BECAUSE IT HAS THE SINGULAR OPPORTUNITY TO OBSERVE THE DEMEANOR OF
WITNESSES AND THEIR MANNER OF TESTIFYING.

OTHER FACTORS THAT DO NOT AFFECT THE COMPETENCY OF A WITNESS:

1. RELIGIOUS BELIEF;

2. POLITICAL BELIEF;

3. INTEREST IN THE OUTCOME OF THE CASE; OR

4. CONVICTION OF A CRIME, UNLESS OTHERWISE PROVIDED BY LAW (EXAMPLE: THOSE WHO
HAVE BEEN CONVICTED OF FALSIFICATION OF A DOCUMENT, PERJURY OR FALSE TESTIMONY
ARE DISQUALIFIED FROM BEING WITNESSES TO A WILL

5. RELATIONSHIP OF A WITNESS WITH A PARTY DOES NOT IPSO FACTO RENDER HIM A BIASED
WITNESS IN CRIMINAL CASE WHERE THE QUANTUM OF EVIDENCE IS PROOF BEYOND
REASONABLE DOUBT. THERE IS NO REASON WHY THE SAME PRINCIPLE SHOULD NOT APPLY TO
A CIVIL CASE WHERE THE QUANTUM OF EVIDENCE IS ONLY PREPONDERANCE OF EVIDENCE.

BAR 1994

Al was accused of raping Lourdes. Only Lourdes testified on how the crime was
perpetrated. On the other hand, the defense presented Al’s wife, son and
daughter to testify that Al was with them when the alleged crime took place.
The prosecution interposed a timely objection to the testimonies on the
ground of obvious bias due to the close relationship of the witnesses with the
accused. If you were the judge, how would you rule on the objection?

Suggested answer

I would overrule the objection for the reason that interest in the outcome of a
case which also includes close relationship, is not a ground to disqualify a
witness.

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BAR 1994:

Louise is charged with the frustrated murder of Roy. The prosecution’s lone
witness, Mariter, testified to having seen Louise prepare the poison which she
later surreptitiously poured into Roy’s wine glass. Louise sought the
disqualification of Mariter as witness on account of her previous conviction of
perjury. Rule on Louise’s contention.

Suggested answer:

The contention of Louise has no legal basis. Basic is the rule that previous
conviction is not a ground for disqualification of a witness, unless otherwise
provided by law. Mariter’s conviction is not sufficient to have her disqualified
to testify. Her situation is not one of the exceptions provided by law.

DISQUALIFED WITNESSES

Under the 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

Sec. 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.

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 Section 22 is the old Section 36, Rule 130, which has been treated as the
hearsay rule by most commentators. This not entirely accurate; the hearsay rule
should not be confused with the rule limiting testimony to what witnesses can
describe on the basis of firsthand knowledge.

Firsthand knowledge

Firsthand knowledge refers to something which the witness actually saw or

heard as distinguished from something he learned from some other person or
source. It is also a knowledge that is gained through firsthand observation or
experience as distinguished from a belief based on what someone else has said.

Hearsay distinguished from Lack of Firsthand Knowledge

Occasionally, the hearsay rule is confused with the rule limiting testimony
to what witnesses can describe on the basis of firsthand knowledge. If a witness
known not to be present at the scene of an accident stated, “Hannah told me that
accident was caused when the Porsche ran a red light,” the witness is testifying
from firsthand knowledge. He knows firsthand what Hannah told him and he is
testifying to nothing more than her statement.

If the statement is offered to prove that the Porsche ran a red light, the
proper objection is HEARSAY. If the witness had said instead, “The accident was
caused when the Porsche ran a red light,” the proper objection would not be
hearsay but would be LACK OF FIRSTHAND KNOWLEDGE. Here the witness is
reporting an event which he had no personal contact. It is of course likely that the
witness is merely reporting the statements of others without attribution, in which
case the firsthand knowledge objection is really an objection to an anonymous
hearsay. But the firsthand knowledge objection also protects against statements
based on dreams, crystal ball gazing, and deductions unsupported by what the
witness does not know. (Peralta)

Anything first hand is directly experienced, so your firsthand knowledge of

the new math teacher’s purple hair comes from the fact that you have seen it
with your very own eyes. When you get information from someone who saw

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something happen or heard something said, that is firsthand evidence on what
someone has told you he saw or heard.

The objection that a witness lacks firsthand knowledge is in some ways more
fundamental than the hearsay objection. There are no formal exceptions to the
firsthand knowledge rule. Furthermore, if it can be shown from the surrounding
circumstances that a hearsay declarant lacked firsthand knowledge of the subject
of his declaration, evidence of that declaration will ordinarily be excluded even if
it would otherwise come within some exception to hearsay rule (Lempert, R. &
Saltzbur, S., A Modern Approach to Evidence, pp. 369-370 [2nd Ed. 1982]

Examples

1.The witness for the prosecution testified that he actually saw the accused
stabbing the victim when in fact he was not there at the crime scene. In this case,
the witness was testifying on event in which he has no personal knowledge. That
is objectionable. The proper ground for objection is that the witness lacks
firsthand knowledge or information, but not on the ground of hearsay evidence.

On the other hand, if the witness testified that per information relayed to
him by his friend that it was the accused who stabbed the victim, then that is
hearsay if the statement was offered to prove the truth that it was the accused
who stabbed the complainant. The proper ground, therefore, for objection is that
it is hearsay. However, if the statement was offered to prove the fact as to what
his friend had told him, then it was not hearsay because he was merely testifying
on what his friend told him.

2.if a witness testified that on April 16, 2021, the plane arrived at Iloilo
International Airport, and from his other evidence it appears that he was not at
the Iloilo International Airport on April 16, 2021, hence the witness could have
spoken from conjecture or report of other persons, the proper objection is not
hearsay but want of personal knowledge.

Conversely, if the witness testified that his girlfriend told him that she came in
on that airplane and it arrived on time, the objection for want of knowledge of

105
when the plane arrived is inappropriate, because the witness purports to speak
from his own knowledge of what his girlfriend said, and as to this he presumably
had knowledge. If the testimony in this latter case was offered to show the time
of the plane’s arrival, the appropriate objection is hearsay. (Cleary, McCormicks’
Handbook on the Law of Evidence)

SEC. 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.

Disqualification by Reason of Marriage

The marital disqualification rule, under the above provision, forbids the
husband or the wife to testify AGAINST the other without the consent of the
affected spouse except in those cases authorized by the rule. The prohibition
extends only to a testimony adverse to the spouse but not to a testimony in favor
of the spouse. It likewise extends to both criminal and civil cases (Dean Riano). It
is very clear that what is being prohibited is for one spouse to testify against the
other without the consent of the affected spouse. It follows therefore, that one
spouse can testify FOR or in favor of the other spouse even without the consent
of the other spouse.

Reason for the rule:

1. there is identity of interests between husband and wife;

2. if one were to testify for or against the other, there is a consequent danger
of perjury;
3. the policy of the law is to guard the security and confidences of private life,
even at the risk of an occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. where there is want of domestic tranquility there is danger of punishing
one spouse through the hostile testimony of the other.

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Rationale of the Marital Disqualification Rule

The anti-marital facts rule 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. The rule applies as well in
actions to which the spouse is a co-party as to those to which he or she is a sole
party. (Jones on Evidence)

In order that the husband or wife may claim the privilege, it is essential that
they be validly married, if they are not, there is no privilege.

The rule applies whether the witness-spouse is a party to the case or not
but the other spouse must be a party. That the other spouse must be a party is
evident from the phrase “cannot testify against the other without the consent of
the affected spouse.”

The prohibited testimony is one that is given or offered during the

existence of the marriage. Section 23 explicitly refers to a testimony “during their
marriage…” Hence, the rule does not prohibit a testimony against the other after
the marriage is dissolved.

Upon the demise of a spouse, or after a divorce, the reason for the
interdiction no longer applies since the alleged bias of a spouse ceases to exist.

Reason:

1. If the one spouse is deceased, the other spouse is qualified to testify on

behalf of the estate, the heirs, or any other person succeeding to the
deceased’s interest: because there is no living person interested to whom
the witness bears the relation of spouses.

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 2. On whose marital relation has been ended by divorce may be called on
behalf of the divorcee (Wigmore)

The testimony covered by the marital disqualification rule not only consists
of utterances but also the production of documents.

If the testimony against the other spouse is offered during the existence of
the marriage, it does not matter if the facts subject of the testimony occurred or
came to the knowledge of the witness-spouse before the marriage.

Wife may testify against the husband in a criminal case for falsification,
where the husband made it appear that the wife gave her consent to the sale of a
conjugal house (considered as a crime committed against the wife)

If husband-accused defends himself by imputing the crime to the wife, he is

deemed to have waived all objections to the wife’s testimony against him.

EXCEPTIONS TO THE MARITAL DISQUALIFICATION RULE:

IN THE FOLLOWING INSTANCES, A SPOUSE MAY TESTIFY AGAINST THE OTHER EVEN WITHOUT THE
CONSENT OF THE LATTER:

(A) IN A CIVIL CASE BY ONE AGAINST THE OTHER; OR

(B) IN A CRIMINAL CASE FOR A CRIME COMMITTED BY ONE AGAINST THE OTHER, OR THE LATTER’S
DIRECT DESCENDANTS OR ASCENDANTS.

IN THE CASE OF ALVAREZ VS. RAMIREZ, G.R. NO. 143439, 2005, THE SUPREME COURT
RECOGNIZED ANOTHER EXCEPTION WHICH IS THAT “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.”

108
BAR 2010

On March 12, 2008, Mabini was charged with Murder for fatally stabbing
Emilio. To prove the qualifying circumstance of evident premeditation, the
prosecution introduced on December 11, 2009, a text message, which Mabini’s
estranged wife Gregoria had sent to Emilio on the eve of his death, reading:
“Honey, pa2tayin u ni Mabini. Mtgal n nyang plana i2. Mg ingat u bka ma tsugi k.”

A. A subpoena ad testificandum was served on Gregoria for her to be

presented for the purpose of identifying her cellphone and the text
message. Mabini objected to her presentation on the ground of marital
privilege. Resolve.

Suggested answer

The objection should be sustained on the ground of the marital

disqualification rule (Rule 130, Sec. 23), not on the ground of the “marital
privilege” communication rule (Rule 130, Sec. 24). The marriage between Mabini
and Gregoria is still subsisting and the situation at bar does not come under the
exceptions to the disqualification by reason of marriage.

B. Suppose Mabini’s objection in question A was sustained. The prosecution

thereupon announced that it would be presenting Emilio’s wife Graciana to
identify Emilio’s cellphone bearing Gregoria’s text message. Mabini
objected again. Rule on the objection.

Suggested answer

The objection should be overruled. The testimony of Graciana is not

covered by the said marital disqualification rule because she is not the wife of
Mabini. Besides, Graciana will identify only the cellphone as that of her husband,
Emilio, not the messages therein which to her are hearsay.

C. If Mabini’s objection in question B was overruled, can he object to the

presentation of the text message on the ground that it is hearsay?

109
Suggested answer

No, Gregoria’s text message in Emilio’s cellphone is not covered by the

hearsay rule because it is regarded in the rules of evidence as independently
relevant statement: the text message is not to prove the truth of the fact alleged
therein but only as to the circumstance of whether or not premeditation exists.

D. Suppose that shortly before he expired, Emilio was able to send a text
message to his wife Graciana reading “Nasaksak ako. D na me makahinga.
Si Mabini and may gawa ni2.” Is this text message admissible as a dying
declaration? Explain.

Suggested answer

Yes, the text message is admissible as a dying declaration since the same
came from the victim who “shortly” expired and it is in respect to the cause and
circumstance of his death. The decisive factor that the message was made and
sent under consciousness of an impending death, is evidently attendant from the
victim’s statement” D na me makahinga” and the fact that he died shortly after he
sent the text message.

However, cellphone messages are regarded as electronic evidence, and in a

recent case (Ang v. Court of Appeals, G.R. No. 182835, April 20, 2010), the
Supreme Court ruled that the Rules on Electronic Evidence applies only to civil
actions, quasi-judicial proceedings and administrative proceedings, not to criminal
actions.

Example of Dean Riano:

Before the marriage of Wife to Husband, she witnessed the murder of

Xerxes by Husband but she never reported what she witnessed to the authorities.
A year after the murder, Husband and Wife married. Barely six months after the
marriage, Wife became a battered wife and to get even with Husband, she
decided to report the murder to the police.

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 May she testify against Husband for the prosecution? No, she cannot testify
over the objection of Husband. The situation is covered by the marital
disqualification rule.

Suppose a year after the marriage, the marriage is annulled, may Wife now
testify despite the objection of Husband? Yes, Wife may now testify. The
prohibition no longer applies since the testimony is to be offered after the
marriage.

More Bar Questions on the subject

BAR 1989

Ody sued spouses Cesar and Baby for a sum of money and damages. At the
trial, Ody called Baby as his first witness. Baby objected, joined by Cesar, on the
ground that she may not be compelled to testify against her husband. Ody
insisted and contended that after all, she would just be questioned about a
conference they had with the barangay captain, a matter which is not confidential
in nature. The trial court ruled in favor of Ody. Was the ruling proper? Will your
answer be the same if the matters to be testified on were known to Baby or
acquired by her prior to her marriage to Cesar? Explain.

Suggested Answer:

No. Under the Rules on Evidence, a wife cannot be examined against her
husband without his consent, except in civil cases by one against the other, or in a
criminal case for a crime committed by one against the other. Since the case was
filed by Ody against the spouses Cesar and Baby, Baby cannot be compelled to
testify against Cesar without his consent (Lezama v. Rodriguez, 23 SCRA 1166)

The answer would be the same if the matters to be testified on were

known to Baby or acquired by her prior to her marriage to Cesar, because the
marital disqualification rule may be invoked with respect to testimony on any
fact. It is immaterial whether such matters were known to Baby before or after
her marriage to Cesar.

111
BAR 2000

Vida and Romeo are legally married. Romeo is charged to court with the
crime of serious physical injuries committed against Selmo, son of Vida, stepson
of Romeo. Vida witnessed the infliction of the physical injuries on Selmo by
Romeo. The public prosecutor called Vida to the witness stand and offered her
testimony as an eyewitness. Counsel for Romeo objected on the ground of the
marital disqualification rule under the Rules of Court.

(a) Is the objection valid?

(b) Will your answer be the same if Vida’s testimony is offered in a civil case for
recovery of personal property filed by Selmo against Romeo?

Answers:

(a) No. While neither the husband nor the wife may testify against the other
without the consent of the affected spouse, one exception is if the
testimony of the spouse is given in a criminal case for a crime committed by
one against the other or the latter’s direct descendants or ascendants (Sec.
22, Rule 130). The case falls under this exception because Selma is the
direct descendant of the spouse Vida.

(b) No. The marital disqualification rule applies this time. The exception
provided by the Rules is given in a civil case by one spouse against the
other. The case here involves a case by Selmo for the recovery of personal
property against Vida’s spouse, Romeo.

PRIVILEGED COMMUNICATION RULE

PRIVILEGED COMMUNICATION RULE ARE 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 (HUGHES)

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 RELEVANT EVIDENCE IS REJECTED ON THE GROUND THAT AN EXTRINSIC POLICY IS MORE
IMPORTANT THAT THE FACT FINDER’S CONSIDERATION OF THE EXCLUDED EVIDENCE. 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. (LILLY, PRINCIPLE OF EVIDENCE)

FUNDAMENTAL CONDITIONS

THE FOUR (4) FUNDAMENTAL CONDITIONS WHICH ARE ESSENTIAL TO THE EXISTENCE OF
PRIVILEGED COMMUNICATION ARE AS FOLLOWS:

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 (ACCOMPLISHED WITH CAREFUL PERSEVERANCE) FOSTERED.
4. THE INJURY THAT WOULD INURE TO THE RELATION BY THE DISCLOSURE OF THE COMMUNICATIONS
MUST BE GREATER THAN THE BENEFIT THEREBY GAIN FOR THE CORRECT DISPOSAL OF LITIGATION.
( HUGHES, VIDE)

THERE ARE FIVE (5) DIFFERENT PRIVILEGED COMMUNICATIONS UNDER SECTION 24. BRIEFLY, THEY
ARE:

1. MARITAL PRIVILEGED COMMUNICATION RULE

2. ATTORNEY-CLIENT PRIVILEGED COMMUNICATION RULE
3. PHYSICIAN-PATIENT PRIVILEGED COMMUNICATION RULE
4. PRIEST – PENITENT PRIVILEGED COMMUNICATION RULE
5. PUBLIC OFFICERS PRIVILEGED COMMUNICATION RULE

SEC. 24. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION. – THE FOLLOWING

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

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 (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.

THE HUSBAND OR THE WIFE CANNOT BE EXAMINED WITHOUT THE CONSENT OF THE OTHER AS TO
ANY COMMUNICATION RECEIVED IN CONFIDENCE BY ONE FROM THE OTHER DURING THE MARRIAGE.

ELEMENTS:

1. THERE MUST BE A VALID MARRIAGE BETWEEN THE HUSBAND AND WIFE;

2. THERE IS A COMMUNICATION RECEIVED IN CONFIDENCE BY ONE FROM THE OTHER; AND
3. THE CONFIDENTIAL COMMUNICATION WAS RECEIVED DURING THE MARRIAGE.

EXCEPTIONS:

EXCEPTED FROM THE APPLICATION OF THE RULE ARE PROPOSED TESTIMONIES CONTAINING
CONFIDENTIAL INFORMATION:

1. IN A CIVIL CASE BY ONE AGAINST THE OTHER; OR

2. IN A CRIMINAL CASE FOR A CRIME COMMITTED BY ONE AGAINST THE OTHER OR THE LATTER’S
DIRECT DESCENDANTS OR ASCENDANTS.

TAKE NOTE THAT THESE EXEMPTIONS ARE THE SAME UNDER THE MARITAL DISQUALIFICATION
RULE.

ADDITIONAL EXCEPTIONS:

1. DYING DECLARATION – 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. (JONES ON
EVIDENCE)

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 2. NOR WILL THE PRIVILEGE ATTACH UPON ABSORPTION BY A THIRD PERSON OF THE
COMMUNICATION IN THE SAME WAY THAT THE SPOUSE WHO OVERHEARD A TRANSACTION
BETWEEN THE OTHER SPOUSE AND A THIRD PERSON CANNOT BE PREVENTED FROM
TESTIFYING. (JONES ON EVIDENCE)

QUESTION:

IF THE COMMUNICATION IS MADE IN FRONT OF THE CHILDREN OF THE HUSBAND AND WIFE.
CAN THE PRIVILEGE BE INVOKED?

ANSWER: YES. IF THE CHILDREN ARE STILL MINORS.

THE NUMERICAL WEIGHT OF AUTHORITY IS, HOWEVER, TO THE EFFECT THAT WHERE A
PRIVILEGED COMMUNICATION FROM ONE SPOUSE TO ANOTHER COMES INTO THE HANDS OF AS THIRD
PARTY, WHETHER LEGALLY OR NOT, WITHOUT COLLUSION AND VOLUNTARY DISCLOSURE ON THE PART
OF EITHER OF THE SPOUSES, THE PRIVILEGE IS THEREBY EXTINGUISHED AND THE COMMUNICATION, IF
OTHERWISE COMPETENT, BECOMES ADMISSIBLE.

SINCE THE APPLICATION OF THE RULE REQUIRES A CONFIDENTIAL INFORMATION RECEIVED BY

ONE SPOUSE FROM THE OTHER DURING THE MARRIAGE, INFORMATION ACQUIRED BY A SPOUSE
BEFORE THE MARRIAGE EVEN IF RECEIVED CONFIDENTIALLY WILL NOT FALL SQUARELY WITH THE
PROVISIONS OF SECTION 24 (A) OF RULE 130 BUT DIVULGING THE SAME MAY BE OBJECTED TO
UNDER SECTION 22 OF RULE 130 UPON PROPER OBJECTION AS LONG AS THE INFORMATION IS
SOUGHT TO BE REVEALED DURING THE MARRIAGE THROUGH A TESTIMONY FOR OR AGAINST THE
AFFECTED SPOUSES.

FOR THE INFORMATION TO BE CONFIDENTIAL, IT MUST BE MADE DURING AND BY REASON OF

THE MARITAL RELATIONS AND IS INTENDED NOT TO BE SHARED WITH OTHERS. WITHOUT SUCH
INTENTION, COMMON REASONS SUGGESTS THAT THE INFORMATION IS NOT CONFIDENTIAL. THUS, IN
US. V. ANTIPOLO, 37 PHIL. 726, THE WIFE WAS ALLOWED, IN A PROSECUTION FOR MURDER, TESTIFY
AS TO HER HUSBAND’S DYING DECLARATION REGARDING THE IDENTITY OF THE ASSAILANT BECAUSE
THERE WAS NO INTENT OF CONFIDENTIALITY IN THE INFORMATION. THE DECLARATION IS INTENDED
TO BE COMMUNICATED AFTER THE HUSBAND’S DEATH BECAUSE IT WAS MADE IN THE FURTHERANCE
OF JUSTICE.

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WHO CAN CLAIM THE PRIVILEGE

AS TO WHO CAN CLAIM THE PRIVILEGE, THE LOGICAL AND CONSISTENT APPROACH SHOULD BE
THAT THE PRIVILEGE IS HELD AND MAY BE CLAIMED ONLY BY THE SPOUSES OR SPOUSES REGARDLESS
OF THEIR RELATIONSHIP TO THE ACTION. ANY OBJECTION MADE, THEREFORE, IS DEEMED TO HAVE
BEEN MADE ON BEHALF OF THE PRIVILEGED SPOUSE AND NOT FOR THE BENEFIT OF A PARTY TO THE
ACTION. (JONES ON EVIDENCE)

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
COMMUNICATION. THE WAIVER OF THE MARITAL PRIVILEGE CAN BE EXPLICITLY MADE, OR IT CAN BE
IMPLIED FROM CONDUCT, SUCH AS THE DOING OF ACTS WHICH ARE INCONSISTENT WITH ANY CLAIM
OF PRIVILEGE, THE VOLUNTARY GIVING OF TESTIMONY, AND THE LIKE. (JONES ON EVIDENCE)

POSTULATES RELATING TO THE MARITAL PRIVILEGED COMMUNICATION

1. EVERY COMMUNICATION BETWEEN SPOUSES IS PRESUMED TO BE CONFIDENTIAL.

2. COMMUNICATIONS MADE IN THE PRESENCE OF THIRD PARTIES ARE NOT CONFIDENTIAL UNLESS
THE THIRD PERSON MAY BE CONSIDERED AS AN AGENT OF THE SPOUSES.

3. COMMUNICATIONS OVERHEARD BY THIRD PERSONS REMAIN CONFIDENTIAL AS BETWEEN THE

SPOUSES, BUT THE THIRD PERSON WHO OVERHEARD MAY BE CALLED UPON TO TESTIFY
(PEOPLE VS. CARLOS, 47 PHIL 626).

4. COMMUNICATIONS COMING TO THE HANDS OF THIRD PERSONS, WHETHER LEGALLY OR

ILLEGALLY, REMAIN CONFIDENTIAL AS BETWEEN THE SPOUSES, BUT THE THIRD PERSON MAY
BE CALLED UPON TO TESTIFY.

5. IF THE THIRD PERSON ACQUIRED KNOWLEDGE OF THE COMMUNICATION BY COLLUSION AND

VOLUNTARY DISCLOSURE ON THE PART OF EITHER OF THE SPOUSES, HE THEREBY BECOMES AN
AGENT OF SUCH SPOUSES SO THAT THE PRIVILEGE IS CLAIMABLE AGAINST HIM.

6. COMMUNICATION INTENDED FOR TRANSMISSION TO THIRD PERSON ARE NOT CONFIDENTIAL.

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 IN A CASE, THE SUPREME COURT RULE THAT THE MARITAL PRIVILEGE RULE, BEING A RULE OF
EVIDENCE, MAY BE WAIVED BY FAILURE OF THE CLAIMANT TO OBJECT TIMELY TO ITS PRESENTATION
OR BY AN CONDUCT THAT MAY BE CONSTRUED AS IMPLIED CONSENT (LACUROM V. JACOBA, A.C. NO.
5921, MARCH 10, 2006)

BAR 2017

John filed a petition for declaration of nullity of his marriage to Anne on the
ground of psychological incapacity under Article 36 of the Family Code. He
obtained a copy of the confidential psychiatric evaluation report on his wife from
the secretary of the psychiatrist. Can he testify on the said report without
offending the rule on privileged communication? Explain.

SUGGESTED ANSWER:

Yes, John can testify on the psychiatric report without offending the rule on
privileged communication. In a case involving similar facts, the Supreme Court
held that there is no violation of physician-patient privilege since the one
testifying is not the psychiatrist. The privilege bars only the physician, not other
persons. (Krohn v. Court of Appeals, 233 SCRA 146).

There is no violation of marital communication privilege since the report is

not a confidential communication between spouses.

` There is also no violation of the marital disqualification rule since the case
involves an exception, that is, a civil case by one spouse against the other.

DISTINCTION BETWEEN THE MARITAL DISQUALIFICATION RULE AND THE MARITAL PRIVILEGED
COMMUNICATION RULE:

(A) MARITAL PRIVILEGED COMMUNICATION RULE (MPCR) REFERS TO CONFIDENTIAL

COMMUNICATION RECEIVED BY ONE SPOUSE FROM THE OTHER DURING THE MARRIAGE WHILE
THE MARITAL DISQUALIFICATION RULE (MDR) DOES NOT REFER TO CONFIDENTIAL
COMMUNICATION BETWEEN THE SPOUSES.

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 (B) UNDER THE MPCR THE SPOUSE AFFECTED BY THE DISCLOSURE OF THE INFORMATION OR
TESTIMONY MAY OBJECT EVEN AFTER THE DISSOLUTION OF MARRIAGE WHILE THE MDR CAN
NO LONGER BE INVOKED ONCE THE MARRIAGE IS DISSOLVED SINCE IT MAY BE ASSERTED TO
ONLY DURING THE MARRIAGE..
(C) THE MDR REQUIRES THAT THE SPOUSE TESTIFY AGAINST WHOM THE TESTIMONY IS OFFERED
IS A PARTY TO THE ACTION WHILE UNDER THE MPCR IT IS NOT REQUIRED THAT THE SPOUSE
MUST BE A PARTY TO THE ACTION AS IT APPLIES REGARDLESS OF WHETHER THE SPOUSES ARE
PARTIES OR NOT.

MARITAL DISQUALIFICATION MARITAL PRIVILEGE

Can be invoked only if one of the Can be claimed whether or not the
spouses is a party to the action spouse is a party to the action
Right to invoke belongs to the Right to invoke belongs to the
spouse who is a party to the action spouse making the communication
Applies only if the marriage is Can be claimed even after the
existing at the time the testimony is marriage has been dissolved
offered
Constitutes a total prohibition Applies only to confidential
against any testimony against the communications between spouses
spouse of the witness (with certain made during the marriage
exceptions)

IT IS IMPORTANT TO KNOW THE DISTINCTION BETWEEN THE TWO RULE CONSIDERING THAT THEY
MIGHT BOTH BE APPLICABLE IN A GIVEN CONTROVERSY.

HYPOTHETICAL SITUATION

DURING THE MARRIAGE, SPOUSES RAMON AND MAJA WERE DEEP IN CONVERSATION WHEN
RAMON CONFESSED TO MAJA THAT, BEFORE THEY GOT MARRIED, HE KILLED HER EX-BOYFRIEND
MARIO.

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 1. QUESTION: CAN MAJA BE CALLED TO TESTIFY AGAINST RAMON?

ANSWER: NO. THE MARITAL DISQUALIFICATION RULE APPLIES AS THEY ARE LEGALLY MARRIED. IN
FACT, THE MARITAL PRIVILEGED COMMUNICATION RULE APPLIES. THE MATTER COMMUNICATED IN
CONFIDENCE TO MAJA.

2. QUESTION: BUT THE CRIME COMMITTED BEFORE THEIR MARRIAGE?

ANSWER: IT DOES NOT REALLY MATTER, WITH RESPECT TO THE MARITAL PRIVILEGED
COMMUNICATION RULE, WHAT MATTERS IS THAT THE CONFIDENTIAL COMMUNICATION WAS MADE
DURING THEIR MARRIAGE. THAT THE CONFESSION RELATED TO A MATTER OF FACT THAT OCCURRED
PRIOR TO THEIR MARRIAGE IS OF NO MOMENT. THE MARITAL DISQUALIFICATION RULE ALSO APPLIES
BECAUSE THEY ARE STILL MARRIED.

3. QUESTION: WHAT IF THEIR MARRIAGE WAS ANNULLED? CAN MAJA TESTIFY THEN?

ANSWER: UNDER THE MARITAL DISQUALIFICATION RULE, YES BECAUSE THIS RULE APPLIES ONLY
DURING THE SUBSISTENCE OF THEIR MARRIAGE. HOWEVER, UNDER THE MARITAL PRIVILEGED
COMMUNICATION RULE, NO BECAUSE IT APPLIES DURING OR AFTER THE MARRIAGE, UNLESS RAMON
WAIVES THE PRIVILEGE.

SUPPOSE THAT, IN THE FOREGOING PROBLEM, RAMON’S CONFESSION TO MAJA WAS OVERHEARD BY
THEIR MINOR DAUGHTER ROSSANA, AND THEIR NEIGHBOR MARICEL.

4. QUESTION: CAN ROSSANA BE CALLED TO TESTIFY?

ANSWER: UNDER THE MARITAL PRIVILEGED COMMUNICATION RULE, NO BECAUSE ROSSANA IS STILL A
MINOR.

PLEASE TAKE NOTE THAT IN THE EXAMPLE ABOVE, ROSSANA CAN VOLUNTARILY TESTIFY. UNDER
SECTION 25, NO PERSON MAY BE COMPELLED TO TESTIFY AGAINST HIS PARENTS, OTHER DIRECT
DESCENDANTS OR OTHER DIRECT ASCENDANTS. WHAT IS PROHIBITED UNDER SECTION 25 IS
TESTIMONY BY COMPULSION. IT DOES NOT FORESTALL TESTIMONY GIVEN VOLUNTARILY.

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 5. QUESTION: WHAT ABOUT MARICEL?

ANSWER: AS A GENERAL RULE, MARICEL CAN TESTIFY. THIRD PERSONS WHO, WITHOUT THE
KNOWLEDGE OF THE SPOUSES, OVERHEAR THE COMMUNICATION ARE NOT DISQUALIFIED TO TESTIFY.
HOWEVER, WHERE THERE IS COLLUSION AND VOLUNTARY DISCLOSURE TO A THIRD PARTY, THAT THIRD
PARTY BECOMES AN AGENT OF THE SPOUSE AND CANNOT TESTIFY. THUS, IF MAJA DISCLOSED THE
INFORMATION TO MARICEL OR IF SHE TOLD MARICAL TO LISTEN IN ON THE CONVERSATION, MARICEL
CANNOT TESTIFY. (ESPEJO)

PLEASE TAKE NOTE THAT UNDER THE CURRENT RULES, THAT 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.

(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 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;

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 (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;

(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 CLIENT. 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
RERAINED OR CONSULTED IN COMMON, WHEN OFFERED IN AN
ACTION BETWEEN ANY OF THE CLIENTS, UNLESS THEY HAVE
EXPRESSLY AGREED OTHERWISE.

PRIVILEGE IS ETERNAL

THE PROTECTION GIVEN BY THE LAW TO COMMUNICATIONS MADE DURING THE RELATIONSHIP
OF ATTORNEY AND CLIENT IS PERPETUAL. 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, REMAINS FOREVER UNLESS REMOVED BY THE PARTY HIMSELF IN WHOSE
FAVOR IT IS THERE PLACED. (MARTIN)

ATTORNEY-CLIENT PRIVILEGE IS A LEGAL CONCEPT THAT PROTECTS COMMUNICATIONS

BETWEEN A CLIENT AND HIS OR HER ATTORNEY AND KEEPS THOSE COMMUNICATIONS CONFIDENTIAL.
IT IS ONE OF THE OLDEST AND STRONGEST PRIVILEGES UNDER THE LAW. BY ASSURING
CONFIDENTIALITY, THE PRIVILEGE ENCOURAGES CLIENTS TO MAKE FULL AND FRANK DISCLOSURES TO
THEIR ATTORNEYS, WHO ARE THEN BETTER ABLE TO PROVIDE CANDID ADVISE AND EFFECTIVE
REPRESENTATION (UPJOHN CO. V. U.S., 449 U.S. 383 (181) THE NEW RULES PROVIDE THAT THE
ATTORNEY-CLIENT PRIVILEGE APPLIES EVEN TO A PERSON REASONABLY BY THE CLIENT TO BE LICENSED
TO PRACTICE LAW.

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WHAT WOULD BE THE SANCTIONS?

FOR BREACH OF THE ATTORNEY’S DUTY TO THE CLIENT, THE COUNSEL CAN BE VULNERABLE TO
APPROPRIATE DISCIPLINARY MEASURES AS AN ERRING MEMBER OF THE BAR (SECTIONS 27-28, RULE
138) AND CRIMINAL SANCTION CAN ALSO BE IMPOSED PURSUANT TO THE FELONY OF TRUST UNDER
ARTICLE 209 OF THE REVISED PENAL CODE. (PERALTA)

HOWEVER, SECTION 7 © OF R.A. NO. 10365, APPROVED ON FEBRUARY 15, 2013,

REFERRED TO THE EXEMPTION OF LAWYERS FROM REPORTING SUSPICIOUS TRANSACTION IN MONEY
LAUNDERING CASES:

“LAWYERS AND ACCOUNTANTS ACTING AS INDEPENDENT LEGAL PROFESSIONALS ARE NOT

REQUIRED TO REPORT COVERED AND SUSPICIOUS TRANSACTIONS IF THE RELEVANT INFORMATION
WAS OBTAINED IN CIRCUMSTANCES WHERE THEY ARE SUBJECT TO PROFESSIONAL SECRECY OR LEGAL
PROFESSIONAL PRIVILEGE.”

REQUISITES:

1. THERE MUST BE A COMMUNICATION MADE BY THE CLIENT TO THE ATTORNEY OR PERSON

REASONABLY BELIEVED BY THE CLIENT TO BE LICENSED TO ENGAGE IN THE PRACTICE OF LAW
OR AN ADVICE GIVEN BY THE ATTORNEY TO HIS CLIENT;
2. THE COMMUNICATION OR ADVICE MUST HAVE BEEN GIVEN IN CONFIDENCE; AND
3. THE COMMUNICATION OR ADVICE MUST HAVE BEEN GIVEN EITHER IN THE COURSE OF THE
PROFESSIONAL EMPLOYMENT OR WITH A VIEW TO PROFESSIONAL EMPLOYMENT.

WHAT IS PRIVILEGED UNDER THIS SECTION IS (A) THE COMMUNICATION MADE BY THE CLIENT TO
THE ATTORNEY, OR (B) THE ADVICE GIVEN BY THE ATTORNEY, IN THE COURSE OF, OR WITH THE VIEW
TO PROFESSIONAL EMPLOYMENT.

THE RELATIONSHIP BETWEEN THE ATTORNEY AND THE CLIENT IS SAID TO EXIST WHERE A
PERSON EMPLOYS THE PROFESSIONAL SERVICES OF AN ATTORNEY OR SEEKS PROFESSIONAL GUIDANCE,
EVEN THOUGH THE LAWYER DECLINES TO HANDLE THE CASE.

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 THE PRIVILEGE OF A CLIENT TO KEEP COMMUNICATIONS TO HIS ATTORNEY CONFIDENTIAL IS
PREDICATED UPON THE CLIENT’S BELIEF THAT HE IS CONSULTING A LAWYER IN THAT CAPACITY AND
HAS MANIFESTED HIS INTENTION TO SEEK PROFESSIONAL LEGAL ADVICE.

WHERE A PERSON CONSULTS AN ATTORNEY NOT AS A LAWYER BUT MERELY AS A FRIEND, OR A

PARTICIPANT IN A BUSINESS TRANSACTION, THE CONSULTATION WOULD NOT BE ONE MADE IN THE
COURSE OF A PROFESSIONAL EMPLOYMENT OR WITH A VIEW TO PROFESSIONAL EMPLOYMENT AS
REQUIRED BY SECTION 24(B) RULE 130.

AS A RULE OF EXCLUSION, THE BURDEN OF SHOWING THAT THE COMMUNICATION IS

PRIVILEGED RESTS ON THE ONE WHO SEEKS TO HAVE IT ELIMINATED. MOREOVER, THE PRIVILEGE IS
PERMANENT AND IT MAY BE CLAIMED BY THE CLIENT’S EXECUTOR OR ADMINISTRATOR AS AGAINST A
STRANGER AFTER THE CLIENT’S DEATH. ON THE OTHER ASPECT OF THE PRINCIPLE, EVEN AFTER THE
DEATH OF THE ATTORNEY, THE CLIENT COULD NOT BE REQUIRED TO DISCLOSE THE PRIVILEGED
MATTER. (JONES ON EVIDENCE)

WHO CAN CLAIM THE PRIVILEGE

IN RELATION TO THE ATTORNEY, THE PRIVILEGE IS OWNED BY THE CLIENT. IT IS HE WHO CAN
INVOKE THE PRIVILEGE. AS A RULE, EVERY COMMUNICATION ARISING FROM THE PROFESSIONAL
RELATIONSHIP CANNOT BE DISCLOSED WITHOUT HIS CONSENT.

ACCORDING TO JONES, THE RULE EXCLUDING PROOF OF COMMUNICATIONS WHICH HAVE

PASSED BETWEEN ATTORNEY AND CLIENT SEEKS TO AFFORD PROTECTION, NOT TO THE ATTORNEY, BUT
TO THE CLIENT, UNLESS THE LATTER CONSENTS. THE ATTORNEY MAY NOT TESTIFY TO SUCH
COMMUNICATION ALTHOUGH HE IS WILLING SO TO DO. NOR MAY THE CLIENT BE COMPELLED TO
TESTIFY AS TO PRIVILEGED COMMUNICATIONS UNLESS HE HAS WAIVED THE PRIVILEGE. NOR IS THE
TRIAL JUDGE NECESSARILY REQUIRED TO WAIT FOR AN OBJECTION TO BE RAISED BY COUNSEL FOR THE
CLIENT; HE MAY ENFORCE THE PRIVILEGE OF HIS OWN MOTION. (JONES ON EVIDENCE)

THE STATEMENTS OF THE CLIENT NEED NOT HAVE BEEN MADE TO THE ATTORNEY IN PERSON.
THOSE MADE TO THE ATTORNEY’S SECRETARY, CLERK OR STENOGRAPHER FOR TRANSMISSION TO THE
ATTORNEY FOR THE PURPOSE OF PROFESSIONAL RELATIONSHIP OR WITH A VIEW TO SUCH
RELATIONSHIP OR THOSE KNOWLEDGE ACQUIRED BY SUCH EMPLOYEES IN SUCH CAPACITY ARE
COVERED BY THE PRIVILEGE.

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EXCEPTED CASES

1. THE PRIVILEGE DOES NOT EXTEND TO COMMUNICATIONS WHERE THE CLIENT’S PURPOSE IS THE
FURTHERANCE OF A FUTURE INTENDED CRIME OR FRAUD.

ILLUSTRATION:

XANADU CONSULTED YORME, A LAWYER. HE ASKED ABOUT YORME’S “PROFESSIONAL” OPINION AS TO

HOW TO IMPORT GOODS AND BRING THEM OUT FROM CUSTOMS WITHOUT PAYING ANY TAXES OR
DUES.

QUESTION 1: ASSUME THAT XANADU WAS CAUGHT SMUGGLING GOODS. CAN YORME BE CALLED TO
TESTIFY AS TO WHAT XANADU ASKED HIM?

ANSWER: YES. YORME CAN BE CALLED TO TESTIFY. THE PRIVILEGE DOES NOT EXTEND TO
COMMUNICATIONS WHERE THE CLIENT’S PURPOSE IS THE FURTHERANCE OF A FUTURE INTENDED
CRIME OR FRAUD, OR FOR THE PURPOSE OF COMMITTING A CRIME OR A TORT.

QUESTION 2: SUPPOSE THAT XANADU, AFTER BEING ARRESTED, SOUGHT YORME’S SERVICES AS A
LAWYER TO DEFEND HIM IN THE CRIMINAL CASE. XANADU THEN DISCUSSED FACTS THAT CAN BE USED
IN HIS DEFENSE. CAN YORME BE CALLED TO TESTIFY?

ANSWER: NO. THE DISCUSSION OF THE COMMUNICATIONS IN CONFIDENCE WITH THE LAWYER AFTER
THE CRIME HAS BEEN COMMITTED WILL BE PRIVILEGED EVEN THOUGH THE EARLIER
COMMUNICATIONS WERE NOT.

2. DOES THE PRIVILEGE APPLY IN SUITS BETWEEN THE ATTORNEY AND THE CLIENT?

THE WEIGHT OF AUTHORITY SUPPORTS THE VIEW THAT WHEN THE CLIENT AND ATTORNEY
BECOME EMBROILED IN A CONTROVERSY BETWEEN THEMSELVES, AS IN ACTION FILED FOR PAYMENT
OF ATTORNEY’S FEES OR FOR DAMAGES AGAINST THE NEGLIGENCE OF THE ATTORNEY, THE PRIVILEGE
IS REMOVED FROM THE ATTORNEY’S LIPS.

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3.IF THE CLIENT AND THE LAWYER ACTED IN CONSPIRACY TO TRANSGRESS THE LAW, THE PRIVILEGE IS
NOT AVAILABLE. (JONES ON EVIDENCE)

4. NEITHER IS THE PRIVILEGE APPLICABLE TO INFORMATION GAINED BY THE ATTORNEY IN A

CAUSAL MANNER.

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;

THE RATIONALE FOR THIS EXCEPTION IS THAT 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 OF THE
PROFESSION. MOREOVER, WHEN AN ATTORNEY’S SERVICES ARE KNOWINGLY USED TO FURTHER A
CRIME OR FRAUD, SUCH ACTIVITY HARDLY QUALIFIES AS “PROFESSIONAL LEGAL SERVICES,” AN
ESSENTIAL ELEMENT OF THE PRIVILEGE. IF A CLIENT INTENDS TO USE THE ATTORNEY’S SERVICES TO
VIOLATE LEGAL OBLIGATION RATHER THAN COMPLY WITH THE LAW OR VINDICATE LEGALLY ARGUABLE
POSITIONS, THERE IS NO SOCIAL INTEREST IN PROTECTING CONFIDENTIALITY. THE FUTURE CRIME-
FRAUD EXCEPTION THUS MARKS THE BOUNDARIES OF PROPER ADVOCACY AND ENSURES AN
APPROPRIATE BALANCE BETWEEN THE DUTY TO A CLIENT AND THE BROADER INTERESTS OF SOCIETY
(MUELLER & KIRKPATRICK, SEC. 5.22)

CLAIMANTS THROUGH 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;

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. THE RATIONALE IS THAT 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

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PRESUMABLY FAVOR DISCLOSURE OF THE COMMUNICATIONS IN ORDER TO DISPOSE OF HIS ESTATE IN
ACCORD WITH HIS INTENTIONS. (MUELLER)

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;

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 THEIR
DISPUTE. THUS, IF THE CLIENT ALLEGES A BREACH OF DUTY ON THE PART OF THE LAWYER – E.G.,
PROFESSIONAL MALPRACTICE, INCOMPETENCE OR ETHICAL VIOLATIONS – OR A LAWYER SUES A CLIENT
FOR HIS FEE, THE LAWYER OR THE CLIENT MAY TESTIFY AS TO COMMUNICATIONS BETWEEN THEM
WHICH SHOULD OTHERWISE BE PRIVILEGED.

THIS “SELF-DEFENSE” EXCEPTION IS SOMETIMES JUSTIFIED ON THE THEORY THAT THE CLIENT
IMPLIEDLY “WAIVES” THE PRIVILEGE BY MAKING ALLEGATIONS OF BREACH OF DUTY AGAINST THE
LAWYER (MUELLER)

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

THE PRIVILEGE DOES NOT APPLY TO “A COMMUNICATION RELEVANT TO AN ISSUE

CONCERNING AN ATTESTED DOCUMENT TO WHICH THE LAWYER IS AN ATTESTING WITNESS.” THIS
SHOULD NOT BE REALLY BE AN EXCEPTION BECAUSE THE PRIVILEGE NEVER ARISES; A LAWYER WHO
ACTS AS AN ATTESTING WITNESS IS NOT PROVIDING PROFESSIONAL LEGAL SERVICES (MUELLER) 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 (LEMPERT &
SALTZBURG)

JOINT CLIENT. 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.

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 WHILE JOINT CLIENTS ARE WITHIN THE CLASS OF PERSONS TO WHOM OTHERWISE
CONFIDENTIAL COMMUNICATIONS CAN BE DISCLOSED WITHOUT DESTROYING CONFIDENTIALITY, IF
THEY HAVE A FALLING OUT, THE COMMUNICATIONS ARE NOT PRIVILEGED IN SUBSEQUENT LITIGATIONS
BETWEEN THEMSELVES, UNLESS THEY HAVE EXPRESSLY AGREED OTHERWISE.

THE TRADITIONAL ROLE FOR RECOGNIZING THIS EXCEPTION IS THAT 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 GENERALLY ARE NOT IN A POSITION TO KNOW
WHETHER SUBSEQUENT DISCLOSURE IN LITIGATION BETWEEN THEMSELVES WOULD BE TO THEIR
BENEFIT OR DETRIMENT. MOREOVER, THERE IS NO BASIS FOR FAVORING A JOINT CLIENT WHO SEEKS
TO ASSERT THE PRIVILEGE AS AGAINST A JOINT CLIENT WHO SEEKS TO WAIVE IT IN SUBSEQUENT
LITIGATIONS BETWEEN THEMSELVES. THEREFORE, AGREEING TO JOINT REPRESENTATION MEANS THAT
EACH JOINT CLIENT ACCEPTS THE RISK THAT ANOTHER JOINT CLIENT MAY LATER USE WHAT SHE SAID
TO THE LAWYER.

FORMS OF COMMUNICATION

THE PRIVILEGE IS NOT CONFINED TO VERBAL OR WRITTEN COMMUNICATIONS MADE BY THE

CLIENT TO HIS ATTORNEY BUT EXTENDS AS WELL TO INFORMATION COMMUNICATED BY THE CLIENT TO
THE ATTORNEY BY OTHER MEANS.

THUS, ACCORDING TO DEAN RIANO, THE COMMUNICATION MAY BE ORAL OR WRITTEN. IT IS

DEEMED TO EXTEND TO OTHER FORMS OF CONDUCT LIKE PHYSICAL DEMONSTRATION AS LONG AS
THEY ARE INTENDED TO BE CONFIDENTIAL. THE COMMUNICATION BETWEEN A CLIENT AND HIS
LAWYER IS NOT DEEMED LACKING IN CONFIDENTIALITY SOLELY BECAUSE THE COMMUNICATION IS
TRANSMITTED BY FACSIMILE, CELULLAR TELEPHONE OR OTHER ELECTRONIC MEANS.

DOES THE PRIVILEGE PRECLUDE INQUIRIES INTO THE FACT THAT THE LAWYER WAS CONSULTED?

THE TRADITIONAL AND STILL APPLICABLE RULE IS THAT AN INQUIRY INTO THE FACT OF
CONSULTATION OR EMPLOYMENT IS NOT PRIVILEGED. EVEN THE IDENTITY OF THE CLIENT IS NOT
PRIVILEGED AS WELL AS THAT OF THE LAWYER IS NOT PRIVILEGED (ESPEJO). THUS, A CLIENT MAY BE
INQUIRED AS TO THE FACT THAT HE ENGAGED THE SERVICES OF A LAWYER, OR WHEN DID HE DECIDE

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TO AVAIL OF THE LEGAL SERVICES OF A LAWYER. HE MAY ALSO BE ASKED TO REVEAL THE IDENTITY OF
HIS RETAINED LAWYER.

HOWEVER, UNDER THE LAST “LAST LINK DOCTRINE” NON-PRIVILEGED INFORMATION, SUCH AS
THE IDENTITY OF THE CLIENT, IS PROTECTED IF THE REVELATION OF SUCH INFORMATION WOULD
NECESSARILY REVEAL PRIVILEGED INFORMATION.

IN THE CASE OF TEODORO R. REGALA, ET.AL VS. SANDIGANBAYAN, ET. AL, G.R. NO. 105938,
SEPTEMBER 20, 1996, THE QUESTION NOW ARISES WHETHER OR NOT THIS DUTY MAY BE ASSERTED
IN REFUSING TO DISCLOSE THE NAME OF PETITIONERS’ CLIENT(S) IN THE CASE AT BAR. UNDER THE
FACTS AND CIRCUMSTANCES OBTAINING IN THE INSTANT CASE, THE ANSWER MUST BE IN THE
AFFIRMATIVE.

AS A MATTER OF PUBLIC POLICY, A CLIENT’S IDENTITY SHOULD NOT BE SHROUDED IN MYSTERY.

UNDER THIS PREMISE, THE GENERAL RULE IN OUR JURISDICTION AS WELL AS IN THE UNITED STATES IS
THAT A LAWYER MAY NOT INVOKED THE PRIVILEGE AND REFUSE TO DIVULGE THE NAME OR IDENTITY
OF HIS CLIENT.

THE REASON ADVANCED FOR THE GENERAL RULE ARE WELL ESTABLISHED:

1. THE COURT HAS A RIGHT TO KNOW THAT THE CLIENT WHOSE PRIVILEGED INFORMATION IS
SOUGHT TO BE PROTECTED IS FLESH AND BLOOD;
2. THE PRIVILEGE BEGINS TO EXIST ONLY AFTER THE ATTORNEY-CLIENT RELATIONSHIP HAS BEEN
ESTABLISHED. THE ATTORNEY-CLIENT PRIVILEGE DOES NOT ATTACH UNTIL THERE IS A CLIENT;
3. THE PRIVILEGE GENERALLY PERTAINS TO THE SUBJECT MATTER OF THE RELATIONSHIP;
4. DUE PROCESS CONSIDERATIONS REQUIRE THAT THE OPPOSING PARTY WOULD, AS A GENERAL
RULE, KNOW HIS ADVERSARY. “A PARTY SUING OR SUE IS ENTITLED TO KNOW WHO HIS
OPPONENT IS.” HE CANNOT BE OBLIGED TO GROPE IN THE DARK AGAINST UNKNOWN FORCES.

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 THE GENERAL RULE IS HOWEVER QUALIFIED BY SOME IMPORTANT EXCEPTIONS:

A. CLIENT IDENTITY IS PRIVILEGED WHERE A STRONG PROBABILITY EXISTS THAT REVEALING

THE CLIENT’S NAME WOULD IMPLICATE THAT CLIENT IN THE VERY ACTIVITY FOR WHICH HE
SOUGHT THE LAWYER’S ADVICE.
B. WHERE DISCLOSURE WOULD OPEN THE CLIENT TO CIVIL LIABILITY; HIS IDENTITY IS
PRIVILEGED.
C. WHERE THE GOVERNMENT’S LAWYER HAVE NO CASE AGAINST AN ATTORNEY’S CLIENT
UNLESS, BY REVEALING THE CLIENT’S NAME, THE SAID NAME WOULD FURNISH THE ONLY
LINK THAT WOULD FORM THE CHAIN OF TESTIMONY NECESSARY TO CONVICT AN
INDIVIDUAL OF A CRIME, THE CLIENT’S NAME IS PRIVILEGED. (ESPEJO)

THE PRIVILEGE IS OWNED BY THE CLIENT AND SURVIVES HIS DEATH

THE PRIVILEGE IS OWNS BY THE CLIENT AND THEREFORE, IT IS HE NOT HIS LAWYER, WHO CAN
INVOKE THE PRIVILEGE. CONFIDENTIAL COMMUNICATIONS CANNOT THUS BE DISCLOSED WITHOUT THE
CLIENT’S CONSENT. NO ONE ELSE, INCLUDING THE ATTORNEY HIMSELF AS A GENERAL RULE, CAN
INVOKE IT.

THE PRIVILEGE AS OWNED BY THE CLIENT, HOWEVER, CAN BE WAIVED. THUS, IF THE CLIENT IS
EXAMINED ABOUT HIS COMMUNICATIONS TO HIS LAWYER AND HE REVEALS THE SAME, THE
CONFIDENTIALITY OF THE COMMUNICATION IS WAIVED. THERE IS ALSO WAIVER IF THE CLIENT DOES
NOT OBJECT OR FAILS TO OBJECT TO HIS ATTORNEY’S TESTIMONY ON THE PRIVILEGED MATTERS.

THE PROTECTION OF THE PRIVILEGE WILL GENERALLY SURVIVE THE DEATH OF THE CLIENT.
HOWEVER, THERE HAD BEEN CASES WHERE THE PRIVILEGE WAS NOT MADE TO APPLY IN CASES
INVOLVING THE VALIDITY OR INTERPRETATION OF THE CLIENT’S WILL. WHERE THERE IS AN ATTACK ON
THE VALIDITY OF THE WILL, COMMUNICATIONS MADE TO THE ATTORNEY ON THE DRAWING OF THE
WILL, WHILE CONFIDENTIAL DURING THE LIFETIME OF THE CLIENT ARE NOT INTENDED TO REQUIRE
SECRECY AFTER HIS DEATH. (ESPEJO)

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DERIVATIVE PRIVILEGE

THE STATEMENTS OF THE CLIENT NEED NOT HAVE BEEN MADE TO THE ATTORNEY IN PERSON.
THOSE MADE TO THE ATTORNEY’S SECRETARY, CLERK OR STENOGRAPHER FOR TRANSMISSION TO THE
ATTORNEY FOR THE PURPOSE OF THE PROFESSIONAL RELATIONSHIP OR WITH A VIEW TO SUCH
RELATIONSHIP OR THE KNOWLEDGE ACQUIRED BY SUCH EMPLOYEES IN SUCH CAPACITY ARE COVERED
BY THE PRIVILEGE. LIKE THE ATTORNEY, THEIR EMPLOYER, THESE PERSONS CANNOT BE EXAMINED AS
TO THE COMMUNICATION MADE BY THE CLIENT OR THE ADVICE GIVEN BY THE ATTORNEY WITHOUT
THE CLIENT’S CONSENT. THE PRIVILEGE IS ALSO CLAIMABLE AGAINST THE ATTORNEY’S PARTNERS AND
ASSOCIATES. (ESPEJO)

© 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.

PHYSICIAN – PATIENT PRIVILEGE

THE ARGUMENT HAS BEEN ADVANCED THAT SINCE THE SECRETS OF THE LEGAL PROFESSION
ARE ALLOWED TO BE INVIOLABLE, THE SECRETS OF THE MEDICAL PROFESSION HAVE AT LEAST AN

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EQUAL TITLE OR CONSIDERATION. YET, THE FUNCTION OF THE TWO (2) PROFESSIONS ARE DISTINCT;
THE SERVICES OF AN ATTORNEY ARE SOUGHT PRIMARILY IN AID IN LITIGATION, ACTUAL OR EXPECTED,
THAT ENTAILS DISCLOSURE WHILE THOSE OF THE PHYSICIAN ARE SOUGHT FOR PHYSICAL CARE,
IRRESPECTIVE OF VERBAL OR WRITTEN CONTACT. (RULING CASE LAW)

THE PHYSICIAN- PATIENT ALSO APPLIES TO 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.

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, PSYCHIATRIST NOT ONLY EXPLORE THE VERY DEPTHS OF THEIR PATIENT’S CONSCIOUS
BUT THEIR UNCONSCIOUS FEELINGS AND ATTITUDES AS WELL (LEMPERT) MATTERS DISCLOSED IN
PSYCHOTHERAPY ARE OFTEN MORE PERSONAL AND MORE LIKELY TO CAUSES EMBARRASSMENT THAN
MATTERS DISCLOSED TO A PHYSICIAN, LEADING SOME TO CONCLUDE THAT THE PRIVILEGE HAS A
CONSTITUTIONAL BASIS IN THEIR RIGHT TO PRIVACY. SOCIETY HAS AN INTEREST IN THE SUCCESSFUL
TREATMENT OF PERSON WHO MIGHT POSE A DANGER TO THE COMMUNITY BECAUSE OF THEIR
MENTAL ILLNESS. PERSON IN NEED OF PSYCHOTHERAPY GENERALLY REQUIRE INCENTIVE TO DISCLOSE
THAN PERSONS SEEKING MEDICAL ATTENTION FOR AN INJURY OR ILLNESS. (PERALTA)

THIS RULE ON THE PHYSICIAN-PATIENT PRIVILEGE IS INTENDED TO FACILITATE AND MAKE SAFE
AND CONFIDENTIAL DISCLOSURE BY THE PATIENT TO THE PHYSICIAN OF ALL FACTS, CIRCUMSTANCES
AND SYMPTOMS, UNTRAMMELED BY APPREHENSION OF THEIR SUBSEQUENT AND ENFORCED
DISCLOSURE AND PUBLICATION ON THE WITNESS STAND, TO THE END THAT THE PHYSICIAN MAY FORM
A CORRECT OPINION, AND BE ENABLED SAFELY AND EFFICACIOUSLY TO TREAT HIS PATIENT
(FRANCISCO) IT RESTS IN PUBLIC POLICY AND IS FOR THE GENERAL INTEREST OF THE COMMUNITY.
(ESPEJO)

THIS PRIVILEGE APPLIES TO A CIVIL CASE, WHETHER THE PATIENT IS A PARTY OR NOT. THE RULE
IMPLIES THAT THE PRIVILEGE CANNOT BE CLAIMED IN A CRIMINAL CASE PRESUMABLY BECAUSE THE
INTEREST OF THE PUBLIC IN CRIMINAL PROSECUTION SHOULD BE DEEMED MORE IMPORTANT THAN
THE SECRECY OF THE COMMUNICATION.

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REQUISITES:

1. THE PRIVILEGE IS CLAIMED IN A CIVIL CASE;

2. THE PERSON AGAINST WHOM THE PRIVILEGE IS CLAIMED IS ONE DULY AUTHORIZED TO
PRACTICE MEDICINE, OR PSYCHOTHERAPIST;
3. SUCH PERSON ACQUIRED THE INFORMATION WHILE HE WAS ATTENDING TO THE PATIENT IN
HIS PROFESSIONAL CAPACITY;
4. THE INFORMATION WAS NECESSARY TO ENABLE HIM TO ACT IN THAT CAPACITY.

THE PERSON AGAINST WHOM THE PRIVILEGE IS CLAIMED IS A PERSON DULY AUTHORIZED TO
PRACTICE MEDICINE, OR PSYCHOTHERAPIST.

THE INFORMATION CANNOT BE DISCLOSED REFERS TO:

A. ANY ADVICE GIVEN TO THE CLIENT;

B. ANY TREATMENT GIVEN TO THE CLIENT;
C. ANY INFORMATION ACQUIRED IN ATTENDING SUCH PATIENT PROVIDED THAT THE ADVICE,
TREATMENT OR INFORMATION WAS MADE OR ACQUIRED IN A PROFESSIONAL CAPACITY AND
WAS NECESSARY TO ENABLE HIM TO ACT IN THAT CAPACITY;

BAR 2018

Dodo was knocked unconscious in a fist fight with Dindo. He was rushed to
the emergency room of the Medical City where he was examined and treated by
Dr. Datu. As he was being examined, a plastic sachet appearing to
contain shabu fell from Dodo's jacket which was on a chair beside him. Dodo was
thus arrested by the same policemen who assisted him to the hospital. At Dodo's
trial, the public prosecutor called Dr. Datu to the witness stand. When the public
prosecutor asked Dr. Datu as to what he saw in the emergency room, Dodo's
counsel objected, claiming doctor-patient privilege rule. How would you rule on
the objection?

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 THE PRIVILEGE DOES NOT APPLY TO SHIELD THE COMMISSION OF A CRIME OR WHEN THE
PURPOSE IS AN UNLAWFUL ONE AS TO OBTAIN NARCOTICS OR PROHIBITED DRUGS IN VIOLATION OF
LAW BECAUSE THERE IS NO TREATMENT INVOLVED.

SIMILARLY, WHERE THE PURPOSE IS TO ASK A PHYSICIAN TO HAVE ONE’S APPEARANCE

DISGUISED BY COSMETIC OR PLASTIC SURGERY TO ESCAPE APPREHENSION, THE PRIVILEGE DOES NOT
APPLY.

THE PRIVILEGE SURVIVES THE DEATH OF THE PATIENT. DEATH DOES NOT PERMIT THE LIVING TO
IMPAIR THE DECEASED’S NAME BY DISCLOSING COMMUNICATION HELD CONFIDENTIAL BY LAW.

PRIVILEGE APPLIES ALSO TO MEDICAL RECORDS

THE PHYSICIAN-PATIENT PRIVILEGED COMMUNICATION RULE ESSENTIALLY MEANS THAT A

PHYSICIAN WHO GETS INFORMATION WHILE PROFESSIONAL ATTENDING A PATIENT CANNOT IN A CIVIL
CASE BE EXAMINED WITHOUT THE PATIENT’S CONSENT AS TO ANY CONFIDENTIAL COMMUNICATIONS
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.

TO ALLOW, HOWEVER, THE DISCLOSURE DURING DISCOVERY PROCEDURE OF THE HOSPITAL

RECORDS – THE RESULTS OF TESTS THAT THE PHYSICIAN ORDERED, THE DIAGNOSIS OF THE PATIENT’S
ILLNESS, AND THE ADVICE OR TREATMENT HE GAVE HIM – WOULD BE TO ALLOW ACCESS TO EVIDENCE
THAT IS INADMISSIBLE WITHOUT THE PATIENT’S CONSENT. PHYSICIAN MEMORIALIZES ALL THESE
INFORMATION IN THE PATIENT’S RECORDS. DISCLOSING THEM WOULD BE THE EQUIVALENT OF
COMPELLING THE PHYSICIAN TO TESTIFY ON PRIVILEGED MATTERS HE GAINED WHILE DEALING WITH
THE PATIENT, WITHOUT THE LATTER’S PRIOR CONSENT.

RELEVANT PRINCIPLES

1. IT IS TO BE EMPHASIZED THAT “IT IS THE TENOR ONLY OF THE COMMUNICATION THAT IS

PRIVILEGED. THE MERE FACT OF MAKING A COMMUNICATION, AS WELL AS THE DATE OF A
CONSULTATION AND THE NUMBER OF CONSULTATION, ARE THEREFORE NOT PRIVILEGED
FROM DISCLOSURE, SO LONG AS THE SUBJECT COMMUNICATED IS NOT STATED.” (WIGMORE)

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 2. ONE WHO CLAIMS THIS PRIVILEGE MUST PROVE THE PRESENCE OF THE REQUISITES;
3. THE PRIVILEGE IS INAPPLICABLE IF;

A. COMMUNICATION NOT GIVEN IN CONFIDENCE;

B. COMMUNICATION IS IRRELEVANT TO THE PROFESSIONAL EMPLOYMENT.
C. COMMUNICATION WAS MADE FOR AN UNLAWFUL PURPOSE, AS WHEN IT IS INTENDED FOR
THE COMMISSION OR CONCEALMENT OF A CRIME.
D. INFORMATION WAS INTENDED TO BE MADE PUBLIC.
E. THERE WAS A WAIVER OF THE PRIVILEGE EITHER BY PROVISIONS OF CONTRACT OR LAW.
THIS PRIVILEGE BELONGS TO THE PATIENT, SO THAT IT IS ONLY HE THAT CAN CLAIM OR
WAIVE IT, WHETHER EXPRESSLY OR IMPLIEDLY.

(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.

PRIEST – PENITENT RULE

AS PRESENTLY PHRASED, LIMITS THE PRIVILEGE TO “PENITENTIAL COMMUNICATIONS” MADE

TO A MINISTER OR PRIEST IN THE COURSE OF DISCIPLINE ENJOINED BY THE CHURCH TO WHICH THE
PRIEST OR MINISTER BELONGS.

THE PRIVILEGE SEEMS TO EMBRACE ANY CONFIDENTIAL COMMUNICATION BY A PERSON TO A

MINISTER OR PRIEST IN HIS PROFESSIONAL CHARACTER AS A SPIRITUAL ADVISOR. THUS, IT AMENDED
THE PHRASE “PERSON MAKING THE CONFESSION” TO “AFFECTED PERSON” AND ADDED THE WORD
“COMMUNICATION” TO EMBRACE NON-PENITENTIAL COMMUNICATIONS MADE TO A MINISTER OR
PRIEST AS SPIRITUAL ADVISOR. (PERALTA)

THE PRIEST-PENITENT PRIVILEGE, ALSO KNOWN AS THE CLERGY-PENITENT PRIVILEGE, CLERGY

PRIVILEGE, CONFESSIONAL PRIVILEGE, CLERGYMAN-COMMUNICANT PRIVILEGE, OR ECCLESIASTICAL

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PRIVILEGE, IS AN APPLICATION OF THE PRINCIPLE OF PRIVILEGED COMMUNICATION THAT PROTECTS
THE CONTENTS OF COMMUNICATIONS BETWEEN A MEMBER OF THE CLERGY AND A PENITENT, WHO
SHARES INFORMATION IN CONFIDENCE. IT STEMS FROM THE PRINCIPLE OF THE SEAL OF
CONFESSIONAL. (ESPEJO)

COMMUNICATIONS ARE MADE BY A PERSON TO A PRIEST, RABBI, CLERIC, OR MINISTER IN THE

COURSE OF CONFESSION. OR SIMILAR COURSE OF DISCIPLINE BY OTHER RELIGIOUS BODIES THAT ARE
PRIVILEGED FROM DISCLOSURE. THE COMMUNICATIONS TO CLERGY MEMBERS MUST BE MADE WHILE
CLERGY MEMBERS ARE ACTING IN THE PROFESSIONAL CAPACITY AS A SPIRITUAL ADVISER. AND WITH
THE PURPOSE OF DISPENSING RELIGIOUS COUNSEL, ADVICE, SOLACE, OR ABSOLUTION. UNDER CANON
LAW, PRIESTS MAY NOT REVEAL WHAT THEY HAVE LEARNED DURING CONFESSION TO ANYONE, EVEN
UNDER THREAT OF THEIR OWN DEATH OR THAT OF OTHERS. FOR A PRIEST TO BREAK CONFIDENTIALITY
WOULD LEAD TO A LATAE SENTENTIAE (AUTOMATIC) EXCOMMUNICATION, THE LIFTING OF WHICH IS
RESERVED TO THE POPE HIMSELF (CODE OF CANON LAW) (ESPEJO)

REQUISITES:

1. THE PERSON AGAINST WHOM THE PRIVILEGE IS CLAIMED IS A DULY ORDAINED MINISTER OR
PRIEST OR PERSON REASONABLY BELIEVED TO BE SO;

2. SUCH MINISTER OR PRIEST MUST HAVE HEARD THE PENITENT OR COMMUNICANT’S

CONFESSION OR GAVE HIM ADVICE WHILE HE WAS ATTENDING TO SUCH PENITENT OR
COMMUNICANT IN HIS PROFESSIONAL CAPACITY;

3. SUCH MINISTER OR PRIEST MUST HAVE ACTED IN THE COURSE OF DISCIPLINE ENJOINED BY THE
CHURCH TO WHICH THE MINISTER OR PRIEST BELONGS. (ESPEJO)

THE PERSON MAKING THE CONFESSION HOLDS THE PRIVILEGE AND THE PRIEST OR MINISTER
HEARING THE CONFESSION IN HIS PROFESSIONAL CAPACITY IS PROHIBITED FROM A MAKING A
DISCLOSURE OF THE CONFESSION WITHOUT THE CONSENT OF THE PERSON CONFESSING.

THE PRIVILEGE ALSO EXTENDS NOT ONLY TO A CONFESSION MADE BY THE PENITENT BUT ALSO
TO ANY ADVICE GIVEN BY THE PRIEST OR MINISTER. THE CONFESSION AND THE ADVICE MUST HAVE

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BEEN MADE OR GIVEN PURSUANT TO THE COURSE OF DISCIPLINE OF THE DENOMINATION OR SECT TO
WHICH THE MINISTER OR PRIEST BELONGS.

TAKE NOTE THAT NOT EVERY COMMUNICATION MADE TO A MINISTER OR PRIEST IS

PRIVILEGED. THE COMMUNICATION MUST BE MADE PURSUANT, TO CONFESSIONS OF SINS
(WIGMORE). AS CLEARLY PROVIDED IN THE RULE, THE ADVICE GIVEN AS A RESULT OF THE
CONFESSION, MUST BE MADE IN THE MINISTER’S “PROFESSIONAL CHARACTER” OR IN HIS ‘SPIRITUAL”
CAPACITY. ACCORDINGLY, WHERE THE PENITENT DISCUSSED BUSINESS ARRANGEMENTS WITH THE
PRIEST, THE PRIVILEGE DOES NOT APPLY.

(D)A PUBLIC OFFICER CANNOT BE EXAMINED DURING HIS TERM OF OFFICE OR AFTERWARDS , AS TO
COMMUNICATIONS MADE TO HIM OR HER IN OFFICIAL CONFIDENCE, WHEN THE COURT FINDS
THAT THE PUBLIC INTEREST WOULD SUFFER BY THE DISCLOSURE.

PUBLIC OFFICER

COMMUNICATION MADE TO A PUBLIC OFFICER IN OFFICIAL CONFIDENCE, ARE PRIVILEGED

WHEN THE COURT FINDS THAT THE DISCLOSURE WOULD ADVERSELY AFFECT THE PUBLIC INTEREST. IT
IS THE INTEREST OF THE PUBLIC THAT IS SOUGHT TO BE PROTECTED BY THE RULE. HENCE, THE
DISCLOSURE OR NON-DISCLOSURE IS NOT DEPENDENT ON THE WILL OF THE OFFICER BUT ON THE
DETERMINATION BY A COMPETENT COURT.

REQUISITES:

1. IT WAS MADE TO THE PUBLIC OFFICER IN OFFICIAL CONFIDENCE; AND

2. PUBLIC INTEREST WOULD SUFFER BY THE DISCLOSURE OF THE COMMUNICATION (AS IN THE
CASE OF STATE’S SECRETS). WHERE NO PUBLIC INTEREST WOULD BE PREJUDICED, THE RULE
DOES NOT APPLY (BANCO FILIPINO VS. MONETARY BOARD, G.R. NO. 70054, JULY 8, 1986)

NATIONAL SECURITY MATTERS AND STATE SECRETS ARE OF COURSE, CONFIDENTIAL AND A
COURT WILL MOST LIKELY UPHOLD THE PRIVILEGE.

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PUBLIC OFFICERS COVERED

The privilege only applies to communications to such officers who have a

responsibility or duty to investigate or to prevent public wrongs, and not official in
general. The court, not the witness, will determine the necessity of regarding the
communications as privileged.

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.

Unlike the previous rule on privileged communication, 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.

2.TESTIMONIAL PRIVILEGE

Sec. 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.

Parental and Filial Privilege

Two privileges are embodied in Section 25 of Rule 130, namely: (a) the
parental privilege rule; and (b) the filial privilege rule. Under the parental privilege
rule, a parent cannot be compelled to testify against his child or direct
descendants, while under the filial privilege rule, a child MAY not be compelled to
testify against his parents or direct ascendants.

A person however, may testify against his parents or children

VOLUNTARILY but if he refuses to do so, the rule protects him from any

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compulsion. Said rule applies to both criminal and civil cases since the rule makes
no distinction.

Section 25, Rule 130, was designed to preserve “family cohesion.” 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.

Rule under the Family Code

Article 215. No descendant shall be compelled, in a criminal case, to testify

against his parents and grandparents, except when such testimony is
indispensable in a crime against the descendant or by one parent against the
other.

DISTINCTIONS BETWEEN SECTION 25 AND ARTICLE 215

Section 25

1. Applies in any case, civil or criminal.

2. Prohibits compelled testimony against both ascendants and descendants.

Article 215

1. Applies in criminal cases only.

2. Prohibits compelled testimony against ascendants only.
3. Exceptions consist in testimony deemed indispensable in a crime against
the descendant or by one parent against the other.

RELATIVES WHO MAY BE COMPELLED TO TESTIFY

1. Relatives by affinity.

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 2. Brothers and sisters.
3. Aunts, uncles, nephews, nieces.
4. Cousins of whatever degree; and
5. Other collateral relatives.

DOES THE PRIVILEGE EXTEND TO ADOPTIVE FILIATION?

It is believed that adoptive relationships are covered by the parental and

filial testimonial privilege rule but only insofar as the adoptive parent and
adopted child is concerned. It does not extend to the direct ascendants of the
adopter because the adoptive relation is between the adopter and the adopted
child only. The fiction of legitimate filiation is between the adopting parent and
the adopted child and does not extend to other ascendants or descendants.

In one case, the Supreme Court ruled that the privilege cannot apply to
stepmother 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. (Emma Lee vs. CA, G.R. No. 177861, July
13, 2010.)

BAR 2019

In a case for Attempted Parricide brought against Mr. M by his wife, Mrs. N,
their son, C, was called as a witness for the prosecution. Mr. M's counsel
objected, invoking the filial privilege rule.

Meanwhile, in a separate case for Serious Physical Injuries also brought

against Mr. M, but this time by his son, C, Mrs. N was called to testify against Mr.
M. Mr. M's counsel objected, invoking the marital disqualification rule.

Should the objections of Mr. M's counsel in both cases be sustained?

Explain.

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OTHER PRIVILEGED MATTERS:

1. Editors may not be compelled to disclose the source of published news;

2. Voters may not be compelled to disclose for whom they voted;
3. Trade secrets;
4. Information contained in tax census returns; and
5. Bank deposits.

Sec. 26. PRIVILEGE RELATING TO TRADE SECRETS – A PERSON CANNOT BE

COMPELLED TO TESTIFY ABOUT ANY TRADE SECRET, UNLESS THE 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.

Privilege Relating to Trade Secrets

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. When
constrained to reveal trade secrets, the court must utilize measures to protect the
owner of the trade secrets and of the parties as justice may require.

This situation usually covers formulas of manufacture, but may also include
price lists and customer’s lists. But the privilege is not absolute; the trial court
may compel disclosure where it is indispensable for doing justice. (Peralta)

3.ADMISSIONS AND CONFESSIONS

Sec. 27. Admissions 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.

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Admissions of a Party

This refers to an extrajudicial admission.

An admission is an act, declaration or omission of a party to a relevant fact

which may be given in evidence against him. It may be given by a party (in which
case, Section 26, Rule 130 will be applicable) or by a third party (in which case,
Section 28, Rule 130 will be applicable, subject to the exceptions found in Sections
2 and 31).

ACT – This is exemplified in Section 27. In criminal cases, the act of offering a
compromise by the accused may be taken as an implied admission of guilt.

DECLARATION – This means any statement regarding a relevant fact.

OMISSION – This means a failure to act or make a declaration when one ought to,
and this is exemplified by the so called “admission by silence.”

ADMISSION CONFESSION
Statement of fact which does not Involves acknowledgment of guilt or
involve an acknowledgment of guilt liability
or liability
May be express or tacit Must be express
May be made by third persons, and Can be made only by the party
in certain cases, are admissible himself, and in some cases, are
against a party admissible against his co-accused

NOTE: If a justification is alleged, it is merely an admission.

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Concept of Admission

An admission is any statement of fact made by a party against his interest

or unfavorable to the conclusion for which he contends or is inconsistent with the
facts alleged by him. (Regalado)

Admission by declaration refers to any extra-judicial verbal or written

statement relevant to the fact in issue that is inconsistent with the subsequent
stance of the one who asserts. (Francisco)

Often times, admissions are associated with confessions, concessions or

voluntary acknowledgements made by a party of the existence of certain facts.
More accurately regarded, admissions are statements by a party, or someone
identified with him in legal interest, of the existence of a fact which is relevant to
the cause of his adversary and against the interest of his adversary.

ADMISSIONS, CONFESSIONS AND THE RES INTER ALIOS ACTA RULE

Concept of Admissions and Confessions

Admission is an act, declaration or omission of a party to a relevant fact. It

is a voluntary acknowledgement made by a party of the existence of the truth of
certain facts which are inconsistent with his claims in an action.

In a Confession, there is an acknowledgement of guilt. A confession is the

declaration of an accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein.

An admission in a general sense includes confessions, the former being a

broader term because accordingly, a confession is also an “admission by the
accused of the fact charged against him or of some fact essential to the charge.

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 An admission may be implied like an admission by silence. A confession
cannot be implied. It should be a direct and positive acknowledgment of guilt.

CLASSIFICATION OF ADMISSIONS AND CONFESSIONS

An admission may be express or implied

An admission may be judicial or extrajudicial

An admission may also be adoptive.

EFFECT OF EXTRAJUDICIAL CONFESSION OF GUILT; CORPUS DELICTI

While a judicial confession may sustain a conviction, an extrajudicial

confession is not sufficient for conviction. The rule requires that the confession be
corroborated by evidence of corpus delicti. Corpus delicti is the “body of the
crime” or the offense. Strictly speaking, it means the actual commission of the
crime and someone criminally responsible therefore.

THE RULE ON EXTRAJUDICIAL CONFESSION

The rule on extrajudicial confession in the Rules of Court must be

considered together with applicable constitutional and substantive laws which
must be complied with for the confession to be admissible. For instance, Sec. 2 (d)
of Republic Act No. 7438 (Act Defining Rights of Persons, Arrested, Detained or
Under Custodial Investigation), provides:

“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 xxxx otherwise, such extrajudicial confession shall be
inadmissible as evidence in any proceeding.”

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REQUISITES FOR THE ADMISSIBILITY OF EXTRAJUDICIAL CONFESSIONS

1. Must involve an express and categorical acknowledgement of guilt;

2. The facts admitted must be constitutive of a criminal offense;
3. Must have been given voluntarily;
4. Must have been made intelligently;
5. Must have been made with the assistance of competent and independent
counsel.

The above rights refer to an extrajudicial confession of a person arrested,

detained or is under custodial investigation because a confession made by the
accused before he is placed under custodial investigation need not comply with
above.

If he talks to a person in a private meeting with for instance, a municipal

mayor spontaneously, fully and voluntarily confessing the commission of a crime,
the constitutional requirements in a custodial investigation do not apply.

CUSTODIAL INVESTIGATION DEFINED

Custodial investigation has been described as one which involves 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.

Note that RA 7438 has extended the meaning of “custodial investigation” to

include the practice of issuing an invitation to a person who is investigated in
connection with an offense he is suspected to have committed.

2010 BAR

Policemen brought Lorenzo to the Philippine General Hospital (PGH) and

requested one of its surgeons to immediately perform surgery on him to retrieve
a packet of 10 grams of shabu which they alleged was swallowed by Lorenzo.

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 Suppose the PGH agreed to, and did perform the surgery, is the package of
shabu admissible in evidence? Explain.

Suggested answer

NO, the package of shabu extracted from the body of the Lorenzo is not
admissible in evidence because it was obtained through surgery which connotes
forcible invasion into the body of Lorenzo without his consent and absent due
process. The act of the policemen and the PGH surgeon involved, violate the
fundamental rights of Lorenzo, the suspect.

Suggested answer

Yes, it is admissible in evidence because the constitutional right against

self-incrimination is addressed only to extracting admission of guilt from the lips
of the suspect where otherwise no incriminating evidence exists.

In the past, the Supreme Court has already declared many invasive and
involuntary procedures (i.e., examination of women’s genitalia, expulsion of
morphine from one’s mouth, DNA testing) as constitutionally sound (See Agusting
v. CA, G.R. No. 162571, June 15, 2005)

BAR 2010

X was arrested for the alleged murder of 6-year old lad. He was read his
Miranda rights immediately upon being apprehended.

In the course of his detention, X was subjected to three- hours of non-stop

interrogation. He remained quiet until, on the 3rd hour, he answered “yes” to the
question of whether “he prayed for forgiveness for shooting down the boy.” The
trial court, interpreting X’s answer as an admission of guilt, convicted him.

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 On appeal, X’s counsel faulted the trial court in its interpretation of his
client’s answer, arguing that X invoked his Miranda rights when he remained
quiet for the first two hours of questioning. Rule on the assignment of error.

Suggested answer

The assignment of error invoked by X’s counsel is impressed with merit

since there has been no express waiver of X’s Miranda rights. In order to have a
valid waiver of the Miranda rights, the same must be in writing and made in the
presence of his counsel. The uncounselled extrajudicial confession of X being
without a valid waiver of his Miranda rights, is inadmissible, as well as any
information derived therefrom.

Admission and Self-serving declaration

If an extra-judicial statement that is prejudicial to a declarant can be

received in evidence against him by sheer force of an extrajudicial admission in
Section 26, Rule 130, it does not, perforce, mean that a similar extra-judicial
statement that is favorable to a declarant can likewise be accepted as evidence.

Admission and Declaration Against Interest

There are four (4) distinctions between an extra-judicial statement and a

declaration against interest:

1. An extra-judicial admission is contemplated by Section 26, Rule 130 of the

Revised Rules on Evidence while a declaration against interest is an
exception to the hearsay evidence rule in Section 38, Rule 130;

2. An extra-judicial admission can be made at any time but a declaration

against interest must be made ante litem motam;

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 3. An extra-judicial admission is made by a party himself and is primary
evidence. Nay, substantive and not merely as impeaching testimony, as
well as competent despite the presence and willingness of a party to testify
as distinguished from a declaration against interest that must come from
either a person deceased or is unable to testify; and

4. An extra-judicial admission need not be against proprietary or penal

interest while a declaration against interest must have been made against
the proprietary or penal interest (Jones on Evidence)

Typical examples of an act tantamount to an extrajudicial admission include:

1. Flight
2. Escape
3. Resistance, or Concealment
4. Fabrication and
5. Suppression of evidence

Sec. 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 OR
STATEMENTS MADE IN COMPROMISE NEGOTIATIONS ADMISISBLE, 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.

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Offer of Compromise Not Admissible

The new rule will enable lawyers and parties to negotiate more freely
without concern that their conduct or statements will later be received into
evidence as admissions. Under the existing Section 27, Rule 130, only the actual
compromise offer and those statements inextricably linked with the offer are
protected. The proposed rule does not exclude admissibility of an offer of
compromise for all purposes. The exclusionary rule is designed the exclude the
offer of compromise only when it is tendered as an admission of the weakness of
the offering party’s claim or defense, not when the purpose is otherwise. The rule
suggests some of the purposes for which evidence of an offer to compromise may
be admitted, to wit, proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution. (Peralta)

Philippine civil law is instructive that a compromise is a contract whereby

the parties, by making reciprocal concessions, avoid a litigation or put an end to
one already commence. Just like any other covenant, the parties do not enjoy full
autonomy since their stipulations are always subject to guidelines specified by law
such as Article 2034 and 2035 of the substantive law. (Jones on evidence)

Even an attempt to compromise the criminal case is an implied admission

of guilt. If negotiation is allowed by law, like violation of an internal revenue tax
except when already filed in court and involving fraud, or in quasi-offense of
criminal negligence under Article 365 of the RPC, an offer to compromise by the
accused may not be received as an implied admission of guilt (Peralta Jr)

Amount to an Implied Admission of Guilt

1. An offer to compromise for a monetary consideration, and not to marry the

victim;
2. An attempt of the parents of the accused to settle the case with the
complainant;
3. An offer to marry the victim during the investigation of the rape case
(Regalado)

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 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.

The underlying purpose of the existing rule making a plea of guilty later
withdrawn or an unaccepted offer of a plea of guilty to a lesser offense
inadmissible is to encourage and protect plea discussions or bargaining, which is a
vital aspect of the criminal justice system. To promote this objective, the
amendment renders any statement made in the course of plea discussions
inadmissible against the defendant, at least where those discussions fail to
produce agreement or lead to pleas later withdrawn. It will allow attorneys and
defendants to negotiate freely with the prosecution without concern that, if the
case ultimately goes to trial, their factual statements will be received as
admissions against the defendant (Mueller)

This will not elicit an implied admission of guilt since they are integral
portions of plea bargaining in Section 1 (f), Rule 116 and Section 1 and 2, rule 118
of the Revised Rules on Criminal Procedure. (Peralta Jr)

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.

This is to recognize humanitarian acts or charitable responses that should

be encouraged instead of branding such actuation as indicative of civil or criminal
liability for the injury (Peralta Jr)

There is the so-called Good Samaritan Rule providing that 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.

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 In summary, the following are not admissions of liability or guilt and are
therefore not admissible in evidence:

1. Plea of guilty later withdrawn;

2. Unaccepted offer of plea of guilty to a lesser offense; and
3. Offer to pay or payment of medical, hospital or other expenses occasioned
by an injury.

Sec. 29. Admission by third party. – the rights of a third party cannot be
prejudiced by an act, declaration or omission of another, except as hereinafter
provided.

Admission by Third Party

The expression if fully expressed reads: res inter alios acta alteri nocere
debet which literally means “things done between strangers ought not to injure
those that are not parties to them.”

Simply put, an extra-judicial admission can be received against him but its
prejudicial consequence cannot expand to another party, unless there is a judicial
link between them, on account of the general hindrance in Section 28, Rule 130.

The Science of the Rule

The reason for the rule is that, on a principle of good faith and mutual
convenience, a man’s own acts are binding upon himself, and are evidence
against him, but not as against a third person. It would be not only 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.
(Agpalo)

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The res inter alios acta rule has two branches, namely:

(a) The rule that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another (Sec. 28, Rule 130)

(b) The rule that evidence of previous conduct or similar acts at one time is not
admissible to prove that one did or did not do the same act at another time
(Sec. 34, Rule 132)

FIRST BRANCH

The first branch is a very simple and logical rule which holds that whatever
one says or does or omits to do should only affect him but should not affect or
prejudice others. In other words, both common reason and fairness demand that
a man’s actions and declarations should affect him alone and should not affect
others.

Simply put, statements made or matters accomplished between two

parties cannot prejudice a third part.

Or the rights of a party cannot be prejudiced by an act, declaration or

omission of another, except on some well-settled instances.

Thus, if Andres makes a statement before the media admitting his

participation in a previous murder, his statement is admissible against him under
Sec. 26 of Rule 130. The rest of his statement pointing to Braulio and Cardo as co-
participants in the murder are not admissible against Braulio and Cardo under the
first branch of the res inter alios acta rule in Sec. 28 of Rule 130. Under this rule,
the statement of Andres should not affect or prejudice Braulio and Cardo.

The above rule has reference only to extrajudicial declarations. Hence,

statements made in open court by a witness implicating persons aside from his
own judicial admissions, are admissible as declarations from one who has
personal knowledge of the facts testified to.

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BAR 2003

X and Y were charged for murder. Upon application of the prosecution, Y

was discharged from the information to be utilized as a state witness. The
prosecution presented Y as witness but forgot to state the purpose of his
testimony much less offer it in evidence. Y testified that he and X conspired to kill
the victim but it was X who actually shot the victim. The testimony of Y was the
only material evidence establishing the guilt of X. Y was thoroughly cross
examined by the defense counsel. After the prosecution rested its case, the
defense filed a motion to demurrer to evidence based on the following grounds:

1. That Y’s testimony is not admissible against X pursuant to the rule on res
inter alios acta.

Rule on the motion.

Suggested Answer:

The demurrer to evidence should be denied. The reliance on the rule on res
inter alios acta is misplaced. The rule applies only to extrajudicial declarations and
not to statements made in open court. Y testified as a witness and was in fact,
cross-examined.

Exclusionary Clause

Given the exclusionary clause in Section 28, Rule 130, a party can be
affected by another in view of the cohesive interest that characterizes the
relationship arising from a vicarious admission of: (1) a co-partner; (2) an agent;
(3) a joint owner, or debtor, or one jointly interested; (4) a conspirator; and (5) a
privy. (Peralta Jr)

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VICARIOUS ADMISSIONS – The rights of a party may be prejudiced by the act,
declaration or omission of another when between the party making the admission
and against whom it is offered there exists a relation of:

(a) Partnership
(b) Agency
(c) Joint interest
(d) Conspiracy or
(e) Privity

Sec. 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.

Admission by Co-partner or Agent

Whatever is said by an agent to a third person, during the course of the

agency and within the scope of his actual or apparent authority, relative to the
business contemplated by the agency, is for legal purpose also statement of the
principal and is therefore, admissible against said principal.

The relationship among partners is on the same footing with the

relationship of an agent to his principal. Both contracts of agency and partnership
involve fiduciary relationships. Under the law (Art. 1818 CCP), every partner is an
agent of the partnership for the purpose of its business and the act of the partner
in carrying out the usual business binds the partnership as a rule. Hence, under
the same principle governing agency, the declaration of a partner may be
admissible against the other partners or the partnership.

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Philosophy of the Rule

The admissions of one partner are received against another on the ground
that they are identified in interest and that each is agent for the other. (Martin)

To render the declarations of one partner admissible against the firm and
the co-partners, it must appear that the declarant was acting as a partner about
partnership affairs, or that the admission was made in relation to matters within
the scope of the partnership.

However, not every declaration or act made or done by a partner or agent

is admissible against the other partners or the principal. For the admission of a co-
partner or agent to be admissible, the following must concur:

1. The declaration or act of the partner or agent must have been made or
done within the scope of his authority, and authorized by the party to make
a statement concerning the subject;
2. The declaration or act of the partner and agent must have been made or
done during the existence of the partnership or agency (while the person
making the declaration was still a partner or an agent); and
3. The existence of the partnership or agency is proven by evidence other
than the declaration or act of the partner of agent.

Any declaration made BEFORE the partnership or agency existed, or those

made AFTER are not admissible against the other partners or the principal but
remains admissible against the partner or agent making the declaration. It is also
necessary for the application of the exception that the proof of the agency or
partnership be from a source independent of the declaration made by the partner
or agent.

Examples

1. If after the partnership is dissolved and liquidated, AA, a former partner in

ABC Partnership, admits before a police investigator that he and his

154
 partners were engaged in smuggling highly dutiable imported cigarettes
while the partnership was operating a buy and sell business, the
extrajudicial declarations of AA are not admissible against BB and CC, his
former partners. His declarations are nevertheless admissible against him.
2. Admission by a partner speaking only for himself as to a matter foreign to
the partnership business and concerns are NOT admissible to charge either
the partnership or the other co-partners.

3. Where each member of the firm 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. (Jones)

Sec. 31. Admission by conspirator. – The act or declaration of a conspirator IN

FURTHERANCE OF to the conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy is shown by evidence
other than such act or declaration.

Admission by Conspirator

The Supreme Court has actually used the phrase “in furtherance of
conspiracy” in a number of cases. The phrase requires that the act or declaration
should advance the ends of the conspiracy rather than simply “relate” to the
conspiracy. The phrase “in furtherance of the conspiracy” is a more precise and
concrete phrase than “relating to the conspiracy” if the intent is to require that
the statement was made, for the purpose of advancing the conspiracy’s objective.
(Peralta)

A conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it (Art. 8, RPC). Once
conspiracy is proven, the act of one is the act of all. The statement therefore, of
one, may be admitted against the other co-conspirators as an exception to the
rule of res inter alios acta.

155
 Assume that two month after a successful bank robbery, A was arrested as
a direct participant in the crime. During a television interview, he admitted his
participation in the robbery. He also implicated B and C as his other companions
in planning and executing the robbery. Is his statement admissible? The
statement is admissible as to him but not as to B and C.

To be admissible against B and C, the following must concur:

1. The declaration or act be made or done during the existence of

conspiracy; and
2. The declaration or act must be in furtherance of, and during the
conspiracy.

Observe that the declaration of A was made long after the conspiracy was
over. It then was no longer made during the existence of the conspiracy. In fact,
at the time of the declaration, A was no longer a co-conspirator. Even assuming
that the conspiracy can be proven by independent evidence and even if his
statement was related to the conspiracy, the declaration is not admissible as an
exception to the rule of res inter alios acta.

Proof of conspiracy during the subsistence thereof is required in an

extrajudicial admission of a plotter. The common fraudulent design may be shown
by subsequent participation in the fraud and its fruit 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.
(Regalado)

Co-conspirators can also be affected by an extrajudicial admission of a

conspirator, even if uncorroborated, if given in a straightforward manner and it
contains details which could not have been the result of deliberate afterthought.
(Defensor Santiago)

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Interlocking confessions. (Agpalo)

Circumstantial evidence. (Agpalo)

The Rules applies only to Extrajudicial Declaration

The rule requiring the concurrence of the above elements does not apply
when the co-accused takes the witness stand and repeats his extrajudicial
confession as a witness. The declarations referred to under Sec. 30 of Rule 130
are merely extrajudicial statements or declarations. When he testifies as a
witness, his statements become judicial and are admissible not only against him
but also against his co-accused. This is because the statements by witnesses in
open court are admissible as testimonies of a person based on his personal
perceptions and knowledge pursuant to Sec. 36 of Rule 130, Rules of Court.

It was clarified that the rule on admission by a conspirator applies only to an

extrajudicial act or declaration but not during a conspirator’s testimony during
trial. (Preagido v. Sandiganbayan, G.R. No. 52341046, November 25, 2005).

Sec. 32. Admission by privies. – Where one derives title to property from
another, THE LATTER’S act, declaration, or omission of the latter, while holding
the title, in relation to the property, is evidence against the former IF DONE
WHILE THE LATTER WAS HOLDING THE TITLE.

Admission by Privies

“Privies” are persons who are partakers or have an interest in any action or
thing, or any relation to another.

A privy in estate is one who derives his title to the property by purchase;
one who takes by conveyance. Privity in estate denotes the privity between
assignor and assignee, donor and done, grantor and grantee, vendor and vendee.
A privy may also be one who acquires the property by inheritance. Any act
whereby the successor is substituted in the place of the predecessor in interest,

157
like a purchaser at an execution sale is, therefore, privy to the execution debtor.
(Herrera)

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. Where one person
succeeds to rights of property formerly enjoyed by another, there is often such
privity that the successor may be affected by the statements of his predecessor in
interest

Examples:

(1) A lessor and his lessee; a grantor and a grantee; an assignor and an assignee
are privies in an estate or a contract.

(2) An executor or an administrator and the estate of the deceased are privies in
representations; or

(3) An heir and his ascendant are privies in blood or succession.

Zebro inherits a house and lot from his father Xanny. Assume that Xanny,
father of Zebro, while the former was alive sold the property and openly told his
acquaintances that the same lot where his house stood had already been sold to
Yoyong. Is this declaration by Xanny necessarily admissible against Zebro, the sole
heir of Yoyong?

Answer

It is not, because the statement was made after Xanny held his title to the
land. For an admission of a predecessor in interest to admissible against the
successor-in-interest, the following requisites must be present:

1. There must be an act, declaration, or omission by a predecessor-in-interest;

158
 2. The act, declaration or omission of the predecessor must have occurred
while he was holding (not after) the title to the property;
3. The act, declaration, or omission must be in relation to the property.

Example of Dean Riano:

X, father of Z, while the former (X) was alive, openly told his acquaintances
that the land where his house stood had already been sold to Y. Here, the
declaration by X is not admissible against Z, the sole heir of X, because the
statement was made after X held title to the land.

Additional examples:

1. It is admissible as against the grantee to prove the declarations of the

grantor, while in possession, that his deed had been antedated, or that it
was never delivered;

2. Admissions made by one who at the time held the legal title to property, to
the effect that he had contracted by parol to sell the land to another and
had received the pay therefor, are competent evidence against all persons
claiming title under or through him; (Peralta Jr)

3. 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 in evidence against his heirs. (Martin)

Sec. 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.

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Admission by Silence

Admission by silence has been traditionally received even in common law

as admissible evidence. The usual pattern for its admissibility involves a statement
by a person in the presence of a party to the action, criminal or civil. The
statement contains assertion against the party, which, if untrue would be
sufficient cause for the party to deny. His failure to speak against the statement is
admissible as an admission.

No admission by silence can be interpreted from a person who kept silent

during custodial investigation due to his right to remain silent. (Regalado)

Admission by silence can apply in criminal and civil cases (Francisco)

For silence to be deemed an admission, it is necessary:

(a) That he heard and understood the statement;

(b) That he was at liberty to make a denial;
(c) That the statement was about a matter affecting his rights or in which he was
interested and which naturally calls for a response;
(d) That the facts were within his knowledge; and
(e) That the fact admitted from his silence is material to the issue.

Examples

1. Person who was caught in the act, or

2. To one who voluntarily participated in the reenactment of the crime at the
behest of the police.
3. Suppose a policeman, upon approaching a group of bystanders, points to
one of them and accuses him to be the killer of a man found dead the night
before. The man pointed does not respond. He does not deny the
accusation. His failure to respond may be given in evidence against him.
The idea of the rule on admission by silence is that if an accusation is made,

160
 and a reasonable person would have denied the same if it were false, the
failure to deny the accusation by the person accused is an implied
admission of the truth of the accusation.
4. Failure by a supposed rape victim to rebut sweetheart defense based on
testimonial evidence may be taken against her. (People v. Paragsa, 84 SCRA
105)

EXCEPTIONS TO THE RULE ON ADMISSION BY SILENCE OR INSTANCES WHERE

THERE IS NO ADMISION BY SILENCE.

1. Where no good reason exists for the party to comment on the act or
declaration, as when the act or declaration was not specifically directed to
the party who remained silent.

2. When the party had no opportunity to comment on the act or declaration

(People vs. Ranario, 49 Phil. 220)

3. Where the act or declaration was made in the course of an official

investigation or custodial investigation (People vs. Tia Fong, 98 Phil. 609), as
where he was pointed out in the course of a custodial investigation and was
neither asked to reply nor comment on such imputation. (People vs. Alegre,
94 SCRA 109)

4. When silence is upon advice of counsel. (People vs. Kozlowski, 115 A.R.
150)

5. Where the party had a justifiable reason to remain silent.

Sec. 34. Confession. – The declaration of an accused acknowledging his guilt of

the offense charged, or of any offense necessarily included therein, may be
given in evidence against him OR HER.

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Confession

A confession is the declaration of an accused acknowledging his guilt of the

offense charged, or of any offense necessarily included therein, may be given in
evidence against him.

Confession is an acknowledgement in express words by the accused in a

criminal case of the truth of the main fact charged, or of some essential part
thereof. (Martin)

CONFESSION IS EVIDENCE OF THE HIGH ORDER

1. There is no evidence of a higher quality than a confession. It represents the

outward manifestation of a man. Unless, therefore, the confession is
nullified by evidence of duress, the same is admissible as an evidence of
guilt of a high quality (People vs. Garcia, 54 Phil. 329).

2. If a confession be true and voluntary, the deliberate act of the accused with
a full comprehension of its significance, there is no impediment to its
admission as evidence and it then becomes evidence of a high order, since
it is supported by the presumption, a very strong one, that no person of
normal mind will deliberately and knowingly confess himself to be the
perpetrator of a crime, especially if it be a serious crime, unless prompted
by truth and conscience (People vs. Zea, 130 SCRA 87) (Espejo)

Distinction between Confession and Admission

An admission is an act, declaration or omission of a party as to a relevant

fact. It is a voluntary acknowledgement made by a party of the existence of the
truth of certain facts which are inconsistent with his claims in an action.

In a confession, there is an acknowledgement of guilt; in an admission,

there is merely a statement of fact not directly involving an acknowledgment of
guilt or of the criminal intent to commit the offense charged.

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 A confession is the declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein. Hence, a person
declares in his courter-affidavit that he performed an act like shooting the victim
but denies that he did so with criminal intent because the shooting was done in
self-defense, the declaration is merely an admission and not a confession.

An admission may be implied like an admission by silence. A confession

cannot be implied. It should be a direct and positive acknowledgement of guilt.

Form and sufficiency of Confession

Ordinarily, a confession may be verbal or written, judicial or extra-judicial.

(Jones on Evidence)

If reduced in writing, there is no requirement for an oath to sustain the

efficacy of the confession, nor it is subject to a special form and need not be
signed.

It may be recorded on video tape, sound motion pictures, or tape, provided

there is proper authentication (Jones)

When the confession is made before the Court by the accused, it amounts
to a judicial confession that can culminate to a finding of guilt, especially to a
criminal case that does not involve a capital offense.

A similar acknowledgement of guilt elsewhere can only lead to eventual

pronouncement of guilt if accompanied by evidence of corpus delicti.

DIFFERENTIATE THE EFFECTS OF JUDICIAL AND EXTRAJUDICIAL CONFESSIONS

A judicial confession is sufficient in itself to sustain a conviction, even in

capital offenses. On the other hand, an extrajudicial confession is insufficient in

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itself to sustain a conviction. It must be corroborated by evidence of the corpus
delicti.

CORPUS DELICTI

It refers to a particular crime and signifies that the specific offense had
been actually committed by someone. Corpus delicti consists of two elements:

1. Certain results were produced; and

2. Someone is criminally responsible

It also means actual commission of the crime charged, or the specific fact of
loss or injury (Espejo)

Example of Corpus Delicti.

1. In murder or homicide, the corpus delicti is the fact of death, which may be
proved even circumstantially.
2. In robbery, or theft, the fact of loss.
3. In arson, the fact of burning.
4. In an affray, the fact that pistol shots were heard and a bystander was killed
by one of the shots constitute evidence of corpus delicti, which is the
violent death of a person, whether feloniously caused or not. (Espejo)

4.PREVIOUS CONDUCT AS EVIDENCE

Sec. 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 a similar thing as 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.

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Similar Acts as Evidence

The above provision constitutes the SECOND branch of the res inter alios
acta, the first branch being that the rights of a party cannot be prejudiced by an
act, declaration or omission of another.

The rule prohibits the admission of the so-called “propensity evidence”

which is evidence that tends to show that what a person has done at one time is
probative of the contention that he has done a similar act at another time.

A man may be a notorious criminal, but this fact may not be shown to
influence a jury in passing upon the question of his guilt or innocence of the
particular offense for which he is on trial. A man may have committed many
crimes, and still be innocent of the crime charged in the case on trial.

Evidence must be confined to the point in issue in the case on trial and
therefore evidence of collateral offenses must not be received as substantive
evidence of the offenses on trial. (Francisco)

Under the same rule, in an action to collect a sum of money, evidence that
the debtor had contracted debts with various persons in the past and had not
paid such debts despite demands, is not admissible to show that the debtor did
not pay his obligation to the plaintiff in the present case.

Evidence of similar acts is admissible for any of the following purposes:

1. Specific intent;
2. Knowledge
3. Identity;
4. Plan;
5. System;
6. Scheme;

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 7. Habit;
8. Custom;
9. Usage; and the like

Evidence of similar acts may frequently become relevant, especially in

actions based on fraud and deceit, because it shed light on the state of mind or
knowledge of a person, his motive or intent, or they may uncover a scheme,
design or plan.

A man’s mind or conduct is never constant. It is not competent to prove

that he committed other crimes of a like nature for the purpose of showing that
he would be likely to commit the crime charged in the indictment. A man may be
a notorious criminal, but this fact may not be shown to influence a jury in passing
upon the question of his guilt or innocence of the particular offense for which he
is on trial. A man may have committed many crimes and still be innocent of the
crime charged in the case on trial. (Peralta)

The admissibility of similar acts or previous conduct would depend on the

purposes for which such facts or conducts are offered.

In the Philippine setting, evidence of another crime is admissible in a

prosecution for robbery where it has the tendency to identify the accused or
show his presence at the scene of the crime, but not where the evidence is to
prove that the accused committed another crime wholly independent of that for
which he is on trial. (Peralta)

In Republic vs. Sereno, G.R. No. 237428, May 11, 2018, 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-à-vis Section 34, Rule 130 of
the 1989 Revised Rules on Evidence.

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BAR 2019

A criminal complaint for Theft was filed against Mr. T by his employer for
allegedly stealing company property. During trial, the prosecutor called Mr. T's
former supervisor, Mr. V, to the stand and attempted to question him on similar
incidents also involving Mr. T with his previous employer. Mr. T's counsel objected
to the question, invoking the rule on res inter alias acta. In response, the
prosecutor argued that the question should be allowed since he was trying to
establish Mr. T's habit of stealing things from the workplace.

(a) Should the objection of Mr. T's counsel be sustained? Explain.

(b) Assuming that the prosecution presents evidence on the bad moral
character of Mr. T, may the same be admitted in the present case? Explain.

CONTRACTS

X obtained a loan from Y. X failed to pay. During the trial of the collection
case, Y presents evidence that, in the past, X obtained several loans which he also
did not pay. Here, the previous similar acts establish collaterally a habit on the
part of X of not paying his obligations.

QUASI-DELICTS

The cars of X and Y collided. Both of them claim that they were not
negligent. During the trial, Y presents evidence consisting of several Traffic
Accident Reports showing that X had been negligent several times in the past.
Here, the previous similar acts establish collaterally a habit on the part of X of
being reckless.

FELONIES

On January 1, 2008, X killed Y using a chainsaw. On January 1, 2009, X killed

Z also using a chainsaw. Later, W was killed by a chainsaw. X was accused of killing
W. the prosecution seeks to introduce into evidence the fact that X killed Y and Z
with a chainsaw on separate occasions, and that there is a reasonable probability

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that X was also the one who killed W. Here, the previous similar acts collaterally
establish that X could be a serial killer who uses a chainsaw to commit murder.

Sec. 36. Unaccepted offer. – An offer in writing to pay a particular sum of money
or to deliver a written instrument or specific personal property is, if rejected
without valid cause, equivalent to the actual production and tender of the
money, instrument, or property.

Unaccepted Offer

From the way this provision is worded, it would seem that a mere offer to
pay in writing is equivalent to a tender of money if rejected without valid cause.

However, we know that under civil law that tender of payment to be valid
must be:

1. Unconditional;
2. In the full amount; and
3. In lawful currency or in legal tender.

There is a doctrine which states that payment in check shall produce the
effect of payment only when the check has been encashed.

Article 1256 of the Civil Code provides: “If the creditor to whom tender of
payment has been made refuses without just cause to accept it, the debtor shall
be released from responsibility by the consignation of the thing or sum due.

The doctrine therefore is that tender of payment does not by itself produce
legal payment, unless it is completed by consignation.

Tender of payment consists in the manifestation made by the debtor to the

creditor of his decision to comply immediately with his obligation. Consignation,
on the other hand, refers to the deposit of the object of the obligation in a

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competent court in accordance with the rules prescribed by law after refusal or
inability of the creditor to accept tender of payment. (Jurado)

THE EVIDENTIARY EFFECT OF AN UNACCEPTED OFFER SUPPLEMENTS THE RULE ON TENDER OF

PAYMENT IN ARTICLE 1256 OF THE NEW CIVIL CODE. TENDER OF PAYMENT, IF REFUSED, DOES
NOT EXTINGUISH AN OBLIGATION UNLESS COMPLETED BY OR FOLLOWED BY CONSIGNATION OF
THE SUME DUE, INSTRUMENT OR PROPERTY. HOWEVER, THE EFFECT OF SUCH TENDER, WITHOUT
CONSIGNATION, IS TO EXEMPT THE DEBTOR FROM PAYMENT OF INTEREST AND/OR DAMAGES.
(AGPALO)

5. HEARSAY

Sec. 37, HEARSAY – HEARSAY IS A STATEMENT OTHER THAN ONE MADE BY THE
DECLARANT WHILE TESTIFYING AT A TRIAL OR HEARING, OFFEFRED TO PROVE
THE TRUTH OF THE FACTS ASSERTED THEREIN. A STATEMENT IS (1) AN ORAL OR
WRITTEN ASSERTION OR (2) A NON-VERBAL CONDUCT OF A PERSON, IF IT IS
INTENDED BY HIM OR HER AS AN ASSERTION. HEARSAY EVIDENCE IS
INADMISSIBLE EXCEPT AS OTHERWISE PROVIDED IN THESE RULES.

A STATEMENT IS NOT HEARSAY IF THE DECLARANT TESTIFIES AT THE TRIAL OR

HEARING AND IS SUBJECT TO CROSS-EXAMINATION CONCERNING THE
STATEMENT, AND THE STATEMENT IS (A) INCONSISTENT WITH THE
DECLARANT’S TESTIMONY, AND WAS GIVEN UNDER OATH SUBJECT TO THE
PENALTY OF PERJURY AT A TRIAL, OR OTHER PROCEEDING, OR IN A
DEPOSITION; (B) CONSISTENT WITH THE DECLARANT’S TESTIMONY AND IS
OFFERED TO REBUT AN EXPRESS OR IMPLIED CHARGE AGAINST THE DECLARANT
OF RECENT FABRICATION OR IMPROPER INFLUENCE OR MOTIVE; OR (C) ONE OF
IDENTIFICATION OF A PERSON MADE AFTER PRECEIVING HIM OR HER.

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 HEARSAY RULE
Hearsay, Defined

HEARSAY IS A STATEMENT OTHER THAN ONE MADE BY THE DECLARANT

WHILE TESTIFYING AT A TRIAL OR HEARING, OFFERED TO PROVE THE TRUTH OF
THE FACTS ASSERTED THEREIN. A STATEMENT IS (1) AN ORAL OR WRITTEN
ASSERTION OR (2) A NON-VERBAL CONDUCT OF A PERSON, IF IT IS INTENDED BY
HIM OR HER AS AN ASSERTION. HEARSAY EVIDENCE IS INADMISSIBLE EXCEPT AS
OTHERWISE PROVIDED IN THESE RULES.

Under the revolutionary concept of hearsay in Section 37, Rule 130, it

referred to a statement of a witness, derived from a declarant, which is offered to
prove the truth of the facts asserted by the declarant. Such statement may either
be an oral or written assertion, or a non-verbal conduct.

Hearsay is defined as a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.

The Sub-Committee was of the view that Section 36 of the present rules,
which provides that “A witness can testify only to those facts which he knows of
his personal knowledge; that is, which are derived from his own perception
except as otherwise provided in these rules,” does not really define “hearsay” and
that a clear definition of the word is called for. The provision confuses the hearsay
rule with the rule limiting testimony to what witnesses can describe on the basis
of firsthand knowledge. The two rules are different.

Distinction between Hearsay Rule and Rule Requiring Firsthand Knowledge

There is a rule, more ancient than the hearsay rule, and having some
kinship in policy which is to be distinguished from it. This is the 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.

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 If a witness testified that on a certain day flight 450 arrived at the airport at
X on time, and from his other evidence it appears that that he was not in X at the
time in question, and hence could only have spoken from conjecture or report of
other persons, the proper objection is not hearsay but want of personal
knowledge.

Conversely, if the witness testifies that his brother told him that he came in
on the flight and it arrived on time, the objection for want of knowledge of when
the plane arrived is inappropriate, because the witness purports to speak from his
own personal knowledge only of what his brother said, and as to this he
presumably had knowledge. If the testimony in this latter case was offered to
show the time of the plane’s arrival, the appropriate objection is hearsay.

The Philippine version of the hearsay rule is embodied in Sec. 37 of Rule 130. It
provides:

This Section in known as the hearsay evidence rule. Any evidence, whether
oral or documentary, is hearsay if its probative value is not based on the personal
knowledge of the witness but on the knowledge of some other person not on the
witness stand.

Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.

Hearsay evidence is evidence given by a witness based on information

passed to that person by others rather than evidence experienced at first hand by
the witness.

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 be produced. (Espejo)

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Non Verbal Conduct

Thus, one person’s testimony that another person silently mouthed a

phrase was hearsay. The woman’s mouthing of the phrase, “he hit me,“ was “non
verbal assertive conduct.” Therefore, it was hearsay.

A head nod is an example of non verbal conduct that is also an assertion.

SPECIFIC ELEMENTS OF HEARSAY EVIDENCE:

(a) First, there must be an out of court statement;

It does not really matter what the form of the statement is. It may be oral.
It may be written. It may even be a conduct, as long as that conduct is intended
by the actor as an assertion. What matters is that the statement was not made by
the declarant in the hearing or trial.

(b) Second, that statement made out of court, is repeated and offered by the
witness in court to prove the truth of the matters asserted by the
statement.

The reliability of a testimony is based on the personal knowledge of the

witness. If a witness testifies on the basis of what others have told him, and not
on facts which he knows of his own personal knowledge, the testimony would be
excluded as hearsay evidence. This is because the witness cannot be effectively
cross-examined on the matters he testified to. His answers to questions in open
court would necessarily be based on the knowledge of a person who is not in the
witness stand. The latter, called the outside declarant, cannot be cross-examined
because he is not in court.

BASIS FOR EXCLUDING HEARSAY EVIDENCE

There are three reasons for excluding hearsay evidence:

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 1. ABSENCE OF CROSS-EXAMINATION:

The rule excluding hearsay testimony rests mainly on the ground that
there is no opportunity to cross-examine the outside declarant. Thus, in criminal
cases for instance, the admission of hearsay evidence would be a violation of the
constitutional provision that the accused shall enjoy the right to confront the
witnesses testifying against him and to cross examine them. The hearsay rule
therefore, bars the admission of evidence that has not been given under oath or
solemn affirmation and more important, has not been subjected to cross-
examination by opposing counsel.

It is because of the above reason that if the affiants of affidavits do not take
the witness stand to affirm their averments in their affidavits, such affidavits must
be excluded from the judicial proceedings, being inadmissible hearsay.

2. ABSENCE OF DEMEANOR EVIDENCE

Demeanor means the outward physical behavior and appearance of a

person. Demeanor is not merely what someone say, but the manner in which it is
said. Factors that contribute to an individual’s demeanor include tone of voice,
facial expression, gestures and carriage.

3. ABSENCE OF OATH

An oath or affirmation is necessary for the witness to recognize the duty to

tell the truth. The oath of a witness signifies that he is swearing to the Creator “to
tell the truth, the whole truth and nothing but the truth” and that if he does not,
he will later on answer for the falsehood told. A lie thus told on the witness stand
subjects the witness to false testimony.

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Probative Value

By itself, and as repeatedly conveyed by jurisprudential policy, hearsay

evidence is devoid of intrinsic merit, irrespective of any objection from the
adverse party. While the proponent of second-hand evidence can hurdle the
challenge to its admissibility, on account of lack of protestation to it, hearsay
evidence cannot produce probative worth. (Peralta)

Hearsay evidence if not objected to is admissible. However, even if

admitted, it has no probative value.

WHEN EVIDENCE IS HEARSAY

Although hearsay evidence presupposes lack of personal knowledge of

the truth of the fact asserted by a witness, the purpose for which the evidence is
offered is a vital element of hearsay evidence. It is the purpose for which the
evidence is offered which would determine whether the same is hearsay or not.

TWO CONCEPTS OF HEARSAY EVIDENCE:

There are two concepts of Hearsay Evidence:

1. Second hand information (those not derived from personal knowledge of

witness); and
2. Testimony by a witness derived from his personal knowledge BUT the
adverse party is not given opportunity to cross-examine.

For example, plaintiff presents witness X. X testifies in court on matters

personally known to him. After direct examination, court tells that defendant can
cross-examine on the next scheduled hearing. On the next scheduled hearing
witness X no longer appears and could no longer be located. The remedy here
now is to ask that the testimony of witness X be stricken out since it now becomes
hearsay. (Espejo)

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REQUISITES OF HEARSAY EVIDENCE (UNDER THE FIRST CONCEPT)

A statement will be considered hearsay if it is:

1. An assertive statement;
2. Made by an out-of-court declarant; and
3. Offered to prove the truth of the matter asserted therein.

HEARSAY EVIDENCE MAY BE ORAL, WRITTEN, OR NON-VERBAL CONDUCT

The rule excluding hearsay is not limited to oral testimonies. It also applies
equally well to written evidence (such as affidavits, letters, or sworn statements)
as well as to non-verbal conduct (such as gestures and actions)

In the case of Marissa Unchuan vs. Antonio Lozada, G.R. No. 172671, April
16, 2009, the Supreme Court ruled that it is a hornbook doctrine that an affidavit
is merely hearsay evidence where its maker did not take the witness stand. Verily,
the sworn statement of Anita was of this kind because she did not appear in court
to affirm her averments therein.

OTHER HEARSAY EVIDENCE

1. A letter offered in evidence to establish the facts in issue;

2. A medical certificate to the extent of the injuries found by the doctor on
the offended party’s body;
3. A resolution of the municipal council of a certain municipality as to the
character of an accused in a criminal case;
4. Newspaper articles, which are considered to be DOUBLE DECK HEARSAY or
DOUBLE HEARSAY.

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Double Deck Hearsay – It is hearsay within a hearsay as when a witness testifies
as to an assertion by an out-of-court declarant, which in turn is merely second
hand information. Double hearsay is actually mere third hand information.

The two key components must be identified in order to apply the definition
of hearsay.

(a) Out-of-court statement

The first component of the hearsay definition relates to out-of-court

statements. Hearsay potentially involves any statement made outside of the
courtroom by any person, including a prior statement by a witness who later
testifies. In applying this element of the definition, it is necessary to determine
when and where the statement was made. If the statement was made off of the
witness stand prior to the testimony, then the statement qualifies as an “out-of-
court statement.”

(b) Offered as an assertion

The second element of the hearsay definition provides that the out-of-court
statement must be “offered in evidence to prove the truth of the matter
asserted.” The application of this element of the definition requires an
examination of whether the statement is offered to prove the substance of its
contents. If the statement is offered for its truth, then the second element of the
hearsay definition is satisfied i.e., the out-of-court statement is hearsay. Where
an out-of-court statement is offered for its truth and determined to be hearsay,
the evidence is presumptively inadmissible, and admissibility may only be
achieved through the vehicle of an exception to the basic definition, an exception
to the exclusionary rule, or some other basis identified by Rule 802.

Not all out-of-court statements are relevant in a lawsuit in a manner that

relies upon their truthfulness. When an out-of-court statement is relevant in a
manner that does not depend upon the truth of the statement, the out-of-court
statement is not hearsay under the Rule 801 definition, and consequently, the
exclusionary rule does not apply.

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Statement – statement for hearsay purposes as either oral or written assertion, or
conduct of a person that is intended to be an assertion.

Declarant – as a person who makes a statement. Accordingly, a declarant is a

person who makes an oral or written statement or engages in intentionally
assertive conduct. Under Rule 801 © definition of hearsay, the declarant is the
person who makes the out-of-court statement that is reported or otherwise
introduced at trial through a witness or a document. (Grimes v. Employers Mut.
Liab. Ins. Co., 73 FRD 607)

Under the second paragraph of Section 37, Rule 130 of the 2019 Revised Rules on
Evidence, A STATEMENT IS NOT HEARSAY IF THE DECLARANT TESTIFIES AT THE
TRIAL OR HEARING AND IS SUBJECT TO CROSS-EXAMINATION CONCERNING THE
STATEMENT, AND THE STATEMENT IS (A) INCONSISTENT WITH THE DECLARANT’S
TESTIMONY, AND WAS GIVEN UNDER OATH SUBJECT TO THE PENALTY OF
PERJURY AT A TRIAL, OR OTHER PROCEEDING, OR IN A DEPOSITION; (B)
CONSISTENT WITH THE DECLARANT’S TESTIMONY AND IS OFFERED TO REBUT AN
EXPRESS OR IMPLIED CHARGE AGAINST THE DECLARANT OF RECENT
FABRICATION OR IMPROPER INFLUENCE OR MOTIVE; OR (C) ONE OF
IDENTIFICATION OF A PERSON MADE AFTER PRECEIVING HIM OR HER.

If the declarant testifies, the statement is not hearsay due to the prospect
of cross-examination, the sanctity of the oath, and the statement is either:

(a)Prior inconsistent with the declarant’s testimony or

b)Prior consistent with the declarant’s testimony and is offered to rebut an

express or implied charge against the declarant of recent fabrication or improper
influence or motive, or

(c) One of identification of a person made after perceiving him or her.

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 Each of the three exempted classes of prior statements by a testifying
witness has a basic requirement in common: the prior statement is not converted
from hearsay to non-hearsay unless the “declarant testifies at the trial or hearing
and is subject to cross-examination concerning the prior statement…” Lilly, Vide,
page 163 citing FRE 801 (d)(1). This requirement that the hearsay declarant (who
has made a pretrial statement) take the stand and testify applies to all of the
exemptions set out in 801 (d) (2) which covers party admissions.

As to prior identification, it operates independently of the other exceptions

and “… it is immaterial whether the prior identification is consistent or
inconsistent with an identification made in the courtroom.

Prior Inconsistent Statements

A prior inconsistent statement of a testifying witness can be used to

impeach his credibility. So used, the proponent of the statement offers it to show
that on another occasion the witness gave an account that differed from, and is
inconsistent with, his testimonial account. Therefore, the proponent will argue,
the witness is not reliable. 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. Rather, the earlier inconsistency is offered to show that at
another time the witness has given a conflicting version of the same event and
therefore his account from the witness stand is not reliable.

If the proponent of the prior inconsistent statement wants to use it to

prove the truth of the assertion it contain (that is, to establish facts), he must fit it
with either an exemption or an exception to the hearsay rule.

With respect to the situation of an incompatible statement of a declarant,

Rule 801 (d)(1)(A) pertains exclusively to prior inconsistent statements of a
witness used in conjunction with the impeachment technique of self-
contradiction. (Weissenberger). Where the out-of-court statement is inconsistent
with the declarant’s trial testimony and was given under the penalty of perjury at
a deposition, trial, hearing, or like proceeding, the prior statement may be
received for its truth.

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 The prior inconsistent statement can be received because of procedural
guarantees of trustworthiness borne of the sanctity of the oath, delayed cross-
examination thereon, and evaluation of demeanor at the trial.

Where the prior inconsistent statement conforms with the requirements of

Rule 801(d)(1)(A), the prior inconsistent statement serves dual function. It serves
to impeach the witness, (Cleary) and it operates as substantive evidence. If the
prior inconsistent statement does not conform with the said Rule, it can still be
utilized for impeachment. (Weissenberger)

Examples

1. The witness was heard to say while having an intense conversation with
friends that it was not the accused who stabbed the victim. But when he
testified in court, he declared that it was the accused who stabbed the
victim. In this case, the witness’ prior inconsistent statement may be issued
to impeach his credibility, upon the proper laying of predicate.

2. While the police was still building up their case against the accused,
Rodrigo, witness Antonio was requested to shed light on what he learn
about the crime, and he told the police that he had no personal knowledge
on what actually happened. However, when he was called to testify in a
trial against the accused, he made a statement that it was the accused who
perpetrated the crime. Antonio’s statement before the police may be
utilized in order to impeach his credibility.

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Prior Consistent Statements

Relative to the SECOND exception to the exclusion of a hearsay statement

of a declarant in the second paragraph of Section 37, Rule 130 of the 2019
Revised Rules on Evidence, applies to prior consistent statements of a witness
used to rehabilitate the witness where such statements are consistent with the
trial testimony of the witness. Under pre-Rule federal law, such evidence was
admissible to bolster the credibility of a witness whose credibility had been
attacked, but it could not be used as substantive evidence (Weissenberger)

Under the Rule 801 (d) (1)(B), a prior consistent statement of a witness is
admissible as substantive evidence (refers to evidence introduced for what it
helps to prove itself) without regard to whether an oath or cross-examination
attended the prior statement.

When a cross examiner directly or by fair implication charges that a

witness’s testimony is a “recent fabrication,” or is the product of an “improper
influence or motive,” a prior consistent statement may have considerable
probative force to rebut this charge. It is imperative (of vital importance),
however, that the prior consistent statement predates (exist or occur at a date
earlier than) the alleged corrupting influence or purported fabrication. (Peralta)

Example

In his cross examination, the cross-examiner tries to impeach the testimony

of a witness that his declaration in court is a sheer fabrication or is the product of
an improper influence or motive. On re-direct examination, the proponent may
ask the witness relative to his prior consistent statement he made before his
friends in order to rehabilitate or bolster the witness’ testimony made in open
court.

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Statements of Identification

As the last exception in the second paragraph of Section 37, Rule 130 of the
2019 Revised Rules on Evidence, provides for the admissibility of 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. Its application is limited to the situation in which a
witness is present at trial, and a prior out-of-court identification is made by that
witness is offered into evidence. This rule operates independently with prior
inconsistent or consistent statements and therefore a prior statement of
identification may be admissible even though it does not meet the requirement
for a prior inconsistent or prior consistent statement. (Weissenberger)

This Statement of Identification will apply to an out-of-court statement

identifying an individual in a police line-up, a street identification, or even a
photographic array. The Rule reflects a recognition that identification in the
courtroom is frequently more suggestive and less reliable than a prior
identification that is more proximate in time to the operative facts of the case.
Courtroom identification has low probative value in the light of the inherent
suggestibility of the process, and accordingly, where the person who made the
prior identification is available as a witness to testify, his or her earlier
identification is admissible as substantive evidence.

Modes of Extra-judicial Identification of Accused

a. Show-ups – where accused alone is brought face-to-face with the witness

for identification
b. Mug shots – where photographs are shown to the witness for identification
c. Line-ups – where a witness identifies the suspect from a group of persons
lined up for the purpose

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Example

The out of court testimony of a witness identifying the accused as the

perpetrator either in a photograph or police line-up, is admissible in evidence in a
trial where the identification of the accused is the issue.

BAR 2018

Denny is on trial for homicide. The prosecution calls Danilo, a police officer,
who interviewed the victim, Drew, shortly after the shooting. Danilo's testimony
is being offered by the prosecution for purposes of proving that (i) Drew is now
dead; (ii) while in the emergency room, Drew was posting his medical condition
on Facebook and was "liking" the posts of his Facebook friends; (iii) Drew asked
the nurse for water but was refused because he was bleeding, which
subsequently angered Drew; and (iv) that before dying, Drew signed a statement
in which he identified Denny as the shooter.

Is the proposed testimony of Danilo admissible?

Bar 2003

Homer was charged with robbery. On the strength of a warrant of arrest

issued by the court, Homer was arrested by police operatives. They seized from
his person a handgun. A charge for illegal possession for firearm was also filed
against him. In a press conference called by the police, Homer admitted that he
had robbed the victim of jewelry valued at P500, 000. 00.

The robbery and illegal possession of firearm cases were jointly tried. The
prosecution presented in evidence a newspaper clippings of the report of the
reporter who was present during the press conference stating that Homer
admitted the robbery. It likewise presented a certification of the PNP Firearms
and Explosives Office attesting that the accused had no license to carry any
firearm. The certifying officer, however, was not presented as a witness. Both
pieces of evidence were objected to by the defense. Is the newspaper clipping
admissible in evidence against Homer?

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Suggested answer

Yes. The newspaper clipping is admissible in evidence against Homer as an

independent relevant statement, regardless of the truth or falsity of a statement.
The hearsay rule does not apply if said newspaper clipping was only offered to
prove the tenor of the report as reported by the reporter in the said newspaper.

In one case, the Supreme Court declared that: ”an unverified and
unidentified private document cannot be accorded probative value. It just be
rejected because the party against whom it is presented is deprived of the right
and opportunity to cross-examine the person to whom the statements or writings
are attributed. Its executor or author should be presented as a witness to provide
the other party the opportunity to question its contents. The petitioner’s failure
to present the author of the letter renders its contents suspect and of no
probative value. (Dutch Boy Phils. Inc vs. Ronald Seniel, G.R. No. 170008, January
19, 2009).

EXAMPLES OF NON-HEARSAY EVIDENCE

1. OUT OF COURT STATEMENT OFFERED TO PROVE MENTAL STATE OF THE

DECLARANT

As long as an out of court statement is offered for a non-hearsay purpose (a

purpose other than to prove the truth of the matter asserted), the statement is
admissible if it has relevance to the matter in issue. A popular example of an out-
of-court statement offered for a non-hearsay purpose is one which demonstrates
by inference from the tenor of the statement the state of mind of the speaker or
the declarant.

For example, during the probate proceeding of a will, the caregiver of the
decedent testified that he heard the decedent several times declaring that he is
Jesus Christ or he is John Lennon. If the statement was offered for the purpose of
determine the state of mind of the decedent, then it is not hearsay. But it is
hearsay, if the statement was offered to prove the assertion that the decedent is
Jesus Christ or John Lennon.

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 2. OUT OF COURT STATEMENT OFFERED TO PROVE ITS EFFECT ON THE
LISTENER/HEARER

An out of court statement may be offered not only to prove the state of
mind of the declarant. It may also be used to show the state of mind of the hearer
or listener. This state of mind of the listener is oftentimes described in terms of
the effect of the declarant’s statement on the hearer and why the listener acted
in a particular manner. The statement here, although out-of-court, is presented
not to prove the truth of the statement and hence, non-hearsay. (Dean Riano).

For example, a statement such as “I am scared,” expresses a state of mind. The

statement, “I remember being scared when the dog approached me” expresses a
memory that, if testified to by someone other than the declarant, would not fall
within this exception.

3. OUT OF COURT STATEMENT OFFERED TO PROVE THAT THE STATEMENT

WAS MADE.

Where the statement is not offered for the truth of the matter asserted,
but to merely show that what was said, the statement is not hearsay.

4. INDEPENDENTLY RELEVANT STATEMENTS

They are called as such because the statements are admissible for some
relevant reason independent of their truth or falsity. They are relevant because
the statement itself is either the very fact in issue or a circumstantial evidence of
a fact in issue.

If a statement previously made out of court is offered in evidence through a

witness or a writing, 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, if it is relevant, and it is not subject to the
exclusionary impact of the hearsay rule. (Jones)

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 An independently relevant statement is not hearsay and is therefore not
banned under the hearsay evidence rule. Hence, a witness may be asked
questions concerning what the accused told him that other persons were involved
in the conspiracy if the purpose of the testimony is not to prove that such persons
were really involved in the conspiracy but only to prove what the accused had
mentioned.

Newspaper accounts of an incident are hearsay if offered to prove the truth

of the accounts but are not hearsay if offered for other than the truth of the
matter asserted. The newspaper account is admissible only to prove that there
was a publication and merely the tenor of the news, but not its truth. (Feria v.
Court of Appeals, 325 SCRA 525)

Independently relevant statements actually come in various shapes and

shades because of the different reasons for which such statements are offered.
They however, have a unifying element. That element is: their relevance to the
matter in issue is not dependent on their truth or falsity. Its relevance lies in its
tenor or the fact that it was said.

An out-of-court statement introduced in court to impeach a previous

witness is another form of independently relevant statement, and an example of
how an out-of-court declaration may be used for a non hearsay purpose.

BAR 2019

AAA, a ten (10)-year old minor, was sleeping inside her room when she was
awakened by her uncle, Mr. G, who was reeking of alcohol and was already on top
of her. After Mr. G succeeded in having carnal knowledge of AAA, the former
immediately left the latter's room. Thereafter, AAA rushed into the room of her
mother, MMM, and spontaneously and frantically reported the incident.
Eventually, Mr. G was arrested and was indicted for the crime of Rape.

During trial, MMM was presented as a witness to testify on what AAA

reported to her and AAA's gestures and disposition at that time. Mr. G's counsel
objected to MMM's testimony on the ground that it is hearsay evidence. The

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prosecutor countered that the subject of MMM's testimony may be admitted as
an independently relevant statement and as part of the res gestae.

(a) May MMM's testimony be admitted on the ground that it constitutes an

independently relevant statement? Explain.

(b) May AAA's statement to MMM be admitted on the ground of res

gestae? Explain.

The specific exceptions to the hearsay rule are:

1. Dying declaration;
2. Declaration Against Interest;
3. Act of Declaration about Pedigree;
4. Family Reputation or Tradition regarding Pedigree;
5. Common Reputation;
6. Part of Res Gestae;
7. Entries in the Course of Business;
8. Entries in Official Records;
9. Commercial Lists and the Like; and
10.Testimony or Deposition at a former proceeding

a. Dying declaration – ante mortem or in articulo mortis

A famous exception to the hearsay evidence rule called “dying declarations” is

described in Sec. 37 of Rule 130 as follows:

6.EXCEPTIONS TO THE HEARSAY RULE

Sec. 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 death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.

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 Dying Declaration

As an exception to the rule against hearsay evidence, a dying

declaration or ante mortem statement 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. It is thus admissible, to provide
the identity of the accused and the deceased or victim, to show the cause of
death of the deceased, and the circumstances under which the assault was
made upon him.

The reasons for its admissibility are NECESSITY and

TRUSTWORTHINESS.

Necessity, because the declarant’s death renders it impossible his taking

the witness stand, and it often happens that there is no other equally
satisfactory proof of the crime.

Trustworthiness, because the declaration is made in extremity, when

the party is at the point of death and when every motive to falsehood is
silenced and the mind is induced by the most powerful considerations to speak
the truth.

ELEMENTS OF A DYING DECLARATION

1. That the declaration is one made by a dying person;

2. That the declaration was made by said dying person under a

consciousness of his imminent death;

This means that the declarant must have known that he would meet
his death soon when he made the declaration. It is a statement made in
extremis.

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 Regarding the first element, awareness that death is at hand is
premised on either the expression of belief by the declarant, by his
conduct, or the SEVERITY OF HIS INJURY or precarious condition (People v.
Santos, 270 SCRA 650)

(1) Wendell was shot but he can still walk and talk. He went home to his house,
cleaned up his own wounds and went to go to the hospital. Along the
way, he rode a taxi. The driver was a childhood friend, Yoyong. So
Yoyong asked what happened to him. He answered that Zandro shot
him but that he was okay. It was only a flesh wound. At the hospital,
Wendell died after a couple of hours because of sepsis as one of his vital
organs was hit by the bullet.

Is the statement of Wendell to Yoyong a dying declaration?

NO. Because Wendell made the statement without having thought that he is
already dying. He made the statement thinking that it was a flesh wound and that
he would survive it. In order to be admissible the declarant must have thought
that he was about to die because it is the fact that the declaration is “made in
extremity, when the party is at the point of death and every hope of this world is
gone; when every motive to falsehood is silenced, and the mind is induced by the
most powerful consideration to speak the truth” that makes the declaration
trustworthy.

(2) Where, shortly after he was wounded, the victim was asked as to whether he
would die and to which he replied “I cannot ascertain” and he died the following
day, his statement is admissible both as part of the res gestae and as a dying
declaration.

(3)Where the victim, when asked as to whether he thought he would died,

replied “I don’t know,” his declaration was not made under the consciousness
of his imminent death and does not qualify as an ante mortem statement,
although the same was admitted as part of the res gestae.

(4)On the other hand, where the victim, when asked as to whether he believed
he would die from his injuries, replied “It all depends,” and his condition had

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 progressively improved, his statements thereafter cannot be considered as a
dying declaration. (Regalado)

When a prosecutor attempts to introduce as dying declaration, the very first

question that the defense should ask is whether or not the declarant, at the time
the statement was made, knew or believed that he was going to die. When? Not
next week, not next month. Not next year. But very soon or now! This constitutes
the objector’s first line of defense. Sec. 38 of Rule 130 has an eye-catching name
for this knowledge or belief. It calls it, “consciousness of an impending death.”
Impending means forthcoming or about to happen.

Under the rules, it is evident that a mere consciousness of death is not

enough because everyone of us, at one time or another, has become conscious of
death. The kind of death of which the declarant should be conscious of is a death
that is impending. The declarant must be conscious that death is near at hand,
and what is said must have been spoken in the hush of its impending presence.
(Dean Riano)

A declaration will be deemed as having been made under the

consciousness of an impending death, in consideration of:

(1) The words or statements of the declarant on the same occasion;

(2) His conduct at the time the declaration was made;
(3) The serious nature of his wounds as would necessarily engender a belief
on his part that he would not survive therefrom, especially where he
died an hour thereafter.

INTERVENING TIME OF DEATH:

The intervening time from the making of the declaration up to the actual death
of the declarant is immaterial as long as the declaration was made under the
consciousness of impending death, which is a question of fact for the court to
determine. It is the belief in impending death, and not the rapid succession of
death, that renders the drying declaration admissible.

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 Where the declarant stated that he would not die if treated, such
statement indicates an awareness of death and the nature of his wounds and his
death an hour later qualifies such statement into a dying declaration.

However, where the victim, when asked as to whether he believed he

would die from his injuries, relied; “It all depends,” and is condition had
progressively improved, his statement thereafter cannot be considered as a dying
declaration.

In a case, the Supreme Court ruled: “The victim need not state that he has
lost hope of recovery. It is sufficient that circumstances are such as to inevitably
lead to the conclusion that at the time the declaration was made, the declarant
would not expect to survive the injury from which he actually died. The degree
and seriousness of the wounds and the fact that death supervened thereafter
constitute substantial evidence of the victim’s consciousness of his impending
death. People vs. Norberto Tabaman, G.R. No. 71768, July 28, 1987)

3. That the declaration refers to the cause and circumstances surrounding

the death of the declarant and not of anyone else;

For instance, the husband was shot and the wife was stabbed. The wife
died instantly. The husband was brought to the hospital and made a
statement that it was X who stabbed his wife. The husband then died. Is
this a dying declaration?

The statement is not a dying declaration because it pertains to the cause

and surrounding circumstances of the wife’s death and not of the
declarant’s OWN death.

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

the subject of inquiry;

Our Rules of Court do not limit the exception to homicide cases, and so the
exception applies to all kinds of criminal cases and to civil cases as well.
Irrespective of the nature of the case, the declaration can be introduced if

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the inquiry involves the declarant’s death. Again, not any death may be the
subject of the charge; the deceased declarant must be the person whose
death is the subject of the charge.

BAR 2016

Immediately before he died of gunshot wounds to his chest,

Venancio told the attending physician, in a very feeble voice, that it was
Arnulfo, his co-worker, who had shot him. Venancio added that it was also
Arnulfo who had shot Vicente, the man whose cadaver was lying on the bed
beside him.

In the prosecution of Arnulfo for the criminal killing of Venancio and

Vicente, are all the statements of Venancio admissible as dying
declarations? Explain your answer.

Suggested answer

No, Not all the statements of Venancio are admissible as dying

declarations.

Under the Rules of Evidence, a dying declaration is admissible as an

exception to the hearsay rule provided that such declaration relates to the
cause of the declarant’s death.

Suggested answer

No, not all the statements of Venancio are admissible as dying

declarations.

Under the Rules of Evidence, a dying declaration is admissible as an

exception to the hearsay rule provided that such declaration relates to the
cause of the declarant’s death.

Venancio’s statement that it was Arnulfo who shot him is admissible

as a dying declaration. The same related to Venancio’s own demise. It may
be inferred that Venancio had consciousness of his impending death since

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 he suffered gunshot wounds to his chest which would necessarily be mortal
wounds.

However, Venancio’s statement that it was Arnulfo who shot Vicente

is not admissible as a dying declaration since it did not relate to the cause
of the declarant’s death but to the death of another person.

5. The declarant is competent as a witness had he survived;

This means that as all testimony, the dying declaration will be

inadmissible unless it is based on the declarant’s actual knowledge.

Suppose that Mateo bought a cup of coffee at the airport, and was
stricken with food poisoning. If his dying last words were that “the barista
must have put poison on my coffee,” that statement would be inadmissible
despite the exception because Mateo had no way of knowing anything
about the conditions in which the coffee was made or if the barista had
already poisoned him.

6. The declarant should have died.

RATIONALE FOR THE ADMISSIBILITY OF A DYING DECLARATION:

Remember that the central element of a dying declaration is the declarant’s

consciousness of an impending death. It has been ruled that as a general rule,
when a person is at the point of death, every motive of falsehood is silenced, and
the mind is induced by the most powerful consideration to speak the truth, and
therefore, the statements under such circumstances deserve weight.

The dying declaration of the deceased need not be directed to a particular

person inquiring from the declarant as to the circumstances of his death. Anyone
who has knowledge of what the declarant said, whether it be directed to him or
not, or whether he had made inquiries from the declarant or not, can testify
thereto (PP .vs. Valdez, 347 SCRA 594)

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ASSAILING A DYING DECLARATION

Although jurisprudentially considered as evidence of the highest order, it is

submitted that the admissibility of a dying declaration, like any admissible
evidence, does not create a conclusive presumption of credibility of the admitted
declaration. No evidentiary rule grants a dying declaration a favored status in the
hierarchy of evidence. Like any other evidence, the declaration may be attacked
in the same manner as one would do to a testimony in open court. The declarant
himself may be impeached through the normal methods provided for under the
rules. For instance, the objector may show that prior to the admitted declaration,
the declarant had previously made a statement with his supposedly ‘dying
declaration.’

KINDS OF DYING DECLARATIONS:

A dying declaration may be ORAL or WRITTEN or made by SIGNS which

could be interpreted and testified to by a witness thereto. The wife of a declarant
may testify to the same, either for prosecution or as a witness for the defense,
and this does not violate the marital privilege as a dying declaration is not
considered a confidential communication between the spouses. If the ante
mortem statement was made orally, the witness who heard it may testify thereto
without necessarily reproducing the exact words as long as he can give the
substance thereof, and if the deceased had an unsigned dying declaration, the
same may be used a memorandum by the witness who took it down,

CAN NON-VERBAL ACTS BE USED AS DYING DECLARATIONS?

As a general rule, a non-verbal act hardly qualifies as a dying declaration.

The mere gesture of a dying victim is inconclusive. The gesture of a dying

woman in pointing to a direction, when asked for the identity of her assailant, is
too vague to be given such probative value in determining the culpability of the
accused.

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 Unlike an oral or a written declaration, a simple gesture of the hand
unaccompanied by words, is open to various interpretations by the witness who
testifies to its existence. Thus, the evidence comes to the court couched in the
witness’s second hand perception and possibly, imbued with his personal
meanings and biases. This is what makes hearsay evidence objectionable. The
second hand evidence is placed before the court without the benefit of cross-
examination by the party against whom it is brought, nor of any other means of
assessing the competence and credibility of the source. (People vs. Senen Ola,
G.R. No. L – 47147, July 3, 1987)

DEATHBED CONFESSION IS NOT A DYING DECLARATION

In England, in R. v. Gray (1841) Ir. Circ. Rep. 76, a death bed confession by a
third person that he, not the accused, had committed the murder charged was
held inadmissible.

In the U.S, however, under Rule 804 of the Federal Rules, A death bed
confession can be admissible in court under the right circumstances. If someone
confesses knowledge of a crime and then dies or his condition worsens, the law
does not consider the statement to be hearsay and can be used in a criminal trial
(Espejo).

Example

James Brewer was suffering from a stroke and thought he was going to die
when he decided to come clean about his life. In 1977 James Brewer, in a jealous
rage, killed his neighbor, skipped bail, and then ran away with his wife and they
took on new identities as the Andersons. They were model citizens and even lead
a Bible study group He confessed this in 2009 to the police on his deathbed.

However, eventually recovered. When he was fit to stand trial, he was

prosecuted. He was later found guilty of murder and sentenced to the death
penalty.

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IF THE VICTIM SURVIVES

If the victim survives but is unable to testify, the declaration can no longer
be considered a dying declaration. However, the declaration may still be admitted
as part of res gestae.

Sec. 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 ASSIGNED OF A PARTY OR A PERSON IN WHOSE BEHALF A CASE IS
PROSECUTED TESTIFIES ON A MATTER OF FACT OCCURING 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.

DEAD MAN’S STATUTE

UNDER SECTION 39, RULE 130 OF THE REVISED RULES ON EVIDENCE, IT WOULD APPEAR
THAT THE DECEASED’S OR UNSOUND MIND’S PREVIOUS STATEMENT CAN BE UTILIZED TO REFUTE
THE ADVERSE PARTY’S INTRODUCTION OF EVIDENCE ABOUT AN ASSERTION OF FACT PRIOR TO THE
DEATH OF THE DECEASED OR BEFORE THE PERSON BECAME OF UNSOUND MIND. (PERALTA). SIMPLY
PUT, UNDER THE NEW RULE, THE TESTIMONY OF THE SURVIVOR, AS WELL AS HEARSAY EVIDENCE OF
THE DECEASED, MAY NOW BE ADMITTED.

THE “DEAD MAN’S STATUTE” PROVIDES THAT IF ONE PARTY TO THE ALLEGED TRANSACTION IS
PRECLUDED FROM TESTIFYING BY DEATH, INSANITY OR OTHER MENTAL DISABILITIES, THE SURVIVING
PARTY IS NOT ENTITLED TO THE UNDUE ADVANTAGE OF GIVING HIS OWN UNCONTRADICTED OR
UNEXPLAINED ACCOUNT OF THE TRANSACTION.

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PURPOSE OF THE STATUTE

AS A MATTER OF SHIELD, THE OBJECT OR PURPOSE OF THE STATUTE IS TO GUARD AGAINST

THE TEMPTATION TO GIVE FALSE TESTIMONY ON THE PART OF THE SURVIVING PARTY, AND TO PUT THE
PARTIES TO THE SUIT UPON TERMS OF EQUALITY IN REGARD TO OPPORTUNITY TO PRODUCE EVIDENCE.
ONE PARTY TO THE TRANSACTION BEING PRECLUDED FROM TESTIFYING BY REASON OF DEATH OR
INSANITY, IT IS CONSIDERED THAT THE OTHER PARTY SHOULD NOT BE ENTITLED TO THE ADVANTAGE
OF GIVING HIS OWN UNCONTRADICTED AND UNEXPLAINED ACCOUNT OF THE TRANSACTION. (JONES
ON EVIDENCE)

SIMPLIFYING THE RULE

AS WORDED, THE RULE IS VERY DIFFICULT TO UNDERSTAND, IT IS ONE VERY LONG SENTENCE
WITH SEVERAL CLAUSES. WE WILL NOW ATTEMPT TO SIMPLIFY THE RULE BY ASKING A SERIES OF
QUESTIONS, AS FOLLOWS:

1. WHAT IS THE NATURE OF THE CASE UNDER CONSIDERATION?

2. WHAT IS THE CAUSE OF ACTION ALL ABOUT?
3. WHO IS THE DEFENDANT?
4. WHO IS THE PLAINTIFF?
5. WHAT IS THE PROPOSED TESTIMONY ALL ABOUT?

NATURE OF CAUSE OF ACTION

THIS RULE APPLIES ONLY TO A CIVIL CASE OR SPECIAL PROCEEDING. THUS, IF THE CASE UNDER
CONSIDERATION IS A CRIMINAL OR ADMINISTRATIVE CASE, THE RULE DOES NOT APPLY.

CAUSE OF ACTION

THE CAUSE OF ACTION THAT TRIGGERS THE APPLICATION OF THE RULE IS A CLAIM AGAINST THE
ESTATE OF THE DECEASED OR INSANE PERSON. THUS, IF A PERSON IS STILL ALIVE AND NOT INSANE,
YOU DO NOT APPLY THE RULE. THE CLAIM CAN BE PROSECUTED BY WAY OF AN ORDINARY ACTION
AGAINST THE DEBTOR. THE RULE DOES NOT APPLY WHEN THE ACTION BROUGHT IS NOT AGAINST BUT
FOR THE BENEFIT OF THE ESTATE. IT HAS TO BE A CLAIM AGAINST THE ESTATE.

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DEFENDANT

THE ONLY POSSIBLE DEFENDANTS UNDER THE RULE AS WORDED ARE THE FOLLOWING:

1. THE EXECUTOR OR ADMINISTRATOR OF THE ESTATE OF A DECEASED PERSON; OR

2. OTHER REPRESENTATIVE OF SUCH DECEASED PERSON (EXAMPLE: AN HEIR, OR HEIRS WHERE
NO EXECUTOR OR ADMINISTRATOR IS APPOINTED); OR

3. THE PERSON OF UNSOUND MIND HIMSELF.

PLAINTIFF

THE PLAINTIFF IS THE PERSON WHO HAS A CLAIM AGAINST THE ESTATE OF THE DECEASED PERSON OR
OF UNSOUND MIND. THE RULE WILL NOT APPLY WHERE THE EXECUTOR OR ADMINISTRATOR IS THE
PLAINTIFF.

PROPOSED TESTIMONY

IN ORDER FOR THE RULE TO APPLY, THE TESTIMONY PROPOSED MUST BE OF THE PLAINTIFF-
WITNESS OR HIS PRIVIES WHICH, BY SUCH TESTIMONY ALONE AND UNCORROBORATED BY ANY OTHER
EVIDENCE, WOULD TEND TO ESTABLISH A CLAIM AGAINST THE DECEASED OR INSANE PERSON. THE
SUBJECT MATTER OF THE TESTIMONY MUST BE A MATTER OF FACT OCCURRING BEFORE THE DEATH OF
SUCH DECEASED PERSON OR BEFORE SUCH PERSON BECAME OF UNSOUND MIND.

IN OTHER WORDS, IT IS THE ADVERSE TESTIMONY IF THE SURVIVOR THAT IS PROHIBITED

UNDER THE RULE. THUS, WHERE THE TESTIMONY OF THE SURVIVOR IS FAVORABLE (I.E., ESTABLISHES A
CLAIM FOR THE ESTATE AND NOT AGAINST IT), SUCH TESTIMONY IS NOT PROHIBITED. (ESPEJO)

SECTION 23, RULE 130 SEEMS TO ENTAIL THE PROPRIETY OF ITS INVOCATION IN ANY ACTION, IT IS
UNDERSTOOD TO REFER TO A CIVIL CASE OR A SPECIAL PROCEEDING OVER THE ESTATE OF A DECEASED
OR INSANE PERSON (REGALADO)

1. Requisites for Application of Dead Man’s Statute [PACO]

a. The witness is a Party or assignor of a party to a case, or of a person on

whose behalf a case is prosecuted;

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 Dead Man Statute not applicable to a corporation’s officers and
stockholders in a suit instituted by the corporation. Thus, the officers and
stockholders may testify.

The witness being offered is either a party plaintiff, or his assignor or a

person in whose behalf a case is prosecuted. Such plaintiff must be the real party
in interest. Consequently, the rule has no application to a mere witness.

b. The action is Against an executor, administrator or other representative of

a deceased person, or against a person of unsound mind;

Heirs of deceased person are considered “representatives” of a deceased

person.

The action is being prosecuted against an executor, administrator or other

representative of a deceased person or one of unsound mind. It is necessary that
said defendant is being sued and defends in such representative capacity and not
in his individual capacity.

Furthermore, the rule applies regardless of whether the deceased died

before or after the suit against him is filed, provided he is already dead at the
time the testimony is sought to be given

The protection of the rule would, therefore, included the heirs of the
deceased defendant who are substituted for the latter under Rule 3, sec. 17, and
the guardians of person of unsound mind who are sued in such representative
capacity under Rule 96, Sec. 3.

c. The subject matter of the action is a Claim or demand against the estate of
such deceased person, or against such person of unsound mind;

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 The rule does not apply where it is the administrator who brings an action
to recover property allegedly belonging to the estate, or the action is by the heirs
of a deceased plaintiff who were substituted for the latter.

d. The testimony refers to any matter of Fact occurring before the death of
such deceased person, or before such person became of unsound mind.

Not covered by the Rule:

i. Counterclaim by defendant (plaintiff may testify in his defense)

ii. Deceased contracted with plaintiff thru an agent of the deceased/insane
(in the contract which is the subject of the action) who is still alive and
can testify (but the testimony is limited to the acts performed by the
agent)
iii. If adverse party is called as a witness by the representative of the
deceased/incompetent or if representative introduced evidence as to
the transactions or communications with the deceased/incompetent
iv. To cadastral proceedings, where there is no defendant or plaintiff

(e)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.

Examples

1. Before the death of Antonio, he entered into a contract of services with

Vicente, an Architect, relative to the design of Antonio’s house whom he
intended to build. If Antonio filed a case for collection of sum of money for
the services he rendered on Antonio, against Antonio’s executor or
administrator or other representative, Vicente may present evidence of any

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 statement made by Antonio in relation to the contract of services he
(Antonio) with Vicente.

2. During his lifetime, Darby borrowed money from Rex in the sum of P10,
000. 00. In the case of sum of money initiated by Rex against Darby’s
executor or administrator or other representative, after the death of Darby,
Rex may present evidence to prove that indeed Darby lent money from
him.

Sec. 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 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.

Declaration Against Interest

In People v. Toledo, 51 Phil. 825, the Supreme Court extended the hearsay
exception to a declaration against penal interest offered in evidence to exculpate
the accused. In the opinion penned by Justice Malcolm, it is significant that he
noted that “there was other evidence indicative of the truthfulness of the
statement.”

To guard against the danger of a witness testifying falsely that he has,

heard another person (deceased or unable to testify) confess to the crime for the
purpose of exculpating the accused, the Sub-Committee decided to adopt the
requirement in Rule 804(b)(3) of the FRE that there must be “corroborating
circumstances” clearly indicating the trustworthiness of the statement. As to the
meaning of “corroborating circumstances” there must be independent evidence
that directly or circumstantially tends to prove the purpose for which the

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statement is offered – for example, evidence supporting the veracity of the
declarant, the fact that the statement was against interest to an unusual degree,
the declarant repeated the statement, the declarant could not be motivated to
falsify for the benefit of the accused, or other factors suggesting trustworthiness,
such as spontaneity (Mueller & Kirkpatrick, Section 8.64)

This exception refers to a declaration made by a person who at the time his
declaration is presented in evidence is already dead or is unable to testify. This
declaration must be one which when made, was known to the declarant himself
to be against his interest, pecuniary or moral, and which would not have been
made unless he believed it to be true. It is clear from the rule that it is not enough
that a declaration against interest was made, It is necessary that the declarant
knew the statement was against his interest and which he would not have made
had it not been true.

Form of Declaration Against Interest

A declaration against interest may be oral or in writing, there being no

general distinction between the two forms of statement with regard to
admissibility, and such declarations may even be in printed form. Declaration
against interest have been admitted when they appear in accounts, deeds,
entries, evidence given on a former occasion, indorsement, inventories, letters,
purported testamentary instruments, receipt, tax returns, and in the enrolment
of a vessel. (Martin)

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; and
3. The declarant believed the declaration to be true.
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. (Weissenberger)

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 A declaration against interest is the opposite of a self-serving declaration
which is a statement favorable to or intended to advance the interests of the
declarant. Consequently, a self-serving declaration is inadmissible as being
hearsay if the declarant in unavailable as a witness.

The declarations contemplated by Rule 130 is a declaration against interest

if the declaration is favorable to the interest of the declarant, it is a mere self-
serving statement and does not fall as an exception to the hearsay rule.

Examples:

1. A declaration admitting that he was the one who killed the victim, made by
a declarant who died shortly thereafter, is admissible where another
person was subsequently charged as the killer of the same victim, under
the theory that said declaration was one against the penal interest of
the declarant.

2. If X, prior to his death, executed a document acknowledging the

indebtedness in favor of A who thereafter filed a suit to recover the
same sum of money against B, the extra-judicial statement of X can be
received in evidence against him or his successors and against A.

3. Kharrel was charged with the crime of kidnapping Alex, her husband. The
prosecution presented Jash who testified that Alex confided to her that
he and Sandra were having an affair. It appears that Alex’s infidelity was
ample reason for Kharrel to seek revenge. Consequently, the court
convicted Kharrel based on the testimony of Jash. Was the testimony of
Jash admissible?

Suggested answer

Yes, Alex’s revelation to Jash regarding his affair with Sandra is admissible,
pursuant to Section 38. A declaration against interest includes all kinds of interest,

202
including penal interest. As Alex had been missing since his abduction, he cannot
be called upon to testify. His confession to Jash is a declaration against his own
interest as his affair with Sandra was a crime. It is admissible in evidence as no
sane person will tell a falsehood to his own detriment (People v. Theodore Bernal,
G.R. No. 113685, June 19, 1997)

Declaration Against Penal Interest

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.
In United States law, a statement against penal interest is a statement that
puts the statement-maker at risk of prosecution.

Example

1. A declaration admitting that he was the one who killed the victim, made by
a declarant who died shortly thereafter, is NOT admissible where another
person was subsequently charged as the killer of the same victim, under
the theory that said declaration was one against the penal interest of the
declarant, corroborating circumstances clearly indicate the trustworthiness
of the statement.
2. If a driver in an automobile accident boast publicly that they were
speeding, it may represent a legal admission.
3. A,B, and C were charged for robbery, A’s girlfriend testifies that A told her
that D had nothing to do with the robbery.

Sec. 41. Act or declaration against pedigree. – The act or declaration of a

deceased person, 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 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

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the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word “pedigree” includes
relationship, 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.

Act or Declaration Against Pedigree

The hearsay exception relating to an act or declaration about pedigree

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 likely to have
accurate information concerning his pedigree.” The rationale is that statement
about another, if the declarant was related to the person by “adoption” or so
“intimately associated” with his family that he likely had ‘accurate information,”
are trustworthy enough. Such statements are likely to rest on adequate
information and to be truthful.

Pedigree 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. (Bouvier’s Law Dictionary)

Elements:

1. The declarant is dead or unable to testify;

2. That the declarant is related by birth, adoption, or marriage, or intimately
associated to the person whose pedigree is in issue;
3. The declaration was made before the controversy; and
4. The relationship between the two persons is shown by evidence other than
such act or declaration.

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Examples

(a) The declaration of Jose, already dead, prior to his death and prior to any
controversy, that Juan is his illegitimate son, is a declaration about
pedigree.

(b) A statement from a mother while living, that her daughters Maria and
Petra were sired by the same father, is admissible.

(c) Gerald, at his death bed, confessed to Ravver that he is the father of
Sarah’s child. He died 2 seconds later. During the settlement of his estate,
Sarah appeared in court to assert the rights of her child with Gerald and
wanted to present Ravver to testify as to Gerald’s admission of paternity.

Question: Can the legitimate children of Gerald object to the admissibility of

Ravver’s testimony?

Answer: Yes. As the statement given by Ravver is considered hearsay. The

court must sustain the objection if Sarah cannot present evidence other
than the act or declaration of Gerald that he is the father of her child.

Question: What should Sarah’s counsel do?

Answer: Counsel can ask to have the testimony of Ravver regarding Gerald’s
statement conditionally admitted.

Question: Suppose the court conditionally admits the testimony, but Sarah’s
unable to present corroborative evidence, what is the remedy of her
opponents?

Answer: They can move to strike the testimony on the ground that the
condition for admitting the hearsay evidence was not fulfilled. (Espejo)

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Sec. 42. Family reputation or traditions regarding pedigree. – The reputation or
tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bible or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of pedigree.

Family Reputation or Traditions regarding Pedigree

Elements:

1. A statement by a member of the family either by consanguinity or affinity;

2. The statement is about the reputation or tradition of the family in respect
to the pedigree of any member of the family; and
3. The reputation or tradition is one existing previous to the controversy.

TWO PARTS

Section 42 is composed of two parts, namely:

1. Testimonial Evidence of Pedigree (testimony of a family member)

A person’s statement as to his date of birth and age, as he learned of these

from his parents or relatives, is an ante litem motem declaration of a family
tradition. (Gravado vs. Mamigo, L- 24989, July 21, 1967)

2. Documentary or Object Evidence of Pedigree (entries in family bibles or

other family books or charts, engravings on rings, family portraits and the
like)

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Example

In People vs. Alegado, 201 SCRA 37, the testimony of a witness and the
witness’s grandfather as to the death and age of the witness is evidence of
family tradition which is admissible as an exception to hearsay.
Sec. 43. 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.

Common Reputation

Common reputation in Section 43, Rule 130 of the 2019 Revised Rules on
Evidence simply means general or undivided reputation (Francisco). As modified,
the requirement of antiquity, lifted from the phrase “facts of public or general
interest more than thirty years old, was not reflected under Section 43, Rule 130
of the 2019 Revised Rules on Evidence.

Insofar as marriage, evidence of general repute in the neighborhood is

admissible on the trial of a suit involving the issue of marriage vel non, except
indictment for bigamy, and like cases, where strict proof of marriage is generally
required. (10 Ruling Case Law)

As understood, 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, (Franscisco) who were in a
position to have sound sources of information and can contribute intelligently to
the information 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. (Francisco)

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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 who have had an
adequate opportunity of observing the person’s conduct. A man’s character is not
talked about until there is some fault to be found with it. It is the best evidence of
his character that he is not talked about at all. (Francisco)

Common reputation is admissible to prove:

1. Matters of public interest are those of national interest.

2. Matters of general interest are those affecting inhabitants of a particular
region.

Common reputation may be established either by the testimonial evidence

of competent witnesses or by monuments and inscriptions in public places.

Common reputation is the definite opinion of the community in which the

fact to be proved is known or exists. Character refers to the inherent qualities of a
person, while reputation is the opinion of him by others, but under this section,
the character of a person is permitted to be established by his common
reputation.

While, as a rule, the reputation of a person should be that existing in the

place of his residence, it may also be that existing in the place where he is best
known. The character of a place as an opium joint may be proved by its common
reputation in the community.

Example

1. The character of a place as an opium joint may be proved by its common

reputation in the community (U.S. v. Chiok)

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Sec. 44. 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.

Part of the Res Gestae

The addition of the words “under the stress of excitement cause by the
occurrence” is designed to underscore the rationale for the hearsay exception –
the elimination of the declarant’s reflective capacity because the statement was
made under the stress of excitement. The proposed amendment is to emphasize
that the statement must really be a spontaneous reaction to the exciting
occurrence and that courts should be conscious that the time interval between
the startling occurrence and the statement should not be long enough to permit
reflective thought. In the case of People v. Putian, G.R. No. L – 33048, November
29, 1976, it was noted by the Court that if the declaration was made at the time
of, or immediately thereafter, the commission of the crime, or at a time when the
exciting influence of the startling occurrence still continued in the declarant’s
mind, it is admissible as part of res gestae. (Peralta)

The rule of res gestae refers to (a) spontaneous statements in connection

with a startling occurrence, and (b) statements accompanying an equivocal act,
otherwise known as verbal acts.

It had been held that in spontaneous exclamations or statements, the res

gestae is the startling occurrence, whereas in verbal acts, the res gestae are the
statements accompanying the equivocal act.

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SPONTANEOUS STATEMENTS

Spontaneous statements (spontaneous exclamations or excited utterances)

to be admitted in evidence must have the following characteristics:

1. That there is a startling occurrence as the principal act;

2. That there is no opportunity to contrive;
3. The statement, under stress of excitement caused by, and relates to, the
occurrence.

When all these conditions are met, we have a spontaneous statement

constituting an exception to the rule barring hearsay statements. Even if the
declarant is unavailable and thus, cannot be cross—examined, the evidence may
be received in evidence.

The admissibility of a spontaneous statement is anchored on the theory

that the statements was uttered under circumstances where the opportunity to
fabricate is absent.

In the “spontaneous statement” part of res gestae, common reason

suggests that the statement and the event cannot be taken separately. The
statement alone without the event will not qualify for admission, because it is the
circumstances surrounding the making of the statement which makes said
statement admissible.

Guide in objecting to the presentation of a spontaneous statement as

evidence:

1. Know first whether or not the event or occurrence is indeed a startling one.
2. If the utterance was made immediately before or while the starling event
was taking place.
3. Was the declarant still in a state of excitement or shock?
4. Matter of credibility.

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 5. Was the statement made under the influence of startling occurrence
relates to the circumstances of the event?

The interval of time between the startling occurrence and the

statement depends upon the circumstances, but such statement must have
been made while the declarant was under the immediate influence of the
startling occurrence. If the declarant was rendered unconscious after the
startling occurrence, his statements relative thereto upon regaining
consciousness are still part of the res gestae regardless of the time that
intervened in between.

If the statement was made under the influence of a starling occurrence

and the declarant did not have the opportunity to concoct or contrive a story,
even if made 9 hours after the killing the statement is admissible as part of res
gestae.

Statements as part of res gestae have been admitted to establish the

identity of the assailant; to prove the complicity of another person in the crime;
and to establish an admission of liability on the part of the accused.

Examples

1. A dying declaration can be made only by the victim while a statement as

part of res gestae may be that of the killer himself after or during the killing
or that of a third person.

2. Dying declarations are made only after, the homicidal attack has been
committed; but in res gestae, the statement may precede, accompany or
be made after the homicidal act was committed.

3. The trustworthiness of a dying declaration is based upon its being given

under an awareness of impending death, while the rule of res gestae has its
justification in the spontaneity of the statement.

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 4. Siony came to the house of her grandmother, Atanacia and frantically told
her that her father Domiciano was strangling her mother, Rosita. They went
to the house of Domiciano and found Rosita dead. Domiciano was not
there. The statement Siony made to her grandmother when she rushed to
inform her of her father’s attack on her mother was part of res gestae. Res
gestae means “thing done.” (People v. Peralta, 237 SCRA 218)

5. A declaration made by a person immediately after being wounded, pointing

out or naming his assailant, may be considered as part of the res gestae and
is admissible in evidence. (People vs. Putian, 74 SCRA 133)

VERBAL ACTS

The last sentence of Sec. 44 of rule 130 defines a verbal act as a “statement
accompanying an equivocal (open to more than one interpretation) act material
to the issue, and giving it a legal significance.” A verbal act presupposes a conduct
that is equivocal or ambiguous, one which in itself does not signify anything when
taken separately. It only acquires a meaning, specifically what the rules call a legal
significance, only because of the statements that accompany the act. It is the
statement contemporaneous with the act that identifies or indicates the
character, purpose or motive of the act. (Dean Riano)

Verbal act must be contemporaneous with or must accompany the

equivocal act to be admissible. Verbal act must have been made at the time, and
not after, the equivocal act was being performed, unlike spontaneous
exclamations which may have been made before, during or immediately
subsequent to the startling occurrence.

To be admissible under this category, the following requisites must be

present:

1. The principal act to be characterized must be equivocal (uncertain;

doubtful);
2. The equivocal act must be material to the issue;

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 3. The statement must accompany the equivocal act; and
4. The statement gives a legal significance to the equivocal act.

Examples

1. Loan of money – the handing of money by the plaintiff to the defendant.

The act of handing of money by the plaintiff to the defendant is by itself,
equivocal; it might be interpreted as paying a monetary obligation or as a
generous gesture, or giving the money as a loan.

2 Swinging of baseball bat.

3 When an officer arrests a man by placing his hand on his shoulder, thus taking
him into custody, and saying, “I arrest you in the name of the law.” The act of
placing the hand on the shoulder is, by itself, equivocal; it might be just a friendly
gesture. The words that accompany the act are what give it legal significance. The
utterance comes in as a verbal part of the act, commonly known as “verbal act.”

Multiple Admissibility

On the strength of the doctrine of multiple admissibility, both concepts can

coexist, or only one of them may be appreciated as justified by the factual milieu.
While the statement of the victim may not qualify as a dying declaration because
it was not made under the consciousness of impending death, it may still be
admissible as part of res gestae if it were made immediately after the incident.
And where the elements of both are present, the statement may be admitted
both as a dying declaration and as part of res gestae. (Regalado)

Distinction between Res gestae and Dying declaration:

RES GESTAE DYING DECLARATIONS

Statement of the killer himself after Can be made only by the victim
or during the killing, or that of a

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third person (e.g., victim)
Statement may precede, accompany Made only after the homicidal attack
or be made after the homicidal act has been committed
was committed
Justified by the spontaneity of the Trustworthiness is based upon its
statement being given under awareness of
impending death

Records of Regularly Conducted Business

What used to be referred to as entries in the course of business or business

records in Section 43, Rule 130 of the 1989 Revised Rules on Evidence, the
additional exception to the hearsay evidence rule was modified to forego the
requirement of unavailability and personal knowledge of the entrant under
Section 45, Rule 130 of the 2019 Revised Rules on Evidence:

Sec, 45. RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY. – A

MEMORANDUM, REPORT, RECORD OR DATA COMPILATION OF ACTS, EVENTS,
CONDITIONS, OPINIONS, OR DIAGNOSES, MADE BY WRITING, TYPING,
ELECTRONIC, OPTICAL OR OTHER SIMILAR MEANS AT OR NEAR THE TIME OF OR
FROM TRANSMISSION OR SUPPLY OF INFORMATION BY A PERSON WITH
KNOWLEDGE THEREOF, AND KEPT IN THE REGULAR COURSE OR CONDUCT OF A
BUSINESS ACTIVITY, AND SUCH WAS THE REGULAR PRACTICE TO MAKE THE
MEMORANDUM, REPORT, RECORD OR DATA COMPILATION BY ELECTRONIC,
OPTICAL OR SIMILAR MEANS, ALL OF WHICH ARE SHOWN BY THE TESTIMONY
OF THE CUSTODIAN OR OTHER QUALIFIED WITNESSES, IS EXCEPTED FROM THE
RULE ON HEARSAY EVIDENCE.

Records of Regularly Conducted Business Activity

Like its counterpart provision under the modified rule, it expects laying of
these foundations for a business record exception:

(1) A writing or other recordation of the declarant’s hearsay statement;

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 (2) Regularity in record keeping;
(3) Entry is made as a routine in a regular course or conduct of a business
activity, and
(4) Entry is effected forthwith or contemporaneously, i.e., at or near the time
of …. Information, to preclude lapse memory (Lily)

Although the modified rule did not impose the requirement of demise or
unavailability of the entrant, the law requires that the entrant was in a
position to know the facts stated therein and the entrant must have entered
the entries in his professional capacity or in the regular course of business or
duty (Jones on Evidence)

Terms Construed

The terms “business” and “record” must be construed in its broadest sense.

By “business” is meant any regular, systematic activity, and this would

include business concerns and related enterprises such as hospitals and
educational institutions (Bautista) Hence, business activity can encompass
schools, churches, hospitals and every kind of commercial operations, profession,
occupation and institution, whether or not carried on for profit. (Weisennberger)

Testimonial Foundation

As testimonial foundation, the proponent should call the custodian or other

qualified witness. Such person generally should be able to testify about how the
record was prepared, who prepared the record, where the record was kept, and
the purpose for the record. Generally, the essential testimony is that of the
custodian or other qualified persons who can explain the record keeping practices
of the organization. The phrase “other qualified person” should be broadly
construed.

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Examples

1. A certified public accountant or a purchasing agent who is not an employee

of the entity, but understands the system used by the entity, should be
qualified to testify to the foundation if he or she possesses firsthand
knowledge of the facts supporting the requirements of the Rule.
(Weissenberger)
2. In a foreclosure case, a lender may want to admit the mortgage document
into evidence. The mortgage documents would be hearsay unless the
lender provides an employee whose job it is to maintain mortgage records.
This employee must be able to testify that the record was made near the
time the mortgage was created and that the record was kept as part of the
regular course of business.

Sec. 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.

Entries in Official Records

An official record is a document of some kind, a book or paper, on which

entries are made by a public officer in the performance of his duties. (Cui)

This exception is justified by the assumption that a public official will

perform the official’s duty and by the unlikelihood that a person will remember
details independently of the record (Peralta)

To be admissible, it is necessary that:

1. The entries were made by a public officer in the performance of his duties
or by a person in the performance of a duty specially enjoined by law;

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 2. The entrant had personal knowledge of the facts stated by him or such
facts were acquired by him from reports made by persons under a legal
duty to submit the same;

3. Such entries were duly entered in a regular manner in the official records;

An official records may be (1) a register; (b) a cash book; (c) an official
return; (d) certificate.

Examples:

1. The motor vehicle accident report

2. The report submitted by the police officer
3. A sheriff’s return.
4. Tax Records made by a tax officer.
5. Official Cash Book kept by the disbursing officer.
6. Records of the Register of Deeds.

The entrant must have been competent with respect to the facts stated in
his entries. Consequently, while the priest who officiates a baptism acts pursuant
to a legal duty in recording the facts of such baptism in a register, such entries in
the register are not admissible to prove the date of birth of the child or its
relation to particular persons.

Baptismal certificates or parochial records of baptism are not public or official

records and are not proof of relationship or filiation of the child baptized.

In the case of entries in the course of business, it is sufficient that the

entrant made the entries pursuant to a duty either legal, moral, contractual or
religious, but in entries in official records, the entrant, if a private individual, must
have acted pursuant to a specific legal duty.

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 The ship captain’s captain logbook, which the law requires him to keep in
which decisions he had done are recorded, is legally binding and serves as an
exception to the hearsay rule. (Agpalo)

Sec. 47. Commercial lists and the like. – Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list, register,
periodical, or other published compilation is admissible as tending to prove the
truth of any relevant matter so stated if that compilation is published for use by
persons engaged in that occupation and is generally used and relied upon by
them therein.

Commercial Lists and the Like

Under Sec. 47, a document is a commercial lists if: (1) it is a statement of

matters of interest to persons engaged in an occupation; (2) such statement is
contained in a list, register, periodical, or other published compilation; (3) said
compilation is published for the use of persons engaged in that occupation; and
(4) it is generally used and relied upon by persons in the same occupation.

Examples of these compilations given by text writers are the mortality

tables, like the Carlisle or Wiggleworth Tables and accepted actuarial and annuity
tables.

Other examples:

1. Trade journals reporting current prices and other market data;

2. Mortality tables compiled for life insurance;
3. Abstracts of title complied by reputable title examining institutions or
individuals;
4. Business directories, animal pedigree registers. (Espejo)
5. NEDA reports
6. Part of newspaper which reports the prices of shares

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Sec. 48. Learned treatises. – A published treaties, periodical or pamphlet on a
subject of history, law, science, or art is admissible as tending to prove the truth
of a matter stated therein if the court takes judicial notice, or a witness expert
in the subject testifies, that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his OR HER profession or calling as
expert in the subject.

Learned Treaties

Admissibility of the learned treaties may be conditioned upon alternative

recourses:

i. Court takes judicial notice; or

ii. Testified to by an expert

Examples:

1. Historical works
2. Scientific treaties
3. Treaties on the law
4. Almanacs
5. Tables of Logarithms
6. Weights
7. Measures
8. Encyclopedias
9. Dictionaries

Sec. 49. Testimony or deposition at a former proceeding. – The testimony or

deposition of a witness deceased or OUT OF THE PHILIPPINES OR WHO CANNOT,
WITH DUE DILIGENCE, BE FOUND THEREIN, OR IS UNAVAILABLE OR OTHERWISE
UNABLE TO TESTIFY, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be given in

219
evidence against the adverse party who had the opportunity to cross-examine
him OR HER.

Testimony or Deposition at a Former Proceeding

In order to be admissible as an exception to the hearsay rule, this section

requires that:

1. The witness is dead, outside of the Philippines or unable to testify;

2. His testimony was given in a former case between the same parties or
those representing the same interests;
3. The former case involved the same matter as that in the present case,
although on different causes of action;
4. The issue testified to by the witness in the former trial is the same issue
involved in the present case.
5. The adverse party had the opportunity to cross examine the witness in the
former case.

A witness may be said to be unable to testify where he is mentally

incapacitated, or is so ill, or so old that it is impossible for him to give
testimony. It has also been held that where the witness cannot be found after
diligent search, or appears to have been kept away by the adverse party, his
testimony at a former trial is admissible.

This section requires that the testimony of the unavailable witness was
given at a “former trial” hence such testimony must have been given in a judicial
proceeding, and excludes testimony given in administrative or quasi judicial
proceedings, except those given in a preliminary investigation by specific
provision of 1 (f), Rule 115, provided the adverse party had the opportunity to
cross-examine.

However, it was subsequently held that a judgment of conviction, in the

absence of collusion between the accused and the offended party, is binding and
conclusive upon the person subsidiarily liable not only with regards to his

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subsidiary liability but also with regard to the amount thereof and said judgment
is admissible in evidence in the civil action brought to enforce said subsidiary
liability.

How to prove

To prove the former testimony of a witness, the best evidence is the

transcript of the official stenographer’s notes. And where such official
stenographer died and could not transcribe his notes, the transcript of another
stenographer who uses the same system is admissible provided he certifies that
his transcript is correct. Where it is impossible to have a transcript of the
stenographic notes, or where no such stenographic notes were taken down, the
former testimony may be proved by the minutes or notes of the judge before
whom the former testimony was held, if the judge can testify that they are
correct, or that he has no doubt of their being so. The former evidence may also
be proved by the testimony of any witness who heard it, provided such witness is
able to state it with satisfactory correctness (Moran)

Sec, 50 RESIDUAL EXCEPTION – A STATEMENT NOT SPECIFICALLY COVERED BY

ANY OF THE FOREGOING EXCEPTIONS, HAVING EQUIVALENT CICUMSTANTIAL
GUARANTEES OF TRUSTWORTHINESS, IS ADMISSIBLE IF THE COURT
DETERMINES THAT (A) THE STATEMENT IS OFFERED AS EVIDENCE OF A
MATERIAL FACT; (B) THE STATEMENT IS MORE PROBATIVE ON THE POINT FOR
WHICH IT IS OFFERED THAT ANY OTHER EVIDENCE WHICH THE PROPONENT CAN
PROCURE THROUGH REASONABLE EFFORTS; AND (C) THE GENERAL PURPOSES
OF THESE RULES AND THE INTEREST OF JUSTICE WILL BE SERVED BY ADMISSION
OF THE STATEMENT INTO EVIDENCE. HOWEVER, STATEMENT MAY NOT BE
ADMITTED UNDER THIS EXCEPTION UNLESS THE PROPONENT MAKES KNOWN
TO THE ADVERSE PARTY, SUFFICIENTLY IN ADVANCE OF THE HEARING, OR BY
THE PRE-TRIAL STAGE IN THE CASE OF A TRIAL OF THE MAIN CASE, TO PROVIDE
THE ADVERSE PARTY WITH A FAIR OPPORTUNITY TO PREPARE TO MEET IT, THE
PROPONENT’S INTENTION TO OFFER THE STATEMENT AND THE PARTICULARS
OF IT, INCLUDING THE NAME AND ADDRESS OF THE DECLARANT.

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Residual Exception

The “residual exception” rule is essentially a recognition that the other

rules dealing with hearsay exceptions could not reasonably cover and address
each and every type of hearsay evidence and the factual and legal situations
under which a party might argue for its admission.

Residual exception is a rule that gives the court the discretion to admit
evidence that is hearsay when the evidence is more probative than any other
evidence on the issue reasonably obtainable, and that the rules on evidence and
the principle of justice will be served thereby.

Examples:

1.The proponent may become aware of the existence of the hearsay

statement only after the trial begins.

2.The proponent may plan to call witness who, without warning, becomes
unavailable.

This residual exception provides a vehicle for admitting hearsay “in

situations unanticipated by other exceptions, but involving equal guarantees of
trustworthiness.”

Per Rule 807 of the 2018 Federal Rules of Evidence, the residual exception
can only be applied if the statement is not specifically covered by a hearsay
exception in Rule 803 or 804. In this regard, the Advisory Committee’s Notes
indicated that the Committee considered it unnecessary to include statement by
the party-opponent himself or the statement of which he has manifested his
adoption – because the credibility of the party-opponent is always subject to an
attack on his credibility. (West, Federal Rules of Evidence)

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 For instance, hearsay evidence that another person had stated that the
defendant, charged with a firearm offense, had fired the shot was admissible
under residual exception. (Weissenberger)

Elements of Residual Exception

Hearsay offered under Rule 807, and under Section 50, Rule 130 of the
2019 Revised Rules on Evidence, must satisfy five requirements to be admissible,
to wit:

(a)The statement must possess circumstantial guarantee of trustworthiness akin

to specific hearsay exceptions;

(b) THE STATEMENT IS OFFERED AS EVIDENCE OF A MATERIAL FACT;

©THE STATEMENT IS MORE PROBATIVE ON THE POINT FOR WHICH IT IS

OFFERED THAT ANY OTHER EVIDENCE WHICH THE PROPONENT CAN PROCURE
THROUGH REASONABLE EFFORTS;

(d) Admission of the evidence will serve the purpose of the rules and justice;
and

(e) The proponent notifies the opponent of the intention to offer the
statement, with details of 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.
(Weissenberger)

7.OPINION RULE

Sec. 51. General Rule. – The opinion of a witness is not admissible, except as
indicated in the following sections.

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General Rule

As a rule, the opinion of a witness is inadmissible. This is because when a

witness testifies, a witness does so with respect to facts personally observed by
him and it is the court to draw conclusions from the facts testified to. Hence,
upon proper objection, as witness is not normally allowed to state opinions,
conclusions or inferences which are for the courts to make.

“Opinion Evidence” as the term is used in law, means the testimony of a witness,
given or offered in the 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. It is evidence of what the witness thinks,
believes, or infers in regard to facts in dispute, as distinguished from his personal
knowledge of the facts themselves (Agpalo)
Reason for the 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 (Cui). Hence, upon proper objection, a witness is not normally allowed
to state opinions, conclusions or interferences which are for the courts to make.

Example:

1. The statement of a witness that a collision was caused by the negligence of

the defendant;
2. That a certain apparatus is defective;
3. That a person “was treated as a son” (Peralta)
4. That the victim died because of loss of blood.
5. The witness’ testimony that injuries sustained by the victim is life
threatening.

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Exception Number 1

Sec. 52. Opinion of expert witness. – The opinion of a witness on a matter

requiring special knowledge, skill, experience, training, OR EDUCATION, which
he is shown to possess, may be received in evidence.

Opinion of Expert Witness

The word “expert” has been defined judicially as: ”A man of science; a
person conversant with the subject-matter; a person of skill; a person possessed
of science and skill respecting the subject-matter; one who has made the subject
upon which he gives his opinion a matter of particular study, practice or
observation. (Jones on Evidence)

It is essential that one who purported to possess the requisite special

knowledge, skill or experience to be entitled to testify as an expert shall first
qualify himself as such. Qualification of an expert can be achieved by study,
practice, actual experience or long observation even without a study of the
subject. A preliminary question to the determination of the witness’s qualification
as an expert depends on court evaluation upon examination of the witness
himself, or other witnesses relative thereto, as to his opportunities and means of
knowledge of the subject under inquiry. Certainly, the ritual of developing the
aptitude of the witness as an expert can be abated by the adverse party’s
admission in judicio in the course of pre-trial conference or trial, as the case may
be. (Jones on Evidence)

Qualifying the witness

An expert witness is offered as such. If the opponent admits that he is an

expert, he can immediately proceed with his testimony.

If the opponent does not admit that he is an expert witness, then before a
witness proposed as an expert may testify, he must first be qualified. “Qualifying
a witness” means the act of proving that the witness is an expert. This is done by

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making him testify, through preliminary questions, as to his training, education,
and expertise. (Espejo)

Examples

(1)In the case of declaration of nullity of marriage filed by the wife against
her husband, one of the witnesses of the petitioner is a psychologist or
psychiatrist. Unless, the other party will admit the qualification of said
psychologist or psychiatrist as an expert in the field of psychology or
psychiatry, the petitioner must first qualify said witness.

(2) In the prosecution for the crime of homicide, the prosecution will present
as one of his witnesses the medico legal officer who conducted the post-
mortem examination. Unless the witness’ qualification will be admitted
by the accused, the prosecution needs to qualify first the medico legal
officer as an expert in the field of medico legal science.

The court is not however, bound by the opinion of an expert such as a

handwriting expert. Expert opinion evidence is to be considered or weighed by
the court like any other testimony, in the light of its own general knowledge and
experience upon the subject of inquiry. The probative force of the testimony of an
expert does not lie in a mere statement of his theory or opinion, but rather in the
aid that he can render to the courts in showing the facts which serve as a basis for
his criterion and the reasons upon which the logic of his conclusion is founded.

Difference between an Expert witness and a Factual Witness

1.A factual witness knows about the specific incident or crime. An expert
witness knows about how things work for a particular aspect of the
incident.

For instance, in a car accident, a factual witness is that person who saw the
incident. An expert witness can be an accident re-constructionist and can tell you
how fast the cars were going based on skid marks and damage.

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 2. A factual witness is a witness that can determine an element of the case
as fact. An expert witness is someone who specializes in a particular field
such as forensics, physiology, and aids the court by reason of their
testimony and opinion.

In general, a factual witness cannot offer an opinion, only an observation or

fact. The expert is given facts from the case (say an accident report) and
offers an opinion based on his/her training and experience (cause of
accident). So, a factual witness in an accident case can testify as to what
they saw, but not about whose fault caused the accident. There are
exceptions, for instance, most people are allowed to give opinion as to
intoxication as it is something within the general knowledge of an average
person. (Espejo)

Exception Number 2

Sec. 53. Opinion of ordinary witnesses. – The opinion of a witness for which
proper basis is given, may be received in evidence regarding. –

(a) The identity of a person about whom he OR HER 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.

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Opinion of Ordinary Witnesses

Before a lay witness can affirm his view on the items spelled in Section 53,
Rule 130, 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. (Peralta)

Identity

This Court has ruled that identification by the sound of the voice of a
person identified, is a sufficient and 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 vs. Lamberto Prieto, G.R. No. 141259,
July 18, 2003).

Handwriting

Insofar as the handwriting of a person, in order that an ordinary witness

may be permitted to state his opinion as to the genuineness of a particular
writing, it must be proved that the witness is acquainted with the handwriting of
the supposed writer of the document in question, and proof of this fact is
sufficient to warrant reception of his testimony, although he is not skilled in
matters of handwriting (Francisco)

The witness can also testify in open court that he is familiar of the
handwriting of a person because he saw him affixing his signature in the
subject document or that he signed the document in his presence.

Mental Health

Concerning mental health, an ordinary witness may give his opinion

regarding the mental sanity of the person with whom he is sufficiently

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 acquainted. Thus, the mother of an offended party in a case of rape,
though not a psychiatrist, if she knows the physical and mental
condition of the party, how she was born, what she is suffering from and
what her attainments are, is competent to testify on the matter
(Francisco)

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

Example 1: X barged into the house of Y, tied her to a chair and robbed her of
assorted pieces of jewelry and money. X then brought Z, Y’s maid, to a bedroom
where he raped her. Y could her Z, crying and pleading: “Huwag! Maawa ka sa
akin!” After raping Z, X fled from the house with the loot. Z, then untied Y and
rushed to the police station about a kilometer away and told police officer Maawa
that X had barged into the house of Y, tied the latter to a chair and robbed her of
her jewelry and money. Z, also related to the police officer that despite her pleas,
X had raped her. The policeman noticed that Z, was hysterical and on the verge of
collapse. X was charged with robbery with rape. During the trial, Z, can no longer
be located.

If the police officer will testify that he noticed Z to be hysterical and on the
verge of collapse, would such testimony be considered as opinion, hence,
inadmissible? Explain.

Suggested Answer:

NO. It cannot be considered an opinion, because he was testifying on what

he actually observed. The last paragraph of Sec. 50, Rule 130, Revised Rules of
Evidence, expressly provides that a witness may testify on his impression of the
emotion, behavior, condition or appearance of a person. (Espejo)
Example 2:

At X’s trial for possession and use of the prohibited drug, known as
“shabu,” his girlfriend Y, testified that on a particular day, he would see X very

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prim and proper, alert and sharp, but that three days after, he would appear
haggard, tired and overly nervous at the slightest sound he would hear.

X objects to the admissibility of Y’s testimony on the ground that Y merely

stated her opinion without having been first qualified as expert witness.

Should you, as a judge, exclude the testimony of Y?

Suggested Answer:

NO. The testimony of Y should not be excluded. Even though Y is not an

expert witness, Y may testify on her impression of the emotion, behavior,
condition and appearance of a person.

8. CHARACTER EVIDENCE

Character is the aggregate of the moral qualities which belong to and

distinguish an individual person; the general results of one’s distinguishing
attributes. It refers to what a man is and depends on the attributes he possesses.
It is not the same as a man’s reputation because the latter depends on attributes
which others believe one to possess.

Character evidence is, as a rule, not admissible, character is generally

irrelevant in determining a controversy because the evidence of a person’s
character or trait is not admissible to prove that a person acted in conformity with
such character or trait in a particular occasion.

Ordinarily, if the issues in the case were allowed to be influenced by

evidence of the character or reputation of the parties, the trial would be apt to
have the aspects of a popularity contest rather than a factual inquiry into the
merits of the case.

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Sec. 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:

Character Evidence not Generally Admissible; Exceptions

Character evidence may be offered for several different purposes. It is the

circumstantial use of character evidence that is subject to the general prohibition,
i.e., that a person acted in accordance with his character or propensity on a
particular occasion. While such evidence may often have strong probative value,
as a matter of both law and policy, its probative value is viewed generally
outweighed by competing dangers. The rationale is “the practical experience that
its disallowance tends to prevent confusion of issues, unfair surprise and undue
prejudice.” (Peralta)

This basic prohibition is often called the “propensity rule” because it

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.
(Cui)

Use of one’s character to prove his conduct at a specific time or on a

particular occasion is disfavored. The traditional justification for rejecting
character evidence offered to prove conduct is that its probative value is
substantially outweighed by the introduction of collateral issues, by the
consumption of time, and the risk of prejudice. The last factor carries particular
weight. There is, for example, a risk that the character of one of the parties may
unduly sway the jury and deflect its attention from evidence of the conduct that is
the subject of the trial. Furthermore, there is a risk that the jury may conclude
that even if there are doubts about liability of guilt, the party with bad character
“deserves” to lose. The risk of prejudice is especially high in a criminal prosecution
in which the government portrays the accused as a person with unsavory
disposition. (Lily)

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 (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.

Also in criminal cases, the good or bad moral character of the

offended party may always be proved by either party as long as such
evidence tends to establish the probability or improbability of the offense
charged (Regalado). Such evidence is most commonly offered to support a
claim of self-defense in an assault or homicide case or a claim of consent in
a rape case.

In the Philippine setting, proof of the moral character of the offended party
is applied with frequency in sex offenses and homicide.

EVIDENCE OF THE CHARACTER OF THE OFFENDED PARTY

The good or bad moral character of the offended party may be proved by
the accused if it tends to establish in any reasonable degree the probability or
improbability of the offense charged.

It will be readily observed that the above provision pertains only to

criminal cases, not to administrative offenses. Also, not every good or bad moral
character of the offended party may be proved under this provision but only
those which would establish the probability or improbability of the offense
charged. This means that the character evidence must be limited to the traits and
characteristics involved in the type of offense charged.

In the prosecution for the crime of homicide, an accused invoking the self
defense theory, may prove the bad moral character of the offended party
to establish the probability that it was the offended party who was the
unlawful aggressor.

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RAPE AND SIMILAR OFFENSES

In rape and acts of lasciviousness or in any prosecution involvement an

unchaste act perpetrated by a man against a woman where the willingness
of a woman is material, the woman’s character as to her chastity is
admissible to show whether or not she consented to the man’s act.

The exception to this is when the woman’s consent is immaterial such as in

statutory rape or rape with violence or intimidation. In the crimes of
qualified seduction or consented abduction, the offended party must be
a “virgin” which is “presumed if she is unmarried and of good
reputation,” or a “virtuous woman of good reputation.” The crime of
simple seduction involves the “seduction of a woman who is single or
widow of good reputation, over twelve but under eighteen years of age
xxx. The burden of proof that the complainant is a woman of good
reputation lies in the prosecution, and the accused may introduce
evidence that the complainant is a woman of bad reputation.

HOMICIDE CASES

1.In homicide cases, a pertinent character trait of the victim is admissible in

two situations: (1) As evidence of the deceased’s aggression; and (2) as
evidence of the state of mind of the accused.

2.The pugnacious, quarrelsome or trouble-seeking character of the

deceased or his calmness, gentleness and peaceful nature, as the case
may be, is relevant in determining whether the deceased or the accused
was the aggressor.

3.When the evidence tends to prove self-defense, the known violent

character of the deceased is also admissible to show that it produced a
reasonable belief of imminent danger in the mind of the accused and a

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 justifiable conviction that a prompt defensive action was necessary.
(Espejo)

4.In the prosecution for the crime of homicide, an accused invoking the self
defense theory, may prove the bad moral character of the offended party
to establish the probability that it was the offended party who was the
unlawful aggressor.

(2) The accused may prove his OR HER good moral

character which is 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.

As mentioned, the prosecution is forbidden by Section 54 of Rule 130 to

initiate evidence of the bad moral character of the accused. It prevents
the government from opening the doors towards the introduction of
character evidence of the accused. The rule that confines the right of
the prosecution to prove the bad moral character of the accused only by
way of rebuttal is a logical one. It prevents a pronouncement of guilt on
account of his being a “bad” man instead anchors a conviction on the
basis of the sufficiency of evidence of his guilt. The rule also prevents
the inference that being a bad person the accused is more likely to
commit a crime. The rule likewise discourages the presentation of the
so-called “propensity evidence,” i.e, that one acts in accordance with
one’s character. (Dean Riano)

In a criminal case, the prosecution cannot prove the bad moral character
of the accused in its evidence-in-chief. It can do so only in rebuttal. This means
that that the prosecution may not offer evidence of the character of the accused
unless the accused himself has offered evidence of his good character. The
prosecution therefore, must wait until the accused puts is character in issue
during the proceedings. Where the accused proves his good moral character
pertinent to the moral trait involved in the offense charged, he opens the door for
the prosecution to prove that his character is in fact bad. Then and only then may
the prosecution prove the bad moral character of the accused.

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 The offering of evidence of good moral character is a privilege of the
accused and the prosecution cannot even comment on the failure to produce
such evidence. But once he raises the issue of his good character, the prosecution
may, in rebuttal, offer evidence of the defendant’s bad character (People v. Lee,
G.R. No. 139070, May 29, 2002)

EVIDENCE OF GOOD MORAL CHARACTER OF THE ACCUSED

While the prosecution is forbidden to present evidence of the bad moral

character of the accused unless in rebuttal, the general rule against “propensity
evidence” does not apply to the accused who is allowed to offer evidence of his
good character. Not all aspects however, of the character of the accused may be
proven. Only those moral traits involved in the offense charged are provable.

In summary

In criminal cases, the prosecution may not at the outset prove the bad
moral character of the accused which is pertinent to the moral trait involved in
the offense charged. 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. (Regalado).

For instance, the accused charged for the crime of homicide may testify
that he is a member of a religious group, that he attended church’s services
regularly, or that he is respected member of the community, to prove the
improbability of the accused perpetrating the crime charged.

In another instance, the accused who is charged for the crime of estafa may
present evidence to show that he is known in the business circle to be an honest
and upright person. That he has not been charged of any offense much least,
swindling, in all his business dealings.

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REASON FOR THE EXCEPTION TO THE EXCEPTION

Once the accused raises the issue of his good character, the prosecution
may, in rebuttal, offer in evidence of the accused’s bad character. Otherwise, an
accused, secure from refutation, would have a license to unscrupulously impose a
false character upon the tribunal. (People vs. Lee, G. R. No. 139070, May 29,
2002)

BAR 2018

Dave is on trial for sexual assault of Delly, a law student who sidelines as a call
center agent. Dave offers the testimony of Danny, who says that Dave is known in
the community as a decent and discerning person. The prosecution presents a
rebuttal witness, Dovie, who testifies that, if Dave was reputed to be a good
person, that reputation was a misperception because Dave had been previously
convicted of homicide.

Is Dovie's testimony admissible as to the character of Dave?

(b) In Civil Cases:

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.

In civil cases evidence of the moral character of a party, either of the

plaintiff or defendant, is admissible only when pertinent to the issue of character
involved in the case. Thus, evidence of a party’s intemperance may be admitted
when his intemperance is pertinent to the issues involved.

In a civil dispute, evidence of moral character of a party is permitted only

when pertinent to the issue of character involved in the case like in a civil action
for damages emanating from the offense of libel, slander or seduction (Peralta) In
other words, the defendant in the civil case for damages based on the crime

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committed or an independent civil action, may present evidence to show that he
is a person of good moral character.

This is normally applied in family case:

Declaration of Nullity of Marriage due to Psychological Incapacity.

Where a party is alleged to be psychologically incapacitated to comply with

the essential marital obligations of marriage, there are times when
evidence of his character must be adduced (example: the respondent is a
compulsive gambler, a womanizer, a drunkard, a sex addict.)

Custody case.

In custody cases, more often than not, one parent would be attacking the
moral character of the other if only to prove that he or she is the better
parent to take sole custody of the child. If the child is a minor below seven
years old, the mother is preferred. It seems that the only way for the father
to take custody is to prove that the mother is manifestly unfit. (Espejo)

Additional Examples:

1. In an action for negligence against an employee for having employed or

continued the employment of a subordinate knowing him to be
incompetent, the competence of the subordinate is put in issue, and,
therefore, his character in that sense may be proved or disproved. (Peralta)

2. In a case, a railroad company was sued for injuries caused by one of its
employees. The employee was a switchman who gave an erroneous signal
in consequence of which a train collided with another and the plaintiff was
seriously injured. Evidence was given tending to show that the switchman
was intoxicated at the time of the accident and that he was a man of
intemperate habits known to the company.

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© IN CRIMINAL AND CIVIL CASES:

EVIDENCE OF THE GOOD CHARACTER OF A WITNESS IS NOT ADMISSIBLE UNTIL

SUCH CHARACTER HAS BEEN IMPEACHED.

Evidence of the good moral character of a witness is not admissible until

such character has been impeached. It is error for counsel to offer evidence of the
good moral character of his witness who is presented in court for the first time
since he could not have been previously impeached.

Although the witness enjoys the presumption of good moral character at

the time he is presented to the court for testimony and presentation of other
types of evidence, such inference does not remain throughout the proceedings.
The adverse party can discredit the witness via introduction of evidence of bad
moral character, by evidence that the witness’ general reputation for truth,
honesty or integrity is bad, but not by evidence of particular wrongful acts
(Peralta)

On cross examination, it may be shown that the witness has been convicted
of an offense. Yet, while the general rule is that particular wrongful acts are not
allowed to prove moral character, they may be allowed to prove conduct under
Section 34, Rule 130 of the Revised Rules on Evidence (Herrera). And after the
good character of the witness has been impeached by the adverse party in the
form of evidence of bad character, the proponent of the witness can thereafter
rehabilitate the witness’s credibility by introducing evidence of good character
under Section 14, Rule 132 of the Revised Rules on Evidence. (Peralta)

BE IT NOTED THAT THE PARTY CALLING A WITNESS, CANNOT INITIATE PROOF OF HIS GOOD
CHARACTER. ANY QUESTION TO THAT EFFECT CAN BE VALIDLY OBJECTED TO AS “IMPROPER
CHARACTER EVIDENCE.” BECAUSE A WITNESS IS PRESUMED TO BE TRUTHFUL AND OF GOOD
CHARACTER, THE PARTY PRESENTING HIM DOES NOT HAVE TO PROVE HE IS GOOD BECAUSE HE IS
PRESUMED TO BE ONE. IT IS ONLY AFTER HIS CHARACTER HAS BEEN ATTACKED, CAN HE PROVE HIS
BEING GOOD.

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 THE RULE THAT BARS EVIDENCE OF THE GOOD CHARACTER OF THE WITNESS WHO HAS NOT YET
BEEN IMPEACHED HAS REFERENCE ONLY TO A MERE WITNESS. IT DOES NOT REFER TO AN ACCUSED IN
A CRIMINAL CASE. IN A CRIMINAL CASE, THE ACCUSED MAY PROVE HIS GOOD MORAL CHARACTER
RELEVANT TO THE OFFENSE CHARGED EVEN BEFORE HIS CHARACTER IS ATTACKED. HOWEVER, THE
PROSECUTION CANNOT INITIATE PROOF OF THE BAD CHARACTER OF THE ACCUSED. IT CAN ONLY DO SO
BY WAY OF REBUTTAL.

A WITNESS MAY BE IMPEACHED BY CROSS-EXAMINATION OR INDIRECTLY, AS WELL AS

DIRECTLY BY WITNESSES WHO HAVE BEEN CALLED FOR THAT PURPOSE BY THE ADVERSE PARTY.
REGARDLESS OF THE MODE OF ATTACK, TESTIMONY IS ADMISSIBLE TO SUSTAIN THE WITNESS WHOSE
CREDIBILITY HAS BEEN CHALLENGED. THUS EVIDENCE OF A WITNESS’ GOOD CHARACTER FOR TRUTH
MAY BE PRESENTED WHERE IT HAS BEEN SHOWN BY CROSS-EXAMINATION OF THE WITNESS THAT HE
HAS BEEN GUILTY OF IMMORAL CONDUCT, OR HAS BEEN CHARGED WITH CRIMINAL OFFENSE. AGAIN,
WHERE A WITNESS HAS BEEN ASSAILED BY EVIDENCE TENDING TO PROVE THAT HE HAS BEEN
SUBORNED AND PAID FOR HIS TESTIMONY, HIS GOOD CHARACTER FOR VERACITY MAY BE SHOWN.
(JONES)

EXAMPLES

1.AFTER A WITNESS FOR THE PROSECUTION WAS THROUGH IN HIS DIRECT EXAMINATION, THE
COUNSEL FOR THE ACCUSED, DURING CROSS-EXAMINATION, TRIED TO IMPEACH THE WITNESS BY
EVIDENCE THAT HIS REPUTATION IS BAD. DURING RE-DIRECT EXAMINATION, THE PROSECUTION MAY
PRESENT EVIDENCE TO SHOW THE GOOD CHARACTER OF SAID WITNESS.

2.THE DEFENSE PRESENTED A WITNESS THAT TESTIFIED THAT A PROSECUTION WITNESS IS A PERSON
OF BAD MORAL CHARACTER. ON REBUTTAL, THE PROSECUTION MAY PRESENT EVIDENCE TO SHOW THE
GOOD CHARACTER OF SAID WITNESS.

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.

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IN CASE 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.

By testimony or Opinion

Criminal Case

A witness may testify that the accused is of good character and that he
never heard his character questioned and that the question of his character never
was discussed outside of his own family. He can also testify in the form of an
opinion that having known the accused for quite sometimes, it is his opinion that
the accused is a person of good moral character.

Civil Case

In the case for damages, the plaintiff may present evidence, through testimony or
in the form of an opinion, to show that he is a person of good moral character.
The cross examination shall be limited only to the subject testified to during the
examination in chief, which is the good moral character of the plaintiff.

Cross – Examination

The purpose of limiting cross-examination relating to specific instances of

conduct is to test the qualifications of the character witness as to the basis for the
reputation or opinion testimony. In other words, the coverage of the cross-
examination is limited to the subject of direct examination, which is the character
of the accused.

CHARACTER EVIDENCE IN CHILD ABUSE CASES (SEXUAL ABUSE SHIELD RULE)

Under the sexual abuse shield rule as provided for in Section 30 of The Rule on
Examination of A Child Witness, A.M. No. 004-07-SC (Dated December 15, 2000),

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the following are not admissible in any criminal proceeding involving alleged
sexual child abuse:

1. Evidence offered to prove that the alleged victim engaged in other sexual
behavior; and
2. Evidence offered to prove the sexual predisposition of the alleged victim.

Exception: Evidence of specific instances of sexual behavior by the alleged

victim is admissible to prove that a person other than the accused was the
source of semen, injury, or other physical evidence (Section 30 [b], The Rule
on Examination of A Child Witness).

Examples:

1.Rape – character for chastity

2.Assault – character of peaceableness or violence

3.Embezzlement – character for honesty.

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 RULE 131

BURDEN OF PROOF, BURDEN OF EVIDENCE, AND PRESUMPTIONS

Section 1. 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 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
EXISTENCE OF THE CASE.

Burden of Proof, and Burden of Evidence

The Sub-Committee decided to define “burden of evidence” in order to

distinguish it from “burden of proof.” In the opinion of the members, there
is a need to clarify these two related but different concepts and to
expressly provide, following settled jurisprudence, that the burdern of
proof never shifts but the burden of evidence shifts from party to party
depeding upon the exigencies of the trial (Peralta)

As thus defined, burden of evidence, which is also known as the “burden of

production” or the “burden of going forward,” 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 agsinst him on that issue as a matter of law.

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 Burden of Proof

Burden of proof is the duty of a party to present evidence to establish his claim
or defense by the amount of evidence required by law, which is
preponderance of evidence in civil cases. The party, whether plaintiff or
defendant, who asserts the affirmative of the issue has the burden of proof
to obtain a favorable judgment. For the defendant, an affirmative defense
is one which is not a denial of an essential ingredient in the plaintiff’s cause
of action, but one which, if established, will be a good defense – i.e., an
“avoidance” of the claim.

BURDEN OF EVIDENCE

Burden of evidence is the duty resting upon a party, by means of evidence, to

create or meet a prima facie case.

The burden of evidence is the duty of a party to go forward with the evidence to
overthrow the prima facie evidence against him.

DISTINCTION BETWEEN BURDEN OF PROOF AND BURDEN OF EVIDENCE

DEFINITION

Burden of Proof – the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by
law. (Sec. 1, Rule 131)

Burden of evidence – The duty of a party to provide evidence at any stage of the
trial until he has established a prima facie case, or the like duty of the adverse
party to meet and overthrow that prima facie case thus established.

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SHIFTING OF THE BURDEN

In burden of proof – does not shift as it remains througout the entire case exactly
where the pleadings originally placed it.

In burden of evidence – Shifts to the other party when one party has produced
sufficient evidence to be entitled to a ruling in his favor.
HOW DETERMINED

In burden of proof – generally determined by the pleadings filed by the party and
whoever asserts the affirmative of the issue has the burden of proof.

In burden of evidence – generally 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.

EFFECT OF PRESUMPTION

In burden of proof – it does not shift the burden of proof. However, the one who
has the burden of proof is relieved, for the time being, from introducing evidence
in support of his averment because the presumption stands in the place of
evidence.

In burden of evidence – It creates a prima facie case and thereby sustains the said
burden of evidence on the point which it covers, shifitng it to the other party. It
relieves those favored thereby of the burden of proving the fact presumed.

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WHO CARRIES THE BURDEN OF PROOF?

1.CRIMINAL CASES

In criminal cases, the burden of proof is on the prosecution. Under Rule 133
the accused is entitled to acquittal unless his guilt is demonstrated by proof
beyond reasonable doubt.

In the case of criminal prosecutions, burden of proof is said to be pinned

institutionally due to the constitutional mandate that the accused is
presumed innocent until he is proven guilty.

In the case of homicide, even if the accused admitted the killing thereby
interposing the defense of self-defense, the burden of proof still lies with
the prosecution to establish the guilty of the accused beyond reasonable
doubt.

In criminal cases, a negative fact must be proven if it is an essential element of

the crime.

Examples:

People vs. Macagaling – in a charge of illegal possession of firearms, the

burden is on the prosecution to prove that the accused had no license to
possess the same.

People vs. Manalo – in a charge for selling regulated drugs without authority,
it was held that although the prosecution has the burden of proving a
negative averment which is an essential element of the crime (i.e. lack of
license to sell), the prosecution, in view of the difficulty of proving a
negative allegation, need only establish a prima facie case from the best
evidence obtainable. In this case, the lack of license was held to have been
established by the circumstances that the sale of the drug was

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 consummated not in a drug store or hospital, and that it was made at 10:00
PM.

2.CIVIL CASES

In civil cases, the usual principle is that whoever makes an affirmative

allegation has the burden of proof. A party who alleges a fact has the
burden of proving it.

In the case for sum of money, the creditor-plaintiff has the burden of proof to
show the non-payment of debt, as well as the burden of evidence to prove
the non-payment of the debt. Once the plaintiff, through evidence was able
to establish non-payment, then the burden of evidence is shifted to the
defendant to prove his defense of payment.

It is elementary that the burden to prove a claim rests on the party asserting
such. It is incorrect to suppose that the burden of proof rests solely on the
shoulders of any one party to a case. The burden of proof is the duty to
present evidence not only to establish a claim but also to establish a
defense.

The plaintiff

As the party interested in the cause of action and as advocate of the

Complaint, the plaintiff has the initial obligation to present evidence on the
facts in issue involved in a civil case as can be gleaned from the order of
trial in Section (a), Rule 30 of the 1997 Rules of Civil Procedure, in default of
any separate trial in Section 2, Rule 31 and unless the court directs
otherwise for special reasons. Morover, 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. (Jones)

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The defendant

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. Indeed, the defendant must show that he is within the purview
of the stature if relied upon as a defense (Jones on Evidence).

Examples:

1. In a quasi-delict under Article 2176 of the Civil Code of the Philippines, the
plaintiff has the burden to prove that the fault or negligence of the
defendant was the proximate cause of the injuries he sustained. The
plaintiff has the “burder of evidence” to prove that it was the defendant
who caused the injuries sustaines by the plaintiff.

On the other hand, the defendant has the burden of evidence to prove his
defense as when he claims that the injuries of the plaintiff were caused not
by his wrongful conduct, but by a third person or by a caso fortuito.

2. In suits against a common carrier, the passenger-plaintiff does not have the
burden of proving the defendant carrier’s negiligence since common
carriers are presumed to have been at fault, or to have acted negligently in
case of death or injuries to passengers. On the contrary, under the same
provision, the defendant has the burden of proof to show that it had
observed the extraordinary negligence required by law. The plaintiff has to
show however, the existence of a contract and the breach of the contract
of carriage.

3. The burden of proof that a debt was contracted lies with the creditor-
plaintiff. If the defendant admits the debt but defends by alleging that it
has already been paid, waived or otherwise extinguished, he has the
burden to prove the extingishment of the alleged obligation.

4. In an eminent domain case, the local government that seeks to expropriate

private property has the burden of proving to show the existence of

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 compliance with the elements for the valid exercise of the right of eminent
domain, like the taking of the private property is for public use or benefits,
and as well the payment of just compensation.

5. In termination cases, the burden of proof rests upon the employer to show
that the dismissal is for a valid and just cause. Failure to do so would
necessarily mean that the dismissal was not justified, therefore, was illigal.

6. In disbarment cases, the burden of proof is on the complainant.

7. In administrative proceedings, the burden of proof that the respondent

committed the acts complained of rests on the complainant. The
complainant must be able to show this by substantial evidence, or such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion, otherwise, the complaint must be dismissed. (Dean
Riano)

Nature of Burden of Proof

1. Substantive

Examples:

(a) In domestic private law, a custom must be prove as a fact, according to the
rules of evidence (Article 12, NCC);

(b) Prepondenrance of evidence is expected of a proponent of a separate civil

action arising from crime where no criminal action is instituted during the
pending civil case (Article 30, NCC)

(c) 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.

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 2. Procedural

Example:

a. The one who initiates a motion is obliged to substantiate his application

through supporting affidavits and other papers (Rule 15 of the Revised
Rules of Court)

b. In a petiton for bail in a criminal case, although it is the accused or his

counsel who files the motion or petition, the burden is on the prosecution
to show that the evidence of guilt is strong (Section 8, Rule 114, Revised
Rules on Criminal Procedure;

Kinds of Presumption

1. Presumption “juris” or of law;

2. Presumption “hominis” or of fact.

Presumption “juris” is a deduction which the law expressly directs to be made

from paricular facts. It need not be pleaded nor proved if the facts on which
it is based is duky averred and establshed. This legal presumption is either
conclusive or an absolute presumption since it is insurmountable, and a
disputable presumption which admits of contradiction (Peralta)

Example:

Under Article 1756 of the New Civil Code, 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. Unless the presumption is rebutted, the court
need not even make an express finding of fault or negligence o the part of
the common carrier.

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A presumption “hominis” is a deduction which reason draws from the facts
proved wihtout an express direction of law to that effect.

Section 2. Conclusive presumption. – the following are instances of

conclusive presumptions:

(a) Whenever a party, by his OR HER own declaration, act or omission,

intentionally and deliberately led another to believe a particular thing
true, and to act upon such belief, he OR SHE cannot, in any litigation
arising out of such declaration, act or omission, be permitted to falsify it;
AND

CONCLUSIVE PRESUMPTION

A presumption is an assumption of fact resulting from a rule of law which

requires such fact to be assumed from another fact or group of facts found
or otherwise established in the action.

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. (Ang, Jr vs. Spouses Bitanga, G.R. No. 223046, November 28, 2019) It
denotes what is properly considered as 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 (Weissenberger)

Doctrine of Estoppel

The conclusive presumption under the Rules of Court are based on the
doctrine of ESTOPPEL. Under this doctrine, the person making the
representation cannot claim benefit from the wrong he himself committed.

Generally speaking, estoppel is a bar which precludes a person from

denying or asserting anything to the contrary of that which has, in contemplation

250
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 is also defined as a legal principle that prevents someone from arguing

something or asserting a right that contradicts what they previously said or
agreed to by law. It is meant to prevent people from being unjustly wronged by
the inconsistencies of another person’s words or action.

Basis of Estoppel

The doctrine of estoppels 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. (Rockland Construction Co.,
Inc. vs. Mid-Pasig Land Development Corporation, G.R. No. 164587, February 4,
2008).

Elements

1.A clear conduct amounting to false representation or concealment of material

facts or, at least, calculated to convey the impression that the fact 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.

A party cannot, in the course of a litigation or in dealing in pais, be

permitted to repudiate his representations, or occupy inconsistent positions.
Estoppel may be by action or omission or by laches. (Peralta)

Examples:

1. An heir who represented minors in a suit for partition cannot be allowed to

impeach the validity of judgment by alleging unauthorized representation;

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 2. One who voluntarily clothed a person who negotiated some quedans, with
all the attributes of ownership upon which the bank relied is stopped to
deny the valid title of the bank to the quedans.

3. When a person having a right fails to assert such right for an unreasonable
length of time, he is in estoppels by laches.

4. One who merely stands by and makes no objection while a public bridge is
being constructed on his land, cannot, after the bridge is completed, or
large expenditures have been made thereon, reclaims the land or enjoin its
use by the government.

5. A lender and borrower are in court because of an unpaid debt. The lender
says that he will pardon 50% of the debt. The judge, can therefore, issue an
estoppels on the lender from going back on his words. Hence, he cannot
change his mind and only pardon 30% of the existing debt.

Take note that the principle of estoppels does not operate against the
Government for the acts of its agent (Peralta)

(b) The tenant is not permitted to deny the title of his OR HER landlord at the
time of the commencement of the relation of landlord and tenant
between them.

The second kind of conclusive presumption is that which trnaspire between an

landlord and a tenent.

EXAMPLES:

1. A PERSON WHO RENTS A PROPERTY FROM ANOTHER IS NOT PERMITTED TO DENY THE
LATTER’S TITLE AT THE TIME THE LEASE BEGUN.

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 2. A PRIEST PUT BY THE ROMAN CATHOLIC CHURCH IN POSSESSION OF A CHURCH BUILDING, IS
ESTOPPED FROM ALLEGING OWNERSHIP AT THE TIME HE TOOK POSSESSION EITHER IN HIMSELF
OR IN A THIRD PERSON.

AS A TENANT, HE KNOWS FULLY WELL THAT THE LAND OR PROPERTY HE RENTS IS NOT HIS (PARAS). 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 HAS NO TITLE (JONES) THE RELATION OF
LANDLORD AND TENANT HAVING BEEN ONCE ESTABLISHED, ALL WHO MAY SUCCEED THE TENANT,
IMMEDIATELY OR REMOTELY, ARE AFFECTED THEREBY; THE SUCCEEDING TENANT IS AS MUCH
AFFECTED BY THE ACTS AND ACKNOWLEDGMENT OF HIS PREDECESSOR AS THOUGH THEY WERE HIS
OWN (JONES ON EVIDENCE)

The court is not unmindful of the standing rule that a lessee is estopped or
prevented from disputing the title of the landlord in an action for recovery of
possession of the leased premises. (Josie Go Tamio vs. Encarcion Ticson, G.r.
No. 154895, November 18, 2004)

This estoppel applies even though the lessor had no title at the time the
relation of lessor and lessee was created, and may be asserted not only by
the orignal lessor, but also by those who succeed to his title.

Kinds of presumption:

1. Presumption of law or juris-- is an assumption which the law requires to

be made from a set of facts.

a. Conclusive presumption or juris et de jure – when the presumption

becomes irrebuttable upon the presentation of the evidence and any
evidence tending to rebut the presumption is not admissible.

b. Disputable presumption or juris tantum – if it may be contradicted or

overcome by other evidence.

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 2. Presumption of fact when the assumption is made from the facts without
any direction or positive requirement of a law. It is actually a mere
inference because it does not necessarily give rise to a legal effect.

Onus probandi

Obligation imposed upon a party who alleges the existence of facts necessary
for the prosecution of his action or defense to establish the same by the
requisite presentation of evidence

In civil cases, it is on the party who would be defeated if no evidence is

given on either side; in criminal cases, the prosecution has the burden of
proof.

Does not shift; remains on party upon whom it is imposed

Determined by pleadings filed by party

SEC. 3. DISPUTABLE PRESUMPTIONS. – THE FOLLOWING PRESUMPTIONS ARE SATISFACTORY IF

UNCONTRADICTED, BUT MAY BE CONTRADICTED AND OVERCOME BY OTHER EVIDENCE:

DISPUTABLE PRESUMPTIONS

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. (MARTIN)

A DISPUTABLE PRESUMPTION UNDER THE ABOVE PROVISION CAN BE SUFFICIENT BY ITSELF TO

MAINTAIN THE PROPOSITION AFFIRMED UNLESS REFUTED BY THE ADVERSE PARTY AGAINST WHOM
THE INFERENCE IS INVOKED. THIS PRESUMPTION SUBSISTS UNTIL IT IS OVERCOME BY EVIDENCE OR BY
SOME STRONGER PRESUMPTION (JONES ON EVIDENCE)

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(a)That a person is innocent of crime or wrong;

The person’s innocence of crime or wrong is not confined to a criminal

case. It may apply to a civil case as well. In civil case, the defendant is presumed
to be innocent of the wrong charged until the contrary is proved by
preponderance of evidence.

For instance, fraud is not presumed unless facts are proved from which
fraud may be inferred legally or logically. The presumption of innocence includes
that of good faith, fair dealing and honesty. Where two alternatives or
probabilities arise from evidence, that which is compatible with the presumption
of innocence will be adopted (Jones)

In a civil case for libel, the good reputation of the plaintiff need not be
proved, for it is presumed. This presumption, like those of morality, honesty and
decency, is a mere application of the broader presumption of innocence (Moran).

(b) That an unlawful act was done with an unlawful intent;

From the moment a felony by means of dolo is perpetrated as this term is

defined and understood in Article 3 of the Revised Penal Code, criminal intent is
presumed from the commission of 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 (Reyes)

The furtive taking of personal property belonging to another flows the

inference of animo lucrandi in theft under Article 308 of the Revised Penal Code.

(c) That a person intends the ordinary consequences of his OR HER

voluntary act;

When a person commits a felony with malice he intends the consequences

of his felonious 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 if
the former is the logical and natural outcome of the latter and if there is no
efficient intervening cause (Reyes)

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 With respect to consequences of acts intended, men of sound mind are
presumed to intend the natural and necessary consequences of acts which they
intentionally perform (Jones)

(d) That a person takes ordinary care of his OR HER concerns;

Since it is well-nigh impossible for the State to take care of its inhabitants, 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 age or other handicap. This presumption
proceeds from the broader one that all men act properly, lawfully and rightfully
until the contrary is proved (Reyes)

(e) That evidence willfully suppressed would be adverse if produced;

This presumption is an extension of malice. For example, the unexplained

failure of the defendant in a civil case to refute by himself or through other
witnesses his accuser’s assertions is presumptive evidence of the truth of the
charge (Moran)

While no inference can be construed from the inability of the accused in a

criminal case to sit on the witness stand by reason of the right against self-
incrimination, his failure to produce evidence, other than his own testimony, is
open to inference against him, with the same limitations, applicable to civil case
(Moran)

(f)That money paid by one to another was due to the latter;

There is a presumption that where money is paid by one person to another,

that it was due to the payee; that money delivered by a debtor to his creditor is a
payment, and not a loan, and that payments made to a beneficiary by the trustee
were on account, and not as advances or loans (Francisco)

(g) That a thing delivered by one to another belonged to the latter;

Where a person is shown to be in possession of property, such possession

is presumed to be rightful. The presumption is based on the probability that
rightful owners are not likely to permit their property to remain in continued

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possession of others who assert title thereto, and that the possession is
authorized by some grant or licence.

The presumption of rightful possession carries with it the implication of

ownership until it is shown that the possession is in some other capacity. A
presumption of ownership or title is derived from the possession of real property,
the force thereof being dependent upon the duration of the possessor’s tenure
(Jones)

(h) That an obligation delivered up to the debtor has been paid;

It is in keeping with the ordinary course of business that an obligation

delivered up to the debtor has been paid under the above legal provision.
Possession, therefore, by the debtor of a private document proving a debt raises a
presumption of payment or remission of the debt, and shifts the burden of
overcoming this presumption to the other party.

As a collar to the presumption under consideration, possession by the

creditor of the document acknowledging indebtedness raises the presumption
that the debt is not yet paid by the debtor unless the latter proves the contrary by
producing receipts or otherwise. (Moran)

(i) That prior rents or installments had been paid when a receipt for the
later one is produced;

Payment is presumed from the production by the debtor of a receipt as

given by the creditor (Jones on Evidence). Concomitant with the inference of
payment from introduction of a receipt by a debtor is the presumption of
payment of an earlier rent or instalment (Peralta)

Production by a proponent of the LATEST receipt will rise to the assumption

of payment of previous rent or instalment, unless the prior instalment is payable
in a separate contract (Francisco)

(j) That a person found in possession of a thing taken in the doing of a

recent wrongful act is the taker and the doer of the whole act; otherwise,

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 that things which a person possess, or exercises acts of ownership over,
are owned by him OR HER;

In criminal law, it is a well-settled rule that when a property stolen is found

in possession of a person who is unable to give a satisfactory explanation of his
possession, he may be deemed to have committed the crime of theft of said
property. The reason for this presumption is that men who come honestly into
the possession of property have no difficulty in explaining the method by which
they came into possession. (Peralta)

(k) That a person in possession of an order on himself OR HERSELF for the

payment of the money, or the delivery of anything, has paid the money or
delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or

elected to it;

(m) That official duty has been regularly performed;

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
and properly and dishonesty or bad faith will not be presumed, but must be
proved (Francisco)

Even in the absence of a written appointment to a public office, a strong of

presumption arises from the exercise of a public office, and it will be presumed
that a public officer, including a person acting in an official capacity, has been duly
elected or appointed and is equipped with the requisite qualification. The reason
of the presumption is that it would cause great inconvenience if, in the first
instance, strict proof were required of appointment or election to office in all
cases where it might be only collaterally in issue and it imposes no hardship, in
most cases, to indulge the presumption that one assuming to be a public officer is
not an intruder and violator of the law (Francisco)

(n) That a court, or judge acting as such, whether in the Philippines or

elsewhere, was acting in the lawful exercise of jurisdiction;

(o) That all the matters within an issue raised in a case were laid before
the court and passed upon by it; and in like manner that all matters

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 within an issue raised in a dispute submitted for arbitration were laid
before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(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 endorsement of 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;

(w) That after an absence of seven years, it being unknown whether or

not the absentee still lives, he OR SHE is considered dead for all purposes,
except for those of succession.

The absentee shall not be considered dead for the purpose of opening his
succession UNTIL after an absence of ten years. If he disappeared after the age
of seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.

The following shall be considered dead for all purposes including the division of
the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an

aircraft with is missing, who has not been heard of for four years
since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed
hostilities, and has been missing for four years;

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 (3) A person who has been in danger of death under other
circumstances and whose existence has not been known for four
years;

(4) If a married person has been absent for four consecutive years,
the spouse present may contract a subsequent marriage if he or she
has well-founded belief that the absent spouse is already death. In
case of disappearance, where there is a danger of death the
circumstances hereinabove provided, an absence of only two years
shall be sufficient for the purpose of contracting a subsequent
marriage. However, in any case, before marrying again, the spouse
present must institute a summary proceedings as provided in the
Family Code and in the rules for declaration of presumptive death
of the absentee, without prejudice to the effect of reappearance of
the absent spouse.

(x) That acquiescence resulted from a belief that the thing acquiesced in
was conformable to the law or fact;

(y) That things have happened according to the ordinary course of nature
and ordinary nature habits of life;

(z) That persons acting as co-partners have entered into a contract of co-
partnership;

(aa) That a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage;

(bb) That property acquired by a man and a woman who are capacitated
to marry each other and who live exclusively with each other as husband
and wife without the benefit of marriage or under void marriage, has
been obtained by their joint efforts, work or industry.

(cc) That in cases of cohabitation by a man and a woman who are not
capacitated to marry each other and who have acquire properly through
their actual joint contribution of money, property or industry, such
contributions and their corresponding shares including joint deposits of
money and evidences of credit are equal.

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(dd) That if the marriage is terminated and the mother contracted
another marriage within three hundred days after such termination of the
former marriage, these rules shall govern in the absence of proof to the
contrary:

(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the former
marriage; AND

(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have been
conceived during such marriage, even though it be born within the
three hundred days after the termination of the former marriage.

(ee) That a thing once proved to exist continues as long as is usual with
things of the nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or

published by public authority, was so printed or published;

(hh) That a printed or published book, purporting contain reports of cases

adjudged in tribunals of the country where the book is published,
contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real
property to a particular person has actually conveyed it to him when such
presumption is necessary to perfect the title of such person or his
successor in interest;

(jj) That except for purposes of succession, when two persons perish in
the same calamity, such as wreck, battle, or conflagration, and it is not
shown who died first, and there are no particular circumstances from
which it can be inferred, the survivorship is determined from the
probabilities resulting from the strength and the age of the sexes,
according to the following rules:

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 1. If both were under the age of fifteen years, the older is deemed
to have survived;

2. If both were above the age sixty, the younger is deemed to have
survived;

3. If one is under fifteen and the other above sixty, the former is
deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different,
the male is deemed to have survived, if the sex be the same, the
older;

5. If one be under fifteen or over sixty, and the other between

those ages, the latter is deemed to have survived.

(kk) That if there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first, whoever
alleges the death of one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have died at the same time.

SEC. 4. NO PRESUMPTION OF LEGITIMACY ILLEGITIMACY. – THERE IS NO PRESUMPTION OF

LEGITIMACY OR ILLEGITIMACY OF A CHILD BORN AFTER THREE HUNDRED DAYS FOLLOWING THE
DISSOLUTION OF THE MARRIAGE OR THE SEPARATION OF THE SPOUSES. WHOEVER ALLEGES THE
LEGITIMACY OR ILLEGITIMACY OF SUCH CHILD MUST PROVE HIS OR HER ALLEGATION.

SEC. 5 PRESUMPTION 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.

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.

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SEC. 6. 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.

Presumption Against an Accused in Criminal Cases

The new Section 6 is 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 on any other evidence.

The notion of presuming liability has been so accepted in Philippine law

that it has even found application with respect to the more stringent and rigid
concept of criminal liability.

Examples

1.Under Article 217 of the Revised Penal Code, the failure of a public officer to
have duly forthcoming public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal use.

2.Under Article 315, paragraph 2 (d) of the Revised Penal Code, the drawer of a
check is given three (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 the existence of fraud, which is an element of the
crime of estafa.

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 RULE 132

PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES

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.

EXAMINATION TO BE DONE IN OPEN COURT

FOR OBVIOUS REASON, 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,
SUBJECT TO SPECIFIC RULES ON DEPOSITION IN A CIVIL CASE OR CONDITIONAL EXAMINATION OF A
DEFENSE WITNESS IN A CRIMINAL CASE. (JONES)

TO BE ADMISSIBLE, THE TESTIMONY OF THE WITNESS MUST BE GIVEN IN OPEN COURT, EXCEPT
THAT SUCH REQUIREMENT MAY BE SUPPLANTED: (A) IN CIVIL CASES PURSUANT TO AND UNDER THE
LIMITATIONS OF RULE 24 AND 134 OR DEPOSITION AND CONDITIONAL EXAMINATION OF A DEFENSE
WITNESS IN CRIMINAL CASES.

THE TESTIMONY OF A WITNESS IN COURT CANNOT BE CONSIDERED AS SELF-SERVING SINCE HE

CAN BE SUBJECTED TO CROSS- EXAMINATION. SELF-SERVING EVIDENCE IS ONE MADE OUT OF COURT
AND IS EXCLUDED ON THE SAME GROUND AS HEARSAY EVIDENCE, I.E., DEPRIVATION OF THE RIGHT OF
CROSS-EXAMINATION (CO. VS. CA, L – 52200, AUGUST 21, 1980)

BAR 2017

[a] What is the "most important witness" rule pursuant to the 2004 Guidelines of
Pretrial and Use of Deposition-Discovery Measures? Explain.

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[b] What is the "one day examination of witness" rule pursuant to the said 2004
Guidelines? Explain.

SUGGESTED ANSWER:

(a) The “most important witness” rule pursuant to the 2004 Guidelines of Pretrial
and Use of Deposition-Discovery Measures provides that the judge shall, during
the pretrial conference, determine the most important witnesses to be heard and
limit the number of witnesses.

(b) The “one-day examination of a witness” rule pursuant to the 2004 Guidelines
of Pretrial and Use of Deposition-Discovery Measures provides that a witness has
to be fully examined in one day only, subject to the court’s discretion to extend
the direct and/or cross-examination for justifiable reasons.

ONE DAY-EXAMINATION OF WITNESS RULE.

A WITNESS HAS TO BE FULLY EXAMINED IN ONE (1) DAY ONLY, SHALL BE STRICTLY ADHERED TO
SUBJECT TO THE COURT’S DISCRETION DURING THE TRIAL ON WHETHER OR NOT TO EXTEND THE
DIRECT AND/OR CROSS EXAMINATION FOR JUSTIFIABLE REASONS.

MOST IMPORTANT WITNESS RULE

DETERMINE THE MOST IMPORTANT WITNESSES TO BE HEARD AND LIMIT THE NUMBER OF
WITNESSES. THE FACTS TO BE PROVEN BY EACH WITNESS AND THE APPROXIMATE NUMBER OF HOURS
PER WITNESS SHALL BE FIXED.

TESTIMONY BY NARRATION

ONE QUESTION OFTEN ASKED IS WHETHER A WITNESS MAY BE ALLOWED TO TESTIFY BY

NARRATION. WHILE THE GENERAL RULE IS THAT MATERIAL AND RELEVANT FACT ARE ELICITED FROM A
WITNESS BY QUESTIONS PUT TO HIM, IT STILL RESTS WITHIN 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 NARRATIVE FORM.

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 THERE IS NO LEGAL PRINCIPLE WHICH PREVENTS A WITNESS FROM GIVING HIS TESTIMONY IN
NARRATIVE FORM IF HE IS REQUESTED TO DO SO BY COUNSEL. 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 OF AT ISSUE. IT WOULD EXPEDITE THE TRIAL AND WOULD PERHAPS
FURNISH THE COURT A CLEARER UNDERSTANDING OF THE MATTERS RELATED AS THEY OCCURRED.
MOREOVER, NARRATIVE TESTIMONY MAY BE ALLOWED IF MATERIAL PARTS OF HIS EVIDENCE CANNOT
BE EASILY OBTAINED THROUGH PIECEMEAL TESTIMONIES.

SOME JURISPRUDENTIAL RULES REGARDING UNCOMPLETED TESTIMONIES:

1. ORAL TESTIMONY MAY BE TAKEN INTO ACCOUNT 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 THRU THE FAULT OF THE ADVERSE PARTY. WHEN
A WITNESS HAD TESTIFIED ON DIRECT EXAMINATION, BUT WAS NOT CROSS-EXAMINED
BECAUSE HE DIES OR BECOMES INCAPACITATED TO TESTIFY AFTER NUMEROUS
POSTPONEMENTS OF HIS CROSS-EXAMINATION ATTRIBUTABLE TO THE CROSS-EXAMINING
PARTY, WHEREAS THE WITNESS HAD ALL THE TIME BEEN AVAILABLE FOR CROSS-EXAMINATION,
HIS DIRECT TESTIMONY SHALL BE ALLOWED TO REMAIN IN THE RECORD AND CANNOT BE
ORDERED STRICKEN OFF. THE CROSS-EXAMINER IS DEEMED TO HAVE WAIVED HIS RIGHT TO
CROSS-EXAMINE.

2. ON THE CONTRARY, WHEN THE 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.

3. THE DIRECT TESTIMONY OF A WITNESS WHO DIES BEFORE CONCLUSION OF THE CROSS
EXAMINATION CAN BE STRICKEN ONLY INSOFAR AS TO THE PART NOT COVERED BY THE 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, AND THE MATTER ON WHICH
CROSS EXAMINATION IS SOUGHT IS NOT IN CONTROVERSY.

4. A JUDGE MAY INTERVENE IN THE TRIAL OF A CASE TO PROMOTE EXPEDITIOUS AND AVOID
UNNECESSARY WASTE OF TIME OR TO CLEAR UP SOME AMBIGUITY. A JUDGE IS NOT A MERE

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 REFEREE LIKE THAT OF A BOXING BOUT. HE SHOULD HAVE AS MUCH INTEREST AS A COUNSEL
IN THE ORDERLY AND EXPEDITIOUS PRESENTATION OF EVIDENCE, CALLING THE ATTENTION OF
COUNSEL TO POINTS AT ISSUE THAT ARE OVERLOOKED, DIRECTING THEM TO ASK QUESTIONS
THAT WOULD ELICIT THE FACTS ON THE ISSUES INVOLVED, CLARIFYING AMBIGUOUS REMARKS.
HE MAY EXAMINE OR CROSS-EXAMINE A WITNESS. HE MAY PROPOUND CLARIFICATORY
QUESTIONS TO TEST THE CREDIBILITY OF THE WITNESS AND TO EXTRACT THE TRUTH. HE MAY
SEEK TO DRAW OUT RELEVANT AND MATERIAL TESTIMONY THOUGH THE TESTIMONY MAY
TEND TO SUPPORT OR REBUT THE POSITION TAKEN BY ONE OR THE OTHER PARTY. THE
NUMBER OF TIMES A JUDGE INTERVENES IN THE EXAMINATION OF A WITNESS IS NOT
NECESSARILY AN INDICATION OF BIAS. IT CANNOT BE TAKEN AGAINST THE JUDGE IF HIS
CLARIFYING QUESTIONS HAPPEN TO REVEAL CERTAIN TRUTHS WHICH TEND TO SPOIL THE
THEORY OF PARTY.

EFFECT OF LACK OF OATH

A PERSON IS DISQUALIFIED TO BE A WITNESS IF HE IS INCAPABLE OF UNDERSTANDING THE

DUTY TO TELL THE TRUTH. AN OATH OF AFFIRMATION IS NECESSARY FOR THE WITNESS TO RECOGNIZE
THE DUTY TO TELL THE TRUTH. THE OATH OF A WITNESS SIGNIFIES THAT HE SWEARING TO THE
CREATOR “TO TELL THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH” AND THAT IF HE
DOES NOT, HE WILL LATER ON ANSWER FOR THE FALSEHOOD TOLD. A LIE THUS TOLD ON THE WITNESS
STAND SUBJECTS THE WITNESS TO PERJURY.

NOT ALL MAY WANT TO TAKE AN OATH FOR REASONS OF RELIGION OR THE LACK OF IT. THUS,
THE RULE IN THIS JURISDICTION, AS WELL AS IN THE AMERICAN STATES, AFFORDS THE COURTS THE
FLEXIBILITY TO DEAL WITH THOSE WHO REFUSE BEING SWORN BY REQUIRING THE WITNESS TO MAKE
AN AFFIRMATION INSTEAD. (ESPEJO)

SEC. 2. PROCEEDING TO BE RECORDED. – THE ENTIRE PROCEEDINGS OF A TRIAL OR HEARING,

INCLUDING QUESTIONS PROPOUNDED TO A WITNESS AND HIS OR HER ANSWERS THERETO, THE
STATEMENTS MADE BY THE JUDGE OR ANY OF THE PARTIES, COUNSEL, OR WITNESSES WITH
REFERENCE TO THE CASE, SHALL BE RECORDED BY MEANS OF SHORTHAND OR STENOTYPE OR BY
OTHER MEANS OF RECORDING FOUND SUITABLE BY THE COURT.

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 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.

PROCEEDING TO BE RECORDED

REMEDY IF NOTES ARE ERRONEOUSLY TRANSCRIBED

IF THE TRANSCRIPT OF STENOGRAPHIC NOTES APPEAR TO BE ERRONEOUS, THE REMEDY IS FOR

THE INTERESTED PARTY TO FILE A MOTION TO CORRECT.

A TRANSCRIPT OF STENOGRAPHIC NOTES, BEING AN OFFICIAL ENTRY IN THE COURT’S

RECORDS, IS ADMISSIBLE IN EVIDENCE AND THERE IS NO NECESSITY TO PRODUCE THE CONCERNED
STENOGRAPHER AS A WITNESS. (ERNESTO FULLERO V. PEOPLE, G.R. NO. 170583, SEPTEMBER 12,
2007).

SEC. 3. RIGHTS AND OBLIGATION 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 INTEREST OF JUSTICE REQUIRE;

(3) NOT TO BE EXAMINED EXCEPT ONLY AS TO MATTER 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

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 WOULD BE PRESUMED. BUT A WITNESS MUST ANSWER TO THE FACT OF HIS OR HER
PREVIOUS FINAL CONVICTION FOR AN OFFENSE.

WHAT ARE THE RIGHTS AND OBLIGATION OF A WITNESS?

A WITNESS MUST ANSWER QUESTIONS, ALTHOUGH HIS ANSWER MAY TEND TO ESTABLISH A
CLAIM AGAINST HIM. HOWEVER, IT IS THE RIGHT OF A WITNESS:

(1) TO BE PROTECTED FROM IRRELEVANT, IMPROPER, OR INSULTING QUESTIONS, AND FROM

HARSH OR INSULTING DEMEANOR;
(2) NOT TO BE DETAINED LONGER THAN THE INTEREST OF JUSTICE REQUIRE;
(3) NOT TO BE EXAMINED EXCEPT ONLY AS TO MATTER PERTINENT TO THE ISSUE;
(4) NOT TO GIVE AN ANSWER WHICH WILL TEND TO SUBJECT HIM TO A PENALTY FOR AN OFFENSE
UNLESS OTHERWISE PROVIDED BY LAW; OR
(5) NOT TO GIVE AN ANSWER WHICH WILL TEND TO DEGRADE HIS REPUTATION, UNLESS IT 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 PREVIOUS FINAL CONVICTION
FOR AN OFFENSE.

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. THE COURT SHOULD NOT ALLOW QUESTIONS ON CROSS EXAMINATION
WHICH TEND TO DEGRADE TIE WITNESS UNNECESSARILY, OR DISGRACE HIM ON MATTERS NOT
AFFECTING HIS CREDIBILITY (FRANCISCO)

THE MOMENT AN ORDINARY WITNESS WILLINGLY TESTIFIES, HE CAN ONLY OBJECT AT THE TIME
THE INCRIMINATING QUESTION IS ASKED OF HIM FOR THE REASON THAT THE WITNESS CAN HARDLY
ANTICIPATE THAT THE IMPENDING INQUIRY WILL IMPLICATE HIM.

ON THE OTHER HAND, THE ACCUSED HAS THE RIGHT TO REMAIN SILENT AND THE DEFENDANT
MAY THEREFORE REFUSE TO SIT ON THE WITNESS STAND WITHOUT ANY UNFAVORABLE INFERENCE
THEREON (PERALTA)

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SEC. 4. ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS. – 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.

ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS

AN ESSENTIAL PART OF ALL TESTIMONY IS THE PROCESS OF LAYING BEFORE THE TRIBUNAL THE
WITNESS’S RESULTS OF HIS OBSERVATION AND HIS RECOLLECTION, I.E., THE PROCESS OF NARRATION
OR COMMUNICATION, ITS OFFICE IS TO MAKE INTELLIGIBLE TO THE TRIBUNAL THE KNOWLEDGE AND
RECOLLECTION OF THE WITNESS, WHATEVER THAT MAY AMOUNT TO, AFFIRMATIVE OR NEGATIVE,
USEFUL OR TRIVIAL. ITS PRIME AND ESSENTIAL VIRTUE, THEN, CONSISTS IN ACCURATELY REPRODUCING
AND EXPRESSING THE ACTUAL AND SINCERE RECOLLECTION (WIGMORE ON EVIDENCE)

ONLY ONE COUNSEL WILL CONDUCT THE DIRECT OR CROSS-EXAMINATION

WHILE SECTION 4, RULE 132 SERVES AS THE PROTOTYPE FOR EXAMINATION OF A WITNESS,
THE COURT HAS THE 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
(JONES).

FOR INSTANCE, IN A CRIMINAL CASE, IF THE ACCUSED INVOKED JUSTIFYING CIRCUMSTANCES

LIKE SELF-DEFENSE, THE COURT MAY CHANGE THE ORDER OF THE TRIAL BY REQUIRING THE DEFENSE
TO PRESENT EVIDENCE FIRST. LIKEWISE, WHILE IT IS A GENERAL RULE THAT SEVERAL COUNSEL WILL
NOT BE ALLOWED TO EXAMINE OR CROSS-EXAMINE THE SAME WITNESS, YET DEPARTURE THEREFROM
MAY PROPERLY BE ALLOWED – ESPECIALLY AT DIFFERENT STAGES OF THE EXAMINATION OR IF
SEPARATE PARTIES ARE AFFECTED AND HAVE SEPARATE COUNSEL. (JONES ON EVIDENCE)

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SEC. 5. DIRECT EXAMINATION. – DIRECT EXAMINATION IS THE EXAMINATION-IN-CHIEF OF A
WITNESS BY THE PARTY PRESENTING HIM OR HER ON THE FACTS RELEVANT TO THE ISSUE.

DIRECT EXAMINATION IS A FOUNDATION OF TRIAL

THE BUILDING OF YOUR OWN CASE IS THE FUNCTION OF DIRECT EXAMINATION, AND A MIGHTY
IMPORTANT FUNCTION IT IS TOO. 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. AND IT IS DIRECT EXAMINATION, AND THE PUTTING
IN OF YOUR OWN EVIDENCE THAT MAKES OR BREAKS YOUR CASE. (JACINTO, AN INTRODUCTION TO
TRIAL TECHNIQUE AND PRACTICE)

IT IS ACTUALLY A PROCEDURE FOR OBTAINING INFORMATION FROM ONE’S OWN WITNESS IN

AN ORDERLY FASHION, IT IS INFORMATION WHICH COUNSEL WANTS THE COURT TO HEAR. THE
PURPOSE IS TO ELICIT FACTS ABOUT THE CLIENT’S CAUSE OF ACTION OR DEFENSE.

THE ESSENTIAL OF DIRECT EXAMINATION:

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; AND
5. TO PRESENT ALL DOCUMENTARY EVIDENCE TO PROVE AND TO CORROBORATE THE
CONTENTIONS OF THE TRIAL LAWYER (JACINTO)

FOUNDATION FROM DIRECT EXAMINATION

1. FIRM GRASP OF THE MAIN LINES OF EVIDENCE, AND THE PLACE OF EACH LINE IN THE
UNFOLDING OF THE CASE.

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 2. SKILL IN THE USE OF WORDS, SO AS TO BE ABLE TO GUIDE THE WITNESS IN THE RIGHT
DIRECTION WITHOUT LEADING HIM.

NON-LEADING QUESTIONS – (OPEN QUESTION) -- WHO, WHAT, WHY, WHEN, WHERE, HOW,
PLEASE DESCRIBE.

CLOSED QUESTIONS ARE QUESTIONS WHICH LIMIT THE WITNESS’S CHOICE OF ANSWER:

(A) THE WORD- CHOICE

EXAMPLES:

1.IS THE PLACE DARK OR WELL-LIGHTED?

2. IS THE ACCUSED FAT OR THIN?
3. IS THE WALL LOW OR HIGH?
4. IS HE IS SHORT OR TALL?

(B) YES OR NO
EXAMPLES:

ACTUALLY, A QUESTION WHICH SUGGESTS ONLY THE ANSWER “YES” OR ONLY THE ANSWER
“NO” IS LEADING. FOR EXAMPLE: DID YOU AT THAT TIME FEEL THAT JULIO WAS CAPABLE OF HURTING
YOU SERIOUSLY CONSIDERING HIS BUILT AND STRENGTH?” IS LEADING BECAUSE IT SUGGESTS THE
ANSWER. ALSO LEADING IS THE QUESTION: “SINCE YOU WERE ONLY ABOUT A METER FROM THE EDGE
OF THE ROAD, DID YOU HAVE ANY PROBLEM STEPPING ON BOARD THE BUS WHEN IT STOPPED IN
FRONT F YOU?” THESE QUESTIONS SUGGEST TH ANSWER THAT THE LAWYER WANTS THE WITNESS TO
MAKE.

BUT A QUESTION, WHICH MAY BE ANSWERED BY EITHER YES OR NO AND SUGGESTS NEITHER
ANSWER AS CORRECT ONE, IS NOT LEADING. THE TEST OF A LEADING QUESTION IS WHETHER IT SO
SUGGESTS TO THE WITNESS THE SPECIFIC TENOR OF THE REPLY DESIRED BY COUNSEL THAT SUCH A
REPLY IS LIKELY TO BE GIVEN IRRESPECTIVE OF AN ACTUAL MEMORY. WHAT IS PROHIBITED IS A

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SUGGESTIVE QUESTION, ONE WHICH SUGGESTS OR PUTS THE DESIRED ANSWER INTO THE MOUTH OF
THE WITNESS.

FOR EXAMPLE, THE QUESTION: “DID YOU EVER SELL LIQUOR TO RENE?” OR “DID YOU AT ANY
TIME HIT ANYBODY WITH THIS PIECE OF WOOD?” IS NOT LEADING SINCE THE WITNESS IS GIVEN THE
CHOICE OF ANSWERING EITHER YES OR NO. SO ALSO NOT LEADING IS THE QUESTION: “YOU SAID THAT
YOU LEFT FOR SCHOOL DID YOU GET TO SCHOOL?” NO OBJECTIONS ARE MORE FRIVOLOUS THAN
THOSE MADE TO QUESTIONS THAT ARE SUPPOSEDLY LEADING. THEY DO NOT SERVE THE END OF
JUSTICE AND AN UNTRAINED JUDGE CAN ACTUALLY PREVENT THE TRIAL LAWYER FROM GETTING
FACTS INTO EVIDENCE (ABAD)

SEC. 6. CROSS-EXAMINATION; ITS PURPOSE AND EXTENT. – UPON THE TERMINATION OF THE
DIRECT EXAMINATION, THE WITNESS MAY BE CROSS-EXAMINED BY THE ADVERSE PARTY 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.

CROSS EXAMINATION; ITS PURPOSE AND EXTENT

THE ADDITIONAL PHRASE “ON ANY RELEVANT MATTER” IS INTENDED TO MAKE EXPLICIT OR
CLARIFY THAT CROSS-EXAMINATION, FOLLOWING THE ENGLISH RULE, MAY PROBE INTO ANY SUBJECT
RELEVANT TO THE ISSUES IN THE CASE, EVEN IF NOT COVERED BY THE DIRECT EXAMINATION. IN
CAPITOL SUBDIVISION V. NEGROS OCCIDENTAL, THE SUPREME COURT CATEGORICALLY HELD THAT
CROSS-EXAMINATION MAY GO BEYOND THE SCOPE OF THE DIRECT AND THAT, BY DOING SO, THE
PARTY IS NOT MAKING THE WITNESS HIS OWN.

CROSS EXAMINATION

AT THE CONCLUSION OF THE DIRECT EXAMINATION OF A WITNESS, THE LATTER 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 (JONES ON EVIDENCE)

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 THIS IS THE EXAMINATION OF THE WITNESS BY THE ADVERSE PARTY AFTER SAID WITNESS HAS
GIVEN HIS TESTIMONY ON DIRECT EXAMINATION. AS A RULE, THE SCOPE OF THE CROSS- EXAMINATION
IS NOT CONFINED TO THE MATTERS STATED BY THE WITNESS IN THE DIRECT EXAMINATION.

NATURE OF THE RIGHT TO CROSS-EXAMINE

THE RIGHT OF A PARTY 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 (SAVORY LUNCHEONETTE V. LAKAS NG MANGGAGAWANG PILIPINO, 62 SCRA
258)

CROSS-EXAMINATION HAS TWO BASIC PURPOSES, NAMELY:

(A) TO BRING OUT FACTS FAVORABLE TO COUNSEL’S CLIENT NOT ESTABLISHED BY THE DIRECT
TESTIMONY; AND

(B) TO DENT THROUGH KEEN EXAMINATION HIS CREDIBILITY OR UNCOVER HIS STORY’S WEAKNESS
OR LACK OF PROVABLE VALUE.

SIMPLY PUT:
1. TO ENABLE COUNSEL TO IMPEACH OR
2. TO IMPAIR THE CREDIBILITY OF THE WITNESS.
3. TO ELICIT ADMISSIONS; AND
4. TO CLARIFY CERTAIN MATTERS

SOME TIPS IN THE CONDUCT OF CROSS- EXAMINATION:

1. THINK LIKE A COMMANDO;

2. NEVER ASK A QUESTION TO WHICH YOU DO NOT ALREADY KNOW THE ANSWER;
3. ALWAYS ASK LEADING QUESTIONS;
4. NEVER ASK THE WITNESS TO EXPLAIN;

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 5. NEVER ASK THE WITNESS FOR HELP;
6. ASK ONLY ONE QUESTION AT A TIME
7. ALWAYS HAVE FULL CONTROL OVER THE WITNESS.

TECHNIQUES OF CROSS-EXAMINATION

1. CONFRONTATION – IT CONSISTS IN CONFRONTING THE WITNESS WITH DAMAGING FACTS

WHICH HE CANNOT DENY AND WHICH ARE INCONSISTENT WITH HIS EVIDENCE.

2. PROBING – IT IS CARRIED OUT BY INQUIRING THOROUGHLY INTO THE DETAILS OF THE STORY
TO DISCOVER THE FLAWS. IT MAY BE USED EITHER TO WEAKEN OR DESTROY.

3. INSINUATION – IT IS A MANY SIDED TECHNIQUE, AND IS PERHAPS THE MOST IMPORTANT OF

THE THREE TECHNIQUES IN EVERYDAY PRACTICE. IN ESSENCE, 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 OWN FAVOR,
IT SIMULTANEOUSLY WEAKENS THE EVIDENCE –IN- CHIEF BY DRAWING OUT ITS STING.
INSINUATION MAY TAKE THE FORM OF QUIETLY LEADING THE WITNESS ON, LITTLE BY LITTLE;
ALTERNATELY, IT MAY BE NECESSARY TO DRIVE HIM, IN WHICH CASE, AS IN CONFRONTATION,
THE CROSS-EXAMINER MUST HAVE READY MATERIAL AT HIS DISPOSAL (PERALTA).

A. GENTLE INSINUATION
B. FIRM INSINUATION

CROSS EXAMINATION BY THE JUDGE

EVEN THE JUDGE CAN CROSS-EXAMINE THE WITNESS. A TRIAL JUDGE HAS THE RIGHT TO
PROFOUND SUCH QUESTIONS TO WITNESSES AS MAY BE NECESSARY TO ELICIT PERTINENT FACTS, IN
ORDER THAT THE TRUTH MAY BE ESTABLISHED, ALTHOUGH SOME REVIEWING COURTS HAVE
DECLARED THAT THE PRACTICE OF SO DOING EXCEPT WHEN ABSOLUTELY NECESSARY SHOULD BE
DISCOURAGED. HE MAY CROSS-EXAMINE A WITNESS, OR ASK HIM LEADING QUESTIONS. AND HE MAY
ELICIT ANY RELEVANT AND MATERIAL EVIDENCE, WITHOUT REGARD TO ITS EFFECTS, WHETHER
BENEFICIAL OR PREJUDICIAL TO ONE PARTY OR THE OTHER. INDEED, IT HAS BEEN DECLARED TO BE THE
DUTY OF THE COURT TO PROFOUND SUCH QUESTIONS TO RELUCTANT WITNESSES AS WILL STRIP THEM

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OF THE SUBTERFUGE TO WHICH THEY RESORT TO EVADE TELLING THE TRUTH. THE EXTENT TO WHICH
SUCH EXAMINATION SHALL BE CONDUCTED RESTS IN THE DISCRETION OF THE JUDGE, THE EXERCISE OF
WHICH WILL NOT BE CONTROLLED UNLESS ABUSED (FRANCISCO)

EFFECT OF LACK OF CROSS EXAMINATION

THE TESTIMONY OF A WITNESS WHO WAS NOT CROSS EXAMINED IS TECHNICALLY HEARSAY.
BEING HEARSAY, IT SHOULD NOT BE ADMISSIBLE.

IN SUCH A CASE, THE REMEDY OF THE OPPONENT IS A MOTION TO STRIKE. A MOTION TO

STRIKE IS A LEGAL MOTION GIVEN BY ONE PARTY IN A TRIAL REQUESTING THE PRESIDING JUDGE TO
ORDER THE REMOVAL OF ALL OR PART OF THE OPPOSING PARTY’S PLEADING TO THE COURT. A
MOTION TO STRIKE IS ALSO USED TO REQUEST ELIMINATION OF ALL OR PART OF A TRIAL WITNESS’S
TESTIMONY. (ESPEJO)

RESTRICTIONS ON CROSS-EXAMINATION

1. WAIVER
2. DEFAULT
3. EX-PARTE PROCEEDING
4. BEST EVIDENCE AND PAROL EVIDENCE RULES
5. FORMER TESTIMONY AND OTHER EXCEPTIONS TO HEARSAY RULE
6. ACCUSED’S ESCAPE FROM CONFINEMENT
7. UNWILLING OR HOSTILE WITNESS
8. MISLEADING AND INADMISSIBLE

SCOPE OF CROSS-EXAMINATION

1. 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 EXAMINATION (JONES ON EVIDENCE).

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 2. AMERICAN RULE – RESTRICTS CROSS-EXAMINATION TO FACTS AND CIRCUMSTANCES WHICH
ARE CONNECTED WITH THE MATTERS THAT HAVE BEEN STATED IN THE DIRECT EXAMINATION
OF THE WITNESS. IF A PARTY WISHES TO EXAMINE AS TO OTHER MATTERS, HE MUST DO SO BY
CALLING THE WITNESS IN HIS OWN BEHALF.

PHILIPPINE LAW ADOPTS THE ENGLISH RULE

IT IS READILY APPARENT FROM THE TEXT OF SECTION 6, RULE 132 THAT PHILIPPINE LAW ON
THE DEGREE OF CROSS-EXAMINATION GENERALLY ADOPTS THE ENGLISH RULE SINCE THE CROSS-
EXAMINER CAN CONFRONT THE WITNESS NOT ONLY WITH MATTERS STATED IN THE DIRECT
EXAMINATION BUT ALSO ON ASPECTS THAT ARE “… CONNECTED THEREWITH, WITH SUFFICIENT
FULLNESS AND FREEDOM TO TEST HIS ACCURACY AND TRUTHFULNESS AND FREEDOM FROM INTEREST
OR BIAS, OR THE REVERSE, AND TO ELICIT ALL IMPORTANT FACTS BEARING UPON THE ISSUE.”
(REGALADO)

RULE ON INCOMPLETE CROSS-EXAMINATION

IT IS A RULE OF THUMB THAT IT IS INCOMPETENT TO UTILIZE THE DIRECT TESTIMONY OF THE

WITNESS IF THE INABILITY TO CROSS-EXAMINE THE WITNESS IS ATTRIBUTABLE TO THE PARTY WHO
PRESENTS HIM. IF SO, IT FOLLOWS THAT THE EXAMINATION –IN-CHIEF OF THE WITNESS IS
INEFFECTUAL AND CAN BE STRICKEN OFF THE RECORD AT THE BEHEST OF THE ADVERSE PARTY.
(PERALTA)

WIGMORE ATTRIBUTED FIVE (5) OCCASIONS THAT CAN IMPEDE CROSS-EXAMINATION,

NAMELY:

(1) THE WITNESS’ DEATH OR ILLNESS;

(2) THE WITNESS’S REFUSAL TO ANSWER ON CROSS-EXAMINATION OR THE PARTY’S
PREVENTION OF HIS ANSWER;
(3) THE WITNESS’ ANSWERING THE DIRECT EXAMINATION “NON-RESPONSIVELY”
(4) THE FRAMING OF THE DIRECT EXAMINATION SO AS TO PREVENT ADEQUATE CROSS-
EXAMINATION; AND
(5) SUNDRY CIRCUMSTANCES PREVENTING ADEQUATE CROSS-EXAMINATION.

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SOME DECIDED CASES

1. “ORAL TESTIMONY MAY BE TAKEN INTO ACCOUNT 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 THRU THE FAULT OF SUCH ADVERSE PARTY. BUT
WHEN THE CROSS-EXAMINATION IS NOT AND CANNOT BE DONE OR COMPLETED DUE TO
CAUSES ATTRIBUTABLE TO THE PARTY OFFERING THE WITNESS, THE UNCOMPLETED
TESTIMONY IS THERE BY RENDERED INCOMPETENT (ORTIGAS JR VS. LUFTHANSA GERMAN
AIRLINES, 64 SCRA 610).

2. “THE RIGHT OF A PARTY 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 MAY BE WAIVED EXPRESSLY OR IMPLIEDLY BY CONDUCT AMOUNTING TO A
RENUNCIATION OF THE RIGHT OF CROSS-EXAMINATION. THUS, WHERE A PARTY HAS HAD
OPPORTUNITY TO CROSS –EXAMINE A WITNESS BUT FAILED TO AVAIL HIMSELF OF IT, HE
NECESSARILY FORFEITS THE RIGHT TO CROSS-EXAMINE AND THE TESTIMONY GIVEN ON DIRECT
EXAMINATION OF THE WITNESS WILL BE RECEIVED OR ALLOWED TO REMAIN IN THE RECORD
(SAVORY LUNCHEONETTE VS. LAKAS NG MANGGAGAWANG PILIPINO, 62 SCRA 258)

3. 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 VS. GOROSPE, 129 SCRA 233)

BAR 2017

Pedro, the principal witness in a criminal case, testified and completed his
testimony on direct examination in 2015. Due to several postponements by the
accused, grounded on his recurring illness, which were all granted by the judge,
the cross-examination of Pedro was finally set on October 15, 2016. Before the
said date, Pedro died. The accused moved to expunge Pedro's testimony on the
ground that it violates his right of confrontation and the right to cross-examine
the witness. The prosecution opposed the motion and asked that Pedro's

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testimony on direct examination be admitted as evidence. Is the motion
meritorious? Explain. (5%)

Suggested answer

No, the motion to expunge Pedro’s testimony on the ground that it violates
the accused’s right to confront the witness is not meritorious. The Supreme Court
has held that where the delay in cross-examining the witness was imputable to
the accused, he could not be heard to complain if the witness becomes
unavailable through no fault of the party presenting the witness and hence the
witness’s direct examination should not be stricken out. Here the delay in cross-
examining Pedro was imputable to the motions for postponement filed by the
accused and the death of Pedro was not the fault of the prosecution.

SEC. 7. RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT. – AFTER THE CROSS-EXAMINATION OF
THE WITNESS HAS BEEN CONCLUDED, 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-
EXAMINATION. ON RE-DIRECT EXAMINATION, QUESTIONS ON MATTERS NOT DEALT WITH DURING
THE CROSS-EXAMINATION, MAY BE ALLOWED BY THE COURT IN ITS DISCRETION.

RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT

THIS EXAMINATION IS CONDUCTED AFTER THE CROSS-EXAMINATION OF THE WITNESS. THE

PARTY WHO CALLED THE WITNESS ON DIRECT EXAMINATION MAY RE-EXAMINE THE SAME WITNESS TO
EXPLAIN OR SUPPLEMENT HIS ANSWERS GIVEN DURING THE CROSS-EXAMINATION. IT IS THE
EXAMINATION OF A WITNESS BY THE COUNSEL WHO CONDUCTED THE DIRECT EXAMINATION AFTER
THE CROSS-EXAMINATION.

IN REDIRECT EXAMINATION THE COUNSEL MAY ELICIT TESTIMONY TO CORRECT OR REPEL ANY
WRONG IMPRESSION ON INFERENCES THAT MAY HAVE BEEN CREATED IN THE CROSS-EXAMINATION. IT
MAY ALSO BE AN OPPORTUNITY TO REHABILITATE A WITNESS WHOSE CREDIBILITY HAS BEEN
DAMAGED. IN ITS DISCRETION, THE COURT MAY EVEN ALLOW QUESTIONS ON MATTERS NOT TOUCHED
IN THE CROSS-EXAMINATION.

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SEC. 8. – RE-CROSS EXAMINATION. – UPON THE CONCLUSION OF THE RE-DIRECT EXAMINATION,
THE ADVERSE PARTY MAY RE-CROSS-EXAMINE THE WITNESS ON MATTERS STATED IN HIS RE-DIRECT
EXAMINATION, AND ALSO ON SUCH OTHER MATTERS AS MAY BE ALLOWED BY THE COURT IN ITS
DISCRETION.

RE-CROSS EXAMINATION

FOLLOWING RE-DIRECT EXAMINATION, THE ADVERSE PART CAN SUBJECT THE WITNESS 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.

THIS IS THE EXAMINATION CONDUCTED UPON THE CONCLUSION OF THE RE-DIRECT

EXAMINATION. HERE THE ADVERSE PARTY MAY QUESTION THE WITNESS ON MATTERS STATED IN HIS
RE-DIRECT EXAMINATION.

SEC. 9. RECALLING WITNESS. – AFTER THE EXAMINATION OF A WITNESS BY BOTH SIDES HAS BEEN
CONCLUDED, THE WITNESS CANNOT BE RECALLED WITHOUT LEAVE OF COURT. THE COURT WILL
GRANT OR WITHHOLD LEAVE IN ITS DISCRETION, AS THE INTEREST OF JUSTICE MAY REQUIRE.
RECALLING WITNESS

IF A WITNESS HAS BEEN EXAMINED BY BOTH SIDES, THE WITNESS CANNOT BE RECALLED
WITHOUT LEAVE OF COURT. RECALLING A WITNESS IS A MATTER OF JUDICIAL DISCRETION. IN THE
EXERCISE OF ITS DISCRETION, THE COURT SHALL BE GUIDED BY THE INTERESTS OF JUSTICE.

SEC. 10. LEADING AND MISLEADING QUESTIONS. – A QUESTION WHICH SUGGESTS TO THE WITNESS
THE ANSWERS WHICH THE EXAMINING PARTY DESIRES IS A LEADING QUESTION. IT IS NOT ALLOWED,
EXCEPT:

1.ON CROSS-EXAMINATION;

2. ON PRELIMINARY MATTERS;

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3. WHEN THERE IS DIFFICULTY IN GETTING DIRECT AND INTELLIGIBLE ANSWERS FROM A WITNESS
WHO IS IGNORANT, OR A CHILD OF TENDER YEARS, OR IS OF FEEBLE MIND, OR A DEAF-MUTE;

4. OF AN UNWILLING OR HOSTILE WITNESS; OR

5. OF A WITNESS WHO IS AN ADVERSE PARTY OR AN OFFICER, DIRECTOR, OR MANAGING AGENT OF

A PUBLIC OR PRIVATE CORPORATION OR OF A PARTNERSHIP OR ASSOCIATION WHICH IS AN ADVERSE
PARTY.

A MISLEADING QUESTION IS ONE WHICH ASSUMES AS TRUE A FACT NOT YET TESTIFIED TO BY
THE WITNESS, OR CONTRARY TO THAT WHICH HE OR SHE HAS PREVIOUSLY STATED. IT IS NOT
ALLOWED.

LEADING AND MISLEADING QUESTIONS

NO RULE OF EVIDENCE IS MORE FAMILIAR TO THE PRACTITIONERS THAN THE ONE WHICH
FORBIDS LEADING QUESTIONS ON THE DIRECT EXAMINATION OF WITNESSES. (PERALTA)

A LEADING QUESTION IS ONE THAT IS FRAMED IN SUCH A WAY THAT THE QUESTION INDICATES
TO THE WITNESS THE ANSWER DESIRED BY THE PARTY ASKING THE QUESTION.

ACTUALLY, A QUESTION WHICH SUGGESTS ONLY THE ANSWER “YES” OR ONLY THE ANSWER
“NO” IS LEADING.

“DID YOU AT THAT TIME FEEL THAT JULIO WAS CAPABLE OF HURTING YOU SERIOUSLY
CONSIDERING HIS BUILT AND STRENGTH?”

“SINCE YOU WERE ONLY ABOUT A METER FROM THE EDGE OF THE ROAD, DID YOU HAVE ANY
PROBLEM STEPPING ON BOARD THE BUS WHEN IT STOPPED IN FRONT OF YOU?” (ABAD)

“YOU APPROVED AND GRANTED THE LOAN APPLIED FOR BY THE DEFENDANT?” THIS
QUESTION SUGGESTS THE ANSWER DESIRED BY THE EXAMINING PARTY, NAMELY, THAT THE LOAN
APPLIED FOR BY THE DEFENDANT WAS APPROVED AND GRANTED.

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ADDITIONAL EXAMPLES:

1. IS NOT YOUR NAME STEPHEN JAMES?

2. DO YOU RESIDE IN SAVANNAH CITY, OTON, ILOILO?
3. YOU HAVE KNOWN HIM FOR A NUMBER OF YEARS?

BUT A QUESTION, WHICH MAY BE ANSWERED BY EITHER “YES” OR “NO” AND SUGGESTS
NEITHER ANSWER AS THE CORRECT ONE, IS NOT LEADING. THE TEST OF A LEADING QUESTION IS
WHETHER IT SO SUGGESTS TO THE WITNESS THE SPECIFIC TENOR OF THE REPLY DESIRED BY COUNSEL
THAT SUCH A REPLY IS LIKELY TO BE GIVEN IRRESPECTIVE OF AN ACTUAL MEMORY. WHAT IS
PROHIBITED IS A SUGGESTIVE QUESTION, ONE WHICH SUGGESTS OR PUTS THE DESIRED ANSWER INTO
THE MOUTH OF THE WITNESS. (ABAD)

EXAMPLES:

1. “DID YOU EVER SELL LIQUOR TO JJ?”

2. “DID YOU AT ANY TIME HIT ANYBODY WITH THIS PIECE OF WOOD?”

EXCEPTIONS:

1. ON CROSS-EXAMINATION;

2. ON PRELIMINARY MATTERS;

3. WHEN THERE IS DIFFICULTY IN GETTING DIRECT AND INTELLIGIBLE ANSWERS FROM A WITNESS WHO
IS IGNORANT, OR A CHILD OF TENDER YEARS, OR IS OF FEEBLE MIND, OR A DEAF-MUTE;

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BAR 2015

AA, a twelve-year-old girl, while walking alone met BB, a teenage boy who
befriended her. Later, BB brought AA to a nearby shanty where he raped her. The
Information for rape filed against BB states:

"On or about October 30, 2015, in the City of S.P. and within the jurisdiction
of this Honorable Court, the accused, a minor, fifteen (15) years old with lewd
design and by means of force, violence and intimidation, did then and there,
willfully, unlawfully and feloniously had sexual intercourse with AA, a minor,
twelve (12) years old against the latter's will and consent."

At the trial, the prosecutor called to the witness stand AA as his first
witness and manifested that he be allowed to ask leading questions in conducting
his direct examination pursuant to the Rule on the Examination of a Child
Witness. BB's counsel objected on the ground that the prosecutor has not
conducted a competency examination on the witness, a requirement before the
rule cited can be applied in the case.

a.) Is BB's counsel correct?

In order to obviate the counsel's argument on the competency of AA as

prosecution witness, the judge motu proprio conducted his voir dire examination
on AA.

b.) Was the action taken by the judge proper?

After the prosecution had rested its case, BB' s counsel filed with leave a
demurrer to evidence, seeking the dismissal of the case on the ground that the
prosecutor failed to present any evidence on BB' s minority as alleged in the
Information.

c.) Should the court grant the demurrer?

Suggested answers

a) No, BB’s counsel is not correct.

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 Under the Rules on Examination of a Child Witness, there is no requirement
that a competency examination of the child witness be conducted before leading
questions may be asked of her. A competency examination may be conducted by
the court (not the prosecutor) only if substantial doubt exists as to the child’s
competency to testify. (Section 6, RECW).

Here there is no showing of any substantial doubt as to the competency of

AA to testify. Hence BB’s counsel is not correct.

b) No, the action taken by the judge was improper.

Under the Rules on Examination of a Child Witness, a competency

examination may be conducted by the court only if substantial doubt exists as to
the child’s competency to testify. (Section 6, RECW).

Here the judge’s voir dire is in effect a competency examination. However

there is no showing of any substantial doubt as to the competency of AA to
testify. Hence the judge’s action was improper.

c) No the court may not grant the demurrer.

Under the Rules of Criminal Procedure, a demurrer to evidence may be

granted on the ground of insufficiency of evidence.

Here even assuming that minority was not proved, BB may still be
convicted of rape since minority is not an element of rape.

4. OF AN UNWILLING OR HOSTILE WITNESS; OR

OF A WITNESS WHO IS AN ADVERSE PARTY OR AN OFFICER, DIRECTOR, OR MANAGING AGENT OF A
PUBLIC OR PRIVATE CORPORATION OR OF A PARTNERSHIP OR ASSOCIATION WHICH IS AN ADVERSE
PARTY.

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 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 IN ANY
TYPE OF EXAMINATION.

SEC. 11. IMPEACHMENT OF ADVERSE PARTY’S WITNESS. – A WITNESS MAY BE IMPEACHED BY THE
PARTY AGAINST WHOM HE OR SHE WAS CALLED, BY CONTRADICTORY EVIDENCE, BY EVIDENCE
THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY, OR INTEGRITY IS BAD, OR BY EVIDENCE THAT
HE HAS MADE AT OTHER TIMES STATEMENTS INCONSISTENT WITH HIS PRESENT TESTIMONY , BUT
NOT BY EVIDENCE OF PARTICULAR WRONGFUL ACTS, EXCEPT THAT IT MAY BE SHOWN BY THE
EXAMINATION OF THE WITNESS, OR THE RECORD OF THE JUDGMENT, THAT HE HAS BEEN CONVICTED
OF AN OFFENSE.

IMPEACHMENT OF ADVERSE PARTY’S WITNESS

AS A GENERAL RULE, IMPEACHMENT OF A WITNESS CAN BE DONE ONLY BY THE OPPONENT. IT

CANNOT BE DONE BY THE PROPONENT OR THE PARTY PRODUCING HIM AS WITNESS. UNDER SECTION
12, A PARTY CANNOT IMPEACH HIS OWN WITNESS.

IMPEACHMENT IS BASICALLY A TECHNIQUE EMPLOYED USUALLY AS PART OF THE CROSS-

EXAMINATION TO DISCREDIT A WITNESS BY ATTACKING HIS CREDIBILITY. DESTROYING CREDIBILITY IS
VITAL BECAUSE IT IS LINKED WITH A WITNESS’ ABILITY AND WILLINGNESS TO TELL THE TRUTH.

INSOFAR AS THE TIME FOR IMPEACHMENT, THE WITNESS IS USUALLY IMPEACHED DURING THE
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
(FRANCISCO)

THE RULES ENUMERATE CERTAIN GUIDEPOSTS IN IMPEACHING A WITNESS:

1. THE IMPEACHMENT OF A WITNESS IS TO BE DONE BY THE PARTY AGAINST WHOM THE WITNESS
IS CALLED (SECTION 11, RULE 132);
2. SUBJECT TO CERTAIN EXCEPTIONS, THE PARTY PRODUCING THE WITNESS IS BARRED FROM
IMPEACHING HIS OWN WITNESS (SECTION 12);

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 3. IT IS IMPROPER FOR THE PARTY CALLING THE WITNESS TO PRESENT EVIDENCE OF THE GOOD
CHARACTER OF HIS OWN WITNESS. THE SAME IS ALLOWED ONLY IF THE CHARACTER OF THE
WITNESS HAS BEEN IMPEACHED (SECTION 14)

A WITNESS MAY BE IMPEACHED:

A. BY CONTRADICTORY EVIDENCE;
B. BY EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY AND INTEGRITY IS BAD;
OR
C. BY EVIDENCE THAT HE HAS MADE AT OTHER TIMES STATEMENTS INCONSISTENT WITH IS
PRESENT TESTIMONY.

“CHARACTER” – IS MADE UP OF THE THINGS AN INDIVIDUAL ACTUALLY IS AND DOES.

“REPUTATION” – IS WHAT PEOPLE THINK AN INDIVIDUAL IS AND WHAT THEY SAY ABOUT HIM.

BAR 2017

IN AN ATTEMPT TO DISCREDIT AND IMPEACH A PROSECUTION WITNESS IN A HOMICIDE CASE,

THE DEFENSE COUNSEL CALLED TO THE STAND A PERSON WHO HAD BEEN THE BOYHOOD FRIEND AND
NEXT-DOOR NEIGHBOR OF THE PROSECUTION WITNESS FOR 30 YEARS. ONE QUESTION THAT THE
DEFENSE COUNSEL ASKED OF THE IMPEACHING WITNESS WAS: CAN YOU TELL THIS HONORABLE COURT
ABOUT THE GENERAL REPUTATION OF THE PROSECUTION WITNESS IN YOUR COMMUNITY FOR
AGGRESIVENESS AND VIOLENT TENDENCIES?”

QUESTION:

WOULD YOU, AS THE TRIAL PROSECUTOR, INTERPOSE YOUR OBJECTION TO THE QUESTION OF
THE DEFENSE COUNSEL? EXPLAIN YOUR ANSWER.

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ANSWER:

YES. I WILL OBJECT ON THE GROUND THAT THE QUESTION PROPOUNDED IS NOT AN ALLOWED
MANNER OF IMPEACHING A WITNESS. RULE 132, SECTION 11 PROVIDES THAT A WITNESS MAY BE
IMPEACHED BY, AMONG OTHERS, EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY,
OR INTEGRITY IS BAD. IN THE PRESENT CASE, THE TESTIMONY SOUGHT TO BE ELICITED IS NOT
CONTRARY EVIDENCE REGARDING HIS TRUTHFULNESS BUT HIS AGGRESSIVENESS AND VIOLENT
TENDENCIES.

SEC. 12. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME – FOR THE

PURPOSE OF IMPEACHING A WITNESS, EVIDENCE THAT HE OR SHE HAS BEEN
CONVICTED BY FINAL JUDGMENT OF A CRIME SHALL BE ADMITTED IF (A) THE
CRIME WAS PUNISHABLE BY A PENALTY IN EXCESS OF ONE (1) YEAR; OR (B) THE
CRIME INVOLVED MORAL TURPITUDE, REGARDLESS OF THE PENALTY.

HOWEVER, EVIDENCE OF A CONVICTION IS NOT ADMISSIBLE IF THE CONVICTION

HAS BEEN THE SUBJECT OF AN AMNESTY OR ANNULMENT OF THE CONVICTION.

IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

UNDER THE REVISED RULE ON EVIDENCE, A WITNESS MAY NOW BE IMPEACHED BY PROOF OF
EVIDENCE OF CONVICTION OF A CRIME, IF IT HAS A PENALTY IN EXCESS OF ONE YEAR, OR A CRIME
INVOLVING MORAL TURPITUDE. SIMPLY PUT, A WITNESS CANNOT BE IMPEACHED FOR THE
COMMISSION OF A CRIME UNLESS THERE IS A JUDGMENT OF CONVICTION BY FINAL JUDGMENT.

MORAL TURPITUDE HAS BEEN DEFINED AS A PHRASE THAT DESCRIBES WICKED, DEVIANT
BEHAVIOR CONSTITUTING AN IMMORAL, UNETHICAL, OR UNJUST DEPARTURE FROM ORDINARY SOCIAL
STANDARDS, SUCH THAT IT WOULD SHOCK A COMMUNITY. IN CRIMINAL LAW, THE LAW SORTS
CRIMINAL ACTIVITY INTO CATEGORIES OF CRIME EITHER INVOLVING OR NOT INVOLVING MORAL
TURPITUDE.

IT IS ALSO DEFINED AS AN ACT OF BASENESS, VILENESS, OR DEPRAVITY IN THE PRIVATE AND

SOCIAL DUTIES WHICH A MAN OWES TO HIS FELLOWMEN, OR TO SOCIETY IN GENERAL, CONTRARY TO
THE ACCEPTED AND CUSTOMARY RULE OF RIGHT AND DUTY BETWEEN MAND AND MAN.

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EXAMPLES OF CRIME INVOLVING MORAL TURPITUDE

1. MURDER
2. KIDNAPPING
3. ROBBERY
4. VIOLATION OF RA 9165
5. PROSTITUTION
6. ILLEGAL GAMBLING
7. ADULTERY

ONE OF THE WAYS OF IMPEACHING A WITNESS THEREBY DISCREDITING HIS CREDIBILITY IS BY

EVIDENCE TO SHOW THAT HE HAS BEEN CONVICTED BY FINAL JUDGMENT OF A CRIME.

HOWEVER, THE CURRENT RULES PROVIDE FOR THE REQUIREMENTS FOR THE PURPOSE OF
IMPEACHING A WITNESS, EVIDENCE THAT HE OR SHE HAS BEEN CONVICTED BY
FINAL JUDGMENT OF A CRIME SHALL BE ADMITTED IF

(A) THE CRIME WAS PUNISHABLE BY A PENALTY IN EXCESS OF ONE (1) YEAR;
OR

(B) THE CRIME INVOLVED MORAL TURPITUDE, REGARDLESS OF THE

PENALTY.

ARE THERE EXCEPTIONS?

YES.
HOWEVER, EVIDENCE OF A CONVICTION IS NOT ADMISSIBLE IF THE
CONVICTION HAS BEEN THE SUBJECT OF AN AMNESTY OR ANNULMENT OF THE
CONVICTION.

SEC. 13. PARTY MAY NOT IMPEACH HISOR HER OWN WITNESS. – EXCEPT WITH RESPECT TO
WITNESSES REFERRED TO IN PARAGRAPHS (D) (UNWILLING WITNESS) AND (E) (OF A WITNESS WHO IS

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AN ADVERSE PARTY OR AN OFFICER, DIRECTOR, OR MANAGING AGENT OF A PUBLIC OR PRIVATE
CORPORATION OR OF A PARTNERSHIP OR ASSOCIATION WHICH IS AN ADVERSE PARTY) OF SECTION 10
OF THIS RULE, THE PARTY PRODUCING A WITNESS IS NOT ALLOWED TO IMPEACH HIS OR HER
CREDIBILITY.

A WITNESS IS CONSIDERED AN UNWILLING OR HOSTILE ONLY IF SO DECLARED BY THE COURT

UPON ADEQUATE SHOWING OF HIS OR HER ADVERSE INTEREST, UNJUSTIFIED RELUCTANCE TO
TESTIFY, OR HIS OR HER HAVING MISLED THE PARTY INTO CALLING HIM OR HER TO THE WITNESS
STAND.

THE UNWILLING OR HOSTILE WITNESS SO DECLARED, OR THE WITNESS WHO IS AN ADVERSE

PARTY, MAY BE IMPEACHED BY THE PARTY PRESENTING HIM OR HER IN ALL RESPECTS AS IF HE OR
SHE HAD BEEN CALLED BY THE ADVERSE PARTY, EXCEPT BY EVIDENCE OF HIS OR HER BAD
CHARACTER. HE OR SHE MAY ALSO BE IMPEACHED AND CROSS- EXAMINED BY THE ADVERSE
PARTY, BUT SUCH CROSS-EXAMINATION MUST ONLY BE ON THE SUBJECT MATTER OF HIS OR HER
EXAMINATION-IN-CHIEF.

PARTY MAY NOT IMPEACH HIS OR HER OWN WITNESS

A PARTY IS ORDINARILY ENJOINED FROM IMPUGNING HIS OWN WITNESS BY REASON OF THE
TRADITIONAL ASSUMPTION THAT A WITNESS IS IN GOOD FAITH WHEN PRESENTED AS A TESTIMONIAL
SPONSOR.

IT HAS BEEN OBSERVED THAT THE RIGHT OF A PARTY TO IMPEACH HIS OWN WITNESS ARISES
ONLY WHERE THE WITNESS HAS TESTIFIED TO SOME MATTER WHICH IS SHOWN TO BE PREJUDICIAL TO
THE PARTY CALLING HIM. IN THESE SITUATIONS, THE PARTY WHO PRESENT THE WITNESS, AND THE
ADVERSE PARTY MAY IMPEACH THE WITNESS BY PRIOR INCONSISTENT STATEMENT, CONTRADICTORY
EVIDENCE, OR OTHER MODES OF IMPEACHMENT, EXCEPT EVIDENCE OF BAD CHARACTER.
SEC. 14. HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENT. – BEFORE A
WITNESS CAN BE IMPEACHED BY EVIDENCE THAT HE OR SHE HAS MADE AT OTHER TIMES
STATEMENTS INCONSISTENT WITH HIS OR HER PRESENT TESTIMONY, THE STATEMENTS MUST BE
RELATED TO HIM, WITH THE CIRCUMSTANCES OF THE TIMES AND PLACES AND THE PERSONS
PRESENT, AND HE OR SHE MUST BE ASKED WHETHER HE OR SHE MADE SUCH STATEMENTS, AND
IF SO, ALLOWED TO EXPLAIN THEM. IF THE STATEMENTS BE IN WRITING THEY MUST BE SHOWN TO
THE WITNESS BEFORE ANY QUESTION IS PUT TO HIM OR HER CONCERNING THEM.

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HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS

THE PROCESS ILLUSTRATED BY THIS PROVISION IS KNOWN AS “LAYING THE PREDICATE.”

THIS REFERS TO A SITUATION WHERE EVIDENCE WHICH IS OTHERWISE INCOMPETENT WILL BE

INTRODUCED IN EVIDENCE BECAUSE IT FALLS UNDER THE EXCEPTIONS TO THAT RULE ON EXCLUSION.
FOR EXAMPLE, IF A PARTY DESIRES TO INTRODUCE SECONDARY OR SUBSTITUTIONARY EVIDENCE HE
MUST FIRST LAY THE FOUNDATION OR LAY THE BASIS. HE MUST FIRST PROVE THAT THERE WAS A
WRITING DULY EXECUTED AND THAT THE ORIGINAL HAS BEEN LOST OR DESTROYED. (ESPEJO)

CONCEPTS ON IMPEACHMENT

1. 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.

2. CONTRADICTORY EVIDENCE – INVOLVES ORAL OR DOCUMENTARY EVIDENCE FROM THE SAME

WITNESS IN THE SAME CASE.

EFFECTIVELY IMPEACHING A WITNESS BY PRIOR INCONSISTENT STATEMENTS REQUIRES LAYING

THE PROPER FOUNDATION FOR THE IMPEACHMENT. LAYING THE FOUNDATION, COMMONLY
REFERRED TO AS “LAYING THE PREDICATE” IS A PRELIMINARY REQUIREMENT BEFORE THE
IMPEACHMENT PROCESS PROSPERS. THE ELEMENTS OF THIS FOUNDATION ARE CLEARLY SPELLED OUT
IN SECTION 13 OF RULE 132. THESE ARE:

1. THE ALLEGED STATEMENTS MUST BE RELATED TO THE WITNESS INCLUDING THE

CIRCUMSTANCES OF THE TIMES AND PLACES AND THE PERSONS PRESENT. IF THE STATEMENTS
ARE IN WRITING THEY MUST BE SHOWN TO HIM;
2. HE MUST BE ASKED WHETHER HE MADE SUCH STATEMENTS AND ALSO TO EXPLAIN THEM IF HE
ADMITS MAKING THOSE STATEMENTS.

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 AS A MATTER OF DUE PROCESS, FOUNDATION MUST BE LAID BY COUNSEL AS A PRELUDE TO
IMPEACHMENT OF THE WITNESS IN SECTION 13, RULE 132. THE KEYSTONE TO THE MECHANICS IS TO
CALL THE ATTENTION OF THE WITNESS AS TO HIS PREVIOUS STATEMENT WITH DETAILS AS TO TIME ,
PLACE AND PERSONS PRESENT THEREAT, IRRESPECTIVE OF WHETHER THE EVIDENCE IS EITHER ORAL OR
WRITING. IF THE PREVIOUS STATEMENT OF THE SAME WITNESS IS IN WRITING, THE DOCUMENT MUST
FIRST BE SHOWN TO THE WITNESS BEFORE ANY QUESTION IS PUT TO HIM CONCERNING THE
INSTRUMENT, ACCORDING TO THE WORDINGS OF SECTION 13, RULE 132 (PERALTA).

FOR INSTANCE, THE WITNESS MADE AN OUT OF COURT STATEMENT TO THE EFFECT THAT HE
DID NOT ACTUALLY SEE THE COMMISSION OF THE CRIME BY THE ACCUSED, WHICH IS CONTRARY TO
WHAT HE TESTIFIED IN COURT THAT HE WITNESSED THE PERPETRATION OF THE CRIME BY THE
ACCUSED. BASED ON THE ABOVE SECTION, THE WITNESS MIGHT BE IMPEACHED BY HIS PRIOR
INCONSISTENT STATEMENT BY COMPLYING WITH THE PROTOCOLS LAID DOWN UNDER THIS SECTION.

THE CROSS-EXAMINER WOULD ASK THE WITNESS THAT SAY, IN THE EVENING OF MAY 9,
2021, HE WAS WITH FRIENDS IN A CERTAIN BAR OR RESTAURANT, AND THAT HE MADE A STATEMENT
SAYING THAT HE DID NOT REALLY SAW THE COMMISSION OF THE CRIME. IF THE WITNESS CONFIRMED
THAT HE MADE SUCH STATEMENT THEN THE CROSS-EXAMINER WAS ABLE TO IMPEACH THE WITNESS
BY HIS PREVIOUS TESTIMONY.

IF THE PRIOR OR PREVIOUS STATEMENT CONSISTED OF A WRITTEN DOCUMENT, THEN SAID

DOCUMENT SHOULD BE SHOWN TO THE WITNESS AND IF HE WOULD ADMIT THE SAME THEN THE
CROSS-EXAMINER WAS ABLE TO IMPEACH THE WITNESS BY EVIDENCE OF HIS PRIOR INCONSISTENT
STATEMENT.

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 (REGALADO)

NEVERTHELESS, IT HAS BEEN OPINED THAT WHEN A WITNESS WHOSE ATTENTION HAS BEEN
CALLED DURING CROSS-EXAMINATION TO AN ALLEGED CONTRADICTORY STATEMENT, DENIES THE
SAME, ANOTHER WITNESS MAY BE ASKED TO THE DIRECT QUESTION WHETHER THE PARTICULAR
WORDS DENIED WERE IN FACT USED BY THE FORMER WITNESS (HERRERA)

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SEC. 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.

EXCLUSION AND SEPARATION OF WITNESSES

THE MOTION FOR THE EXCLUSION OF WITNESS/ES MAY BE ORDERED BY THE COURT MOTU
PROPRIO OR EITHER THROUGH MOTION BY THE PROSECUTOR/PLAINTIFF OR BY THE
DEFENSE/DEFENDANT, SO THAT SAID WITNESS WILL NOT BE ABLE TO HEAR THE TESTIMONY OF OTHER
WITNESS/ES.

THE SUPREME COURT HAS HELD, AS FAR BACK AS 1912, THAT THE POWER OF EXCLUSION
APPLIES ONLY TO WITNESSES AND NOT TO THE PARTIES IN A CIVIL CASE (MUERTEGUY & ABOITIZ V.
DELGADO, 22 PHIL. 109). THE SAME 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 WAIVES HIS PRESENCE.

THE RATIONALE IN EXEMPTING FROM EXCLUSION A PARTY WHO IS A NATURAL PERSON IS

BASED UPON CONSIDERATION OF FUNDAMENTAL FAIRNESS, AND IN CRIMINAL CASES, EXCLUSION
WOULD RAISE CONSTITUTIONAL ISSUES RELATING TO CONFRONTATION AND EFFECTIVE ASSISTANCE OF
COUNSEL.

THE PROPOSED EXEMPTION OF “A DULY DESIGNATED REPRESENTATIVE OF A JUDICIAL ENTITY

WHICH IS A PARTY TO THE CASE” IS DESIGNED TO EXTEND PARITY OF TREATMENT TO PARTIES WHO
ARE NOT NATURAL PERSONS.

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 THE PROPOSED THIRD OPEN-ENDED EXEMPTION RELATES TO “A PERSON WHOSE PRESENCE IS
ESSENTIAL TO THE PRESENTATION OF THE PARTY’S CAUSE.” THIS IS, OF COURSE, ADDRESSED TO THE
DISCRETION OF THE JUDGE. AN EXAMPLE IS THE AGENT OF A PARTY WHO HANDLED THE TRANSACTION
OR ONE WHO COMMITTED THE ACT CAUSING THE INJURY FOR WHICH RECOVERY IS SOUGHT. EXPERTS
MAY LIKEWISE QUALIFY UNDER THIS EXEMPTION BECAUSE THEY ARE ALLOWED TO TESTIFY TO
OPINIONS OR INFERENCES BASED ON FACTS OR DATA MADE KNOWN AT THE HEARING.

THE ABOVE PROVISION APPLIES ONLY TO A WITNESS WHO IS NOT A PARTY TO THE SUIT OR
CRIMINAL ACTION SINCE A PARTY IS ENTITLED TO BE PRESENT IN THE COURSE OF A HEARING. (MORAN)

EFFECT OF TRANSGRESSION OF THE RULE

UPON THE TRANSGRESSION OF THE RULE FOR EXCLUSION AND SEGREGATION, THE COURT MAY
FORBID THE WITNESS’ TESTIMONY, ASSIGN LESS WEIGHT TO HIS EVIDENCE, OR CITE HIM FOR
CONTEMPT. (REGALADO). AND IT HAS BEEN HELD, FURTHERMORE, THAT IT IS WITHIN THE SOUND
DISCRETION OF THE TRIAL COURT TO PERMIT SOME OF THE WITNESSES TO REMAIN IN THE
COURTROOM AFTER AN ORDER OF EXCLUSION IS GIVEN, AND TO ALLOW THEM TO TESTIFY
AFTERWARDS IF CIRCUMSTANCES SO REQUIRE (MORAN)

SEC. 16. WHEN WITNESS MAY REFER TO MEMORANDUM. – A WITNESS MAY BE ALLOWED TO
REFRESH HISOR HER MEMORY RESPECTING A FACT, BY ANYTHING WRITTEN OR RECORDED BY
HIMSELF OR HERSELF OR UNDER HIS DIRECTION AT THE TIME WHEN THE FACT OCCURRED, OR
IMMEDIATELY THEREAFTER, OR AT ANY OTHER TIME WHEN THE FACT WAS FRESH IN HIS 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. SO, ALSO A WITNESS MAY TESTIFY FROM SUCH A WRITING OR RECORD,
THOUGH HE OR SHE RETAIN NO RECOLLECTION OF THE PARTICULAR FACTS, IF HE IS ABLE TO SWEAR
THAT THE WRITING OR RECORD CORRECTLY STATED THE TRANSACTION WHEN MADE ; BUT SUCH
EVIDENCE MUST BE RECEIVED WITH CAUTION.

WHEN WITNESS MAY REFER TO MEMORANDUM

DURING HIS TESTIMONY, IN ORDER TO REFRESH HIS MEMORY, A WITNESS MAY REFER TO A
MEMORANDUM OR TO ANYTHING WRITTEN OR RECORDED BY HIMSELF OR WRITTEN OR RECORDED BY

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SOMEONE ACTING UNDER HIS DIRECTION. IN CERTAIN SITUATIONS, FOR THE PURPOSE OF ENABLING
HIM TO TESTIFY, A WITNESS MAY BE PERMITTED TO REFRESH HIS MEMORY OR TO STIMULATE HIS
POWER OF RECOLLECTION BY REFERENCE TO A WRITTEN MATTER, (JONES) MINDFUL OF FRAILTY OF
HUMAN MEMORY.

THE MEMORY OF A WITNESS MAY BE REFRESHED BY OTHER MEANS THAN BY THE USE OF
WRITTEN MEMORANDA. IT HAS BEEN SAID THAT ANYTHING WHICH WILL REFRESH THE MEMORY OF
THE WITNESS MAY BE RESORTED TO – AS, FOR EXAMPLE, A PICTORIAL PRESERVATION OF FACTS.
(JONES)

PRECONDITION TO THE USE OF MEMORANDUM

SECTION 16, RULE 132 OF THE REVISED RULES ON EVIDENCE APPLIES ONLY 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. (REGALADO). INDEED, ONLY WHERE
THE WITNESS’ MEMORY NEEDS ASSISTANCE MAY RESORT BE HAD TO THESE AIDES; IF THE WITNESS
HAS AN INDEPENDENT RECOLLECTION OF THE FACTS INQUIRED ABOUT, THERE IS NO NECESSITY FOR OR
PROPRIETY IN HIS INSPECTING ANY WRITING OR MEMORANDUM. (JONES ON EVIDENCE)

TYPES OF REJUVENATION

1. REVIVAL OF PRESENT MEMORY – THE WITNESS RECALLS THE FACTS RELATIVE TO HIS ENTRIES
AND IS ENTITLED TO GREATER WEIGHT. (THE TESTIMONY OF THE WITNESS)

2. REVIVAL OF PAST RECOLLECTION – WHERE THE WITNESS DOES NOT REMEMBER THE FACTS
INVOLVED. (IT IS THE CONTENTS OF THE DOCUMENT THAT IS THE MAIN EVIDENCE.

SEC. 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 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.

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WHEN PART OF TRANSACTION, WRITING, OR RECORD GIVEN IN EVIDENCE, THE REMAINDER
ADMISSIBLE

IF A WITNESS TESTIFIES ABOUT A CERTAIN LETTER ON DIRECT EXAMINATION, IT MAY BE

PROPER ON CROSS-EXAMINATION TO INQUIRE ABOUT ANY REPLIES TO THAT LETTER OR ANY FORMER,
OR LATER CORRESPONDENCE RELEVANT TO THE CONTENTS OF THAT LETTER. (HERRERA)

APPRECIATION BY THE COURT OF THE ENTIRE EVIDENCE ON THE BASIS OF THE DOCTRINE OF
COMPLETENESS MAY BE IMPEDED BY THE EVIDENTIARY NORM ON FALSUS IN UNO, FALSUS IN
OMNIBUS. WHILE THIS CONCEPT IS NOT A POSITIVE RULE OF LAW AND IT DEALS ONLY WITH THE
WEIGHT OF EVIDENCE, THE MODERN TREND OF JURISPRUDENCE IS TO THE EFFECT THAT THE
TESTIMONY OF A WITNESS MAY BE BELIEVED IN PART AND DISBELIEVED IN PART, DEPENDING UPON
THE CORROBORATIVE EVIDENCE AND THE PROBABILITIES OR IMPROBABILITIES OF THE CASE.
(REGALADO)

SEC. 18. RIGHTS TO INSPECT WRITING SHOWN TO WITNESS. – WHENEVER A WRITING IS SHOWN TO
A WITNESS, IT MAY BE INSPECTED BY THE ADVERSE PARTY.

RIGHT TO INSPECT WRITING SHOWN TO WITNESS

WHILE A PARTY WHO CALLS FOR THE PRODUCTION OF A DOCUMENT AND INSPECTS THE SAME
8, RULE 130, A SCRUTINY BY THE ADVERSE PARTY OF
IS NOT OBLIGED TO OFFER IT UNDER SECTION
THE WHOLE DOCUMENT AS PRESENTED TO THE WITNESS IS WARRANTED BY SECTION 18, RULE 132
OF THE REVISED RULES ON EVIDENCE PRECISELY ON ACCOUNT OF THE THEORY OF COMPLETENESS IN
SECTION 17, RULE 132.

B. AUTHENTICATION AND PROOF OF DOCUMENTS

WHAT IS AUTHENTICATION?

AUTHENTICATION, IN THE LAW OF EVIDENCE, IS THE PROCESS BY WHICH DOCUMENTARY

EVIDENCE AND OTHER PHYSICAL EVIDENCE IS PROVEN TO BE GENUINE, AND NOT A FORGERY.

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DOCUMENT

FOR PRACTICAL PURPOSES THE TERM “DOCUMENT” MAY BE CONSIDERED AS SYNONYMOUS

WITH “WRITING.” A DOCUMENT HAS BEEN DEFINED AS “ANY SUBSTANCE HAVING ANY MATTER
EXPRESSED OR DESCRIBED UPON IT BY MARKS CAPABLE OF BEING READ.” (JONES ON EVIDENCE)

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, SUCH EVIDENCE BEING
ROUGHLY CLASSIFIED AS DOCUMENTARY EVIDENCE. IN ORAL EVIDENCE, THE WITNESS IS THE MAN
WHO SPEAKS; IN DOCUMENTARY EVIDENCE THE WITNESS IS THE THING THAT SPEAKS. (MORAN)

SEC. 19. CLASSES OF DOCUMENTS. – FOR THE PURPOSE OF THEIR PRESENTATION IN EVIDENCE,
DOCUMENTS ARE EITHER PUBLIC OR PRIVATE.

DOCUMENTARY EVIDENCE IS GENERALLY DIVIDED INTO TWO PRINCIPAL CLASSES – PUBLIC

WRITINGS AND PRIVATE WRITINGS. (JONES)

PUBLIC DOCUMENTS ARE:

(A) THE WRITTEN OFFICIAL ACTS, OR RECORDS OF THE OFFICIAL ACTS OF THE SOVEREIGN
AUTHORITY, OFFICIAL BODIES AND TRIBUNALS, AND PUBLIC OFFICERS, WHETHER OF THE
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

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 (D) PUBLIC RECORDS, KEPT IN THE PHILIPPINES, OF PRIVATE DOCUMENTS REQUIRED BY LAW TO
BE ENTERED THEREIN.

ALL OTHER WRITINGS ARE PRIVATE.

CLASSES OF DOCUMENTS

THE INCLUSION OF SECTION 19 © IS TO IMPLEMENT TREATIES OR CONVENTIONS TO WHICH

THE PHILIPPINES IS A PARTY. AN EXAMPLE IS THE CONVENTION ABOLISHING THE REQUIREMENT OF
LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS (APOSTILLE CONVENTION), WHICH THE PHILIPPINES
ACCEDED TO ON SEPTEMBER 12, 2018 AND WHICH BECAME EFFECTIVE BETWEEN THE PHILIPPINES
AND OTHER CONTRACTING STATES ON MAY 14, 2019. IN SUBSTANCE, THE CONVENTION ABOLISHES
THE REQUIREMENT OF CONSULARIZATION (DIPLOMATIC OR CONSULAR LEGALISATION) FOR FOREIGN
PUBLIC DOCUMENTS.

IMPORTANCE OF KNOWING WHETHER A DOCUMENT IS PUBLIC OR PRIVATE:

BEFORE THE ADMISSION OF A PRIVATE DOCUMENT IN EVIDENCE THAT IS OFFERED AS

AUTHENTIC, ITS DUE EXECUTION AND AUTHENTICITY MUST BE PROVED. THIS REQUIREMENT DOES NOT
APPLY TO A PUBLIC DOCUMENT WHICH IS ADMISSIBLE WITHOUT FURTHER PROOF OF ITS DUE
EXECUTION AND GENUINENESS.

FOR EXAMPLE, UNDER SEC. 30, 132, EVERY DOCUMENT DULY NOTARIZED MAY BE
RULE
PRESENTED IN EVIDENCE WITHOUT FURTHER PROOF, THE CERTIFICATE OF ACKNOWLEDGEMENT BEING
PRIMA FACIE EVIDENCE OF THE EXECUTION OF THE INSTRUMENT OR DOCUMENT INVOLVED.

AUTHENTICATION DEFINED

AUTHENTICATION IN THE LAW OF EVIDENCE IS THE ACT OR MODE OF GIVING AUTHORITY OR

LEGAL AUTHENTICITY TO A STATUTE, RECORD OR OTHER WRITTEN INSTRUMENT, OR A CERTIFIED TRUE
COPY THEREOF, SO AS TO RENDER IT LEGALLY ADMISSIBLE IN EVIDENCE. IT IS AN ATTESTATION MADE
BY A PROPER OFFICER BY WHICH HE CERTIFIES THAT A RECORD IS IN DUE FORM OF LAW, AND THAT
THE PERSON WHO CERTIFIES IT IS THE OFFICER APPOINTED SO TO DO. (BLACK LAW DICTIONARY)

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AUTHENTICATION IS NOT NECESSARY

1. THE WRITING IS PUBLIC DOCUMENT;

2. AUTHENTICITY AND DUE EXECUTION OF THE DOCUMENT HAS BEEN EXPLICITLY OR IMPLIEDLY
ADMITTED BY THE ADVERSE PARTY BY THE FAILURE TO DENY THE SAME UNDER OATH;
3. IT IS NOT OFFERED AS AUTHENTIC PER THE FIRST PARAGRAPH OF SECTION 20, RULE 132;
4. IT IS SIMPLY IDENTIFIED AS THAT WHICH IT IS CLAIMED TO BE UNDER THE LAST PARAGRAPH OF
SECTION 20, RULE 132;
5. IT IS AN ANCIENT DOCUMENT;
6. IT IS IMMATERIAL, OR NOT IN ISSUE BEFORE THE COURT;
7. AUTHENTICATION IS ELIMINATED BY SHEER OPERATION OF LAW;
8. SELF-AUTHENTICATED BY THE CONTENTS OF THE LATTER WHEREIN THE FACTS ARE KNOWN
ONLY TO THE WRITER;
9. AUTHENTICATED BY THE ADVERSE PARTY’S REPLY PURPORTING TO BE THE ADDRESSEE OF A
PRIOR LETTER DULY ADDRESSED AND MAILED (REGALADO)

PUBLIC DOCUMENTS DISTINGUISHED FROM PRIVATE DOCUMENT

1. AS A GENERAL PROPOSITION, A PUBLIC DOCUMENT DOES NOT REQUIRE AUTHENTICATION FOR

ADMISSIBILITY UNLIKE A PRIVATE DOCUMENT;

2. MOREOVER, A PUBLIC DOCUMENT IS ADMISSIBLE EVEN AGAINST A THIRD PERSON INSOFAR AS

DUE EXECUTION AND THE DATE OF THE DOCUMENT WHILE A PRIVATE DOCUMENT IS
ADMISSIBLE ONLY BETWEEN THE PARTIES THERETO OR THEIR PRIVIES (FRANCISCO)

SEC. 20. PROOF OF PRIVATE DOCUMENT. – BEFORE ANY PRIVATE DOCUMENT OFFERED AS
AUTHENTIC IS RECEIVED IN EVIDENCE, ITS DUE EXECUTION AND AUTHENTICITY MUST BE PROVED BY
ANY OF THE FOLLOWING MEANS;

(A) BY ANYONE WHO SAW THE DOCUMENT EXECUTED OR WRITTEN; OR

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 (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 TO BE IDENTIFIED AS THAT WHICH IT IS

CLAIMED TO BE.

PROOF OF PRIVATE DOCUMENTS

THE ADDITION OF THE WORDS “BY ANY OF THE FOLLOWING MEANS” IS INTENDED MERELY TO
INDICATE THAT THERE ARE A NUMBER OF WAYS OF PROVING THE DUE EXECUTION AND AUTHENTICITY
OF A PRIVATE DOCUMENT.

THE PROPOSED ADDITION OF ANOTHER MEANS OF PROVING THE DUE EXECUTION AND
AUTHENTICITY OF A PRIVATE DOCUMENT, I.E., “BY OTHER EVIDENCE SHOWING ITS DUE EXECUTION
AND AUTHENTICITY,” IS DESIGNED TO ALLOW OTHER MODES OF AUTHENTICATION THAT MAY SHOW,
TO THE SATISFACTION OF THE JUDGE, THE AUTHENTICITY OF THE PRIVATE DOCUMENT.

THUS, JUSTICE FLORENZ D. REGALADO CITED THE FOLLOWING SETTLED MODES OF

AUTHENTICATING A PRIVATE DOCUMENT UNDER AMERICAN JURISPRUDENCE:

(A)THE DOCTRINE OF SELF-AUTHENTICATION, THAT IS, WHERE THE FACTS, IN THE WRITING, COULD
ONLY HAVE BEEN KNOWN BY THE WRITER, AND

(B)THE RULE OF AUTHENTICATION BY THE ADVERSE PARTY, THAT IS, WHERE THE REPLY OF THE
ADVERSE PARTY REFERS TO AND AFFIRMS THE SENDING TO HIM AND HIS RECEIPT OF THE LETTER IN
QUESTION, A COPY OF WHICH THE PROPONENT IS OFFERING AS EVIDENCE.

HOW TO AUTHENTICATE PRIVATE DOCUMENT?

BEFORE ANY PRIVATE DOCUMENT OFFERED AS AUTHENTIC IS RECEIVED IN EVIDENCE, ITS DUE
EXECUTION AND AUTHENTICITY MUST BE PROVED EITHER;

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 (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.

PROPER FOUNDATION OF A PRIVATE DOCUMENT

IT IS A RULE OF THE THUMB THAT A PROPER FOUNDATION MUST BE LAID FIRST FOR THE
ADMISSION OF DOCUMENTARY EVIDENCE; THAT IS 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 (JONES ON
EVIDENCE)

GENUINENESS AND AUTHENTICITY DEFINED

GENUINENESS AND DUES EXECUTION OF THE INSTRUMENT SIMPLY MEANS THAT THE
INSTRUMENT IS NOT SPURIOUS, COUNTERFEIT, OR OF DIFFERENT IMPORT ON ITS FACE FROM THE ONE
EXECUTED (FRANCISCO)

FOR INSTANCE, A WITNESS COULD AUTHENTICATE HIS OWN JUDICIAL AFFIDAVIT BY DECLARING
THAT THE SIGNATURE THEREIN IS HIS. HE COULD ALSO AUTHENTICATE THE LAWYER WHO SUBSCRIBED
THE SAME BY STATING THAT HE WAS PRESENT WHEN SAID LAWYER SIGNED THE JUDICIAL AFFIDAVIT OR
THE WITNESS IS FAMILIAR OF THE SIGNATURE OF THE LAWYER.

SEC. 21. WHEN EVIDENCE BY AUTHENTICITY OF PRIVATE DOCUMENT NOT NECESSARY. – WHERE A
PRIVATE DOCUMENT IS MORE THAN THIRTY (30) YEARS OLD, IS PRODUCED FROM A CUSTODY IN
WHICH IT WOULD NATURALLY BE FOUND IF GENUINE, AND IN UNBLEMISHED BY ANY ALTERATIONS
OR CIRCUMSTANCES OF SUSPICION, NO OTHER EVIDENCE OF ITS AUTHENTICITY NEED TO BE GIVEN.

WHEN EVIDENCE OF AUTHENTICITY OF PRIVATE DOCUMENT NOT NECESSARY

ANOTHER EXCEPTION TO THE GENERAL RULE REQUIRING DOCUMENTS TO BE AUTHENTICATED

BY THE TESTIMONY OF SUBSCRIBING WITNESSES OR OTHERWISE, EXISTS IN RESPECT OF ANCIENT

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DOCUMENT OR THOSE WHICH ARE THIRTY (30) YEARS OLD OR MORE. THE OBVIOUS DIFFICULTY OF
PRODUCING WITNESSES AFTER SO LONG A PERIOD RENDERED IT NECESSARY TO FIX SOME LIMIT IN
CASES OF THIS CHARACTER; AND ALTHOUGH THE EXCEPTION HAS BEEN SAID TO BE BASED UPON A
PRESUMPTION OF DEATH OF THE SUBSCRIBING WITNESSES, THERE ARE CASES IN WHICH, AFTER THIRTY
YEARS HAD ELAPSED, IT HAS BEEN HELD TO BE UNNECESSARY TO CALL THE SUBSCRIBING WITNESSES
ALTHOUGH THE LATTER WERE PROVED TO BE LIVING OR EVEN IN COURT. THIS EXCEPTION TO THE
GENERAL RULE WOULD SEEM, THEREFORE, TO BE BASED ON THE GROUND OF PUBLIC EXPEDIENCY OR
NECESSITY, RATHER THAN ON THE PRESUMPTION THAT THE WITNESSES ARE DEAD (PERALTA)

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 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 (JONES ON EVIDENCE)

ESSENTIAL ELEMENTS FOR ANCIENT DOCUMENTS

1. THE PRIVATE DOCUMENT IS MORE THAN THIRTY (30) YEARS OLD;

SINCE THE CHIEF REASON FOR THIS RULE IS THE IMPOSSIBILITY OF OBTAINING LIVING TESTIMONY TO
THE SIGNING OR TO THE HANDWRITING, THE NECESSITY DOES NOT ARISE UNTIL TIME HAS MADE SUCH
TESTIMONY UNAVAILABLE.

IT IS IMMATERIAL THAT AN ATTESTING WITNESS IS IN FACT ALIVE AT THE TIME OF TRIAL, OR EVEN THAT
HE IS IN COURT. THE RULE IS FOR CONVENIENCE SAKE A RULE OF THUMB. NEITHER THE ATTESTING
WITNESSES NEED BE CALLED NOR OTHER USUAL TESTIMONIAL EVIDENCE BE OFFERED. THE PERIOD OF
THIRTY (30) YEARS SIGNIFIES OF COURSE THE PERIOD IN WHICH THE SPECIFIC DOCUMENT HAS BEEN IN
EXISTENCE. THE PURPORTING DATE IS OF ITSELF NOTHING; FOR ANYBODY MAY HAVE FORGED THE
WRITTEN DATE BUT YESTERDAY. ACCORDINGLY THIS EXISTENCE OF THE DOCUMENT THIRTY YEARS AGO
MUST BE SOMEHOW SHOWN. 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.
(WIGMORE)

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 2. IS PRODUCED FROM A CUSTODY IN WHICH IT WOULD NATURALLY BE FOUND IF GENUINE, AND

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 THE PROPER CUSTODY
IS A QUESTION WHICH MUST BE DETERMINED BY ALL THE CIRCUMSTANCES OF THE CASE. (JONES)

3. IN UNBLEMISHED BY ANY ALTERATIONS OR CIRCUMSTANCES OF SUSPICION. (HERRERA)

AN ANCIENT DOCUMENT, TO BE ADMISSIBLE UNDER THE PRESENT RULE, MUST BE IN APPEARANCE BE

“UNBLEMISHED BY ANY ALTERATIONS” OR “UNACCOMPANIED BY ANY CIRCUMSTANCES OF
SUSPICIONS.” IN OTHER WORDS, “ON INSPECTION, IT MUST EXHIBIT AN HONEST FACE; OTHERWISE IT
IS NOT SUCH AN ANCIENT DOCUMENT THAT ITS COUNTENANCE MUST PASS MUSTER. AGE WILL NOT
SANCTIFY EARMARKS OF FRAUD.” (MORAN)

SEC. 22. HOW GENUINENESS OF HANDWRITING PROVED. – THE HAND WRITING OF A PERSON MAY
BE PROVED BY ANY WITNESS WHO BELIEVES IT TO BE THE HANDWRITING OF SUCH PERSON BECAUSE
HEOR 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.

HOW GENUINENESS OF HANDWRITING PROVED

THE SIGNATURE OF A PERSON ON A PRIVATE DOCUMENT MAY BE ESTABLISHED BY THE
FOLLOWING:

1. EXPERT EVIDENCE UNDER SECTION 49, RULE 130;

2. AN ORDINARY WITNESS WHO IS FAMILIAR WITH THE SIGNATURE OF A PERSON UNDER
SECTION 50 (B), RULE 130;
3. A WITNESS WHO ACTUALLY SAW THE PERSON WRITING THE SIGNATURE IN SECTION 20
(A), RULE 132;

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 4. A COMPARISON BY THE WITNESS OR THE COURT OF ADMITTEDLY GENUINE SPECIMENS OF
THE SIGNATURE, OR TREATED AS GENUINE TO THE SATISFACTION OF THE JUDGE; OR
5. THE AUTHOR HIMSELF.

SEC. 23. PUBLIC DOCUMENTS AS EVIDENCE. – DOCUMENTS CONSISTING OF ENTRIES IN PUBLIC

RECORDS MADE IN THE PERFORMANCE OF A DUTY BY A PUBLIC OFFICER ARE PRIMA FACIE EVIDENCE
OF THE FACTS THEREIN STATED. ALL OTHER PUBLIC DOCUMENTS ARE EVIDENCE, EVEN AGAINST A
THIRD PERSON, OF THE FACT WHICH GAVE RISE TO THEIR EXECUTION AND OF THE DATE OF THE
LATTER.

PUBLIC DOCUMENTS AS EVIDENCE

UNDER THE ABOVE RULE, 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.

THE LAW REPOSES A PARTICULAR CONFIDENCE IN PUBLIC OFFICERS THAT IT PRESUMES THAT
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 WHICH A DEGREE OF CAUTION AS TO THE NATURE AND
CIRCUMSTANCES OF EACH CASE MAY APPEAR TO REQUIRE (FRANCISCO)

EXAMPLES:

1. JOURNALS OF THE LEGISLATURE PUBLISHED UNDER THE AUTHORITY OF THE SENATE ARE
RECEIVABLE IN EVIDENCE WITHOUT ANY FURTHER PROOF OF THEIR AUTHENTICITY
(FRANCISCO)
2. PLEADINGS FILED WITH THE COURT ARE PUBLIC DOCUMENTS (PADILLA)
3. MEDICAL CERTIFICATE ISSUED BY GOVERNMENT DOCTORS
4. CERTIFICATE OF TITLE ISSUED BY THE REGISTER OF DEEDS
5. CERTIFICATE OF LIVE BIRTH OR CERTIFICATE OF MARRIAGE ISSUED BY THE LOCAL CIVIL
REGISTRAR.
6. EXTRACT COPY OF A POLICE BLOTTER

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SEC. 24. PROOF OF OFFICIAL RECORD. – THE RECORD OF PUBLIC DOCUMENTS REFERRED TO IN
PARAGRAPH (A) OF SECTION 19, WHEN ADMISSIBLE FOR ANY PURPOSE, MAY BE EVIDENCE 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 © 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 COUJTRY 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 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.

PROOF OF OFFICIAL RECORD

1. THE ORIGINAL COPY

2. BY AN OFFICIAL PUBLICATION THEREOF OR

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 3. BY A COPY ATTESTED BY THE OFFICER HAVING THE LEGAL CUSTODY OF THE RECORD, OR BY HIS
DEPUTY, AND ACCOMPANIED, IF THE RECORD IS NOT KEPT IN THE PHILIPPINES, WITH A
CERTIFICATE THAT SUCH OFFICER HAS THE CUSTODY.

PROOF OF PUBLIC DOCUMENTS (FOREIGN)

1. BY AN OFFICIAL PUBLICATION THEREOF OR

2. BY A COPY
3. ATTESTED BY THE OFFICER HAVING THE LEGAL CUSTODY OF THE RECORD, OR BY HIS DEPUTY,
AND
4. 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, 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 OFFICE.

SEC. 25. WHAT ATTESTATION OF COPY MUST STATE. – WHENEVER A COPY OF A DOCUMENT OR
RECORD IS ATTESTED FOR THE PURPOSE OF THE 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.

WHAT ATTESTATION OF COPY MUST STATE.

WHENEVER A COPY OF A DOCUMENT OR RECORD IS ATTESTED FOR THE PURPOSE OF THE

EVIDENCE, THE ATTESTATION MUST STATE, IN SUBSTANCE, THAT:
(1)THE COPY IS A CORRECT COPY OF THE ORIGINAL, OR

(2)A SPECIFIC PART THEREOF, AS THE CASE MAY BE.

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 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.

FOR INSTANCE, UNDER THE PRINCIPLE OF THE IRREMOVABILITY OF PUBLIC RECORD UNDER
SECTION 26 OF RULE 132, LOCAL CIVIL REGISTRAR MAY ISSUE A CERTIFIED TRUE COPY OF CERTIFICATE
OF LIVE BIRTH SHOWING THAT A COPY OF SAID CERTIFICATE OF LIVE BIRTH IS A CORRECT COPY OF THE
ORIGINAL ON FILE.

SEC. 26. IRREMOVABILITY OF PUBLIC RECORD. – ANY PUBLIC RECORD, AN OFFICIAL COPY OF WHICH
IS ADMISSIBLE IN EVIDENCE, MUST NOT BE REMOVED FROM THE OFFICE IN WHICH IT IS KEPT , EXCEPT
UPON ORDER OF A COURT WHERE THE INSPECTION OF THE RECORD IS ESSENTIAL TO THE JUST
DETERMINATION OF A PENDING CASE.

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, SECTION 26, RULE 132 OF THE REVISED RULES ON EVIDENCE, LIKE IN A CRIMINAL CASE
FOR FALSIFICATION OF A PUBLIC DOCUMENT WHICH ENTAILS PRODUCTION VIA A SUBPOENA DUCES
TECUM OF THE ORIGINAL FALSIFIED PUBLIC DOCUMENT TO PREVENT EXONERATION OF THE ACCUSED.
(REGALADO)

FOR REASONS SIMILAR TO THOSE APPLICABLE TO JUDICIAL RECORDS, DOCUMENTS BELONGING

TO ANY PUBLIC OFFICE NEED NOT BE PRODUCED BUT MAY OTHERWISE BE PROVED. THEIR REMOVAL
OR PRODUCTION IN 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. (HERRERA)

SEC. 27. PUBLIC RECORD OF A PRIVATE DOCUMENT. – AN AUTHORIZED PUBLIC RECORD OF A

PRIVATE DOCUMENT MAY BE PROVED BY THE ORIGINAL RECORD, OR BY A COPY THEREOF ATTESTED
BY THE LEGAL CUSTODIAN OF THE RECORD, WITH AN APPROPRIATE CERTIFICATE THAT SUCH OFFICER
HAS THE CUSTODY.

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PUBLIC RECORD OF A PRIVATE DOCUMENT

UNDER THE ABOVE PROVISION, WHAT IS CONSIDERED A PUBLIC DOCUMENT IS NOT THE
PRIVATE WRITING, BUT THE PUBLIC RECORD THEREOF. SO, IF A PRIVATE 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 (HERRERA)

FOR EXAMPLE, A PLEADING, MOTION, PAPER OR DOCUMENT PREPARED BY A LAWYER IN A

SENSE CONSIDERED PRIVATE DOCUMENT. HOWEVER, IF THE SAID PLEADING, MOTION, PAPER OR
DOCUMENT HAS BEEN FILED IN COURT, THEN IT IS NOW TREATED AS PUBLIC DOCUMENT. IN TERM OF
EVIDENCE, SAID PLEADING, MOTION, PAPER OR DOCUMENT MAY BE PROVE BY THE ORIGINAL ON FILE
OR BY A CERTIFIED TRUE COPY THEREOF, ATTESTED BY THE LEGAL CUSTODIAN.

SEC. 28. PROOF OF LACK OF RECORD. – A WRITTEN STATEMENT SIGNED BY AN OFFICER HAVING THE
CUSTODY OF AN OFFICIAL RECORD OR HIS OR HER DEPUTY THAT AFTER DILIGENT SEARCH, NO
RECORD OR ENTRY OF A SPECIFIED TENOR IS FOUND TO EXIST IN THE RECORDS OF IS 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.

PROOF OF LACK OF RECORD

PROOF OF LACK OF RECORD MAY BE PROVED BY A WRITTEN STATEMENT SIGNED BY AN

OFFICER HAVING THE CUSTODY OF AN OFFICIAL RECORD OR HIS DEPUTY THAT AFTER DILIGENT SEARCH,
NO RECORD OR ENTRY OF A SPECIFIED TENOR IS FOUND TO EXIST IN THE RECORDS OF IS OFFICE,
ACCOMPANIED BY A CERTIFICATE AS ABOVE PROVIDED, IS ADMISSIBLE AS EVIDENCE THAT THE
RECORDS OF HIS OFFICE CONTAIN NO SUCH RECORD OR ENTRY.

FOR INSTANCE, THE LOCAL CIVIL REGISTRAR MAY ISSUE A CERTIFICATION THAT A CERTAIN
DOCUMENT, LIKE A CERTIFICATE OF LIVE BIRTH, AFTER DILIGENT SEARCH, CANNOT BE FOUND IN THE
RECORDS OF THE LOCAL CIVIL REGISTRAR.

SEC. 29. – HOW JUDICIAL RECORD IMPEACHED. – ANY JUDICIAL RECORD MAY BE IMPEACHED BY
EVIDENCE OF: (A) WANT OF JURISDICTION IN THE COURT OR JUDICIAL OFFICER, (B) COLLUSION

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BETWEEN THE PARTIES, OR (C) FRAUD IN THE PARTY OFFERING THE RECORD, IN RESPECT TO THE
PROCEEDINGS.

HOW TO IMPEACH JUDICIAL RECORD?

UNDER THE ABOVE PROVISION, ANY JUDICIAL RECORD MAY BE IMPEACHED BY EVIDENCE OF:

(A) WANT OF JURISDICTION IN THE COURT OR JUDICIAL OFFICER,

(B) COLLUSION BETWEEN THE PARTIES, OR

(C) FRAUD IN THE PARTY OFFERING THE RECORD, IN RESPECT TO THE PROCEEDINGS.

SEC. 30. PROOF OF NOTARIAL DOCUMENTS. – EVERY INSTRUMENT DULY ACKNOWLEDGED OR

PROVED AND CERTIFIED AS PROVIDED BY LAW, MAY BE PRESENTED IN EVIDENCE WITHOUT FURTHER
PROOF, THE CERTIFICATE OF ACKNOWLEDGMENT BEING PRIMA FACIE EVIDENCE OF THE EXECUTION
OF THE INSTRUMENT OR DOCUMENT INVOLVED.

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.

FURTHER, ONCE A PRIVATE DOCUMENT HAS BEEN DULY NOTARIZED, IT IS CONSIDERED AS

PUBLIC DOCUMENT AS PROVIDED FOR UNDER SECTION 19 (B) OF RULE 132, WHICH SAYS:
“DOCUMENTS ACKNOWLEDGE BEFORE A NOTARY PUBLIC EXCEPT LAST WILLS AND TESTAMENTS,” ARE
CONSIDERED PUBLIC DOCUMENTS. JUST LIKE ANY OTHER PUBLIC DOCUMENTS IT MAY BE PRESENTED
AS EVIDENCE WITHOUT FURTHER PROOF OR AUTHENTICATION. BY WAY OF EXCEPTION, A JUDICIAL
AFFIDAVIT REQUIRES AUTHENTICATION FOR THE REASON THAT IT WILL BE CONSIDERED AS THE DIRECT
EXAMINATION OR TESTIMONY OF A WITNESS.

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SEC. 31. ALTERATIONS IN DOCUMENTS, HOW 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 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.

WHEN THERE IS ALTERATION OF A DOCUMENT?

AN ALTERATION IS AN ACT DONE UPON THE DOCUMENT BY WHICH ITS MEANING OR

LANGUAGE IS CHANGED. IF WHAT IS WRITTEN UPON OR ERASED FROM THE INSTRUMENT HAS NOT
TENDENCY TO PRODUCE THIS RESULT, OR TO MISLEAD ANY PERSON, IT IS NOT AN ALTERATION. AN
ALTERATION IS SAID TO BE MATERIAL WHEN IT AFFECTS, OR MAY POSSIBLY AFFECT, THE RIGHTS OF THE
PERSONS INTERESTED IN THE DOCUMENT. A “MATERIAL ALTERATION” OF AN INSTRUMENT IS ONE
WHICH MAKES IT SPEAKS A LANGUAGE DIFFERENT IN LEGAL EFFECT FROM WHICH IT ORIGINALLY
SPOKE, OR WHICH CARRIES WITH IT SOME CHANGE IN THE RIGHTS, INTERESTS, OR OBLIGATIONS OF
THE PARTIES TO THE WRITING. (BLACK’S LAW DICTIONARY)

HOW TO EXPLAIN ALTERATION IN A DOCUMENT?

1. HE MAY SHOW THAT THE ALTERATION WAS MADE BY ANOTHER, WITHOUT HIS CONCURRENCE,
OR
2. WAS MADE WITH THE CONSENT OF THE PARTIES AFFECTED BY IT, OR
3. WAS OTHERWISE PROPERLY OR INNOCENTLY MADE, OR THAT THE ALTERATION DID NOT
CHANGE THE MEANING OR LANGUAGE OF THE INSTRUMENT.

WHAT IS THE EFFECT IS THE PARTY FAILS TO EXPLAIN THE ALTERATION?

IF HE FAILS TO DO THAT, THE DOCUMENT SHALL NOT BE ADMISSIBLE IN EVIDENCE.

IF THE ALLEGATION ON THE INSTRUMENT IS MADE BY A STRANGER, THE PARTY TO THE

DOCUMENT SHOULD NOT BE DEPRIVED OF THE BENEFIT OF THE CONTRACT THROUGH THE WRONGFUL

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ACT OF AN OUTSIDER. ON THE OTHER HAND, AN ALTERATION ON A DOCUMENT TO CHANGE THE AGE
OF A PERSON CAN HARDLY BE CLASSIFIED AS AN ALTERATION BUT A CORRECTION OF THE INSTRUMENT
TO SPEAK THE TRUTH (PADILLA, EVIDENCE ANNOTATED)

SEC. 32. SEAL. – THERE SHALL BE NO DIFFERENCE BETWEEN SEALED AND UNSEALED PRIVATE
DOCUMENTS INSOFAR AS THEIR ADMISSIBILITY AS EVIDENCE IS CONCERNED.

SEC. 33. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE. – DOCUMENTS WRITTEN IN AN

UNOFFICIAL LANGUAGE SHALL NOT BE ADMITTED AS EVIDENCE, UNLESS ACCOMPANIED WITH A
TRANSLATION INTO ENGLISH OR FILIPINO. TO AVOID INTERRUPTION OF PROCEEDINGS, PARTIES OR
THEIR ATTORNEYS ARE DIRECTED TO HAVE SUCH TRANSLATION PREPARED BEFORE TRIAL.

DOCUMENTARY EVIDENCE IN AN OFFICIAL LANGUAGE

UNDER THE ABOVE PROVISION, A DOCUMENT WRITTEN IN AN UNOFFICIAL LANGUAGE SHALL

NOT BE ADMITTED AS EVIDENCE IF NOT ACCOMPANIED WITH THE CORRESPONDING TRANSLATION
INTO ENGLISH OR FILIPINO WHICH SHOULD BE PREPARED BY THE PARTIES OR THEIR LAWYERS PRIOR TO
THE TRIAL TO AVOID DELAY IN THE PROCEEDINGS. AND THE TRANSLATION OF A DOCUMENT WRITTEN
IN THE FOREIGN LANGUAGE SHOULD EMANATE FROM AN OFFICIAL INTERPRETER (PACIFIC ASIA
OVERSEAS SHIPPING CORPORATION VS. NLRC, 161 SCRA 122)

WHEN A DOCUMENT UNACCOMPANIED WITH TRANSLATION IN THE OFFICIAL LANGUAGE IS

ADMITTED WITHOUT OBJECTION, IT WILL BE CONSIDERED BY APPELLATE COURTS, AND IN CRIMINAL
CASES THE SOLICITOR GENERAL MAY BE ORDERED TO SUBMIT A TRANSLATION WITH NOTICE TO THE
ACCUSED. (MORAN)

C, OFFER AND OBJECTION

SEC. 34. OFFER OF EVIDENCE. – THE COURT SHALL CONSIDER NO EVIDENCE WHICH HAS NOT BEEN
FORMALLY OFFERED. THE PURPOSE FOR WHICH THE EVIDENCE IS OFFERED MUST BE SPECIFIED.

RATIONALE OR PURPOSE OF OFFER OF EVIDENCE

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 FORMAL OFFER IS NECESSARY BECAUSE JUDGES ARE MANDATED TO REST THEIR FINDINGS OF
FACTS AND THEIR JUDGMENT ONLY AND STRICTLY UPON THE EVIDENCE OFFERED BY THE PARTIES AT
THE TRIAL. ITS FUNCTIONS IS:

(1)TO ENABLE THE TRIAL JUDGE TO KNOW THE PURPOSE OR PURPOSES FOR WHICH THE PROPONENT IS
PRESENTING THE EVIDENCE;

(2)ON THE OTHER HAND, THIS ALLOWS OPPOSING PARTIES TO EXAMINE THE EVIDENCE AND OBJECT
TO ITS ADMISSIBILITY.

(3)MOREOVER, IT FACILITATES REVIEW AS THE APPELLATE COURT WILL NOT BE REQUIRED TO REVIEW
DOCUMENTS NOT PREVIOUSLY SCRUTINIZED BY THE TRIAL COURT. (PEOPLE V. VILLANUEVA, G.R. NO.
181829, SEPTEMBER 1, 2010)

IN RETROSPECT, IT MAY BE RECALLED THAT ADMISSIBILITY OF EVIDENCE IS DETERMINED AT

THE TIME IT IS OFFERED TO THE COURT (REGALADO)

AS A BASIC PREMISE, INTRODUCTION OF EVIDENCE IS DISTINCT FROM ITS FORMAL OFFER.

WHILE EVIDENCE MAY HAVE BEEN IDENTIFIED, 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. (RULES ON EVIDENCE)

THUS, A DOCUMENT OR ARTICLE IS NOT EVIDENCE WHEN IT IS SIMPLY MARKED FOR

IDENTIFICATION, IT MUST BE FORMALLY OFFERED IN EVIDENCE, AND THE OPPOSING COUNSEL MUST
HAVE AN OPPORTUNITY OF OBJECTING TO IT OR CROSS-EXAMINE ANY WITNESS CALLED TO PROVE OR
IDENTIFY IT (FRANCISCO)

AS A GENERAL PROPOSITION, ANY EVIDENCE WHICH A PARTY DESIRES TO SUBMIT TO THE

CONSIDERATION OF THE COURT MUST FORMALLY BE OFFERED BY HIM. THE OFFER IS NECESSARY
BECAUSE IT IS THE DUTY OF A JUDGE TO REST HIS FINDINGS OF FACTS AND HIS JUDGMENT ONLY AND
STRICTLY UPON THE EVIDENCE OFFERED BY THE PARTIES AT THE TRIAL. (MORAN)

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ESSENCE OF THE OFFER

THE INTRODUCTION OF EVIDENCE IS INTENDED 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 T A RULING OF THE TRIAL COURT EXCLUDING EVIDENCE. (FRANCISCO)

SPECIFIC OFFER

THE PURPOSE FOR WHICH THE EVIDENCE IS OFFERED MUST BE SPECIFIED SINCE EVIDENCE MAY
BE ADMISSIBLE FOR A SPECIAL PURPOSE BUT NOT ADMISSIBLE GENERALLY; OR IT MAY BE ADMISSIBLE
FOR ONE PURPOSE BUT NOT FOR ANOTHER; OR IT MAY BE ADMISSIBLE AGAINST ONE JOINT
DEFENDANT BUT NOT AGAINST ANOTHER (MORAN)

TO THE GENERAL RULE THAT THE COURT SHALL NOT CONSIDER ANY EVIDENCE NOT FORMALLY
OFFERED, THERE ARE CERTAIN EXCEPTIONS:

(1) UNDER THE RULE ON SUMMARY PROCEDURE, WHERE NO FULL BLOWN TRIAL IS HELD IN THE
INTEREST OF SPEEDY ADMINISTRATION OF JUSTICE;

(2) IN SUMMARY JUDGMENTS UNDER RULE 35, WHERE THE JUDGE BASES HIS DECISIONS ON THE
PLEADINGS, DEPOSITIONS, ADMISSIONS, AFFIDAVITS AND DOCUMENT FILED WITH THE COURT;

(3) DOCUMENTS WHOSE CONTENTS ARE TAKEN JUDICIAL NOTICE BY THE COURT;

(4) DOCUMENTS WHOSE CONTENTS ARE ADMITTED BY THE PARTIES;

(5) OBJECT EVIDENCE WHICH COULD NOT BE FORMALLY OFFERED BECAUSE THEY HAVE
DISAPPEARED OR HAVE BECOME LOST AFTER THEY HAVE BEEN MARKED, IDENTIFIED AND
TESTIFIED ON AND DESCRIBED IN THE RECORD AND BECAME THE SUBJECT OF CROSS
EXAMINATION OF THE WITNESSES WHO TESTIFIED ON THEM DURING THE TRIAL, E.G.,
MARIJUANA INVOLVED IN A PROHIBITED DRUGS PROSECUTION; AND

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 (6) IN LAND REGISTRATION, CADASTRAL AND ELECTION CASES, NATURALIZATION AND
INSOLVENCY PROCEEDINGS WHEN IT IS NOT PRACTICABLE AND CONVENIENT TO APPLY THE
RULES ON FORMAL OFFER OF EVIDENCE.

SEC. 35. WHEN TO MAKE OFFER. – ALL EVIDENCE MUST BE OFFERED ORALLY

THE OFFEROF THE TESTIMONY OF A WITNESS 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.

WHEN TO MAKE THE OFFER

1. AS REGARDS THE TESTIMONY OF A WITNESS, THE OFFER MUST BE MADE AT THE TIME THE
WITNESS IS CALLED TO TESTIFY.

EXAMPLE

AFTER THE WITNESS HAS BEEN SWORN IN, AND JUST BEFORE THE PROPONENT STARTS HIS
DIRECT EXAMINATION, EITHER BY JUDICIAL AFFIDAVIT OR BY WAY OF QUESTION AND ANSWER STYLE,
HE MUST FIRST FORMALLY OFFER THE TESTIMONY OF THE WITNESS.

THIS IS HOW HE FORMALLY OFFERS THE TESTIMONY OF HIS WITNESS: “YOUR HONOR, I AM
FORMALLY OFFERING THE TESTIMONY OF WITNESS X FOR THE FOLLOWING PURPOSES, TO WIT:

1.THAT HE WAS AN EYE WITNESS TO THE STABBING INCIDENT WHICH RESULTED TO THE DEATH OF
OFFENDED PARTY;
2.THAT HE WILL IDENTIFY THE ACCUSED AS THE ASSAILANT;
3. THAT HE WILL IDENTIFY THE SWORN STATEMENT HE EXECUTED RELATIVE TO THIS CASE;
4. FOR SUCH OTHER MATTERS WHICH IS RELEVANT AND MATERIAL TO THIS CASE. (THE SO-CALLED ALL
EMBRACING OFFER)

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 2. DOCUMENTARY AND OBJECT EVIDENCE SHALL BE OFFERED AFTER THE PRESENTATION OF A
PARTY’S TESTIMONIAL EVIDENCE. SUCH OFFER SHALL BE DONE ORALLY UNLESS ALLOWED BY
THE COURT TO BE DONE IN WRITING.

EXAMPLE

AFTER THE COUNSEL IS DONE WITH THE PRESENTATION OF HIS TESTIMONIAL WITNESS, AND
JUST BEFORE HE RESTS HIS CASE, WILL FORMALLY OFFER FIRST EVIDENCE OBJECTS AND DOCUMENTARY
WHICH HAVE BEEN IDENTIFIED AND MARKED DURING THE TRIAL.

FOR INSTANCE, THE POLICE BLOTTER WAS IDENTIFIED AND MARKED AS EXHIBIT “A” DURING
THE TRIAL, HE HAS TO FORMALLY OFFER SAID POLICE BLOTTER AS WELL AS THE PURPOSE FOR WHICH IT
IS BEING OFFERED.

STAGES IN THE PRESENTATION OF DOCUMENTARY EVIDENCE

1.IDENTIFICATION – PROOF THAT THE DOCUMENT BEING OFFERED IS THE SAME ONE REFERRED TO BY
THE WITNESS IN HIS TESTIMONY;

2.MARKING – THIS CAN BE MADE DURING PRE-TRIAL AND SUBSEQUENTLY DURING THE TRIAL PROPER;

3.AUTHENTICATION – PROOF OF DOCUMENT’S DUE EXECUTION AND GENUINENESS;

4.INSPECTION – TAKE NOTE OF SECTION 18, RULE 132; AND

5.FORMAL OFFER.

AFTER THESE FIVE STAGES, COME THE MATTER OF OBJECTION

SEC. 36. OBJECTION. – OBJECTION TO OFFER OF EVIDENCE MUST BE MADE ORALLY

IMMEDIATELY AFTER THE OFFER IS MADE.

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 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 SHALL BECOME REASONABLY APPARENT .

THE GROUNDS FOR THE OBJECTION MUST BE SPECIFIED.

OBJECTION

THE PROPOSED AMENDMENT INCORPORATES THE RULING IN CATUIRA V. COURT OF APPEALS,

G.R. NO. 105813, SEPTEMBER 12, 1994, A CASE WHERE THE 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. THE SUPREME COURT HELD THAT THE PROCEDURAL ERROR
OR DEFECT WAS WAIVED WHEN ACCUSED DID NOT OBJECT TO THE TESTIMONY WHEN IT WAS FIRST
OFFERED UPON CALLING THE COMPLAINANT.

WHAT IS THE PURPOSE OF OBJECTIONS

AS COUNSEL, YOU OBJECT TO THE PRESENTATION OF EVIDENCE IN THE COURSE OF TRIAL IN

ORDER TO PREVENT THE INTRODUCTION OR CONSIDERATION OF INADMISSIBLE EVIDENCE. YOU DO
NOT SEEK TO PREVENT THE ADMISSION OF UNFAVORABLE EVIDENCE FOR ITS OWN SAKE BUT ACTUALLY
TO ENSURE A FAIR TRIAL. (ABAD)

WHY MUST OBJECTIONS BE TIMELY AND SPECIFIC?

THE GENERAL RULE IS THAT, EXCEPT WITH REGARD TO PLAIN ERROR, OBJECTIONS TO EVIDENCE
MUST BE MADE EITHER BEFORE OR CONTEMPORANEOUSLY WITH THE PRESENTATION OF THE
EVIDENCE SOUGHT TO BE ADMITTED. THE COURT CANNOT COMMIT AN ERROR IN ADMITTING
EVIDENCE IF YOU MAKE NO OBJECTION BECAUSE ABSENCE OF OBJECTION WILL RESULT IN WAIVER OF
THE ALLEGED ERROR. (ABAD)

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MODES OF EXCLUDING INADMISSIBLE EVIDENCE:

THERE ARE TWO WAYS OF EXCLUDING INADMISSIBLE EVIDENCE. ONE IS BY OBJECTION AND
THE OTHER IS BY A MOTION TO STRIKE OUT.

IN ORDER THAT AN OBJECTION OR A MOTION TO STRIKE OUT AFTER AN ANSWER HAS BEEN
GIVEN, MAY BE EFFECTIVE TO RENDER EVIDENCE INADMISSIBLE, THE FOLLOWING REQUISITES MUST
CONCUR:

(1)THERE MUST BE AN OBJECTION;

(2) THE OBJECTION MUST BE TIMELY MADE; AND
(3) THE GROUND FOR OBJECTION MUST BE SPECIFIED.
TENOR OR OBJECTION

AN OBJECTION TO OFFER TO EVIDENCE IS EITHER GENERAL OR SPECIFIC BUT THE LAST

PARAGRAPH OF SECTION 36, RULE 132 REQUIRES SPECIFIC OBJECTION.

AN OBJECTION IS GENERAL 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.

AN OBJECTION IS SPECIFIC 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 THERE IS SOME OBJECTION, SUBSTANTIAL JUSTICE REQUIRES THAT THE OBJECTION
BE SPECIFIED SO THAT THE PARTY OFFERING THE EVIDENCE CAN REMOVE IT, IF POSSIBLE, AND LET THE
CASE BE TRIED ON ITS MERITS.

IF IT IS OBJECTED THAT THE QUESTION IS LEADING, THE FORM MAY BE CHANGED; IF THAT
EVIDENCE IS IRRELEVANT, INCOMPETENCY MAY BE REMOVED; IF THAT IT IS IMMATERIAL, ITS

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MATERIALITY MAY BE ESTABLISHED; IF TO THE ORDER OF INTRODUCTION, IT MAY BE WITHDRAWN AND
OFFERED AT ANOTHER TIME – AND THUS APPEALS COULD BE SAVED, DELAYS AVOIDED AND
SUBSTANTIAL JUSTICE ADMINISTERED (MORAN)

EVIDENCE IS OBJECTED TO AT THE TIME IT IS OFFERED AND NOT BEFORE:

1. ORAL EVIDENCE IS OBJECTED TO AFTER ITS EXPRESS FORMAL OFFER HAS BEEN MADE BEFORE
THE WITNESS TESTIFIES. WHEN, THEREAFTER, THE WITNESS IS ALLOWED TO TESTIFY,
OBJECTION TO A QUESTION PROPOUNDED IN THE COURSE OF THE ORAL EXAMINATION OF A
WITNESS SHALL BE MADE AS SOON AS THE GROUNDS THEREFORE SHALL BECOME REASONABLY
APPARENT;

2. A PARTY MAY WAIVE HIS OBJECTIONS TO THE COMPETENCY OF A WITNESS TO TESTIFY IF,
AFTER SUCH INCOMPETENCY APPEARS, SUCH PARTY FAILS TO MAKE TIMELY OBJECTION,
DESPITE HAVING KNOWLEDGE OF THE INCOMPETENCY, WHETHER THE OBJECTION IS ON THE
GROUND OF WANT OF MENTAL CAPACITY OR FOR SOME OTHER REASON;

3. DOCUMENTARY AND OBJECT EVIDENCE ARE OBJECTED TO UPON THEIR FORMAL OFFER AFTER
THE PRESENTATION OF A PARTY’S TESTIMONIAL EVIDENCE.

OBJECTIONS TO EVIDENCE MAY BE FORMAL OR SUBSTANTIVE:

1. FORMAL OBJECTIONS ARE BASED ON THE DEFECTIVE FORM OF THE QUESTION ASKED.
EXAMPLES:

(A) LEADING QUESTIONS WHICH SUGGEST TO THE WITNESS THE ANSWER DESIRED.

IF COUNSEL FINDS DIFFICULTY IN AVOIDING LEADING QUESTIONS, THE JUDGE MAY SUGGEST, TO
EXPEDITE THE PROCEEDINGS, THAT THE COUNSEL BEGIN HIS QUESTIONS WITH THE PROPER
INTERROGATIVE PRONOUNS, SUCH AS “WHO”, “WHAT”, “WHERE”, “WHY”, “HOW”, ETC.

LEADING QUESTIONS ARE ALLOWED OF A WITNESS WHO CANNOT BE REASONABLY EXPECTED TO BE

LED BY THE EXAMINING COUNSEL,

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 1. AS ON CROSS- EXAMINATION;

2. WHEN THE WITNESS IS AN ADVERSE PARTY OR AN OFFICER, DIRECTOR, OR MANAGING AGENT

OF A PUBLIC OR PRIVATE CORPORATION OR OF A PARTNERSHIP OR ASSOCIATION WHICH IS AN
ADVERSE PARTY; OR

3. WHEN THE WITNESS IS UNWILLING OR HOSTILE, AFTER IT HAS BEEN DEMONSTRATED THAT THE
WITNESS HAS SHOWN UNJUSTIFIED RELUCTANCE TO TESTIFY OR HAS AN ADVERSE INTEREST OR
HAD MISLED THE PARTY INTO CALLING HIM TO THE WITNESS STAND AND, IN EITHER CASE,
AFTER HAVING BEEN DECLARED BY THE COURT TO BE INDEED UNWILLING OR HOSTILE;

4. LEADING QUESTIONS MAY ALSO BE ASKED WHEN THERE IS DIFFICULTY IN GETTING DIRECT AND
INTELLIGIBLE ANSWERS FROM A WITNESS WHO IS IGNORANT, OR A CHILD OF TENDER YEARS,
OR IS FEEBLE MINDED, OR A DEAF-MUTE.

5. LEADING MAY QUESTIONS MAY, MOREOVER, BE ASKED ON PRELIMINARY MATTERS, I.E., ON

FACTS NOT IN CONTROVERSY, AND OFFERED ONLY AS BASIS FOR MORE IMPORTANT
TESTIMONY TO FOLLOW. FOR EXAMPLE, “YOU ARE MRS. MARIA MORALES, WIFE OF THE
PLAINTIFF IN THIS CASE?”

LIKEWISE, ASKING A QUESTION WHICH USES AS A PREMISE ADMITTED FACTS OR THE WITNESS’
PREVIOUS ANSWER IS NOT FOR THAT REASON OBJECTIONABLE AS LEADING.

(B). MISLEADING QUESTIONS OR THE QUESTION HAS NO BASIS, WHICH ASSUME AS TRUE A FACT NOT
TESTIFIED TO BY THE WITNESS (QUESTION HAS NO BASIS), OR CONTRARY TO THAT WHICH HE HAS
PREVIOUSLY STATED.

EVERY QUESTION MUST HAVE A PROPER BASIS OR THE WITNESS MIGHT NOT HAVE THE
COMPETENCE TO ANSWER IT. THIS QUESTION IS USUALLY ASKED BY THE LAWYER CONDUCTING THE
DIRECT EXAMINATION. FOR EXAMPLE, WITHOUT ESTABLISHING THAT THE WITNESS HAS CHILDREN,
THE LAWYER ASKS HIM: “HOW MANY CHILDREN DO YOU HAVE?” THE QUESTION ASSUMES A FACT
THAT HAS NOT BEEN PROVED. (ABAD)

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 IF A QUESTION THAT HAS NO BASIS IS ASKED OF A WITNESS ON CROSS-EXAMINATION, THE
OBJECTION IS “THE QUESTION IS MISLEADING.” FOR INSTANCE, WITHOUT ESTABLISHING BY HIS
TESTIMONY THAT THE ACCUSED FIRED SEVERAL SHOTS, THE CROSS-EXAMINER ASKS HIM: “WHOM DID
YOU SHOOT FIRST?”

© COUNSEL ASKS MULTIPLE QUESTIONS OR WHICH ARE TWO OR MORE QUERIES IN ONE.

MULTIPLE QUESTIONS, USUALLY ASKED BY A CROSS-EXAMINING LAWYER, BRING UP TWO

SEPARATE FACTS WITHIN A SINGLE QUESTION THAT CALLS FOR MORE THAN ONE ANSWER. IT CREATES
TWO PROBLEMS: (A) THE QUESTION MAY BE AMBIGUOUS BECAUSE OF ITS SEVERAL ASPECTS; AND (B)
THE ANSWER MAY BE CONFUSING BECAUSE OF UNCERTAINTY AS TO WHICH PART OF THE MULTIPLE
QUESTIONS THE WITNESS INTENDS TO ADDRESS.

FOR EXAMPLE,

“DID YOU SEE THE DEFENDANT ENTER THE PLAINTIFF’ S HOUSE, AND WAS THE PLAINTIFF
THERE?” OR

“DID YOU EXPERIENCE FRIGHT, SHOCK, OR TERROR EVEN BEFORE THE ACCUSED INFLICTED
WOUND ON YOU?” THE QUESTION IMPROPERLY ASKS THE WITNESS WHETHER HE EXPERIENCED (A)
FRIGHT, (B) SHOCK, (C) TERROR, (D) BEFORE THE ACCUSED INFLICTED WOUND ON THE WITNESS, THUS
COMPOUNDING NUMEROUS FACTS IN ONE QUESTION. (ABAD)

“WHEN THE LOAN BECAME DUE, DID YOU SEND A FINAL LETTER OF DEMAND AND FILE A
COMPLAINT AGAINST THE DEFENDANT?” THIS QUESTION CALLS FOR TWO EXTREMES, NAMELY THE
SENDING OF THE FINAL LETTER OF DEMAND AND THE FILING OF THE COMPLAINT.

(D)VAGUE, AMBIGUOUS, INDEFINITE, OR UNCERTAIN QUESTIONS – NOT ALLOWED BECAUSE THE

WITNESS CANNOT UNDERSTAND FROM THE FORM OF THE QUESTION JUST WHAT FACTS ARE SOUGHT
TO BE ELICITED.

A VAGUE QUESTION IS AMBIGUOUS AND DOES NOT LEND ITSELF TO A CLEAR ANSWER. SOME
LAWYERS COULD ABUSE THIS OBJECTION AND USE IT AS A SIGNAL TO THE WITNESS TO BE CAREFUL
WITH THE QUESTION OR TO BREAK THE TRAIN OF EXAMINATION. AN EXPERIENCED JUDGE COULD OF

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COURSE SEE THROUGH SUCH PRETENSE AND BEGIN TO MISTRUST THE LAWYER. BUT IT COULD BE A
LEGITIMATE OBJECTION TO SOME INTENTIONALLY DECEPTIVE QUESTIONS.

THE QUESTION:

“WHAT WAS THE RESULT OF THE CONVERSATION?” HAS BEEN REGARDED AS VAGUE.

ALSO REGARDED AS VAGUE IS THE QUESTION ASKED OF A MEETING ATTENDED BY MANY:

“WHAT DID HE SAY?” “OBJECTION” THE QUESTION IS VAGUE. WHO DOES COUNSEL REFER TO?” A
WITNESS IS ENTITLED TO CLEAR QUESTIONS HE CAN UNDERSTAND. HE SHOULD NOT BE TRAPPED BY
VAGUE AND HAZY INTERROGATIONS.
(E)REPETITIOUS QUESTIONS, OR THOSE ALREADY ANSWERED. HOWEVER, ON CROSS-EXAMINATION,
THE CROSS- EXAMINER MAY ASK A QUESTION ALREADY ANSWERED TO TEST THE CREDIBILITY OF A
WITNESS.

QUESTIONS THAT HAVE BEEN ASKED AND ANSWERED ARE OBJECTIONABLE BECAUSE THE
EVIDENCE SHOULD NOT BE NEEDLESSLY CUMULATIVE. THIS OBJECTION IS USUALLY INTERPOSED
AGAINST QUESTION ASKED BY THE CROSS-EXAMINING LAWYER. BUT QUITE OFTEN, THE CROSS-
EXAMINER COULD RIGHTLY ASK THE QUESTION TO LAY A BASIS FOR AN ATTACK ON ITS VERACITY. SUCH
A REPETITION CAN ALSO TEST THE CAPACITY OF THE WITNESS TO RECALL WHAT HE HAS JUST STATED
AND TO ASCERTAIN WHETHER HE FALLS EASILY INTO INCONSISTENCIES. (ABAD)

(F)ARGUMENTATIVE QUESTIONS, WHICH CHALLENGE A WITNESS’ TESTIMONY BY ENGAGING HIM IN

AN ARGUMENT, E.G., “ISN’T IT A FACT MR. WITNESS THAT NOBODY COULD POSSIBLY SEE ALL THE
CIRCUMSTANCES YOU MENTIONED IN A SPAN OR MERELY TWO SECONDS, AND THAT EITHER YOUR
OBSERVATIONS ARE INACCURATE OR YOU ARE LYING?”

A QUESTION THAT IS ARGUMENTATIVE ASKS THE WITNESS TO ACCEPT THE CROSS-EXAMINER’S

SUMMARY, INFERENCE, OR CONCLUSION RATHER THAN TO AGREE WITH THE EXISTENCE OF A FACT.
THE TRIAL COURT MUST USE SOUND JUDGMENT IN RULING ON SUCH AN OBJECTION SINCE THE
DEMARCATION LINE BETWEEN ARGUMENTATIVENESS AND LEGITIMATE CROSS-EXAMINATION IS OFTEN
NOT A CLEAR ONE. (ABAD)

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 AN EXAMPLE OF ARGUMENTATIVE QUESTION IS THIS. “MR. SIMON, BASED ON WHAT YOU TELL
US, YOU ARE SOMETHING LIKE A BAGMAN FOR MAYOR HERMAN, IS THAT RIGHT?” THIS IS
ARGUMENTATIVE SINCE BEING “SOMETHING LIKE A BAGMAN” IS THE EXAMINER’S CONCLUSION BASED
ON WHAT HE HEARD THE WITNESS TESTIFY. THE EXAMINER IS NOT INQUIRING ABOUT NEW FACTS.

ANOTHER ARGUMENTATIVE QUESTION THAT TRIES TO PUT THE WITNESS DOWN AS A

PARANOID PERSON IS THIS: “DID YOU EVER MEET A PERSON THAT YOU DID NOT THINK WAS OPPOSED
TO YOU?” OF THE SAME TENOR IS THE QUESTION: “IT DID NOT BOTHER YOU THAT YOU CAME HERE
AND LIED FROM BEGINNING TO END?” BUT IT HAS BEEN HELD THAT AFTER IMPEACHING A WITNESS
WITH A PRIOR INCONSISTENT STATEMENT, TO ASK THE WITNESS THE QUESTION: “WHICH ONE IS
RIGHT, WHAT YOU SAID EARLIER OR WHAT YOU SAID JUST NOW?” IS NOT AN ARGUMENTATIVE
QUESTION.

(G)THE QUESTION IS BEYOND THE SCOPE OF THE CROSS-EXAMINATION.

AS A GENERAL RULE, A PARTY MAY CONDUCT A RE-DIRECT EXAMINATION OF A WITNESS ONLY

ABOUT A MATTER BROUGHT OUT ON CROSS-EXAMINATION. STILL, IF THE QUESTION ON REDIRECT
AMPLIFY THE STATEMENTS MADE IN RESPONSE TO QUESTIONS ASKED ON CROSS-EXAMINATION, SUCH
RE-DIRECT QUESTIONS ARE ALSO REGARDED AS APPROPRIATE

(H)THE QUESTION IS SPECULATIVE OR HYPOTHETICAL

A QUESTION THAT ASKS A WITNESS TO SPECULATE REGARDING WHAT COULD HAVE HAPPENED
HAD CERTAIN THINGS EXISTED OR OCCURRED IS OBJECTIONABLE. THE OBJECTION IS BASED ON HIS
LACK OF PERSONAL KNOWLEDGE ABOUT MATTERS WITH WHICH HE SPECULATES, RENDERING HIS
TESTIMONY IRRELEVANT. FOR

EXAMPLE:

“IF YOU KNEW THAT THE PLANE DEPARTURE WOULD BE DELAYED BY FIVE HOURS, WOULD YOU HAVE
CALLED AHEAD TO INFORM YOUR HOST ABOUT YOUR DELAYED ARRIVAL?”

“IF YOU ARE PLACED IN THE POSITION OF THE DEFENDANT, WOULD YOU ABLE TO ACCOMPLISH THE
PROJECTS?”

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“IF THE POLICE DID NOT ADVICE YOU, YOU SHOULD NOT HAVE FILED THIS CASE AGAINST THE
ACCUSED?”

(I)MOTION TO STRIKE OUT NON-RESPONSIVE ANSWER.

WHEN THE WITNESS DOES NOT DIRECTLY ANSWER THE QUESTION ASKED OF HIM, HIS ANSWER
MAY BE STRICKEN OUT AS NON-RESPONSIVE. THE PROPRIETY OF THE ANSWER CANNOT, IN THE
NATURE OF THINGS, BE DETERMINED BEFORE IT IS GIVEN. BUT THIS OBJECTION IS APPROPRIATE ONLY
FOR THE LAWYER CONDUCTING THE EXAMINATION SINCE IT IS HIS RIGHT THAT HIS QUESTION IS
PROPERLY ANSWERED. (ABAD)

FOR EXAMPLE, THE WITNESS IS ASKED DURING CROSS EXAMINATION, “WHAT CRIME WERE
YOU ARRESTED FOR?” HE REPLIED: “IT WAS FOR THE CHEMICALS THAT I BOUGHT FROM THE
ACCUSED.” SINCE THE ANSWER DID NOT DESCRIBE THE CRIME FOR WHICH THE WITNESS WAS
ARRESTED, HIS ANSWER WAS NOT RESPONSIVE TO THE QUESTION ASKED.
EXAMPLE OF A PARTLY NON-RESPONSIVE ANSWER: “DID YOU KNOW ESTHER AT THAT TIME?”
THE REPLY IS: “YES, I USED TO WRITE TO HER WHEN I WAS IN THE PROVINCE.” YOU CAN MOVE TO
STRIKE OUT THE ANSWER AFTER “YES”

ANOTHER EXAMPLE IN A TORT CASE: “ DO YOU KNOW WHAT IT WAS THAT CAUSED YOU TO
FALL?” AND THE ANSWER: “I BELIEVE THE STAIRS HAD SLOPING STEPS.” THE QUESTION CALLED FOR A
YES OR NO ANSWER ONLY. IN THE SAME VEIN IS THE QUESTION A PROSECUTOR ASKED OF A WITNESS:
“NOW, DO YOU HAVE AN OPINION AS TO WHETHER OR NOT THIS AMOUNT OF SHABU PACKAGED IN
THIS MANNER WAS INTENDED FOR DISTRIBUTION OR FOR PERSONAL USE?” AND THE WITNESS
ANSWERED: “DISTRIBUTION.”

(J)THE QUESTION CALLS FOR A NARRATIVE ANSWER OR THE WITNESS IS GIVING A NARRATIVE ANSWER.

A QUESTION THAT TENDS TO ELICIT A NARRATIVE OF LONG DURATION IS OBJECTIONABLE

BECAUSE IT WOULD ALLOW THE WITNESS TO STRAY INTO MATTERS THAT ARE NON-RESPONSIVE. BOTH
QUESTIONS AND ANSWERS MAY BE OBJECTED TO AS UNNECESSARY NARRATIVE. THE POINT IS THAT
NARRATIVES DO NOT GIVE THE OPPOSING COUNSEL THE OPPORTUNITY TO OBJECT TO INADMISSIBLE
INFORMATION IF A SPECIFIC QUESTION DOES NOT PRECEDE THE ANSWER. THUS, THE QUESTION:

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“WOULD YOU PLEASE TELL US FROM THE TIME YOU GOT TO MANILA UNTIL YOU WERE ARRESTED,
WHAT YOU HEARD AND WHAT YOU DID?” CLEARLY ASKS FOR A NARRATIVE ANSWER. “WHAT DID YOU
HEAR MR. LEDESMA SAY?” IS ALSO A NARRATIVE QUESTION. TO THE SAME EFFECT IS THE QUESTION:
“IS THERE ANYTHING ELSE THAT YOU WANT TO SAY?” (ABAD)

(K) NO BASIS -- THE QUESTION IS ASKED ON THE ASSUMPTION THAT A CERTAIN FACT UPON WHICH IT
IS PRESUMED HAS ALREADY BEEN ESTABLISHED IN THE RECORD OF THE CASE, ALTHOUGH IN TRUTH
SUCH FACT HAS NOT YET BEEN ESTABLISHED.

EXAMPLE: “WHEN THE LOAN MATURED, WHAT DID YOU DO?” THIS QUESTION ASSUMES A BASIS THAT
THERE IS ALREADY ESTABLISHED IN THE RECORD OF THE CASE THAT THE LOAN HAS MATURED. IF THE
MATURITY OF THE LOAN HAS NOT YET BEEN ESTABLISHED IN THE RECORD OF THE CASE, SUCH A
QUESTION IS OBJECTIONABLE ON THE GROUND THAT IT HAS NO BASIS.

II. SUBSTANTIVE OBJECTIONS ARE THOSE BASED ON THE INADMISSIBILITY OF THE OFFERED
EVIDENCE, E.G.,

1. IRRELEVANT, IMMATERIAL;
2. BEST EVIDENCE RULE;
3. PAROL EVIDENCE RULE;
4. DISQUALIFICATION OF WITNESS;
5. PRIVILEGED COMMUNICATION;
6. RES INTER ALIOS ACTA;
7. HEARSAY;

IN A PROSECUTION FOR PHYSICAL INJURIES, A WITNESS ON THE STAND WAS ASKED THE FOLLOWING
QUESTION: “WHAT DID YOUR NEIGHBOR TELL YOU CONCERNING THE STABBING INCIDENT SUBJECT OF
THIS CASE?” SINCE THE WITNESS IS NOT BEING ASKED WHAT HE PERSONALLY KNOWS ABOUT THE
CASE, BUT CONCERNING THE KNOWLEDGE OF ANOTHER PERSON, THE QUESTION IS OBJECTIONABLE AS
CALLING FOR HEARSAY EVIDENCE.

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8. OPINION;

“WHAT IS YOUR VIEW IS THE AGE OF THE DOCUMENT EVIDENCING THE OWNERSHIP OF THE PROPERTY
IN QUESTION?”

9. EVIDENCE ILLEGALLY OBTAINED;

10. PRIVATE DOCUMENT NOT AUTHENTICATED.

11.INCRIMINATING EVIDENCE -- A WITNESS MUST ANSWER QUESTION PERTINENT TO THE MATTER AT

ISSUE, THOUGH HIS ANSWER MAY TEND TO ESTABLISH A CLAIM AGAINST HIM BUT, UNLESS
OTHERWISE PROVIDED BY LAW, HE NEED NOT GIVE AN ANSWER WHICH WILL HAVE A TENDENCY TO
SUBJECT HIM TO PUNISHMENT FOR AN OFFENSE; NOR DEGRADE HIS CHARACTER, UNLESS IT BE TO THE
VERY FACT AT ISSUE OR TO FACT FROM WHICH THE FACT AT ISSUE WOULD BE PRESUMED. BUT A
WITNESS MUST ANSWER TO THE FACT OF HIS PREVIOUS CONVICTION FOR AN OFFENSE.

EXAMPLE: A WITNESS, WHO IS NOT CHARGED IN A CRIMINAL CASE FOR MURDER, TESTIFIES FOR THE
DEFENSE AND IS ASKED ON CROSS EXAMINATION THE FOLLOWING: “ YOU WERE PRESENT DURING THE
INCIDENT IN QUESTION, AS IN FACT YOU HELPED THE ACCUSED IN INFLICTING THE INJURIES TO THE
VICTIM?” THIS QUESTION IS OBJECTIONABLE ON THE GROUND THAT THE ANSWER BEING ELICITED
FROM THE WITNESS MIGHT INCRIMINATE HIM. ON THE OTHER HAND, IF THE ACCUSED HIMSELF IS
CALLED TO THE STAND, HE MAY ALTOGETHER REFUSE ON THE BASIS OF HIS CONSTITUTIONAL RIGHT
NOT TO BE A WITNESS AGAINST HIMSELF.

WHAT ARE THE COMMON GROUNDS FOR OBJECTIONS?

(1) THE QUESTION CALLS FOR IMMATERIAL OR COLLATERAL MATTER

(2) THE QUESTION IS BEYOND THE SCOPE OF THE DIRECT EXAMINATION
(3) THE QUESTION IS VAGUE
(4) THE QUESTION WAS ALREADY ANSWERED
(5) COUNSEL ASKS MULTIPLE QUESTIONS
(6) THE QUESTION HAS NO BASIS
(7) THE WITNESS IS NOT COMPETENT TO TESTIFY
(8) THE QUESTION CALLS FOR PRIVILEGED MATTER

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 (9) THE WITNESS IS NOT COMPETENT TO ANSWER THE QUESTION
(10) THE QUESTION IS LEADING
(11) THE QUESTION CALLS FOR AN OPINION OR A CONCLUSION
(12) MATTER SOUGHT IS NOT THE BEST EVIDENCE
(13) THE QUESTION CALLS FOR AN ANSWER THAT VIOLATE THE PAROL EVIDENCE RULE
(14) THE QUESTION CALLS FOR HEARSAY EVIDENCE
(15) THE QUESTION IS ARGUMENTATIVE
(16) THE QUESTION IS BEYOND THE SCOPE OF THE CROSS-EXAMINATION
(17) THE QUESTION IS SPECULATIVE OR HYPOTHETICAL
(18) MOTION TO STRIKE NON-RESPONSIVE ANSWER
(19) THE QUESTION CALLS FOR A NARRATIVE ANSWER OR THE WITNESS IS GIVING A
NARRATIVE ANSWER. (ABAD)

AS PART OF HIS JUDICIAL FUNCTION, A JUDGE IS UNDENIABLY CLOTHED WITH AUTHORITY TO

ADMIT OR REJECT EVIDENCE DETERMINATIVE OF THE OUTCOME OF THE CASE.

THE RULING BY THE COURT ON AN OBJECTION MUST BE GIVEN IMMEDIATELY AFTER AN

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 AS
SUCH TIME AS WILL GIVE THE PARTY AGAINST WHOM IT IS MADE AN OPPORTUNITY TO MEET THE
SITUATIONS PRESENTED BY THE RULING. THUS, AN OBJECTION TO A QUESTION ASKED OF A WITNESS
MUST BE AT ONCE RESOLVED BY THE COURT BY EITHER SUSTAINING OR OVERRULING THE OBJECTION.

IT WOULD BE INCORRECT FOR A JUDGE TO CONSIDER THE OBJECTION “SUBMITTED” OR

“NOTED.” UNLESS THE OBJECTION IS RESOLVED, THE EXAMINATION OF THE WITNESS COULD NOT BE
EXPECTED TO CONTINUE SINCE, IN ALL LIKELIHOOD, THE NEXT QUESTION WOULD DEPEND ON HOW
THE OBJECTION IS RESOLVED.

JUDGES ARE ADVISED TO JUDICIOUSLY CONSIDER THE VALIDITY OF THE GROUNDS FOR
OBJECTIONS AND CAREFULLY RULE ON THEM. A RULING THAT ALL EVIDENCE FORMALLY OFFERED ARE
“ADMITTED FOR WHATEVER THEY MAY BE WORTH” WILL NOT REFLECT WELL ON THE JUDGE, AS IT
IMPLIES A HASTY AND ILL-CONSIDERED RESOLUTION OF THE OFFER AND THE OBJECTIONS. BESIDES,
THE PHRASE “FOR WHATEVER THEY MAY BE WORTH” IS IMPROPER, SINCE IT REFERS TO THE WEIGHT

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OR CREDIBILITY OF THE EVIDENCE. AT THE FORMAL OFFER, THE ONLY ISSUE PRESENTED IS THE
ADMISSIBILITY OF EVIDENCE; THE WEIGHT OF THE EVIDENCE SHALL BE CONSIDERED ONLY AFTER THE
EVIDENCE SHALL HAVE BEEN ADMITTED. ANOTHER RULING THAT IS LUDICROUS AND EVEN
NONSENSICAL IS ‘EVIDENCE ADMITTED SUBJECT TO THE OBJECTIONS.” THIS IS NON-RULING.

TAKE NOTE

IN CASE OF HONEST DOUBT ABOUT THE ADMISSIBILITY OF EVIDENCE, IT IS BETTER POLICY TO

RULE IN FAVOR OF ITS ADMISSION. AN ERRONEOUS REJECTION OF EVIDENCE WILL BE UNFAIR TO THE
OFFEROR, SINCE THE JUDGE CANNOT VALIDLY CONSIDER IT, EVEN IF AFTER THE TRIAL THE JUDGE
REALIZES HIS MISTAKE. ON THE OTHER HAND, IF THE JUDGE HAD ERRED IN ADMITTING A PIECE OF
EVIDENCE, HE MAY SIMPLY GIVE IT LITTLE OR NO WEIGHT WHEN DECIDING THE CASE.

SEC. 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 CONTINUING OBJECTION
TO SUCH CLASS OF QUESTIONS.

WHEN REPETITION OF OBJECTION UNNECESSARY

OUR SUPREME COURT SAID THAT A SINGLE OBJECTION TO CLASS OF EVIDENCE WHEN FIRST
OFFERED IS SUFFICIENT, AND NEED NOT BE CONSTANTLY REPEATED WHEN SUBSEQUENT OFFERS OF
THE SAME CLASS OF EVIDENCE ARE MADE. THE COURT MAY TREAT THE OBJECTION AS A CONTINUING
ONE. IT IS UNNECESSARY WHEN THE OBJECTION HAS ONCE BEEN DISTINCTLY MADE FURTHER TO VEX
THE COURT WITH USELESS OBJECTIONS (MORAN)

FOR INSTANCE, THE PROPONENT KEEPS ON ASKING THE SAME QUESTIONS WHICH HAVE BEEN
OBJECTED TO BY THE OPPONENT AND SUSTAINED BY THE COURT. IN THIS CASE, THE OPPONENT WILL
SIMPLY MANIFEST TO THE COURT THAT HE IS MAKING A CONTINUING OBJECTION TO THAT LINE OF
QUESTIONING.

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SEC. 38. RULING.
– THE RULING OF THE COURT MUST BE GIVEN IMMEDIATELY AFTER THE
OBJECTION IS MADE, UNLESS COURT DESIRES TO TAKE A REASONABLY 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 WAS MADE AN OPPORTUNITY TO MEET THE
SITUATION PRESENTED BY THE RULING.

THE REASON FOR SUSTAINING OR OVERRULING AN OBJECTION NEED NOT BE STATED .

HOWEVER, IF OBJECTION IS BASED ON TWO OR MORE GROUNDS, A RULING SUSTAINING THE
OBJECTION ON ONE OR MORE OF THEM MUST SPECIFY THE GROUND OR GROUNDS RELIEF UPON .

RULING

IN SUBSTANCE, AFTER THE OBJECTION IS MADE, THE TRIAL COURT IS ORDINARILY EXPECTED TO
RULE ON THE ADMISSIBILITY OF EVIDENCE, SAVE WHEN THE COURT OPTS TO DEFER ITS RESOLUTION TO
STUDY THE PROBLEM DURING TRIAL. (PERALTA)

SEC. 39. STRIKING OUT ANSWER. – SHOULD THE 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.

STRIKING OUT OF ANSWER

IDEALLY, AN OBJECTION MUST BE INTERPOSED AS SOON AS THE GROUNDS THEREFOR

BECOMES EVIDENCE. COUNSEL MUST BE EVER VIGILANT SO THAT INCOMPETENT EVIDENCE IS NOT
ALLOWED TO CREEP INTO THE RECORDS. HIS FAILURE TO INTERPOSE TIMELY OBJECTION – EITHER DUE
TO INCOMPETENT OR INATTENTION – MAY BE TAKEN BY THE COURT AS A WAIVER OF HIS RIGHT TO

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OBJECT. HOWEVER, IT USUALLY HAPPENS DURING THE TRIAL, THAT DESPITE THE ALERTNESS OF
COUNSEL, A WITNESS ANSWERS THE QUESTION WITH ALACRITY BEFORE THE ADVERSE PARTY HAS HAD
THE OPPORTUNITY TO VOICE FULLY HIS OBJECTION. IN THAT CASE, THE COURT SHALL SUSTAIN THE
OBJECTION, IF IT FINDS THE SAME TO BE MERITORIOUS AND SHALL ORDER THE STRIKING OUT OF SUCH
ANSWER. (FRANCISCO)

A MOTION TO STRIKE OUT ANSWER OR TESTIMONY IS PROPER IN THE FOLLOWING INSTANCES:

1. THE WITNESS ANSWERS PREMATURELY;
2. THE ANSWER IS INCOMPETENT, IRRELEVANT, OR IMPROPER;
3. THE ANSWERS GIVEN IS UNRESPONSIVE;
4. THE GROUND FOR OBJECTION WAS NOT APPARENT WHEN THE QUESTION WAS ASKED;
5. UNCOMPLETED TESTIMONY – E.G., A WITNESS WHO GAVE DIRECT TESTIMONY SUBSEQUENTLY
BECOMES UNAVAILABLE FOR CROSS- EXAMINATION THROUGH NO FAULT OF THE CROSS-EXAMINER\;
6. UNFULFILLED CONDITION IN CONDITIONALLY ADMITTED TESTIMONY .

SEC. 40. TENDER OF EXCLUDED EVIDENCE. – IF THE 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.

TENDER OF EXCLUDED EVIDENCE

THE FOREGOING RULE, CALLED “OFFER OF PROOF” IN OTHER JURISDICTIONS, EMBODIES THE
PROCEDURE FOR THE “TENDER OF EXCLUDED EVIDENCE.” WHY MAKE A TENDER OF EXCLUDED
EVIDENCE? YOU DO IT FOR TWO REASONS:
FIRST, TO ALLOW THE COURT TO KNOW THE NATURE OF THE TESTIMONY OR THE
DOCUMENTARY EVIDENCE AND CONVINCE THE TRIAL JUDGE TO PERMIT THE EVIDENCE OR TESTIMONY.
SECOND, EVEN IF HE IS NOT CONVINCED TO REVERSE HIS EARLIER RULING, THE TENDER IS
MADE TO CREATE AND PRESERVE A RECORD FOR APPEAL.

EVEN IF THE RULES DO NOT SPELL OUT THE DETAILS ON HOW THIS SHOULD BE DONE , IT IS A
COMMON PRACTICE IN ALMOST ALL JURISDICTIONS, FOR THE OFFERING COUNSEL TO PRODUCE,

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DESCRIBE, IDENTIFY THE OBJECT OR DOCUMENT, AND IN CASE OF THE LATTER, TO STATE THE
CONTENTS OF THE DOCUMENT THAT IS SOUGHT TO BE ADMITTED WHERE THE SUBSTANCE OF THE
SAME IS NOT APPARENT ON ITS FACE.

THE NEXT STEP IS TO STATE THE PURPOSE FOR WHICH THE OBJECT OR DOCUMENT SOUGHT TO
BE ADMITTED IS OFFERED, AND ASK THAT IT BE MARKED FOR IDENTIFICATION AND HAVE IT ATTACHED
TO THE RECORD.

THERE ARE TWO TRADITIONAL METHODS OF MAKING THE TENDER:

THE FIRST IS WHERE THE COUNSEL TELLS THE COURT WHAT THE PROPOSED TESTIMONY WILL
BE. THIS IS THE METHOD PRESCRIBED IN THE RULES OF COURT. THE FIRST METHOD HAS THE
ADVANTAGE OF BREVITY AND EFFICIENCY BUT DOES NOT CREATE AS CLEAR A RECORD AS THE SECOND
METHOD.

THE SECOND METHOD IS BY USING THE QUESTION AND ANSWER FORM.

MAY AN OBJECTION BE INTERPOSED TO THE MANNER OF TENDER OF EXCLUDED EVIDENCE?

THE RULES ARE SILENT ON THE ISSUE. HOWEVER, THERE IS NO COGENT REASON TO DISALLOW
THE OBJECTION. IF THE DOCUMENT TENDERED IS NOT DESCRIBED OR IDENTIFIED, ITS SUBSTANCE
STATED IN VAGUE AND GENERAL TERMS OR WHEN THE PURPOSE FOR WHICH IT IS OFFERED IS NOT
DECLARED, THEN THE EVIDENCE HAD TO BE OBJECTED TO. IF THE TESTIMONY TENDERED IS IN THE
FORM OF A CONCLUSION AND THUS, FAILS TO DISCLOSE SUFFICIENT INFORMATION TO ENABLE THE
COURT AND THE OTHER PARTY TO DETERMINE ITS ADMISSIBILITY, THE SAME MAY LIKEWISE BE THE
TARGET OF AN OBJECTION.

EXAMPLE – TESTIMONIAL EVIDENCE

The prosecution calls to the witness stand witness A, and after he was
sworn in, the prosecutor makes a formal offer of the witness’ testimony. The
opponent object to the testimony of witness A on the ground that it is irrelevant
or immaterial and the court sustains the objection. The oral motion for
reconsideration of the prosecutor is also denied by the court. In this case, the

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prosecutor may now manifest or move to the court that he is making a tender of
excluded evidence. The court grants his motion and allows the prosecution to
make a tender of excluded evidence. The prosecutor will make this kind of
manifestion: “Your Honor, if the court would have allowed witness A to testify, he
would have testified that he was at the crime scene in the evening in question
and that he actually saw the accused perpetrating the crime charged.”

Example – Documentary evidence

The plaintiff’s counsel offered in evidence in a civil case for Breach of

Contract a Contract of Sell executed by the plaintiff and the defendant. It was
objected to by the defendant on the ground that it was a violation of the Original
Document Rule, and objection was sustained by the court. The oral motion for
reconsideration was also denied by the court. In this case, the plaintiff would
manifest to the court he would be making a tender of excluded evidence, and was
which granted by the court. The plaintiff then would say to the court: “Your
Honor, if the court would have allowed this Contract of Sell to be admitted in
evidence, it would prove that the plaintiff and the defendant voluntarily and
freely entered into such contract, and that it would also prove that the basis of
the plaintiff’s claim of ownership is this Contract to Sell.

Relevant Cases

The Court has previously held that even if an exhibit is not formally offered,
the same ‘may still be admitted against the adverse party if, first, it has been duly
identified by testimony duly recorded, and second, it has itself been incorporated
in the records of the case.” (People vs. Baturi, 734 SCRA 55).

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 RULE 133

WEIGHT AND SUFFICIENCY OF EVIDENCE

QUANTUM OF EVIDENCE

Jones on evidence observed that there is a variance between admissibility

and weight. Admissibility of evidence is determined by its adherence to relevancy
and competency to the fact in issue as tested by the Constitution and pertinent
law while weight, or the probative effect of evidence, is dependent on judicial
evaluation of admitted evidence within the guideposts in rule 133 of the Revised
Rules on Evidence vis-à-vis jurisprudential precepts from the Supreme Court.
(Regalado)

Hierarchy of Evidentiary Values

1. Proof Beyond Reasonable Doubt in criminal cases (Sec. 2, Rule 133)

2. Clear and Convincing Proof – means that the evidence is highly and
substantially more likely to be true than untrue; the fact finder must be
convinced that the contention is highly probable.
3. Preponderance of Evidence in civil cases (Sec. 1, Rule 133)
4. Substantial Evidence in administrative cases (Sec. 6, Rule 133)

Section 1. Preponderance of evidence, how determined. – In CIVIL CASES, the

party having the burden of proof must establish his OR HER case by a
preponderance of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the court may consider
all the facts and circumstances of the case, the witnesses’ manner of testifying,
their intelligence, their means and opportunity of knowing the facts to which
they are testifying, the nature of the facts to which they testify, the probability
or improbability of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately appear upon the

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trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.

Preponderance of evidence, how determined

Preponderance of Evidence – The term “preponderance of evidence” is a

quantum of evidence applicable to civil cases. It means “greater or superior
weight of evidence.” It is the evidence that is more convincing and more credible
than the one offered by the adverse party.

Preponderance of evidence 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
thereto (Cui). Preponderance of evidence is with the party who has adduced
evidence more credible and conclusive than that of the other (Cui)

Preponderance of evidence is also defined as one type of evidentiary standard

used in a burden of proof analysis. Under the preponderance standard, the
burden of proof is met when the party with the burden convinces the fact finder
or judge that there is greater than 50% chance that the claim is true.

More than 50% chance to be True

The preponderance of evidence standard comes into play when the plaintiff
satisfies the burden of proof by offering evidence that demonstrates their claims
have a greater than 50% chance to be true. In other words, if a claim can be
demonstrated to be more likely to be true than not true, the burden of proof is
met.

For example, if Linda sues Tom because of the injuries she sustained in a
car crash, Linda must convince the courts that it is more probable than not that
Tom caused the crash resulting in her injuries. She can do that by offering up
testimonial, tapes or any other evidence showing it is more likely to be true that
Tom caused these damages.

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 In the case for Recovery of Ownership, the plaintiff must persuade the
courts that it is more probable than not that she has a rightful claim than the
defendant over the disputed property. The plaintiff can establish preponderance
of evidence by presenting testimonial evidence that would show that he has been
in open, public and continuous possession of the subject piece of land, as well as
documentary evidence, like Deed of Sale, Tax Declaration, and Transfer Certificate
of Title.

Basis for determining preponderance of evidence

In determining where the preponderance or superior weight of evidence on

the issues involved lies, the court:

(1) May consider all the facts and circumstances of the case,
(2) The witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying,
(3) The nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and
(4) Also their personal credibility so far as the same may legitimately appear
upon the trial.
(5) The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.

Sec. 2. Proof beyond reasonable doubt. – In a criminal case, the accused is

entitled to an acquittal, unless his OR HER guilt is shown beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a degree of proof
as, excluding possibility of error, produces absolute certainty. Moral certainty
only is required, or that degree of proof which produces conviction in an
unprejudiced mind.”

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Proof Beyond Reasonable Doubt

Beyond a reasonable doubt is the legal burden of proof required to affirm a

conviction in a criminal case. In a criminal case, the prosecution bears the burden
of proving that the accused is guilty beyond all reasonable doubt. This means that
the prosecution must convince the judge that there is no other reasonable
explanation that can come from the evidence presented at trial. In other words,
the judge must be virtually certain of the accused’s guilt in order to render a guilty
verdict.

On account of the constitutional presumption of innocence of every defendant

in criminal proceedings, as supplemented by Section 1 (a), Rule 115 of the
Revised Rules on Criminal Procedure, the prosecution must demonstrate the
guilt of the accused beyond reasonable doubt. Otherwise, the accused
should be exonerated by the court per Section 2, Rule 133 of the Revised
Rules on Evidence (Peralta)

In simple terms, 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 (Cui, Evidence). Thus, it cannot be
overcome by mere suspicion or conjecture, i.e., a probability that the
accused committed the crime or that he had the opportunity to do so. More
so, to overcome the presumption of innocence, nothing but proof beyond
reasonable doubt of very fact essential to constitute the offense with which
the accused is charged must be established by the prosecution. (People vs.
Isla, 278 SCRA 47) Proof beyond reasonable doubt does not mean such
degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind

As an example of reasonable doubt, is the 1995 murder trial of O.J. Simpson,

where the former football star was accused of the murder of his ex-wife, Nicole
Brown Simpson, and her friend, Ron Goldman, and since the prosecution was not
able to establish the guilt of O.J. Simpson beyond a shadow of doubt, he was
acquitted by the jury.

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Rule in criminal cases

To produce a conviction, the following rules must be followed:

The prosecution must adduce proof of guilt beyond reasonable doubt, i.e.,
moral certainty not absolute certainty. Every doubt is to be resolved in favor of
the accused. Accusation is not synonymous to guilt;
Accused need not even present evidence if the evidence against him is
weak because conviction must be on the strength of the evidence of the
prosecution and not on the weakness of the evidence of the accused. If conviction
is based on circumstantial evidence, the requirements under Section 4 must be
present and if based on extrajudicial confession, same must be corroborated by
evidence of corpus delicti.

The Four (4) Elements of a Crime

1. Mental State (mens rea) – Mens rea refers to the crime’s mental elements,
specifically those associated with the accused’s intent; the criminal act
must be voluntary or purposeful. Mens rea is almost always a necessary
component in order to prove that a criminal act has been committed.

2. Conduct (actus reus) – Actus reus is required for all crimes. That is, a
criminal act (or unlawful omission of act) must have occurred. Basically, this
means you can’t be punished for thinking criminal thoughts if you have
nevr acted on them.

3. Concurrence – Mens rea and actus reus must occur at the same time; the
criminal intent must precede or exist at the same moment the criminal act
occurs. For criminal liability to oocur, there must be either overt and
voluntary action.

4. Causation – Many crimes include an element where actual harm must

occur. For example, homicide requires a killing.

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What are the facts in determining Weight of Evidence

(1) Facts and circumstances of the case;

(2) Witnesses’ manner of testifying;
(3) Witness’ Intelligence or ignorance;
(4) Witness’ means and opportunity of knowing the facts to which they are
testifying;
(5) Nature of the facts to which they testify;
(6) Probability or improbability of testimony;
(7) Witness’ interest or want of interest;
(8) Credibility of witnesses;
(9) Number of witnesses

Additional Rules for weighing Evidence

(a) Falsus in uno, falsus in omnibus;

The 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.

In recent decisions of the Supreme Court, it was ruled that the principle falsus
in uno, falsus in omnibus is not an absolute one and that it is perfectly
reasonable to believe the testimony of a witness with respect to some facts
and disbelieve it with respect to other facts. In this connection, a trial court, by
reason of its proximate contact with witnesses should be in a competent
position to discriminate between the true and the false (Moran)

(b) Affirmative and negative testimony;

According to Jones’ passage, testimony is affirmative or positive if it consists of

statements as to what a witness has heard or seen; it is negative if the witness

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states that he did not hear or did not see the phenomenon in question. This
being the distinction between testimony which is affirmative and testimony
which is negative, it is an 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 (Jones on Evidence)

Simply put, “the 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 opportunities, testifies that he did
not hear or see the same thing at the same time and place.” The reason for
this rule is the witness who testifies to a negative may have forgotten what
actually occurred while it is impossible to remember what never existed
(Jones)

(c) Delay

It has been held that the natural tendency of a person who has witnessed the
commission of a crime is to report it, and inscribe the malefactors at the
earliest opportunity (Herrera). This is especially true where the victim is so
closely related to the witness who claims to have seen the commission of the
crime, and since the witness failed to give a reasonable explanation why there
was no denunciation, the witness’ 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 (People v. Escalante, 238 SCRA
554)

Nevertheless, the Supreme Court has taken judicial notice of the natural
reticence of witnesses to get involved in the solution of crimes considering the
risk to their lives and limbs (People vs. Teehankee, 234 SCRA 233)

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(d) Testimony elicited by leading questions;

Testimony elicited by leading questions is of doubtful value. It is not really the

testimony of the witness but that of the counsel. “If counsels 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 court the phrases and
ideas not really those of the witness (Moran)

(e) Identification;

The first duty of the prosecutor is not to prove the crime but to prove the
identity of the criminal. For even if the commission of the crime can be
established, without proof of identity of the criminal beyond reasonable doubt
there can be no conviction. (Herrera). The identity of the offender, like the
crime itself, must be proved beyond reasonable doubt (Regalado)

(f) Affidavits;

Sworn statements taken ex parte are generally considered to be inferior to the

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 (People vs. Lazaro, 249 SCRA 234)

(g) Conspiracy;

Conspiracy, like the crime itself, must be proven beyond reasonable doubt.
The presence of the element of conspiracy among the accused can be proven
by their conduct before, during and after the commission of the crime showing
that the acted in unison with each other, evincing a common purpose or
design.

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(h) Self-defense;

The accused having admitted the killing of the victim but claimed that the
same was made in self-defense. Having admitted the killing, the accused
assumed the burden of showing legal justification therefor. Consistent with
the acknowledged precept, the accused has to substantiate the justifying
circumstance invoked with clear and convincing evidence. Certainly, he must
rely on the strength of his own evidence and not on the weakness of the
prosecution for even if it were weak, it could not be disbelieved after he
admitted the killing (Regalado)

(i) Insanity;

It is incumbent upon a defendant’s counsel to prove that his client was not in
his right mind or that he acted under the influence of a sudden attack of
insanity or that he was generally regarded as insane when he executed the act
attributed to him. In this regard, clear and convincing circumstantial evidence
would suffice (People vs. Austria, 260 SCRA 106)

(j) Alibi;

For alibi to prosper it is not enough to prove that appellant was somewhere
else when the 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. It must be
established by positive, clear and satisfactory evidence (Francisco)

It has been held, however, that courts should not at once look with disfavor on
the defense of alibi and that when the accused puts up the defense of alibi,
the court should not at once have a mental prejudice against it. For taken in
the light of all the evidence on record, it may be sufficient to acquit him.
Where the evidence for the prosecution is weak and betrays lack of
concreteness on the question of whether or not the accused committed the
crime charged, the defense of alibi assumes importance (Herrera)

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(k) Motive

Motive is the cause or reason that moves the will and induces action (Black’s
Law Dictionary)

Motive is always relevant but is never essential (Wigmore) Evidence of other

crimes, wrongs, or acts to prove the character of a person is admissible in an
attempt to show motive for the alleged act.

In the Philippine legal arena, motive is not an essential element of a crime, and
hence, need not be proved for purposes of conviction (Reyes). It becomes
essential only when there is doubt as to the identity of the accused, in
ascertaining the truth between two antagonistic theories or versions of the
killing, or when the evidence is merely circumstantial (Reyes)

Generally, motive becomes important when the evidence on the commission

of the crime is purely circumstantial. When there is no eyewitness to a crime,
resort to circumstantial evidence is inevitable.

Specifically, evidence of motive is needed:

1. Where the identity of the assailant is in question;

2. To determine the voluntariness of the criminal act or the sanity of the

accused;

3. To determine from which side the unlawful aggression commenced, as

where the accused invoked self-defense wherein unlawful aggression on
the part of his opponent is an essential element;

4. To determine the specific nature of the crime committed;

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5. To determine whether a shooting was intentional or accidental, the fact
that the accused had personal motive to shoot the victim being weighty;
and

6. Where the accused contends that he acted in defense of a stranger, since it

is essential, for such defense to prosper, that the accused was not induced
by revenge, resentment or other evil motive (Espejo)

SOME PRECEPTS ON EVIDENCE

1. Evidence to be worthy of credit, must not only proceed from credible

source but must, in addition, be credible in itself. And by this is meant that
it shall be natural, reasonable and probable as to make it easy to believe
(People vs. Baquiran, L – 20153, June 29, 1967),

2. Evidence to be believed should be in accord with common knowledge and

experience of mankind.

3. The testimony of a single witness may be sufficient to produce conviction if

it appears to be trustworthy and reliable (People vs. Templonuevo)

4. When a witness makes two sworn statements and these to statements

incur in the gravest contradictions, the court cannot accept either
statement as proof. The witness by his own act of giving false testimony
impeaches his own testimony (Mondragon vs. CA et,al., L –35978,
December 26, 1974)

Sec. 3. Extrajudicial confession, not sufficient ground for conviction. – An

extrajudicial confession made by an accused, shall not be sufficient ground
for conviction, unless corroborated by evidence of corpus delicti.

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Extra-Judicial Confession, Not Sufficient Ground for Conviction

Extrajudicial confessions of the accused in a criminal case are universally

recognized as admissible in evidence against him, based on the presumption that
no one would declare anything against himself unless such declarations were
true. However, pursuant to the above provision, an extrajudicial confession made
by an accused, shall not be sufficient ground for conviction, unless corroborated
by evidence of corpus delicti.

Corpus delicti – as the body of the crime or the body (material substance)
upon which a crime has been committed, e.g., the corpse of a murdered man, the
charred remains of a house burned down. In a derivative sense, it is the substance
or foundation of a crime; the substantial fact that a crime has been committed.
(Black’s Law Dictionary)

Corpus delicti is also defined in its legal sense as to refer to the fact of the
commission of the crime, NOT to the physical body of the victim. Proof of slain
body is NOT the same as proof of corpus delicti. For purposes of conviction, proof
of slain body can be dispensed with. The proof of corpus delicti cannot be
dispensed with.

If there are ashes that resemble that of burned human remains, there is no
longer any physical human body. Yet, the crime of murder can still be established
even if there is no longer any dead body. (Atty. Jay Dejaresco)

The case in point is the celebrated case and conviction of rape and murder
in Cebu of Paco Larranaga, accused of raping and killing Chiong sisters. The body
of one victim, Jacquiline was not recovered.

What Section 3, Rule 133 simple means is that there should be some
evidence tending to show the commission of the crime apart from the confession
(Herrera). It does not mean that all the elements of the crime must be clearly
established by evidence independent of that confession. To reiterate, it only
means that there should be some evidence tending to show the commission of
the crime apart from the confession.

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 The rule excluding an extrajudicial confession of the accused unless there is
independent proof of the corpus delicti is intended to guard against conviction
upon false confession of guilt. (Francisco). Either direct or circumstantial evidence
is enough to establish corpus delicti provided circumstances relied on to prove
corpus delicti is more than enough to raise a mere conjecture or suspicion
(Francisco)

Extrajudicial confession and Corpus Delicti

When someone confesses to a crime, the issue of corpus delicti becomes a

little more tricky, as a person’s confession, without substantial proof that the
required elements of corpus delicti exist, is not generally sufficient to convict the
person. As a matter of fact, a person’s statement, or confession, may not even be
admissible in court, if the prosecution has not already presented some
independent evidence that the crime occurred.

The two (2) elements of Corpus Delici

1. A certain consequence, or injury, has occurred. Example of a certain

consequence, or injury, has occurred is that a man has died.
2. The consequence, or injury, is a result of a person’s intentional unlawful
act. Or that some person is criminally responsible for it.

Examples

1. Thus, in a prosecution for theft, the corpus delicti was the taking of the
property without the consent of the owner. (Francisco)

2. In drug cases, the 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. (People vs. Callejo, G.R. No. 227427, June 6, 2018)

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 3. Tom appears at the police station and confesses to having killed Beth,
but nobody has reported that Beth is missing, and there is no body. Tom
cannot be charged with murder – what if Beth turned up a couple of
weeks later, alive and well? If Beth does not come home, however, and
an investigation ensues, but no body is found, and there is no actual
evidence that something untoward happened to her, the prosecution is
likely to have a more difficult time demonstrating the corpus delicti of
the crime.

4. A body was found in an alley wrapped in a blanket. The expert witnesses

all said the cause of death was “undetermined.” The court noted that
bodies are not normally left in alleys if a person dies of natural death.
That was enough to establish the corpus delicti for the crime of murder
was committed. (People v. Huynh (2012) 212 Cal. App. 4th 285)

5. Police stop a homeless man riding a brand-new bicycle. They ask him
where he got it. He shrugs and says, “I don’t remember. I probably stole
it.” Without other evidence to establish the corpus delicti, a prosecutor
will not be able to prove the man committed the crime of theft.

RULES GOVERNING EXTRAJUDICIAL CONFESSIONS GENERAL RULE

The extrajudicial confession of an accused is binding only upon himself and

is not admissible against his co-accused.

EXCEPTIONS

1. Interlocking confession, i.e., extrajudicial confessions independently made

without collusion which are identical with each other in their material
respects and confirmatory of the other (People vs. Encipido)

2. If the co-accused impliedly acquiesced in or adopted said confession by not

questioning its truthfulness;

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 3. Where the accused admitted the facts stated by the confessant after being
apprised of such confession (People vs. Narciso);

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

confessed by one of the accused and said confession is used only as
corroborative evidence (People vs. Linde);

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

probability of participation by the co-conspirator (People vs. Candemena);

6. Where the confessant testified for his co-conspirator (Supra);

7. Where the con-conspirator’s extrajudicial confession is corroborated by

other evidence of record (People vs. Paz).

Sec. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is

sufficient for conviction if:

1. There is more than one circumstance;

2. The facts from which the inferences are derived are proven; and
3. The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.

INFERENCES CANNOT BE BASED ON OTHER INFERENCES

Circumstantial Evidence, When Sufficient

The following are the elements to bring about conviction based on

circumstantial evidence:

1. There is more than one circumstance;

2. The facts from which the inferences are derived are proven; and

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 3. The combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.

The new Rules is explicit that INFERENCES CANNOT BE BASED ON OTHER

INFERENCES

Circumstantial Evidence

In this jurisdiction, direct evidence is not only the basis upon which the guilt
of an accused may be proved. Mindful of crimes where there are no eyewitness,
perdition of the accused can thus be premised on circumstantial evidence
(Francisco), upon the concurrence of requisites in Section 4, Rule 133.

Circumstantial evidence to sustain conviction must:

a. More than one circumstance

b. Facts from which inferences are derived are proven
c. Combination of all circumstances such as to produce conviction beyond
reasonable doubt

Direct evidence immediately establishes the main fact to be proved, but

circumstantial evidence, or evidence of relevant collateral facts, immediately
establishes collateral facts from which the main fact may be inferred (Francisco).
Circumstantial evidence is that which indirectly proves a fact in issue and the fact-
finder must draw an inference from such evidence.

May corpus delicti be proven by Circumstantial Evidence?

There are cases like death at sea, where the finding of body or recovery of the
body is impossible. It is enough that the DEATH and the CRIMINAL AGENCY
causing it be proven. There are even cases where said death and the
intervention of the criminal agency that caused it may be presumed or
established by circumstantial evidence.

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The rule now established by the weight of authority is that the element of death
in the corpus delicti may be established by circumstantial evidence. Hence, in
the case of destruction of the body, or in case of its disappearance, as in
murder upon the high seas, where the body is rarely, if ever, found, death may
be proved circumstantially. For instance, death is sufficiently shown by the
testimony of a witness that he saw the flash and heard gunfire, and that the
deceased fell on the sea, declaring that he was shot, and that the accused did
the shooting. (Atty. Dejaresco)

GUIDELINES IN CONVICTIONS BASED ON CIRCUMSTANTIAL EVIDENCE

In People vs. Galvez, the Supreme Court had the occasion to lay down the basic
guidelines that judges must observe when faced with merely circumstantial
evidence in deciding criminal cases. The probative value of such circumstantial
evidence must be distilled using the following:

1. Circumstantial evidence should be acted upon with caution;

2. All the essential facts must be consistent with the hypothesis of guilt;

3. The facts must excluded every other theory but that of the guilt of the
accused; and

4. The fact must establish with certainty the guilt of the accused so as to
convince beyond reasonable doubt that the accused was the perpetrator of
the offense. (Espejo)

Based on People v. Austria, G.R. No. 55109, April 8, 1991, where the
Supreme Court ruled that the “conviction of appellant Eduardo Austria on an
inference based on another inference cannot be maintained. It is axiomatic that
conviction should be made on the basis of a strong, clear and compelling
evidence.”

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 In said case, the Supreme Court ruled that “as regards appellant Eduardo
Austria, the only evidence against him is that he was seen at about 1: 00 o’clock in
the afternoon of August 9, 1975 along the road going to the house of the victim.
Austria. This evidence even if tied up with the testimony of Iluminada Azuelo that
Austria harbored ill-feelings against the deceased because he was dismissed from
the hacienda by the deceased does not establish or support an inference, much
less a conclusion, that he participated in the commission of the offense charged.
The conviction of appellant Eduardo Austria on an inference based on another
inference cannot be maintained.

Inference as understood

It may be recalled that 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.
(Weissenberger)

Distinction between Direct Evidence and Circumstantial Evidence

1. Direct evidence proves a challenged fact without drawing any inference.

Circumstantial evidence, on the other hand, “indirectly proves a fact in
issue, such that the fact-finder must draw an inference or reasons from
circumstantial evidence.

2. Direct evidence immediately establishes the main fact to be proved, but

circumstantial evidence, or evidence of relevant collateral facts,
immediately establishes collateral facts from which the main fact may be
inferred. (Francisco)

Probative Value

The probative value of direct evidence is generally neither greater than nor
superior to circumstantial evidence. The Rules of Court do not distinguish

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between “direct evidence of fact and evidence of circumstances from which the
existence of a fact may be inferred.” The same quantum of evidence is still
required. Courts must be convinced that the accused is guilty beyond reasonable
doubt. (Peralta)

SEC. 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.

Weight to be given opinion of expert witness, how determined

This proposed new provision, derived from Rule 702 of the FRE, would
serve the judge’s need for an explicit guide in discharging the task of determining
the weight to be given to the opinion of an expert witness that is received in
evidence. The provision lays down the basic norm that the court has a wide
latitude of discretion in determining the weight to be given to such opinion, and
for that purpose furnishes the court with three more or less specific guidelines
[(a), (b), and (c)] and one general guidelines [(d)] broad enough to include such
other factors as the court may deem helpful in making such a determination. In
sum, the provision hews to the basic sense expressed by the U.S. Supreme Court
in Daubert v. Merrel Pharmaceuticals, Inc., that the judge must have considerable
leeway in the matter and that the listing of particular factors was meant to be
“helpful” rather than “definitive.”

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 Sec. 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.

Substantial evidence

Based on the above provision, in administrative proceedings, the quantum of

proof necessary for a finding of guilt is substantial evidence or such relevant
evidence as a reasonable mind may accept as adequate to support a
conclusion.

Substantial evidence is defined as such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion. It means such evidence
which affords a substantial basis from which the fact in issue can be
reasonably inferred. Hence, strict rules of evidence are not demanded in
administrative or quasi-judicial bodies, like claim for compensation and
disability benefits (Herrera) That amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion.

Substantial evidence is also defined as more than a mere scintilla of evidence. It

means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion, even if other minds equally reasonable might
conceivably opine otherwise.

Technical Rules do not strictly applies to administrative proceedings

Technical rules or procedure are not strictly applied in administrative

proceedings and administrative due process cannot be fully equated with due
process in its strict judicial sense. Neither are strict rules of evidence
demanded by quasi-judicial bodies. (Herrera)

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 Examples

1. The Original Document Rules is not strictly applied to administrative

proceedings. For instance, an administrative body may admit in evidence a
machine copy without accounting for the original as long as there be some
proof of authenticity or reliability as condition for the admission of
documents. (Madrio v. Atlas Fertilizer Corporation, G.R. No. 241445, August
14, 2019)

2. An administrative agency may admit in evidence an object or documentary

evidence even said object or documentary has not been formally offered as
long as the same has been properly identified during the course of the trial.

3. An adminstrative body may admit in evidence even if the evidence is within

the realm of a hearsay evidence, especially it is being offered to establish
the ten or of the statement.

Sec. 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. But this power SHALL BE
exercised with caution.

The power of the court to stop further evidence

The above proviso clearly grants the trial court the authority and discretion
to stop further testimonial evidence on the ground that additional corroborative
testimony has more persuasive value as the evidence on that particular point is
already so full. (Go v. Looyuko, G.R. Nos. 147923, October 26, 2007)

Simply put, the court may stop the introduction of further testimony upon
any particular point when the evidence upon it is already so full that more
witnesses to the same point cannot be reasonably expected to be additionally
persuasive. But this power should be exercised with caution.

Sec. 7. Evidence on motion. – When a motion is based on facts not appearing of

record, the court may hear the matter on affidavits or depositions presented by

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the respective parties, but the court may direct that the matter be heard wholly
or partly on oral testimony or depositions.

Evidence on Motion

The above provision 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 the court in its discretion may order that oral testimony be
presented before it; or before a Commissioner appointed in accordance with Rule
32 of the Rules of Civil Procedure) (Herrera)

This refers to collateral issues or motions based on facts not appearing on

record such as (1) proof of service by publication (2) relief from order of default
(3) motion for the taking of deposition (4) motion for new trial (5) relief from
judgment and (6) issuance of writ of preliminary injunction.

References:

Supreme Court decisions

Evidence (the bar lecture series by Willard B. Riano)

Perspective of Evidence by Judge Eduardo B. Peralta Jr

2019 Proposed Amendments to the Revised Rules on Evidence

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 DNA EVIDENCE

1. In what situation does the Rule on DNA Evidence apply?

Answer: The Rule on DNA Evidence is the primary rule to be applied

whenever DNA evidence is offered, used, or proposed to be offered or used as
evidence in (a) criminal actions, (b) civil actions, and (c) special proceedings.

2. What is DNA? – DNA refers to deoxyribonucleic acid which is the chain

of molecules found in every nucleated cell of the body.

3. What is the significance of DNA? The significance of DNA lies in the

uniqueness of the totality of the DNA of a person. It is a scientific fact
that the totality of an individual’s DNA is unique for the individual,
except identical twins.

RULES ON DNA EVIDENCE

RESOLUTION

Acting on the recommendation of the Chairperson and Members of the

Subcommittee on Evidence submitting for this Court's consideration and
approval the proposed Rule on DNA Evidence, the Court Resolved to APPROVE
the same.

This Resolution shall take effect on October 15, 2007 following its
publication in a newspaper of general circulation.

RULE ON DNA EVIDENCE

Section. 1. Scope. - This Rule shall apply whenever DNA evidence, as defined

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in Section 3 hereof, is offered, used, or proposed to be offered or used as
evidence in all criminal and civil actions as well as special proceedings.

NOTE:

As gatekeepers of evidence and, more importantly, as fact-finders and

initial decision makers in the Philippine legal system, trial judges are tasked with
ascertaining the admissibility of expert evidence, including testimony on DNA test
results, and thereafter, assessing their credibility. In performing these tasks, trial
judges should not only be aware of the underlying technology of DNA evidence
and its real significance but, more importantly, should be given prescribed
parameters on the requisite elements for reliability and validity (i.e., the proper
procedures, protocols, necessary laboratory reports, etc), the possible source of
error, the available objections to the admission of DNA results as evidence, as
well as the probative value of DNA evidence. (The Court Systems Journal)

We have now the facility and expertise in using DNA test for identification
and parentage testing. The University of the Philippines Natural Science research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct
DNA typing using short tandem repeat (STR) analysis. The analysis is based on the
fact that the DNA of a child/person has two (2) copies, one copy from the mother
and the other from the father. The DNA from the mother, the alleged father, and
child are analyzed to establish parentage. (Tijing vs. CA, 354 SCRA 17)

A person may be compelled to submit fingerprinting, photographing,

paraffin, blood and DNA, as there is no testimonial compulsion involved. (People
vs. Yatar, 428 SCRA 504)

In case proof of filiation or paternity would be unlikely to satisfactorily

establish or would be difficult to obtain, DNA testing, which examines genetic
codes obtained from body cells of the illegitimate child and any physical residue
of the long dead parent, could be resorted to. A positive match would clear up
filiation or paternity. (Tecson vs. COMELEC, 424 SCRA 277)

In a case in which the admissibility of DNA testing as a means for

determining paternity has become the focal issue in controversy, for the first
time, the Supreme Court described DNA in the following words:

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 (See: Agustin v. Court of Appeals, 460 SCRA 315)

Sec. 2. Application of other Rules on Evidence. - In all matters not specifically

covered by this Rule, the Rules of Court and other pertinent provisions of law on
evidence shall apply.

Sec. 3. Definition of Terms. - For purposes of this Rule, the following terms shall
be defined as follows:

(a) "Biological sample" means any organic material originating from a person's
body, even if found in inanimate objects, that is susceptible to DNA testing. This
includes blood, saliva and other body fluids, tissues, hairs and bones;

(b) "DNA" means deoxyribonucleic acid, which is the chain of molecules found
in every nucleated cell of the body. The totality of an individual's DNA is unique
for the individual, except identical twins;

(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other
genetic information directly generated from DNA testing of biological samples;

(d) "DNA profile" means genetic information derived from DNA testing of a
biological sample obtained from a person, which biological sample is clearly
identifiable as originating from that person;

(e) "DNA testing" means verified and credible scientific methods which include
the extraction of DNA from biological samples, the generation of DNA profiles
and the comparison of the information obtained from the DNA testing of
biological samples for the purpose of determining, with reasonable certainty,
whether or not the DNA obtained from two or more distinct biological samples
originates from the same person (direct identification) or if the biological
samples originate from related persons (kinship analysis); and

(f) "Probability of Parentage" means the numerical estimate for the likelihood

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of parentage of a putative parent compared with the probability of a random
match of two unrelated individuals in a given population.

NOTE:

DNA is an organic substance found in a person’s cells which contains his or

her genetic code. Except for identical twins, each person’s DNA profile is distinct
and unique. (People vs. Vallejo, 382 SCRA 192)

DNA is a molecule that encodes the genetic information in all living

organism. A person’s DNA is the same in each cell and it does not change
throughout a person’s lifetime; the DNA in a person’s blood is the same as the
DNA found in his saliva, bone, the root and shaft of hair, earwax, urine, skin
tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms
in human genetic structure, no two individuals have the same DNA, with the
notable exception of identical twins.

DNA evidence collected from a crime scene can link a suspect to a crime or
eliminate one from suspicion in the same principle as fingerprints are used.
Incidents involving sexual assault would leave biological evidence such as hair,
skin tissue, semen, blood, or saliva, which can be left on the victim’s body or at
the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could
also be transferred to the victim’s body during the assault. Forensic DNA evidence
is helpful in proving that there was physical contact between the assailant and a
victim. If properly collected from the victim, crime scene or assailant, DNA can be
compared with known samples to place the suspect at the scene of the crime.
(People vs. Yatar)

Sec. 4. Application for DNA Testing Order. - The appropriate court may, at any
time, either motu proprio or on application of any person who has a legal
interest in the matter in litigation, order a DNA testing. Such order shall issue
after due hearing and notice to the parties upon a showing of the following:

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(a) A biological sample exists that is relevant to the case;

(b) The biological sample:

(i) was not previously subjected to the type of DNA testing now requested; or

(ii) was previously subjected to DNA testing, but the results may require
confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information
that is relevant to the proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order,
at the behest of any party, including law enforcement agencies, before a suit or
proceeding is commenced.

NOTE:

How may an order for a DNA testing be obtained?

A person who has a legal interest in the litigation may file an application
before the appropriate court, at any time.

The order for a DNA testing shall not however, be issued as a matter of
course and from the mere fact that the person requesting for the testing has a
legal interest in the litigation. For the order to be issued, there must be a further
showing that:

When a crime is committed, material collected from the scene of the

crime or from the victim’s body for the suspect’s DNA. This is the evidence
sample. The evidence sample is then matched with the reference sample taken
from the suspect and the victim.

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 The purpose of DNA testing is to ascertain whether an association exists
between the evidence sample and the reference sample. The samples collected
are subjected to various chemical processes to establish their profile. The test
may yield three (3) possible results:

1) The samples are different and, therefore, must have originated

from different sources (exclusion). This conclusion is absolute and requires
no further analysis or discussion;
2) It is not possible to be sure, based on the results of the test,
whether the samples have similar DNA types (inconclusive). This might
occur for a variety of reasons, including degradation, contamination, or
failure of some aspect of the protocol. Various parts of the analysis might
then be repeated with the same or a different sample, to obtain a more
conclusive results; or
3) The samples are similar, and could have originated from the
same source (inclusion). In such a case, the samples are found to be similar,
the analyst proceeds to determine the statistical significance of the
similarity. (People vs. Vallejo)

In Gan vs. Pondevida, (382 SCRA 357), the Supreme Court affirmed the
Court of Appeals denial of petitioner’s Motion to Direct Parties to Submit to DNA
Testing, since he had been long declared in default, precluding him to present
evidence on appeal.

The Supreme Court affirmed the order of the Court of Appeals remanding
the case to the trial court for DNA testing even if one of the parties had died
during appeal, citing Section 4 of this Rule. The Supreme Court held that the
death of the petitioner does not ipso facto negate the application of DNA testing
for as long as there exists appropriate biological samples of his DNA. (Estate of
Rogelio Ong vs. Diaz, 540 SCRA 480)

Is a court order always required before undertaking a DNA testing?

It is not always required. The last paragraph of Sec. 4 of the RDE allows a
testing without a prior court order if done before a suit or proceeding is
commenced at the behest of any party including law enforcement agencies. This

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also means that a litigation need not exist prior to DNA testing. Thus, a court
order shall be required only if there is a pending litigation but not before the
litigation.

Sec. 5. DNA Testing Order. - If the court finds that the requirements in Section 4
hereof have been complied with, the court shall -

(a) Order, where appropriate, that biological samples be taken from any person
or crime scene evidence;

(b) Impose reasonable conditions on DNA testing designed to protect the

integrity of the biological sample, the testing process and the reliability of the
test results, including the condition that the DNA test results shall be
simultaneously disclosed to parties involved in the case; and

(c) If the biological sample taken is of such an amount that prevents the
conduct of confirmatory testing by the other or the adverse party and where
additional biological samples of the same kind can no longer be obtained, issue
an order requiring all parties to the case or proceedings to witness the DNA
testing to be conducted.

An order granting the DNA testing shall be immediately executory and shall not
be appealable. Any petition for certiorari initiated therefrom shall not, in any
way, stay the implementation thereof, unless a higher court issues an injunctive
order. The grant of a DNA testing application shall not be construed as an
automatic admission into evidence of any component of the DNA evidence that
may be obtained as a result thereof.

NOTE:

Is the order of the court granting a DNA testing appealable?

It is not appealable and is immediately executor. Sec. 5 of the RDE clearly

provides.

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What then is the remedy against the court order if it is not appealable?

The remedy is a petition for certiorari under Rule 65 of the Rules of Court.

Is there an automatic admission of the DNA evidence obtained in the testing?

There is none. BY the terms of Sec. 5, the grant of a DNA testing application
shall not be construed as an automatic admission into evidence of any component
of the DNA evidence that may be obtained as a result of the testing. This
necessarily means that the court will still have to evaluate the probative value of
the proposed evidence before its admission.

Sec. 6. Post-conviction DNA Testing. - Post-conviction DNA testing may be

available, without need of prior court order, to the prosecution or any person
convicted by final and executory judgment provided that (a) a biological sample
exists, (b) such sample is relevant to the case, and (c) the testing would probably
result in the reversal or modification of the judgment of conviction.

NOTE:

If a person has already been convicted under a final and executor judgment,
may he still avail of DNA testing?

He may still have DNA testing. The test after his conviction is termed a
“post-conviction” DNA testing. Significantly, Sec. 6 of the RDE allows a post-
conviction DNA testing. It may be available to (a) prosecution, or (b) to the person
convicted by a final and executor judgment provided that the following
requirements are met:

Sec. 7. Assessment of probative value of DNA evidence. - In assessing the

probative value of the DNA evidence presented, the court shall consider the
following:

(a) The chain of custody, including how the biological samples were collected,
how they were handled, and the possibility of contamination of the samples;

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(b) The DNA testing methodology, including the procedure followed in
analyzing the samples, the advantages and disadvantages of the procedure, and
compliance with the scientifically valid standards in conducting the tests;

(c) The forensic DNA laboratory, including accreditation by any reputable

standards-setting institution and the qualification of the analyst who conducted
the tests. If the laboratory is not accredited, the relevant experience of the
laboratory in forensic casework and credibility shall be properly established;
and

(d) The reliability of the testing result, as hereinafter provided.

The provisions of the Rules of Court concerning the appreciation of evidence

shall apply suppletorily.

NOTE:

One year after the Tijing, in the what could be considered as a landmark
decision, the Supreme Court in People vs. Vallejo, 382 SCRA 192 [2002], a rape-
slay case of a 9 year old girl, admitted in evidence the DNA samples of the victim
which were found in the bloodstained garments of the accused. Vaginal swabs
taken from the victim were also admitted and were found to show the DNA
profiles of the accused who was subsequently convicted. Vallejo is considered by
the Court to be the “first real breakthrough of DNA as admissible and
authoritative evidence in Philippine jurisprudence.” From a mere recognition of
the existence of DNA testing, Vallejo moved towards an open use of DNA
evidence in deciding cases. Vallejo adopted the following guidelines to be used by
courts in assessing the probative value of DNA evidence”

The Vallejo standards, according to the Supreme Court, is that in assessing

the probative value of DNA evidence, courts should consider, among other things,
the following data: (1) how the samples were collected, (2) how they were
handled, (3) the possibility of contamination of the samples, (4) the procedure
followed in analyzing the samples, (5) whether the proper standards and

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procedures were followed in conducting the tests, and (6) the qualification of the
analyst who conducted the tests.

Following the trail blazed by Vallejo, the Supreme Court in 2004 in People
v. Yatar, 428 SCRA 504 [May 19, 2004], relied on evidence including DNA in
affirming the conviction of the accused for rape with homicide when the test
showed that a match existed between the DNA profile of the semen found in the
victim and the DNA profile of the blood sample given by the accused. Yatar also
made a lengthy discussion of DNA, the process of DNA testing and the reasons for
its admissibility. Yatar significantly upheld the constitutionality of compulsory
DNA and rejected the contention that compulsory testing would infringe on the
constitutional right against self- incrimination. The case significantly and clearly
recognized DNA testing and the admissibility of its result as evidence.

The science of DNA typing involves the admissibility, relevance and

reliability of the evidence obtained under the Rules. DNA profiling requires a
factual determination of the probative weight of the evidence presented. ( People
v. Yatar)

A clear acknowledgement of the importance of DNA evidence is

exemplified in the late case of In re Estate of Rogelio Ong v. Diaz, G.R. No. 171713,
December 17, 2007. The case originated in a complaint for compulsory
recognition and support filed by a minor represented by her mother. The
defendant, Rogelio Ong, died during the pendency of his appeal. Amidst the
protestation of the estate-petitioner for DNA testing because of the death of the
defendant, the Court, invoking the newly promulgated rules on DNA evidence,
held that the test may provide the definitive key to the resolution of the issue and
even if the defendant had already passed away, biological samples could be
obtained for the testing. “Even death of Rogelio cannot bar the conduct of DNA
testing.” The Supreme Court affirmed the judgment of the Court of Appeals
remanding the case to the tril court for DNA testing.

The issue of “DNA test” as a more accurate and authoritative means of

identification, than eyewitness identification, need not be belaboured. The
accused were all properly and duly identified by the prosecution’s principal
witness. (Andal v. People, 307 SCRA 650)

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Sec. 8. Reliability of DNA Testing Methodology. - In evaluating whether the DNA
testing methodology is reliable, the court shall consider the following:

(a) The falsifiability of the principles or methods used, that is, whether the
theory or technique can be and has been tested;

(b) The subjection to peer review and publication of the principles or methods;

(c) The general acceptance of the principles or methods by the relevant

scientific community;

(d) The existence and maintenance of standards and controls to ensure the
correctness of data generated;

(e) The existence of an appropriate reference population database; and

(f) The general degree of confidence attributed to mathematical calculations

used in comparing DNA profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles.

Sec. 9. Evaluation of DNA Testing Results. - In evaluating the results of DNA

testing, the court shall consider the following:

(a) The evaluation of the weight of matching DNA evidence or the relevance of
mismatching DNA evidence;

(b) The results of the DNA testing in the light of the totality of the other
evidence presented in the case; and that

(c) DNA results that exclude the putative parent from paternity shall be
conclusive proof of non-paternity. If the value of the Probability of Paternity is
less than 99.9%, the results of the DNA testing shall be considered as

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corroborative evidence. If the value of the Probability of Paternity is 99.9% or
higher, there shall be a disputable presumption of paternity.

NOTE:

In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis,

the extremely subjective test of physical resemblance or similarity of features will
ot suffice as evidence to prove paternity and filiation before the courts of law.
(Cabatania v. Court of Appeals, 441 SCRA 96)

In a paternity test, the forensic scientist looks at a number of these

variable regions in an individual to produce a DNA profile. Comparing next the
DNA profiles of the mother and child, it is possible to determine which half of the
child’s DNA was inherited from the mother. The other half must have been
inherited from the biological father. The alleged father’s profile is then examined
to ascertain whether he has the DNA types in his profile, which match the
paternal types in the child. If the man’s DNA types do not match that of the child,
the man is excluded as the father. If the DNA types match, then he is not excluded
as the father.

It is not enough to state that the child’s DNA profile matches that of the
putative father. A complete match between the DNA profile of the child and the
DNA profile of the putative father does not necessarily establish paternity. For
this reason, following the highest standard adopted in an American jurisdiction,
trial courts should require at least 99.9% as a minimum value of the Probability of
Paternity (“W”) prior to a paternity inclusion. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the probability of a
random match of two unrelated individuals. An appropriate reference population
database, such as the Philippine population database, is required to compute for
W. Due to the probabilistic nature of paternity inclusions, W will never equal to
100%. However, the accuracy of W estimates is higher when the putative father,
mother and child are subjected to DNA analysis compared to those conducted
between the putative father and the child alone.

DNA analysis that excludes the putative father from paternity should be
conclusive proof of non-paternity. If the value of W is less than 99.9%, the results
of the DNA analysis should be considered as corroborative evidence. If the value

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of W is 99. 9% or higher, then there is refutable presumption of paternity. This
refutable presumption of paternity should be subjected to the Vallejo standards.
(Herrera v. Alba, 460 SCRA 197).

Obtaining DNA samples from an accused in a criminal case or from the

respondent in a paternity case, will not violate the right against self-incrimination.
This privilege applies only to evidence that is “communicative” in essence taken
under duress. (Herrera vs. Alba)

Sec. 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable to the
Convict. - The convict or the prosecution may file a petition for a writ of habeas
corpus in the court of origin if the results of the post-conviction DNA testing are
favorable to the convict.

In case the court, after due hearing, finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and order the release of the
convict, unless continued detention is justified for a lawful cause.

A similar petition may be filed either in the Court of Appeals or the Supreme
Court, or with any member of said courts, which may conduct a hearing thereon
or remand the petition to the court of origin and issue the appropriate orders.

NOTE:

A new trial on the ground of post-conviction DNA testing is different from

a new trial under Rule 121, which is available only before final judgment. Unlike a
new trial under Rule 121, a new trial for post-conviction DNA testing does nor
vacate the judgment of conviction, which stands until recalled by the court as a
result of the new trial. A new trial after final conviction may be ordered only on
the sole ground that DNA testing will establish that the convicted felon could not
have committed the crime. Moreover, DNA testing must not have been available
or possible during the original trial.

However, such a remedy is sui generis to give the convicted felon a chance
to adduce DNA evidence until Rule 121 of the Revised Rules of Criminal Procedure
is revised anew. (In Re: The Writ of Habeas Corpus of Reynaldo de Villa, 442 SCRA
706).

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What remedy is available to the convict if the results of the post DNA testing are
favourable to him?

If the results of the DNA testing are favourable to the convict, he may file a
petition for a writ of habeas corpus in the court of origin. The court shall then
conduct a hearing and in case the court finds, after due hearing, that the petition
is meritorious, it shall reverse or modify the judgment of conviction and order the
release of the convict, unless his detention is justified for a lawful cause.

The petition shall be filed in the court of origin as a rule. However, the rule
also allows the petition to be filed either in the Court of Appeals or in the
Supreme Court, or with any member of said courts. A hearing may be conducted
by the latter courts or by any member thereof or instead of conducting a hearing,
may instead remand the petition to the court of origin and issue the appropriate
orders.

Sec. 11. Confidentiality. - DNA profiles and all results or other information
obtained from DNA testing shall be confidential. Except upon order of the court,
a DNA profile and all results or other information obtained from DNA testing
shall only be released to any of the following, under such terms and conditions
as may be set forth by the court:

(a) Person from whom the sample was taken;

(b) Lawyers representing parties in the case or action where the DNA evidence
is offered and presented or sought to be offered and presented;

(c) Lawyers of private complainants in a criminal action;

(d) Duly authorized law enforcement agencies; and

(e) Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any information concerning

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a DNA profile without the proper court order shall be liable for indirect
contempt of the court wherein such DNA evidence was offered, presented or
sought to be offered and presented.

Where the person from whom the biological sample was taken files a written
verified request to the court that allowed the DNA testing for the disclosure of
the DNA profile of the person and all results or other information obtained from
the DNA testing, the same may be disclosed to the persons named in the
written verified request.

NOTE:

Are the DNA profiles of a person open to public scrutiny?

They are not. DNA profiles and all the results or other information obtained
from DNA testing are confidential.

Sec. 12. Preservation of DNA Evidence. - The trial court shall preserve the DNA
evidence in its totality, including all biological samples, DNA profiles and results
or other genetic information obtained from DNA testing. For this purpose, the
court may order the appropriate government agency to preserve the DNA
evidence as follows:

(a) In criminal cases:

i. for not less than the period of time that any person is under trial for an
offense; or

ii. in case the accused is serving sentence, until such time as the accused has
served his sentence; and

(b) In all other cases, until such time as the decision in the case where the DNA
evidence was introduced has become final and executory.

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The court may allow the physical destruction of a biological sample before the
expiration of the periods set forth above, provided that:

(a) A court order to that effect has been secured; or

(b) The person from whom the DNA sample was obtained has consented in
writing to the disposal of the DNA evidence.

Sec. 13. Applicability to Pending Cases. - Except as provided in Sections 6 and 10

hereof, this Rule shall apply to cases pending at the time of its effectivity.

Sec. 14. Effectivity. - This Rule shall take effect on October 15, 2007, following
publication in a newspaper of general circulation.

BAR 2010

In a prosecution for rape, the defense relied on Deoxyribonucleic Acid

(DNA) evidence showing that the semen found in the private part of the victim
was not identical with that of the accused’s. As private prosecutor, how will you
dispute the veracity and accuracy of the results of the DNA evidence?

Suggested answer

As private prosecutor, I shall try to discredit the results of the DNA test by
questioning and possibly impugning the integrity of the DNA profile by showing a
flaw/error in obtaining the biological sample, or in the chain of custody of the
biological sample obtained; the testing methodology employed; the scientific
standard observed; the forensic DNA laboratory which conducted the test; and
the qualification, training and experience of the forensic laboratory personnel
who conducted the DNA testing.

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 EN BANC
RESOLUTION

Acting on the Memorandum dated 18 June 2001 of the Committee on

the Revision of the Rules of Court to Draft the rules on E-Commerce Law [R.A.
No. 8792]submitting the Rules on Electronic Evidence for this Court’s
consideration and approval, the Court Resolved to APPROVED the same.

The Rules on Electronic Evidence shall apply to cases pending after their
effectivity. These Rules shall take effect on the first day of August 2001
following their publication before the 20th of July in two newspapers of
general circulation in the Philippines.

RULES ON ELECTRONIC EVIDENCE

(A.M. No. 01-7-01-SC)

RULE 1
COVERAGE

SECTION 1. Scope. - Unless otherwise provided herein, these Rules shall apply
whenever an electronic data message (refers to information generated,
received, sent, or stored by electronic, optical or similar means), as defined in
Rule 2 hereof, is offered or used in evidence.

SEC. 2. Cases covered. - These Rules shall apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases.

NOTE:

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 The application of the Rules of Evidence in the Rules of Court contrasts
with the application of the Rules on Electronic Evidence (REE). While the
definition of “evidence” under the Rules of Court makes reference only to
judicial proceedings, the provisions of the Rules on Electronic Evidence apply
to all civil actions, criminal cases, and proceedings, as well as to quasi-judicial
and administrative cases.

When the REE first went into effect, its applicability was limited to “civil
actions and proceedings, as well as quasi-judicial and administrative cases.”
Notably, criminal cases were excluded from the coverage of the REE.

However, about a year thereafter, or on September 24, 2002, the

Supreme Court issues a resolution (A.M. No. 01-07-01) expanding the
coverage of the REE to criminal cases. The resolution amended Section 2, Rule
1 of the REE as follows:

“SEC. 2. Cases Covered. – These Rules shall apply to all criminal and
civil actions and proceedings, as well as quasi-judicial and
administrative cases.”

The amendment took effect on October 14, 2002 following its

publication in the Manila Bulletin, a newspaper of general circulation, on Sept.
27, 2002.

However, about ten (10) years after the amendment, the Supreme
Court, in Ang v. Court of Appeals (G.R. NO. 182835, April 10, 2010), held that
the REE does not apply to criminal actions.

In this case, the accused Rustan Ang was charged under RA 9262
(Violence against Women and Children Act) for sending an MMS to his ex-
girlfriend (Irish Sagud) consisting of pictures of a naked woman with legs
spread with her face superimposed on the figure. After she got the obscene
picture, Irish got other text messages from Rustan, boasting that it would be
easy for him to create and sent through the Internet similarly scandalous
pictures of her.

Rustan Ang questioned the admissibility of the obscene picture which

he sent as MMS to the complainant. He claimed that since the MMS was not

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authenticated in accordance with the REE, it was inadmissible as evidence
against him.

The Supreme Court held that Rustan Ang waived the objection as he did
not raise it at the time the electronic message was offered in evidence. The
High Court added: “Besides, the rules he cites do not apply to the present
criminal action. The Rules on Electronic Evidence applies only to civil actions,
quasi-judicial proceedings and administrative proceedings.”

Significantly, the Ang case made no mention of the 2002 amendment

extending the coverage of the REE to criminal cases.

SEC. 3. Application of the other rules on evidence. - In all matters not

specifically covered by these Rules, the Rules of Court and pertinent
provisions of statues containing rules on evidence shall apply.

RULE 2
DEFINITION OF TERMS AND CONSTRUCTION

SECTION 1. Definition of Terms. - For purposes of these Rules, the following

terms are defined, as follows:

(a)“Asymmetric or public cryptosystem” means a system capable of generating

a secure key pair, consisting of a private key for creating a digital signature,
and a public key for verifying the digital signature.

(b) “Business records” include records of any business, institution, association,

profession, occupation, and calling of every kind, whether or not conducted
for profit, or for legitimate purposes.
(c) “Certificate” means an electronic document issued to support a digital
signature which purports to confirm the identity or other significant
characteristics of the person who holds a particular key pair.
(d) “Computer” refers to any single or interconnected device or apparatus,
which, by electronic, electro-mechanical or magnetic impulse, or by other
means with the same function, can receive, record, transmit, store, process,
correlate, analyze, project, retrieve and/or produce information, data, text,
graphics, figures, voice, video, symbols or other modes of expression or
perform any one or more of these functions.

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(e) “Digital Signature” refers to an electronic signature consisting of a
transformation of an electronic document or an electronic data message using
an asymmetric or public cryptosystem such that a person having the initial
untransformed electronic document and the signer’s public key can accurately
determine:

(i) whether the transformation was created using the private key that
corresponds to the signer’s public key; and
(ii) whether the initial electronic document had been altered after the
transformation was made.
(f) “Digitally signed” refers to an electronic document or electronic data
message bearing a digital signature verified by the public key listed in a
certificate.
(g) “Electronic data message” refers to information generated, sent, received
or stored by electronic, optical or similar means.
(h) “Electronic document” refers to information or the representation of
information, data, figures, symbols or other modes of written expression,
described or however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and affirmed, which
is received, recorded, transmitted, stored processed, retrieved or produced
electronically. It includes digitally signed documents and any print-out or
output, readable by sight or other means, which accurately reflects the
electronic data message or electronic document. For purposes of these Rules,
the term “electronic document” may be used interchangeably with electronic
data message”.

NOTE:

Some examples of electronic data message or electronic evidence are

files in computer hard drives and diskettes, computer printouts, text messages
(SMS), Facebook chats, multimedia messages (MMS) and CCTV footage.

An electronic document, also known interchangeably as electronic

message (Sec. 1 (h), Rules on Electronic Evidence), based on the definition of
the Rules, does not only refer to the information itself. It also refers to the
representation of that information. Whether it be the information itself, or its
representation, for the document to be deemed ‘electronic,’ it is important
that it be received, recorded, transmitted, stored, processed, retrieved or
produced electronically.

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 It is submitted that the rule does not absolutely require that the
electronic document be initially generated or produced electronically. A
contract for instance which was prepared through the traditional written way
may be converted to an electronic document if transmitted or received or
later recorded electronically.

The rule also emphasizes that an electronic document is one that may
be used for any of the following purposes:

1. To establish a right;
2. To extinguish an obligation; or
3. To prove or affirm a fact.

(i) “Electronic key” refers to a secret code which secures and defends sensitive
information that crosses over public channels into a form decipherable only
with a matching electronic key.
(j) “Electronic signature" refers to any distinctive mark, characteristics and/or
sound in electronic form. Representing the identity of a person and attached
to or logically associated with the electronic data message or electronic
document or any methodology or procedure employed or adopted by a person
and executed or adopted by such person with the intention of authenticating,
signing or approving an electronic data message or electronic document. For
purposes of these Rules, an electronic signature includes digital signatures.
(k) “Ephemeral electronic communication” refers to telephone conversations,
text messages, chatroom sessions, streaming audio, streaming video, and
other electronic forms of communication the evidence of which is not
recorded or retained.

This is because Yahoo! Mails and Facebook posts may be accessed for
any duration of time but are susceptible of being deleted, kept private, or
restricted access.

(l) “Information and Communication System” refers to a system for generating,

sending, receiving, storing or otherwise processing electronic data messages
or electronic documents and includes the computer system or other similar
devices by or in which data are recorded or stored and any procedure related
to the recording or storage of electronic data message or electronic
document.

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(m) “Key Pair” in an asymmetric cryptosystem refers to the private key and its
mathematically related public key such that the latter can verify the digital
signature that the former creates.
(n) “Private Key” refers to the key of a key pair used to create a digital
signature.
(o) “Public Key” refers to the key of a key pair used to verify a digital
signature.

SEC. 2. Construction. – These Rules shall be liberally construed to assist the

parties in obtaining a just, expeditious, and inexpensive determination of
cases.

The Interpretation of these Rules shall also take into consideration the
international origin of Republic Act No. 8792, otherwise known as the
Electronic Commerce Act.

RULE 3
ELECTRONIC DOCUMENTS

SECTION 1. Electronic documents as functional equivalent of paper-based

documents. – Whenever a rule of evidence refers to the term of writing,
document, record, instrument, memorandum or any other form of writing,
such term shall be deemed to include an electronic document as defined in
these Rules.

NOTE:

Since, an electronic document is the functional equivalent of a paper –

based document, whenever a rule of evidence makes reference to the terms of
a writing, a document, a record, an instrument, a memorandum or any other
form of writing, such terms are deemed to include electronic documents. It is
therefore but logical to consider the rules of evidence in the Rules of Court,
including statutes containing rules of evidence, to be of suppletory application
to the Rules on Electronic Evidence in all matters not specifically covered by
the latter.

SEC. 2. Admissibility. – An 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.

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NOTE:

Electronic evidence is competent evidence and is admissible if it

complies with the rules on admissibility prescribed by the Rules of Court and
is authenticated in the manner prescribed.

The basic requisites for the admissibility of an object or real evidence:

(a)The evidence must be relevant;

(b) The evidence must be authenticated (See: Rule 5, REE);
(c) The authentication must be made by a competent witness; and
(d) The object must be formally offered in evidence.

SEC. 3. Privileged communication. – The confidential character of a privileged

communications is not (lost) solely on the ground that it is in the form of an
electronic document.

NOTE:

Privileged communications apply even to electronic evidence. Under

Section 3, Rule 3 of the Rules on Electronic Evidence, the confidential
character of a privileged communication is not lost solely on the ground that it
is in the form of an electronic evidence.

Can the Facebook posts and Yahoo! E-mails be used as evidence to file a
case? Or whether or not the Facebook posts and Yahoo! Mails are privileged or
private in nature?

I would assume that the Yahoo! Mail exchanges are private, unless your
husband supplied you with his password himself, such that he had no
expectation of privacy against your prying eyes. Otherwise, the email
exchanges are not admissible in evidence since presenting them before the
court would violate your husband and his paramour’s right to privacy of
communication.

375
 RULE 4
BEST EVIDENCE RULE

SECTION 1. Original of an electronic document. – An electronic document shall

be regarded as the equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by sight or other means,
shown to reflect the data accurately.

SEC. 2. Copies as equivalent of the originals. – When a document is in two or

more copies executed at or about the same time with identical contents, or is a
counterpart produced by the same impression as the original, or from the
same matrix, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which is accurately
reproduces the original, such copies or duplicates shall be regarded as the
equivalent of the original. Notwithstanding the foregoing, copies or duplicates
shall not be admissible to the same extent as the original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unjust or inequitable to admit a copy in

lieu of the original.

NOTE:

Query: Is a printout of a facsimile transmission an electronic data message or

electronic document?

Answer: This question was answered by the Supreme Court in MCC Industrial
Sales Corporation v. Ssanyong Corporation, G.R. No. 170633, October 17,
2007.

The Court in this case concluded that the terms “electronic data
message” and “electronic document,” as defined under the Electronic
Commerce Act of 2000, do not include a facsimile transmission and cannot be
considered as electronic evidence. It is not the functional equivalent of an
original under the Best Evidence Rule and is not admissible as electronic
evidence.

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 RULE 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS

SECTION 1. Burden of proving authenticity. – The person seeking to introduce

an electronic document in any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule.

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.

NOTE:

Notice that the aforementioned rigorous requirements for the

authentication of an electronic document do not apply to all electronic
documents. Sec. 2 of Rule 5 will obviously apply only when the document is a
private electronic document and when the same is offered as an authentic
document.

If the electronic document is offered simply for what it is or for what it

is claimed to be without regard to whether or not it is authentic, Sec. 2 of Rule
5 finds no relevance. In such a case, the electronic document has only to be
identified pursuant to the suppletory application of Sec. 20 of Rule 132 of the
Rules of Court. Accordingly, under the said provision, “Any other private
document needs only to be identified as that which it is claimed to be.”

When for instance, a document is electronically notarized, the manner

of authentication under Sec. 2 of Rule 5 will not likewise apply. When so
notarized, it is transformed into a public document and is to be proved not in

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accordance with the Rules on Electronic Evidence but in accordance with the
Rules of Court.

SEC. 3. Proof of electronically notarized document. - A document electronically

notarized in accordance with the rules promulgated by the Supreme Court
shall be considered as a public document and proved as a notarial document
under the Rules of Court.

Sec. 30 of Rule 132 of the Rules of Court, provides for the manner of
proving notarial documents. In distinct terms, the provision categorically
states that “... 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.

NOTE:

BAR 2003

(a)State the rule on admissibility of electronic documents.

SUGGESTED ANSWER: see Secs. 1 and 2 Rule 5, Rules on Electronic Evidence.

(b) When is an electronic evidence regarded as being the equivalent of

an original document under the Best Evidence Rule?

SUGGESTED ANSWER: see Secs. 1 and 2, Rule 4, Rules on Electronic Evidence

Are social media posts admissible in evidence?

Facebook post by Mr. Y reads: Senator X is a crook. He stole millions of

taxpayers’ money from the PDAF. He is a certified thief. He deserves all the
public humiliation that he is now getting.”

This kind of comment is definitely libelous. It may be the basis for a civil case
for damages and a criminal case for libel.

The Facebook post in question is considered a document pursuant to the

functional equivalence and non-discrimination principles.

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Under this principle, an electronic document is considered the functional
equivalent of a paper-based document and should not be discriminated
against as evidence solely on the ground that it is not in the standard paper
form.

The REE provides that “whenever a rule of evidence refers to the term writing,
document, record, instrument, memorandum or any other form of writing,
such term shall be deemed to included an electronic document as defined in
these Rules (Section 1, Rule 3)

In layman’s term, the Facebook post in question should be treated as a paper-

based document. The legal question is how to prove or authenticate this
Facebook post as evidence in a court of law.

ELECTRONIC DOCUMENT:

There are two possible situations.

The first is that a record of the Facebook post is retained. In such case, the
post is characterized as electronic document under the ECA and REE.

Section 2, Rule 5 of the REE provides that: “before any private 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.”

The first two modes are technical. The first is authentication through digital
signatures

The second is authentication through other security procedures or devices

(retina scan, PDF-8), as may be authorized by the SC.

The third mode is known as the layman’s approach.

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For example, the prosecution may present a witness to testify that he saw Y
write the post in his Facebook account because, according to him, he hates
public officials feasting on the people’s money.

IN practical terms, under the layman’s approach, authenticating an electronic

document is just like authenticating a paper-based document under the
traditional rules of evidence. No more, no less.

EPHEMERAL COMMUNICATION

The second situation is that the Facebook post is deleted at a certain point, as
what often happens.

The REE has provision specifically addressing the situation. If deleted or

removed, the post is considered ephemeral electronic communication under
the REE.

Section 1 (k), Rule 2 of the REE….

Section 2, Rule 11 of the REE, provides: “ephemeral electronic

communications shall be proven by the testimony of a person who was a party
to the same or has personal knowledge thereof. In the absence or
unavailability of such witnesses, other competent evidence may be admitted. “

IN effect, this mode of authentication follows the layman’s approach for

authenticating electronic evidence.

RULE 6
ELECTRONIC SIGNATURES

SECTION 1. Electronic signature. – An electronic signature or a digital

signature authenticated in the manner prescribed hereunder is admissible in
evidence as the functional equivalent of the signature of a person on a written
document.

SEC. 2. Authentication of electronic signatures. – An electronic signature may

be authenticate in any of the following manner:

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(a) By evidence that a method or process was utilized to establish a digital
signature and verity the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the
genuineness of the electronic signature.

SEC. 3. Disputable presumptions relation to electronic signature. – Upon the

authentication of an electronic signature, it shall be presumed that:
(a) The electronic signature is that of the person to whom it correlates;
(b) The electronic signature was affixed by that person with the intention of
authenticating or approving the electronic document to which it is related or
to indicate such person’s consent to the transaction embodied therein; and
(c) The methods or processes utilized to affix or verity the electronic
signature operated without error or fault.

SEC. 4. Disputable presumptions relating to digital signatures. – Upon the

authentication of a digital signature, it shall be presumed, in addition to those
mentioned in the immediately preceding section, that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational period of a
certificate;
(c) The message associated with a digital signature has not been altered from
the time it was signed; and
(d) A certificate had been issued by the certification authority indicated
therein

RULE 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

SECTION 1. Factors for assessing evidentiary weight. - In assessing the

evidentiary weight of an electronic document, the following factors may be
considered:

(a) The reliability of the manner or method in which it was generated, stored
or communicated, including but not limited to input and output procedures,
controls, tests and checks for accuracy and reliability of the electronic data
message or document, in the light of all the circumstances as well as any
relevant agreement;

381
(b) The reliability of the manner in which its originator was identified;

(c) The integrity of the information and communication system in which it is

recorded or stored, including but not limited to the hardware and computer
programs or software used as well as programming errors;

(d) The familiarity of the witness or the person who made the entry with the
communication and information system;

(e) The nature and quality of the information which went into the
communication and information system upon which the electronic data
message or electronic document was based; or

(f) Other factors which the court may consider as affecting the accuracy or
integrity of the electronic document or electronic data message.

SEC. 2. Integrity of an information and communication system. – In any dispute

involving the integrity of the information and communication system in which
an electronic document or electronic data message is recorded or stored, the
court may consider, among others, the following factors:

(a) Whether the information and communication system or other similar

device was operated in a manner that did not affect the integrity of the
electronic document, and there are no other reasonable grounds to doubt the
integrity of the information and communication system;

(b) Whether the electronic document was recorded or stored by a party to the
proceedings with interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored in the usual and
ordinary course of business by a person who is not a party tot he proceedings
and who did not act under the control of the party using it.

RULE 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

SECTION 1. Inapplicability of the hearsay rule. – A memorandum, report,

record or data compilation of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means at or near the time of or

382
from transmission or supply of information by a person with knowledge
thereof, and kept in the regular course or conduct of a business activity, and
such was the regular practice to make the memorandum, report, record, or
data compilation by electronic, optical or similar means, all of which are
shown by the testimony of the custodian or other qualified witnesses, is
excepted from the rule or hearsay evidence.

SEC. 2. Overcoming the presumption. – The presumption provided for in

Section 1 of this Rule may be overcome by evidence of the untrustworthiness
of the source of information or the method or circumstances of the
preparation, transmission or storage thereof.

RULE 9
METHOD OF PROOF

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.

SEC. 2. Cross-examination of deponent. – The affiant shall be made to affirm

the contents of the affidavit in open court and may be cross-examined as a
matter of right by the adverse party.

RULE 10
EXAMINATION OF WITNESSES

SECTION 1. Electronic testimony. – After summarily hearing the parties

pursuant to Rule 9 of these Rules, the court may authorize the presentation of
testimonial evidence by electronic means. Before so authorizing, the court
shall determine the necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstance, including the
protection of the rights of the parties and witnesses concerned.

SEC. 2. Transcript of electronic testimony. – When examination of a witness is

done electronically, the entire proceedings, including the questions and
answers, shall be transcribed by a stenographer, stenotypes or other recorder
authorized for the purpose, who shall certify as correct the transcript done by

383
him. The transcript should reflect the fact that the proceedings, either in
whole or in part, had been electronically recorded.

SEC. 3. Storage of electronic evidence. – The electronic evidence and recording

thereof as well as the stenographic notes shall form part of the record of the
case. Such transcript and recording shall be deemed prima facie evidence of
such proceedings.

RULE 11
AUDIO, PHOTOGRAPHIC. VIDEO AND EPHEMERAL EVIDENCE

SECTION 1. Audio, video and similar evidence. – Audio, photographic and video
evidence of events, acts or transactions shall be admissible provided is shall
be shown, presented or displayed to the court and shall be identified,
explained or authenticated by the person who made the recording or by some
other person competent to testify on the accuracy thereof.

SEC. 2. Ephemeral electronic communication. – Ephemeral electronic

communications shall be proven by the testimony of a person who was a party
to the same or has personal knowledge thereof. In the absence or
unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic

communication shall be covered by the immediately preceding section.
If the foregoing communications are recorded or embodied in an electronic
document, then the provisions of Rule 5 shall apply.

NOTE:

These forms of communications refer to telephone conversations, text

messages, chatroom sessions, streaming audio, and other forms of electronic
communication, the evidence of which is not recorded or retained. Thus, a
claim that the admission of text messages as evidence constitutes a violation
of the right to privacy is unavailing, the messages being evidence under the
rules (Vidallon-Magtolis v. Salud, 469 SCRA 439, Nuez v. Cruz-Apao, 455 SCRA
288).

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 IN CASES INVOLVING TEXT MESSAGES AS EVIDENCE, THE SUPREME COURT RULED THAT
IT IS SUFFICIENT FOR THE SENDER TO HAVE ADMITTED THAT THE MOBILE NUMBER FROM
WHOM THE TEXT MESSAGES CAME FROM WAS HIS. THIS SERVED TO AUTHENTICATE THE
MESSAGES PRESENTED BY THE RECEIVING PARTY. APPLYING THIS TO E-MAILS, AN
ADMISSION BY A PARTY THAT THE E-MAIL ADDRESS OF THE SENDER BELONGS TO HIM
COULD ALSO SERVE TO AUTHENTICATE THE E-MAILS THEMSELVES.

If the ephemeral electronic communication or a telephone conversation,

Facebook posts, or Yahoo! E-mails, are not recorded, it may be testified to by a
person having direct knowledge of the existence of the same because he had
seen them with his own eyes, hence, he could testify on the existence of these
ephemeral communication before the court. But it is required that the witness
must be a party to the communication.

If the ephemeral electronic communication or a telephone conversation

is recorded, it now is no longer ephemeral hence, it shall be proven following
the procedure provided for under Sec. 1 of Rule 11 of the Rules of Electronic
Evidence. That means that the recording (a) shall be shown, presented or
displayed to the court, and (b) shall be identified, explained or authenticated
by either:

1. The person who made the recording, or

2. By some other person competent to testify on the accuracy thereof.

Under the Rules on Electronic Evidence, the admissibility of audio,

photographic and video evidence of events, acts or transactions rests on (a)
their being shown, presented or displayed in court, and (b) their being
identified, explained or authenticated by the person who made the recording
or by some other person competent to testify on the accuracy thereof.
Under these rules, the identification and authentication need not be
made by the recorder himself but by some other person who can testify as to
the accuracy of the recording.
Are text messages admissible as evidence in court?

IN the 2001 administrative case of Nuez v. Cruz-Apao, the SC admitted

in evidence SMS or text messages sent by the respondent to the complainant.
The messages proved the respondent’s illegal solicitation of money for a
favourable decision in the appellate court. In admitting the text messages as

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evidence the SC cited the E-Evidence Rules which defined the term
“ephemeral electronic communication” and classified text messages as such.

RULE 12
EFFECTIVITY

SECTION 1. Applicability to pending case. – These Rules shall apply to cases

pending after their effectivity.

SEC. 2. Effectivity. – These Rules shall take effect on the first day of August
2001 following their publication before the 20th day of July 2001 in two
newspapers of general circulation in the Philippines.

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